IN RE: MARLENE H. (2023)

Order, Family Court, Bronx County (Peter J. Passidomo, J.), entered on or about March 15, 2022, which denied respondent father's motion to vacate the final order of protection after a de novo hearing, unanimously reversed, on the law, without costs, and the matter remanded to Family Court for a new hearing and determination on whether the father wishes to appear with counsel, or to knowingly, voluntarily, and intelligently waive his right to counsel, and the order of protection modified to delete the name of the mother's now adult daughter, S. C., as a protected party and shall remain in place as a temporary order of protection pending the outcome of the hearing.

As petitioner conceded at oral argument, the court failed to conduct the requisite “searching inquiry” to ensure that the father's waiver of his right to counsel was “knowing, intelligent, and voluntary” (Matter of Angel N. v. Elizabeth A., 169 A.D.3d 596, 596, 95 N.Y.S.3d 50 [1st Dept. 2019] [internal quotation marks omitted]).  While the court advised both parties that they had the right to be represented by counsel, could seek an adjournment to speak to one, and that one might be appointed to them, the court did not question the father about his background, such as age, education, or occupation, and any prior experience of being a pro se litigant or being exposed to legal procedures (see Matter of Casey N., 59 A.D.3d 625, 627, 873 N.Y.S.2d 343 [2d Dept. 2009], lv denied 12 N.Y.3d 710, 2009 WL 1299011 [2009]).  It also did not caution the father against self-representation, detail the dangers and disadvantages of doing so, or inform him that he would have to follow the same legal rules as if he had been represented (see Matter of Maren R. v. Manoch Robert R., 200 A.D.3d 583, 584, 155 N.Y.S.3d 759 [1st Dept. 2021];  Matter of Angel N. v. Elizabeth A., 169 A.D.3d 596, 596–597, 95 N.Y.S.3d 50 [1st Dept. 2019]).  Thus, the court failed to evaluate the father's competency to waive counsel and his understanding of the consequences of self-representation (see People v. Arroyo, 98 N.Y.2d 101, 104, 745 N.Y.S.2d 796, 772 N.E.2d 1154 [2002]).

Pending a new determination, the order of protection shall remain in effect as a temporary order of protection.  Nevertheless, we modify it to delete the mother's now-adult daughter as one of the protected parties.

The father's claim that the court was biased against him is unsubstantiated by the record.