Opinion
2019-09750 Docket Nos. B-10337-18 B-10342-18
09-30-2020
In the MATTER OF SKYLAR P.J. (Anonymous). Suffolk County Department of Social Services, Respondent; v. Kerry M.T. (Anonymous), Appellant. (Proceeding No. 1) In the Matter of Hunter C.J. (Anonymous). Suffolk County Department of Social Services, Respondent; v. Kerry M.T. (Anonymous), Appellant. (Proceeding No. 2)
Glenn Gucciardo, Northport, NY, for appellant. Dennis M. Cohen, County Attorney, Central Islip, N.Y. (Randall J. Ratje of counsel), for respondent. Lynn Poster–Zimmerman, Huntington, NY, attorney for the children.
Glenn Gucciardo, Northport, NY, for appellant.
Dennis M. Cohen, County Attorney, Central Islip, N.Y. (Randall J. Ratje of counsel), for respondent.
Lynn Poster–Zimmerman, Huntington, NY, attorney for the children.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER In related proceedings pursuant to Social Services Law § 384–b, the mother appeals from an order of disposition of the Family Court, Suffolk County (Frank A. Tantone, J.), dated July 26, 2019. The order of disposition, upon a finding that the mother permanently neglected the subject children, made upon her admission, and after a dispositional hearing, terminated her parental rights and transferred guardianship and custody of the subject children to the petitioner for the purpose of adoption.
ORDERED that the order of disposition is affirmed, without costs or disbursements.
The petitioner commenced these proceedings to terminate the mother's parental rights to the subject children. The mother admitted to having failed to fully complete mental health, parenting skills, and substance abuse treatment programs as mandated by an order of disposition issued in a prior child protective proceeding, and, upon this admission, the Family Court found that she permanently neglected the children. After a dispositional hearing, the court terminated the mother's parental rights and transferred guardianship and custody of the children to the petitioner for the purpose of adoption. The mother appeals.
The mother contends that the Family Court's finding of permanent neglect, made upon her admission, was not based on legally sufficient evidence. However, her contention is not properly before this Court given her failure to move before the Family Court to vacate her admission of permanent neglect (see Matter of Megan L.G.H. [Theresa G.H.] , 102 A.D.3d 869, 869–870, 958 N.Y.S.2d 218 ).
The mother's contention that the Family Court improperly took judicial notice of its entire court file is unpreserved for appellate review, as the mother did not object to this action taken by the court (see Matter of Damian M. , 41 A.D.3d 600, 836 N.Y.S.2d 422 ).
"[A]t the ... dispositional hearing the court must consider only the best interests of the child involved" ( Matter of Hailey ZZ. [Ricky ZZ.] , 19 N.Y.3d 422, 430, 948 N.Y.S.2d 846, 972 N.E.2d 87 ; see Family Ct. Act § 631 ; Matter of Star Leslie W. , 63 N.Y.2d 136, 147–148, 481 N.Y.S.2d 26, 470 N.E.2d 824 ). A dispositional order suspending judgment provides a brief grace period to give a parent found to have permanently neglected a child a second chance to prepare for reunification with the child (see Family Ct. Act § 633 ; Matter of Michael B. , 80 N.Y.2d 299, 311, 590 N.Y.S.2d 60, 604 N.E.2d 122 ; Matter of Adam M.D. [Victoria M.C.] , 170 A.D.3d 1006, 1007, 94 N.Y.S.3d 860 ; Matter of Amaarie L.M. [Kelly R.] , 166 A.D.3d 977, 978, 88 N.Y.S.3d 472 ). A suspended judgment is permitted only where the court determines that such disposition is in the child's best interests (see Matter of Michael B. , 80 N.Y.2d at 311, 590 N.Y.S.2d 60, 604 N.E.2d 122 ; Matter of Adam M.D. [Victoria M.C.] , 170 A.D.3d at 1007, 94 N.Y.S.3d 860 ; Matter of Amaarie L.M. [Kelly R.] , 166 A.D.3d at 978, 88 N.Y.S.3d 472 ). Here, we agree with the Family Court's determination that it would be in the children's best interests to terminate the mother's parental rights and that a suspended judgment was not appropriate, since the mother lacked insight into her problems and failed to address the issues that led to the children's removal (see Matter of Anjae R.K. [Johnayia S.] , 183 A.D.3d 735, 736, 121 N.Y.S.3d 892 ; Matter of Adam M.D. [Victoria M.C.] , 170 A.D.3d at 1007, 94 N.Y.S.3d 860 ; Matter of Amaarie L.M. [Kelly R.] , 166 A.D.3d at 978, 88 N.Y.S.3d 472 ).
" ‘A respondent in a proceeding pursuant to Social Services Law § 384–b has the right to the assistance of counsel (see Family Ct. Act § 262[a][iv] ), which encompasses the right to the effective assistance of counsel’ " ( Matter of Adam M.M. [Sophia M.] , 179 A.D.3d 801, 802, 117 N.Y.S.3d 100, quoting Matter of Deanna E.R. [Latisha M.] , 169 A.D.3d 691, 692, 93 N.Y.S.3d 375 ). "[T]he statutory right to counsel under Family Court Act § 262 affords protections equivalent to the constitutional standard of effective assistance of counsel afforded to defendants in criminal proceedings" ( Matter of Nassau County Dept. of Social Servs. v. King , 149 A.D.3d 942, 943, 53 N.Y.S.3d 130 ). "An attorney representing a client is entitled to make ‘strategic and tactical decisions concerning the conduct of trials’ " ( Matter of Deanna E.R. [Latisha M.] , 169 A.D.3d at 692, 93 N.Y.S.3d 375, quoting People v. Colon , 90 N.Y.2d 824, 826, 660 N.Y.S.2d 377, 682 N.E.2d 978 ). Accordingly, "what constitutes effective assistance is not and cannot be fixed with precision, but varies according to the particular circumstances of each case" ( People v. Rivera , 71 N.Y.2d 705, 708, 530 N.Y.S.2d 52, 525 N.E.2d 698 ). To prevail on a claim of ineffective assistance of counsel, it is incumbent on the respondent to "demonstrate the absence of strategic or other legitimate explanations" for counsel's alleged shortcomings ( id. at 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ; see People v. Mendoza , 33 N.Y.3d 414, 418, 104 N.Y.S.3d 38, 128 N.E.3d 165 ). Here, contrary to the mother's contention, on this record, she failed to establish the absence of strategic or other legitimate explanations for her counsel's alleged shortcomings (see Matter of Adam M.M. [Sophia M.] , 179 A.D.3d at 802–803, 117 N.Y.S.3d 100 ; Matter of Vincent N.B. [Gregory B.] , 173 A.D.3d 855, 856, 100 N.Y.S.3d 540 ; Matter of Deanna E.R. [Latisha M.] , 169 A.D.3d at 692, 93 N.Y.S.3d 375 ; Matter of Sean W.[Brittany W.] , 87 A.D.3d 1318, 1319, 930 N.Y.S.2d 700 ).
BALKIN, J.P., AUSTIN, LASALLE and IANNACCI, JJ., concur.