In re David VV.

Rose, J. Appeal from an order of the Family Court of Ulster County (Mizel, J.), entered June 1, 2004, which granted petitioner’s application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate respondent’s children to be neglected. In June 2002, petitioner applied for a temporary order of protection against respondent based upon reports of his excessive corporal punishment of his children. Following a hearing under Family Ct Act § 1029 at which respondent appeared without counsel and admitted much of the conduct of which he had been accused, Family Court granted petitioner’s application and issued a temporary order of protection that, among other things, excluded respondent from the marital residence. Petitioner subsequently filed a neglect petition against both parents and the temporary order of protection was extended. Family Court then conducted a fact-finding hearing, at which respondent did not testify, and a dispositional hearing, at which respondent testified only that his approach to disciplining his children had not changed from his testimony at the section 1029 hearing. In its decision, Family Court referred to and relied upon the testimony elicited at the section 1029 hearing, and found that respondent had neglected his children by inflicting excessive corporal punishment. Family Court’s resulting order included a permanent order of protection. Respondent appeals. We find merit in respondent’s initial contention that Family Court failed to fully advise him of his statutory right to counsel when he first appeared in court (see Family Ct Act §§ 261, 262). Family Ct Act § 262 (a) provides that respondents in proceedings brought under Family Ct Act article 10 shall be advised of their rights to be represented by counsel, to seek an adjournment to consult with counsel and to have counsel provided for them if they are financially unable to obtain counsel. When such a party is not fully informed of these rights, the resulting [884] adjudication must be reversed and the matter remitted for a new hearing (see Matter of Perez v Arebalo, 13 AD3d 85, 87 [2004]; Matter of Lee v Stark, 1 AD3d 815, 815-816 [2003]; Matter of Gaudette v Gaudette, 263 AD2d 620, 621 [1999]; Matter of Mahoney v Doring, 256 AD2d 1112, 1112-1113 [1998]). Further, the court’s decision to permit a party who is entitled to counsel to proceed pro se must be supported by a showing on the record of a knowing, voluntary and intelligent waiver of these rights (see Matter of Anderson v Hailey, 13 AD3d 911, 912 [2004]; Matter of Lee v Stark, supra at 816; Matter of Rachel P., 286 AD2d 868, 868 [2001]). Here, the transcript of the Family Ct Act § 1029 hearing confirms that respondent was never advised that counsel would be appointed if he could not afford to retain counsel or that the matter would be adjourned to enable him to obtain counsel. Instead, Family Court stated only that it had attempted to have someone from the Public Defender’s office present, but understood from the Law Guardian that respondent may not want to be represented. Then, after twice asking whether respondent wanted to be represented by counsel and each time receiving a negative reply, the court informed him that he must either consent to a temporary order removing him from the home or proceed with an immediate hearing. When he asked what would happen if he did not agree to a temporary order, Family Court merely advised him that he could testify and that anything he said would be taken into consideration. The court then asked respondent if he wanted a hearing rather than agreeing to a temporary order and did he still wish to represent himself. Respondent answered “yes” to both questions and the hearing commenced. This was plainly insufficient to comply with the requirements of Family Ct Act § 262 (a) or to confirm respondent’s understanding of his decision to waive his statutory rights. Although respondent failed to object to admission of the transcript of the Family Ct Act § 1029 hearing at the later fact-finding hearing, the record shows that he was effectively representing himself at the time and did not seek or receive his advisory counsel’s assistance when the transcript was offered into evidence. More importantly, respondent’s subsequent dialogue with Family Court concerning the calling of two witnesses who had testified at the section 1029 hearing reveals that he did not understand the consequences of the transcript’s admission. We will, therefore, exercise our broad discretion to reach this issue in the interest of justice (see Progressive Cas. Ins. Co. v Baker, 290 AD2d 676, 677 [2002]). Further, Family [885] Court’s error involved a fundamental statutory right that warrants reversal even when there is an apparent lack of prejudice to respondent (see Matter of Wilson v Bennett, 282 AD2d 933, 935 [2001]). Inasmuch as Family Court relied in making its final determination of the neglect proceeding upon respondent’s statements at the section 1029 hearing, the matter must be remitted for a new fact-finding hearing. In view of this decision, we need not consider respondent’s remaining contentions. Crew III, J.P., Mugglin and Lahtinen, JJ., concur.