Opinion
2012-07-12
In the Matter of FAY GG. and Another, Alleged to be Sexually Abused and/or Neglected Children. Broome County Department of Social Services, Respondent; John GG., Appellant.
Emily Karr–Cook, Elmira, for appellant. Philomena M. Stamato, Broome County Department of Social Services, Binghamton, for respondent.
Emily Karr–Cook, Elmira, for appellant. Philomena M. Stamato, Broome County Department of Social Services, Binghamton, for respondent.
Allen E. Stone, Vestal, attorney for the child.
Before: PETERS, P.J., LAHTINEN, SPAIN, MALONE JR. and GARRY, JJ.
LAHTINEN, J.
Appeals (1) from an order of the Family Court of Broome County (Connerton, J.), entered February 24, 2011, which, in a proceeding pursuant to Family Ct. Act article 10, among other things, denied respondent John GG.'s motion to dismiss the petition for lack of subject matter jurisdiction, and (2) from an order of said court, entered March 18, 2011, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 10, to adjudicate Michael GG. to be abused and neglected.
Petitioner commenced proceedings in August 2009 alleging, among other things, that respondent abused and neglected his then 17–year–old daughter, Fay GG. (born in 1991), and neglected his then 16–year–old son, Michael GG. (born in 1992). Following a fact-finding hearing that commenced in January 2010 and concluded in August 2010, Family Court determined that petitioner had established the abuse and neglect claims asserted against respondent. Although both children had turned 18 years old by the time of the dispositional hearing, Michael consented to continued placement in foster care ( seeFamily Ct. Act § 1055[e] ). Respondent agreed that Michael, who has significant mental health challenges, should continue in his placement, but asserted that Family Court lacked jurisdiction to require respondent to engage in any services. Family Court, noting that Michael was in petitioner's care and respondent had ongoing supervised visitation, directed respondent to participate in anger management counseling, sexual abuse evaluation and mental health assessment. Respondent appeals.
Respondent appealed from both the February 2011 decision and order and the March 2011 order. The March 2011 order was prepared pursuant to Family Court's directive at the end of its February 2011 decision that petitioner submit an order within 10 days. Although the appeal from the February 2011 decision was unnecessary and untimely, the appeal from the March 2011 order was nevertheless timely and preserved all issues ( see Matter of Santino B. [Lisette C.], 93 A.D.3d 1086, 1087, 941 N.Y.S.2d 743 [2012] ).
We consider first respondent's argument that Family Court erred in finding that he had abused and neglected Fay and neglected Michael. “In a Family Ct. Act article 10 proceeding, petitioner bears the burden of proving abuse and/or neglect by a preponderance of the evidence” (Matter of Telsa Z. [Rickey Z.-Denise Z.], 71 A.D.3d 1246, 1249, 897 N.Y.S.2d 281 [2010] [citation omitted]; seeFamily Ct. Act § 1046[b] ). Fay testified about an incident where respondent forced her to put her hand on and then stroke his erect penis. Respondent acknowledged to authorities that, many years earlier and after he had consumed alcoholic beverages, a sexual incident had occurred with Fay. The children further related incidents where respondent physically assaulted them and threw objects, including furniture, at them. Respondent, who had custody of the children, failed to seek vision and dental care for Michael. When Michael was removed from living with respondent, it was discovered that he needed glasses and had numerous cavities. Respondent elected not to testify, permitting a strong inference to be drawn against him ( see Matter of Branden P. [Corey P.], 90 A.D.3d 1186, 1188, 935 N.Y.S.2d 159 [2011] ). The evidentiary errors that respondent contends occurred at the hearing have been considered and do not require reversal. The record sufficiently supports Family Court's determination regarding abuse and neglect.
Respondent contends that Michael did not knowingly consent to remain in foster care beyond the age of 18. This argument was waived since respondent did not object to Michael's continued custody with petitioner. In any event, the record supports the determination that, despite his lower intellect and mental health challenges, Michael knowingly and intelligently chose to remain in foster care.
Further, under the narrow circumstances in this case, Family Court did not act beyond its jurisdiction in directing respondent to participate in services. Although “Family Court is a court of limited jurisdiction” (Matter of H.M. v. E.T., 14 N.Y.3d 521, 526, 904 N.Y.S.2d 285, 930 N.E.2d 206 [2010] ), a neglected child who has turned 18 but is not yet 21 can elect to stay in or return to foster care ( seeFamily Ct. Act § 1055[e]; Matter of Sheena B. [Rory F.], 83 A.D.3d 1056, 1058, 922 N.Y.S.2d 176 [2011] ). Michael made such an election, resulting in petitioner having continued responsibility for him. Respondent sought to remain involved in Michael's life and a caseworker indicated that his role might be helpful in the rapidly approaching transition from foster care facing Michael ( seeFamily Ct. Act § 1052[b][1][B] ). Respondent was permitted supervised visitation and sought to attend service plan meetings. In light of petitioner's continued responsibilities for Michael arising from his election to stay in foster care, Family Court had jurisdiction during the time that Michael remained in foster care to require respondent's participation in services designed to help ensure that his role and access were in the best interests of the child.
As noted by petitioner in its brief, respondent's participation in services at this point is a voluntary choice for him. Although failure to participate could reduce his role with Michael while the child is still in petitioner's custody, it would not result in enforcement under Family Ct. Act § 1072(b).
Our review of the record reveals that respondent received meaningful representation and, thus, his ineffective assistance of counsel argument is unavailing ( see Matter of Hailey JJ. [Garfield KK.], 84 A.D.3d 1432, 1432, 921 N.Y.S.2d 915 [2011];Matter of Hurlburt v. Behr, 70 A.D.3d 1266, 1267, 897 N.Y.S.2d 271 [2010],lv. dismissed 15 N.Y.3d 943, 915 N.Y.S.2d 214, 940 N.E.2d 919 [2010] ). Counsel adequately cross-examined witnesses, made appropriate objections and engaged in useful motion practice. Respondent failed to establish that the omissions of which he now complains fell outside the realm of legitimate trial strategy ( see Matter of Spiewak v. Ackerman, 88 A.D.3d 1191, 1193, 932 N.Y.S.2d 207 [2011];Matter of Christiana C. [Carleton C.], 86 A.D.3d 606, 607–608, 928 N.Y.S.2d 50 [2011],lv. denied17 N.Y.3d 715, 2011 WL 5526592 [2011] ). The remaining arguments have been considered and are unpersuasive.
ORDERED that the appeal from the order entered February 24, 2011 is dismissed, without costs.
ORDERED that the order entered March 18, 2011 is affirmed, without costs.