Opinion
May 10, 2000.
Appeal from Order of Erie County Family Court, Dillon, J. — Terminate Parental Rights.
Before: Pine, J. P., Hayes, Scudder and Kehoe, JJ.
Order unanimously reversed on the law without costs and matter remitted to Erie County Family Court for further proceedings in accordance with the following Memorandum:
Respondent was denied the right to assistance of counsel at the hearing on the petition to revoke the suspended judgment and thereby terminate her parental rights, and thus Family Court erred in granting the petition. A parent facing removal of a child from his or her home has a fundamental right to an attorney ( see, Matter of Ella B., 30 N.Y.2d 352, 356-357; see also, Family Ct Act § 261, 262[a]). Although that right may be waived by a knowing, willing and voluntary waiver ( see, Matter of Child Welfare Admin. [John R.] v. Jennifer A., 218 A.D.2d 694, 697, lv denied 87 N.Y.2d 804; see also, Matter of F. Children, 199 A.D.2d 81), there was no such waiver here. On the day of the hearing on the petition, respondent's attorney moved to withdraw as counsel. The record is devoid of any evidence of earlier notice of that motion. The court informed respondent that there would be no adjournment for substitution of counsel and, therefore, if counsel were relieved, respondent would "end up essentially representing herself." After a discussion with respondent concerning the attorney's alleged lack of communication, the court granted the motion. Under the circumstances of this case, the statement of respondent that she would like to represent herself did not constitute a valid waiver of the right to an attorney ( cf, Matter of Child Welfare Admin. [John R.] v. Jennifer A., supra, at 696-697). Furthermore, an attorney may be permitted to withdraw "only upon a showing of good and sufficient cause and upon reasonable notice to the client [citations omitted]. A purported withdrawal without proof that reasonable notice was given is ineffective" ( Matter of Williams v. Lewis, 258 A.D.2d 974). "Although the record fully supports a finding that respondent's parental rights should have been terminated, such a finding may not stand [where, as here,] respondent was denied due process" ( Matter of Dominique L. B., 231 A.D.2d 948). We therefore reverse the order and remit the matter to Erie County Family Court for assignment of new counsel and for a new hearing on the petition.