Opinion
CAF 02-01403.
February 11, 2004.
Appeal from an amended order of the Family Court, Onondaga County (Michael L. Hanuszczak, J.), entered April 4, 2002. The amended order, insofar as appealed from, terminated the parental rights of respondent John T.
STEPHEN LANCE CIMINO, SYRACUSE, FOR RESPONDENT-APPELLANT.
ANTHONY P. RIVIZZIGNO, COUNTY ATTORNEY, SYRACUSE (SARA J. LANGAN OF COUNSEL), FOR PETITIONER-RESPONDENT.
JAYA SHURTLIFF, LAW GUARDIAN, OSWEGO, FOR AMANDA T.
Before: PRESENT: PIGOTT, JR., P.J., GREEN, HURLBUTT, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the amended order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Respondent father appeals from an amended order adjudicating his child to be permanently neglected and terminating the parental rights of both respondent and the child's mother. Respondent contends that he received ineffective assistance of counsel, as evidenced by his waiver of the requirement that petitioner establish that it made diligent efforts to reunite him with his child. That waiver was the subject of a prior consent order, and thus respondent's contention concerning ineffective assistance of counsel arising therefrom is not properly before us ( see Matter of Nicole Lee B., 256 A.D.2d 1103, 1105; Matter of Cherilyn P., 192 A.D.2d 1084, lv denied 82 N.Y.2d 652). Respondent further contends that, in any event, the waiver is void. That contention also is not properly before us, because respondent failed to appeal from that prior order ( see Nicole Lee B., 256 A.D.2d at 1105). Assuming, arguendo, that the issue concerning the validity of the waiver is properly before us and further assuming, arguendo, that the waiver is void, we nevertheless conclude that petitioner established by clear and convincing evidence that it engaged in efforts to encourage and strengthen the relationship of respondent with his daughter ( see Matter of James R.F., 261 A.D.2d 963). Further, by his own admission, respondent failed for a period of more than one year following the date his daughter was placed in foster care to plan for her future, although he was physically and financially able to do so ( see id.). Thus, even if respondent's contention concerning ineffective assistance of counsel were properly before us, we would conclude that it lacks merit because respondent failed to establish that he "suffered actual prejudice as a result of the claimed deficiencies of counsel" ( Matter of Bryan W., 299 A.D.2d 929, 930, lv denied 99 N.Y.2d 506).