Opinion
897 CAF 17–00431
09-28-2018
In the MATTER OF CELESTE S., Izabella S., and Mia S. Monroe County Department of Human Services, Petitioner–Respondent; v. Michelle S., Respondent, and Richard B., Respondent–Appellant.
PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT–APPELLANT. MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER (CAROL L. EISENMAN OF COUNSEL), FOR PETITIONER–RESPONDENT. SARA E. ROOK, ROCHESTER, ATTORNEY FOR THE CHILDREN.
PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT–APPELLANT.
MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER (CAROL L. EISENMAN OF COUNSEL), FOR PETITIONER–RESPONDENT.
SARA E. ROOK, ROCHESTER, ATTORNEY FOR THE CHILDREN.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this Family Court Act article 10 proceeding with a petition alleging, inter alia, that Richard B. (respondent), the paramour of the children's mother, respondent Michelle S., abused, severely abused and neglected the subject children by subjecting one of the subject children and the subject children's 16–year–old sister to sexual contact. After respondent was convicted of, inter alia, rape in the first degree and sexual abuse in the first degree arising from that sexual contact, petitioner moved for summary judgment on the petition. Respondent appeals from an order in which Family Court, inter alia, granted the motion and determined that he abused, severely abused and neglected the subject children. We affirm.
It is well settled that a party seeking summary judgment has the initial burden of submitting evidence in admissible form that establishes as a matter of law its entitlement to the relief sought (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). In a case similar to this one, the Court of Appeals determined that there was "no reason why summary judgment is not an appropriate procedure in proceedings under Family Court Act article 10" ( Matter of Suffolk County Dept. of Social Servs. v. James M., 83 N.Y.2d 178, 182, 608 N.Y.S.2d 940, 630 N.E.2d 636 [1994] ), and that a petitioner may meet its initial burden by establishing that a respondent was convicted of sexual crimes involving the subject children and the crimes of which he "was convicted fell within the broad allegations of the ... abuse petition" ( id. ).
Respondent contends that petitioner failed to meet its burden with respect to the issue whether he was legally responsible for the children within the meaning of the Family Court Act. We reject that contention. Pursuant to Family Court Act § 1012(g), a " ‘[p]erson legally responsible’ [for a child] includes the child's custodian[, which] may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child" (see Matter of Kyle H., 198 A.D.2d 913, 913, 604 N.Y.S.2d 463 [4th Dept. 1993] ). Here, petitioner met its burden with respect to that issue by submitting the hearsay statements of the subject children and their sister, along with respondent's admissions, which established that respondent was a " ‘[p]erson legally responsible’ for the care of the children and, as such, was a proper party to the child protective proceeding" ( Matter of Jayla A. [Chelsea K.—Isaac C.], 151 A.D.3d 1791, 1792, 54 N.Y.S.3d 819 [4th Dept. 2017], lv denied 30 N.Y.3d 902, 2017 WL 4653460 [2017] ). Although the statements of the subject children and their sister were hearsay, "[i]t is well settled that there is ‘an exception to the hearsay rule in custody cases involving allegations of abuse and neglect of a child, based on the Legislature's intent to protect children from abuse and neglect as evidenced in Family [Court] Act § 1046(a)(vi) ’ ..., where, as here, the statements are corroborated" ( Matter of Mateo v. Tuttle, 26 A.D.3d 731, 732, 809 N.Y.S.2d 699 [4th Dept. 2006] ; see Matter of Ordona v. Campbell, 132 A.D.3d 1246, 1247, 17 N.Y.S.3d 803 [4th Dept. 2015] ; Matter of Sutton v. Sutton, 74 A.D.3d 1838, 1840, 902 N.Y.S.2d 746 [4th Dept. 2010] ).
Respondent failed to preserve for our review his further contention that the court should have adjourned the proceeding pending the final resolution of his appeal from the criminal conviction (see generally Matter of Jaydalee P. [Codilee R.], 156 A.D.3d 1477, 1477, 67 N.Y.S.3d 371 [4th Dept. 2017], lv denied 31 N.Y.3d 904, 2018 WL 1957464 [2018] ; Matter of Keara MM. [Naomi MM.], 84 A.D.3d 1442, 1444, 923 N.Y.S.2d 258 [3d Dept. 2011] ).
We reject respondent's contention that he was denied effective assistance of counsel based on his attorney's failure to make certain motions or seek an adjournment pending final resolution of his criminal appeal. It is well settled that an attorney "cannot be deemed ineffective for failing to make a motion or response to a motion that is unlikely to be successful" ( Matter of Jamaal NN., 61 A.D.3d 1056, 1058, 878 N.Y.S.2d 205 [3d Dept. 2009], lv denied 12 N.Y.3d 711, 881 N.Y.S.2d 660, 909 N.E.2d 583 [2009] ; see Matter of Kenneth L. [Michelle B.], 92 A.D.3d 1245, 1246, 938 N.Y.S.2d 713 [4th Dept. 2012] ). Furthermore, "[i]t is not the role of this Court to second-guess the attorney's tactics or trial strategy" ( Matter of Katherine D. v. Lawrence D., 32 A.D.3d 1350, 1351–1352, 822 N.Y.S.2d 349 [4th Dept. 2006], lv denied 7 N.Y.3d 717, 827 N.Y.S.2d 688, 860 N.E.2d 990 [2006] ) and, based on our review of the record, we conclude that respondent received meaningful representation (see id. at 1352, 822 N.Y.S.2d 349 ).