Mark L. O., Appellant.  (Appeal No. 2.) v. <<

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of JENNIFER O., Crystal O. and Alicia O. Jefferson County Department of Social Services, Respondent; Mark L. O., Appellant.  (Appeal No. 2.)

Decided: December 31, 1998

PRESENT:  DENMAN, P.J., HAYES, PIGOTT, Jr., CALLAHAN and FALLON, JJ. Robert Mascari, Syracuse, for Respondent-Appellant Mark Osmundson. Jefferson County Dept. of Social Services (Charles M. Thomas, of counsel), Watertown, for Petitioner-Respondent DSS. Eric Swartz, Watertown, for Petitioner-Respondent Helen Osmundson. Lisa Weldon, Watertown, for Law Guardian.

 Respondent contends that Family Court erred in concluding that he willfully violated an order of protection barring him from unsupervised contact with his three children.   We disagree.   At the hearing on the violation petition, respondent admitted that he was alone in a waiting room with his children for a few minutes.   The record supports the finding that the violation was willful.

 The court did not err in holding a joint hearing to receive evidence concerning the mother's petition to relocate, a family offense petition and the dispositional phase of the violation petition.   The issues and proof in the three matters were overlapping.   Respondent failed to establish that the court considered hearsay or other incompetent evidence introduced concerning the disposition on the violation petition in its factual determinations on the other petitions.   There is overwhelming evidence that the relocation of the children with their mother to another State is in the children's best interests (see, Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740-741, 642 N.Y.S.2d 575, 665 N.E.2d 145).   There is competent evidence to support the determination that respondent violated an order of protection barring any contact with the mother by sending threatening letters to her.

 Respondent was not deprived of his right to counsel because he proceeded pro se.  “While the Family Court Act guarantees certain indigent persons the right to the assistance of counsel, those persons are not guaranteed the right to their choice of assigned counsel * * *.   The fact that the court in this case refused to accede to the [respondent's] demand that [he] be assigned the attorney of [his] choice does not mean that [his] decision to proceed pro se was coerced or that the court deprived [him] of [his] right to counsel” (Matter of Child Welfare Admin. v. Jennifer A., 218 A.D.2d 694, 696, 630 N.Y.S.2d 379, lv. denied 87 N.Y.2d 804, 640 N.Y.S.2d 877, 663 N.E.2d 919).  Contrary to respondent's contention, there is no evidence of judicial misconduct.

Finally, we have examined respondent's remaining contentions and conclude that they are without merit.

Order unanimously affirmed without costs.

MEMORANDUM: