Opinion
2012-09-28
In The Matter of ALISA E. Livingston County Department of Social Services, Petitioner–Respondent; Wendy F., Respondent–Appellant.
Jeannie D. Michalski, Conflict Defender, Geneseo (P. Adam Militello of Counsel), for Respondent–Appellant. David J. Morris, County Attorney, Geneseo (Wendy S. Sisson of Counsel), for Petitioner–Respondent.
Jeannie D. Michalski, Conflict Defender, Geneseo (P. Adam Militello of Counsel), for Respondent–Appellant. David J. Morris, County Attorney, Geneseo (Wendy S. Sisson of Counsel), for Petitioner–Respondent.
James W. Campbell, Jr., Attorney for The Child, Lima, for Alisa E.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.
MEMORANDUM:
We reject respondent mother's contention in this permanent neglect proceeding that she was denied effective assistance of counsel at the fact-finding stage of the proceeding. “A parent alleging ineffective assistance of counsel has the burden of demonstrating both that he or she was denied meaningful representation and that the deficient representation resulted in actual prejudice” ( 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;see Matter of James R., 238 A.D.2d 962, 962–963, 661 N.Y.S.2d 160). Here, the mother failed to demonstrate that any of her attorney's shortcomings resulted in actual prejudice. While we agree with the mother that her attorney should have objected to the use of leading questions, any error with respect thereto did not affect the outcome of the hearing and thus is harmless. The mother also contends that her attorney should have objected to the admission of hearsay. While the mother's attorney would have had grounds to object to some of the statements made during petitioner's direct case, the mother has failed to show that her attorney's failure to object was not strategic, i.e., an effort to establish leniency for his own line of questioning. Indeed, later in the hearing, Family Court allowed the mother's attorney to elicit hearsay during his examination, reasoning, “there has been a lot of hearsay in this hearing so far.” Lastly, contrary to the mother's contention, her attorney did not admit on summation that the subject child was neglected.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.