Opinion
80 CAF 20-01036
03-11-2022
In the MATTER OF FAITH K. Ontario County Department of Social Services, Petitioner-Respondent; v. Jamie K. and Cindy R., Respondents-Appellants.
MICHAEL J. PULVER, NORTH SYRACUSE, FOR RESPONDENT-APPELLANT JAMIE K. PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT-APPELLANT CINDY R. HOLLY A. ADAMS, COUNTY ATTORNEY, CANANDAIGUA, FOR PETITIONER-RESPONDENT. SUSAN E. GRAY, CANANDAIGUA, ATTORNEY FOR THE CHILD.
MICHAEL J. PULVER, NORTH SYRACUSE, FOR RESPONDENT-APPELLANT JAMIE K.
PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT-APPELLANT CINDY R.
HOLLY A. ADAMS, COUNTY ATTORNEY, CANANDAIGUA, FOR PETITIONER-RESPONDENT.
SUSAN E. GRAY, CANANDAIGUA, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Social Services Law § 384-b, respondent mother and respondent father each appeal from an order that, inter alia, terminated their parental rights with respect to their daughter, Faith K., on the ground of permanent neglect. It is undisputed that the child was removed from respondents’ care shortly after her birth and was never returned to respondents’ care.
Contrary to respondents’ contention, we conclude that petitioner met its burden of establishing by clear and convincing evidence that it made the requisite diligent efforts to encourage and strengthen respondents’ relationship with the child (see Social Services Law § 384-b [7] [a] ; Matter of Braylynn S. [Eric S.] , 181 A.D.3d 1205, 1205, 118 N.Y.S.3d 485 [4th Dept. 2020] ). Furthermore, the record establishes that, "although petitioner made affirmative, repeated and meaningful efforts to assist [respondents], its efforts were fruitless because [respondents] [were] utterly uncooperative" ( Matter of Cheyenne C. [James M.] , 185 AD3d 1517, 1519 [4th Dept 2020], lv denied 35 NY3d 917 [2020] [internal quotation marks omitted]; see Braylynn S. , 181 A.D.3d at 1205, 118 N.Y.S.3d 485 ). Contrary to respondents’ further contention, petitioner also established that respondents failed to plan for the child's future and that they failed to address the problems that caused the removal of the child (see Matter of Maria M. [Kristin M.] , 183 A.D.3d 1250, 1250-1251, 121 N.Y.S.3d 703 [4th Dept. 2020], lv denied 35 N.Y.3d 915, 2020 WL 6065637 [2020]; Matter of Justain R. [Juan F.] , 93 A.D.3d 1174, 1174-1175, 940 N.Y.S.2d 710 [4th Dept. 2012] ).
Respondents’ contention that Family Court erred in failing to grant a suspended judgment is unpreserved for our review, inasmuch as neither the mother nor the father requested that relief at the dispositional hearing (see Matter of Natalee F. [Eric F.] , 194 A.D.3d 1397, 1398, 143 N.Y.S.3d 639 [4th Dept. 2021], lv denied 37 N.Y.3d 911, 2021 WL 4612465 [2021] ; Matter of Hayleigh C. [Ronald S.] , 172 A.D.3d 1921, 1922, 97 N.Y.S.3d 920 [4th Dept. 2019], lv denied 33 N.Y.3d 911, 2019 WL 4066710 [2019] ).
Even assuming, as the mother contends, that the court erred in taking judicial notice of testimony and evidence postdating the filing of the permanent neglect petition, we conclude that any such error is harmless (see Matter of Cyle F. [Alexander F.] , 155 A.D.3d 1626, 1627, 64 N.Y.S.3d 842 [4th Dept. 2017], lv denied 30 N.Y.3d 911, 71 N.Y.S.3d 5, 94 N.E.3d 487, 2018 WL 1321028 [2018]). Even without such evidence, we conclude that the record of the fact-finding hearing "contains sufficient admissible facts to support the court's permanent neglect finding" ( id. ).
Finally, contrary to the mother's contention, she was not deprived of effective assistance of counsel by her attorney's failure to present her as a witness. While the mother correctly contends that the court offered accommodations for her to testify and yet she was not presented as a witness, the mother failed to "demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcoming[ ]" ( Matter of Brown v. Gandy , 125 A.D.3d 1389, 1390, 3 N.Y.S.3d 486 [4th Dept. 2015] [internal quotation marks omitted]).
We have reviewed the mother's remaining contentions and conclude that they are without merit.