Opinion
05-05-2017
In the Matter of NATAYLIA C.B. and Sabastion C.B. Onondaga County Department of Children and Family Services, Petitioner–Respondent; Christopher B., Respondent–Appellant. (Appeal No. 1.).
Frank H. Hiscock Legal Aid Society, Syracuse (Danielle K. Blackaby of Counsel), for Respondent–Appellant. Robert A. Durr, County Attorney, Syracuse (Maggie Seikaly of Counsel), for Petitioner–Respondent. Arlene Bradshaw, Attorney for the Children, Syracuse.
Frank H. Hiscock Legal Aid Society, Syracuse (Danielle K. Blackaby of Counsel), for Respondent–Appellant.
Robert A. Durr, County Attorney, Syracuse (Maggie Seikaly of Counsel), for Petitioner–Respondent.
Arlene Bradshaw, Attorney for the Children, Syracuse.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:In appeal No. 1, respondent father appeals from an order that, inter alia, terminated his parental rights with respect to the subject children on the ground of permanent neglect. In appeal No. 2, the father appeals from an order denying in part the father's motion to settle the record on appeal in appeal No. 1. Contrary to the father's contention in appeal No. 2, we conclude that Family Court did not abuse its discretion in settling the record (see Kalbfliesh v. McCann, 129 A.D.3d 1671, 1672, 12 N.Y.S.3d 472, lv. denied 26 N.Y.3d 907, 2015 WL 5972554 ).
With respect to the order in appeal No. 1, the father failed to preserve for our review his contention that the petition is "jurisdictionally defective because it failed to set forth the requisite diligent efforts of petitioner to encourage and strengthen the parental relationship" (Matter of Abraham C., 55 A.D.3d 1442, 1442–1443, 865 N.Y.S.2d 820, lv denied 12 N.Y.3d 701, 876 N.Y.S.2d 348, 904 N.E.2d 503 ). In any event, the petition "sufficiently specified the agency's efforts," which included arranging visitation with the children, consulting with the father about developing a service plan, and reviewing his progress (Matter of Ana M.G. [Rosealba H.], 74 A.D.3d 419, 419, 902 N.Y.S.2d 68 ; see Abraham C., 55 A.D.3d at 1443, 865 N.Y.S.2d 820 ).
Contrary to the father's contention, his admission that he failed to plan adequately for the children's long-term care was sufficient to establish permanent neglect (see generally Matter of Jason H. [Lisa K.], 118 A.D.3d 1066, 1067, 987 N.Y.S.2d 476 ; Matter of Adam L. [Marie L.–K.], 97 A.D.3d 581, 582, 947 N.Y.S.2d 604 ), inasmuch as "[t]he failure of an incarcerated parent to provide any realistic and feasible alternative to having the child [ren] remain in foster care until the parent's release from prison ... supports a finding of permanent neglect" (Matter of Alex C., Jr. [Alex C., Sr.], 114 A.D.3d 1149, 1150, 980 N.Y.S.2d 187, lv. denied 23 N.Y.3d 901, 2014 WL 1704499 [internal quotation marks omitted] ). Furthermore, "in view of the father's admissions of permanent neglect, the court was not required to determine whether petitioner exercised diligent efforts to strengthen and encourage the parental relationship" (Matter of Shadazia W., 52 A.D.3d 1330, 1331, 860 N.Y.S.2d 721, lv denied 11 N.Y.3d 706, 866 N.Y.S.2d 610, 896 N.E.2d 96 ).
We reject the father's further contention that he was denied effective assistance of counsel. Counsel cannot be deemed ineffective " ‘merely because the attorney counseled [the father] to admit the allegations in the petition’ " (Matter of Michael W., 266 A.D.2d 884, 884–885, 697 N.Y.S.2d 898 ; see Matter of Leo UU., 288 A.D.2d 711, 713, 732 N.Y.S.2d 480, lv. denied 97 N.Y.2d 609, 739 N.Y.S.2d 357, 765 N.E.2d 853 ), and it is clear from the record "that [the father's] decision to admit to the allegations of permanent neglect was a matter of strategy" (Matter of Yusef P., 298 A.D.2d 968, 969, 748 N.Y.S.2d 120 ; see Matter of Brandon B. [Scott B.], 93 A.D.3d 1212, 1213, 940 N.Y.S.2d 716, lv. denied 19 N.Y.3d 805, 2012 WL 2094250 ).
Finally, we reject the father's contention that the court should have entered a suspended judgment rather than terminating his parental rights. In light of "the positive living situation" of the children while residing with their foster parents, "the absence of a more significant relationship" between the children and the father, "and the uncertainty surrounding both when [the father] would be released from prison and where he would reside," the court properly determined that further delay was not in the best interests of the children and that termination of the father's parental rights was warranted (Matter of Jazmyne II. [Frank MM.], 144 A.D.3d 1459, 1461, 41 N.Y.S.3d 179, lv. denied 29 N.Y.3d 901, 2017 WL 1093994 [Mar. 23, 2017] ; see Matter of Bayley W. [Patrick K.], 146 A.D.3d 1097, 1101, 45 N.Y.S.3d 265 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.