Opinion
2013-03-15
In the Matter of DAHMANI M. Onondaga County Department of Social Services, Petitioner–Respondent; Jana M., Respondent–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Respondent–Appellant. Gordon J. Cuffy, County Attorney, Syracuse (Sara J. Langan of Counsel), for Petitioner–Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Respondent–Appellant. Gordon J. Cuffy, County Attorney, Syracuse (Sara J. Langan of Counsel), for Petitioner–Respondent.
Ralph G. DeMasi, Attorney for the Child, Syracuse, for Dahmani M.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.
MEMORANDUM:
In this proceeding pursuant to Social Services Law § 384–b, respondent mother appeals from an order that, inter alia, terminated her parental rights with respect to the subject child. Contrary to the mother's contention, Family Court did not abuse its discretion in determining that a suspended judgment, i.e., a “brief grace period designed to prepare the parent to be reunited with the child” ( Matter of Michael B., 80 N.Y.2d 299, 311, 590 N.Y.S.2d 60, 604 N.E.2d 122), was not in the child's best interests ( see Matter of Jane H. [Susan H.], 85 A.D.3d 1586, 1587, 924 N.Y.S.2d 885,lv. denied17 N.Y.3d 709, 2011 WL 4089830;see generally Matter of Hailey ZZ. [Ricky ZZ.], 19 N.Y.3d 422, 430, 948 N.Y.S.2d 846, 972 N.E.2d 87). “Although [the mother] participated in [some of] the services offered by petitioner, [s]he failed to address successfully the problems that led to the removal of the child[ ] and continued to prevent [his] safe return” ( Matter of Kyle S., 11 A.D.3d 935, 936, 782 N.Y.S.2d 213 [internal quotation marks omitted] ). The mother also did not have a viable plan for the child while she was incarcerated ( see Matter of Gena S., 101 A.D.3d 1593, 1594, 958 N.Y.S.2d 546). The record therefore supports the court's refusal to grant a suspended judgment inasmuch as the record establishes that the mother had no “realistic, feasible plan to care for the child[ ] ... and ... that [she] was not likely to change her behavior” ( Matter of Sean W. [Brittany W.], 87 A.D.3d 1318, 1319, 930 N.Y.S.2d 700,lv. denied18 N.Y.3d 802, 2011 WL 6223145 [internal quotation marks omitted] ).
The mother further contends that she was denied effective assistance of counsel on the grounds that her attorney failed to request posttermination contact and allegedly failed to call the child's maternal grandmother as a witness during the dispositional hearing. We reject that contention. With respect to the posttermination contact, a court has no authority to direct continuing contact between a parent and child once that parent's rights have been terminated pursuant to Social Services Law § 384–b ( see Hailey ZZ., 19 N.Y.3d at 426, 948 N.Y.S.2d 846, 972 N.E.2d 87). Thus, the mother was not prejudiced by her attorney's failure to request posttermination contact ( see generally Sean W., 87 A.D.3d at 1319, 930 N.Y.S.2d 700). With respect to her attorney's alleged failure to call the child's maternal grandmother as a witness, the mother did not meet her burden of demonstrating that the alleged failure resulted in actual prejudice ( see Matter of Michael C., 82 A.D.3d 1651, 1652, 920 N.Y.S.2d 502,lv. denied17 N.Y.3d 704, 2011 WL 2535216). Indeed, there is no support in the record for the mother's contention that the child's maternal grandmother was willing or able to care for the child during the mother's incarceration and thus should have been called as a witness to testify to that effect.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.