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Family Court Should Have Inquired More Deeply Into Mother’s Finances Before Ordering the Matter to Proceed Without Counsel for Mother

The Second Department determined Family Court should have inquired into mother's financial situation in more depth before finding that she was not eligible for assigned counsel and proceeding in the absence of counsel:

Given the mother's statements indicating that she lacked the funds to retain private counsel, the Family Court should have inquired further into the mother's financial circumstances, including, but not limited to, inquiring about her expenses, to determine whether she was eligible for assigned counsel … .

Furthermore, “[w]aiver of the right to counsel must be founded on an explicit and intentional relinquishment which is supported by knowledge and a clear understanding of the right” … . “In order to determine whether a party is validly waiving the right to counsel, the court must conduct a searching inquiry of the party who wishes to waive that right and thus proceed pro se. While there is no rigid formula to be followed in such an inquiry, and the approach is flexible, the record must demonstrate that the party was aware of the dangers and disadvantages of proceeding without counsel” … .

Here, the record is clear that the mother did not wish to proceed pro se, but was forced to do so in light of her alleged inability to retain counsel after numerous adjournments and a lengthy delay in the proceedings … . The deprivation of the mother's fundamental right to counsel requires reversal, without regard to the merits of her position …, especially where, as here, the record demonstrates that the mother did not have a basic understanding of court proceedings … . Matter of Pugh v Pugh, 2015 NY Slip Op 00887, 2nd Dept 2-4-15


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