Opinion
2015-00792, 2015-01061 Docket Nos. B-22086-12, B-220871-12.
04-06-2016
In the Matter of DANIEL K.L. (Anonymous), etc. SCO Family of Services, respondent; Shaquanna L. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Davontay K.L. (Anonymous), etc. SCO Family of Services, respondent; Shaquanna L. (Anonymous), appellant. (Proceeding No. 2).
Geanine Towers, Brooklyn, N.Y., for appellant. Carrieri & Carrieri, P.C., Mineola, N.Y. (Ralph R. Carrieri of counsel), for respondent. Jennifer Reddin, Whitestone, N.Y., attorney for the children.
Geanine Towers, Brooklyn, N.Y., for appellant.
Carrieri & Carrieri, P.C., Mineola, N.Y. (Ralph R. Carrieri of counsel), for respondent.
Jennifer Reddin, Whitestone, N.Y., attorney for the children.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, THOMAS A. DICKERSON, and ROBERT J. MILLER, JJ.
Opinion Appeals from two orders of fact-finding and disposition of the Family Court, Queens County (Carol Stokinger, J.) (one as to each child), both dated December 19, 2014. The orders, after fact-finding and dispositional hearings, found that the mother permanently neglected the subject children, terminated her parental rights, and transferred guardianship and custody of the subject children to the Commissioner of Social Services of the City of New York and the petitioner, SCO Family of Services, for the purpose of adoption.
ORDERED that the orders of fact-finding and disposition are affirmed, without costs or disbursements.
SCO Family of Services (hereinafter the petitioner) petitioned pursuant to Social Services Law § 384–b to terminate the mother's parental rights with respect to the subject children on the ground of permanent neglect. In two orders of fact-finding and disposition, both dated December 19, 2014, made after fact-finding and dispositional hearings, the Family Court found that the mother permanently neglected the subject children and terminated her parental rights. The mother appeals.
The petitioner established by clear and convincing evidence that it made diligent efforts to encourage and strengthen the relationship between the mother and the subject children (see Social Services Law § 384–b[7] ; Matter of Star Leslie W., 63 N.Y.2d 136, 142–143, 481 N.Y.S.2d 26, 470 N.E.2d 824 ; Matter of Giavanna M. [Cynthia M.-B], 133 A.D.3d 760, 20 N.Y.S.3d 141 ). These efforts included meeting with her to review her service plan, discussing the importance of compliance, providing referrals for parenting classes, mental health evaluations and housing, and scheduling weekly visitation with the children (see Matter of Mercedes R.B. [Heather C.], 130 A.D.3d 1022, 1023, 12 N.Y.S.3d 909 ; Matter of Ariana N.T. [Ana D.], 121 A.D.3d 1009, 1010, 994 N.Y.S.2d 679 ). Despite these efforts, the mother failed to plan for the future of the children (see Matter of Jahira N.D. [Shaniqua S.S.], 111 A.D.3d 826, 827, 975 N.Y.S.2d 744 ; Matter of Tarmara F.J. [Jaineen J.], 108 A.D.3d 543, 544, 969 N.Y.S.2d 119 ). The mother's partial and belated compliance with the service plan was insufficient to preclude a finding of permanent neglect (see Matter of Nay'amya W.R. [Kiara D.], 135 A.D.3d 770, 771, 24 N.Y.S.3d 120 ; Matter of James T.L. [Robert L.], 133 A.D.3d 759, 760, 20 N.Y.S.3d 138 ; Matter of Kayla S.-G. [David G.], 125 A.D.3d 980, 981, 4 N.Y.S.3d 289 ; Matter of Elasia A.D.B. [Crystal D.G.], 118 A.D.3d 778, 779, 987 N.Y.S.2d 188 ). Accordingly, the Family Court properly found that the mother had permanently neglected the subject children.
The Family Court also properly determined that it was in the children's best interests to terminate the mother's parental rights, rather than to enter a suspended judgment, and to free the children for adoption by the foster mother (see Family Ct. Act § 631 ; Matter of Hailey ZZ. [Ricky ZZ.], 19 N.Y.3d 422, 430–431, 948 N.Y.S.2d 846, 972 N.E.2d 87 ; Matter of Devon D.T. [Davina T.], 135 A.D.3d 947, 24 N.Y.S.3d 383 ; Matter of Aaliyah L.C. [Jamie A.], 128 A.D.3d 955, 956, 11 N.Y.S.3d 178 ).
The Family Court providently exercised its discretion in denying the application of the mother's attorney to adjourn the continued fact-finding hearing upon the mother's failure to appear. The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court (see Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 ; Matter of Anthony M., 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447 ; Matter of Madison B. [Daniel B.], 123 A.D.3d 1027, 1028, 999 N.Y.S.2d 496 ; Matter of Kinara C. [Jerome C.], 89 A.D.3d 839, 841, 932 N.Y.S.2d 169 ). In making such a determination, the court must undertake a balanced consideration of all relevant factors (see Matter of Sacks v. Abraham, 114 A.D.3d 799, 800, 980 N.Y.S.2d 525 ; Matter of Latrell S. [Christine K.], 80 A.D.3d 618, 619, 914 N.Y.S.2d 645 ). In this case, since the mother had already been granted numerous adjournments and she had not contacted her attorney to advise him regarding her failure to appear, it was not an improvident exercise of discretion for the Family Court to deny the request for another adjournment (see Matter of Evelyn R. [Franklin R.], 117 A.D.3d 957, 986 N.Y.S.2d 223 ; Matter of Angie N.W. [Melvin A.W.], 107 A.D.3d 907, 908–909, 968 N.Y.S.2d 125 ; Matter of Sanaia L. [Corey W.], 75 A.D.3d 554, 554–555, 903 N.Y.S.2d 916 ).
Finally, the Family Court providently exercised its discretion in denying the mother's request for the assignment of new counsel prior to the commencement of the dispositional hearing. Where, as here, an indigent party has a constitutional right to assigned counsel (see Family Ct. Act § 262[a] [iv] ), “ ‘this entitlement does not encompass the right to counsel of one's choosing’ ” (Matter of Wiley v. Musabyemariya, 118 A.D.3d 898, 900, 988 N.Y.S.2d 259, quoting People v. Porto, 16 N.Y.3d 93, 99, 917 N.Y.S.2d 74, 942 N.E.2d 283 ; see People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ; People v. Sawyer, 57 N.Y.2d 12, 18–19, 453 N.Y.S.2d 418, 438 N.E.2d 1133 ). An indigent party is entitled to new assigned counsel only upon a showing of good cause for substitution (see People v. Sides, 75 N.Y.2d at 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ; Matter of Wiley v. Musabyemariya, 118 A.D.3d at 900, 988 N.Y.S.2d 259 ). Here, the Family Court properly determined that there was no good cause shown for substitution (see Matter of Zulme v. Maehrlein, 133 A.D.3d 608, 609, 18 N.Y.S.3d 552 ; Matter of Munoz v. Edmonds–Munoz, 123 A.D.3d 1038, 1039, 999 N.Y.S.2d 518 ; Matter of Wiley v. Musabyemariya, 118 A.D.3d at 901, 988 N.Y.S.2d 259 ).