Opinion
604 CAF 17–01543
06-14-2019
In the MATTER OF D'ANGEL M.-B. Onondaga County Department of Children and Family Services, Petitioner–Respondent; v. Donell M.-B., Respondent–Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT–APPELLANT. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (YVETTE VELASCO OF COUNSEL), FOR PETITIONER–RESPONDENT. ROBERT S. TEMPLE, EAST SYRACUSE, ATTORNEY FOR THE CHILD.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT–APPELLANT.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (YVETTE VELASCO OF COUNSEL), FOR PETITIONER–RESPONDENT.
ROBERT S. TEMPLE, EAST SYRACUSE, ATTORNEY FOR THE CHILD.
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent father appeals from an order that, inter alia, terminated his parental rights with respect to the subject child on the ground of permanent neglect and transferred guardianship and custody of the child to petitioner. Contrary to the father's contention, petitioner demonstrated by the requisite clear and convincing evidence that it made diligent efforts to encourage and strengthen the relationship between the father and the child (see Social Services Law § 384–b[7][a] ). Among other things, petitioner developed a service plan for the father that included drug and alcohol evaluations, a psychological evaluation, domestic violence classes, parenting classes, and visitation with the child (see Matter of Anastasia S. [Michael S.], 121 A.D.3d 1543, 1543–1544, 993 N.Y.S.2d 833 [4th Dept. 2014], lv denied 24 N.Y.3d 911, 2014 WL 7180216 [2014] ; Matter of Alex C., Jr. [Alex C., Sr.], 114 A.D.3d 1149, 1150, 980 N.Y.S.2d 187 [4th Dept. 2014], lv denied 23 N.Y.3d 901, 2014 WL 1704499 [2014] ). Petitioner also encouraged the father to maintain safe and stable housing, made numerous attempts to inspect the father's home to assess its safety, and continuously sought information pertaining to potential resources for the child.
Contrary to the father's further contention, petitioner established that, despite those efforts, the father failed to plan for the child's future (see Matter of Burke H. [Richard H.], 134 A.D.3d 1499, 1500–1501, 23 N.Y.S.3d 776 [4th Dept. 2015] ). It is well settled that, "to plan substantially for a child's future, ‘the parent must take meaningful steps to correct the conditions that led to the child's removal’ " ( Matter of Jerikkoh W. [Rebecca W.], 134 A.D.3d 1550, 1551, 23 N.Y.S.3d 784 [4th Dept. 2015], lv denied 27 N.Y.3d 903, 2016 WL 1313366 [2016] ) and, here, the father refused to engage with any of the services ordered by Family Court, other than visitation (see generally Matter of Brady J.C. [Justin P.C.], 154 A.D.3d 1325, 1326, 62 N.Y.S.3d 248 [4th Dept. 2017], lv denied 30 N.Y.3d 909, 2018 WL 414290 [2018] ; Matter of Mia Veronica B. [Brandy Veronica R.], 145 A.D.3d 438, 439, 41 N.Y.S.3d 703 [1st Dept. 2016] ). The refusal to engage with services thus demonstrates a failure "to address or gain insight into the problems that led to the removal of the child[ ] and continued to prevent the child['s] safe return" ( Matter of London J. [Niaya W.], 138 A.D.3d 1457, 1458, 30 N.Y.S.3d 453 [4th Dept. 2016], lv denied 27 N.Y.3d 912, 2016 WL 4480707 [2016] [internal quotation marks omitted]; see Burke H., 134 A.D.3d at 1501, 23 N.Y.S.3d 776 ). To the extent that the father testified that he did not participate in court-ordered services because his previous attorney advised him not to complete them, the court found that testimony to be "of limited credibility," and we see no reason to disturb the court's credibility determination. "The court is in a unique position to observe the witnesses and determine their credibility and its determinations are entitled to great deference where, as here, those determinations are supported by the record" ( Matter of Terry L.G., 6 A.D.3d 1144, 1145, 776 N.Y.S.2d 429 [4th Dept. 2004] ). In view of the foregoing, we reject the father's contention that he received ineffective assistance of counsel based on his previous attorney's purported conduct (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ; Matter of Kemari W. [Jessica J.], 153 A.D.3d 1667, 1668, 61 N.Y.S.3d 436 [4th Dept. 2017], lv denied 30 N.Y.3d 909, 2018 WL 358524 [2018] ).
We further conclude that the court did not abuse its discretion in refusing to enter a suspended judgment. Although the father made some progress after petitioner commenced this proceeding, the record of the dispositional hearing establishes that he failed to attend domestic violence counseling, failed to sign releases so that the caseworker could "do clearance" on his home to determine whether it was safe for the child, continued to use drugs, and had no job or source of income. Thus, any progress made by the father "was not sufficient to warrant any further prolongation of the [child's] unsettled familial status" ( Matter of Alexus R.L. [Ashley K.], 140 A.D.3d 1699, 1700, 34 N.Y.S.3d 297 [4th Dept. 2016] [internal quotation marks omitted] ).