Opinion
2012-02-28
In the Matter of ASSATTA N.P. (Anonymous).Nassau County Department of Social Services, respondent;Nelson L. (Anonymous), Jr., appellant.
Ralph R. Carrieri, Mineola, N.Y., for appellant. John Ciampoli, County Attorney, Mineola, N.Y. (Robert F. Van der Waag of counsel), for respondent.
Ralph R. Carrieri, Mineola, N.Y., for appellant. John Ciampoli, County Attorney, Mineola, N.Y. (Robert F. Van der Waag of counsel), for respondent.
Marjorie G. Adler, Garden City, N.Y., attorney for the child.
In a child protective proceeding pursuant to Family Court Act article 10, the father appeals from an order of fact-finding and disposition of the Family Court, Nassau County (Greenberg, J.), dated January 13, 2011, which granted the petitioner's motion for summary judgment finding that he had severely abused the subject child and adjudged that he had severely abused the subject child.
ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.
The father's contention that his due process rights were violated because the Family Court addressed the petitioner's motion for summary judgment in his absence is without merit. “While due process of law applies in Family [Court] Act article 10 proceedings and includes the right of a parent to be present at every stage of the proceedings, that right is not absolute” ( Matter of Elizabeth T. [ Leonard T.], 3 A.D.3d 751, 753, 770 N.Y.S.2d 804; see Matter of Lillian D.L., 29 A.D.3d 583, 813 N.Y.S.2d 784; Matter of Q.-L.H., 27 A.D.3d 738, 815 N.Y.S.2d 601; Matter of James Carton K., 245 A.D.2d 374, 377, 665 N.Y.S.2d 426). Here, balancing the due process rights of the father with the respective rights and “mental and emotional well being of the child,” the Family Court did not improvidently exercise its discretion in entertaining the motion in the father's absence ( Matter of Q.-L.H., 27 A.D.3d at 739, 815 N.Y.S.2d 601; see Family Ct. Act § 1042; Matter of Lillian D.L., 29 A.D.3d at 584, 813 N.Y.S.2d 784). In addition, the father was not deprived of the effective assistance of counsel, as counsel is not ineffective for “fail [ing] to make a motion or argument that has little or no chance of success” ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [internal quotation marks omitted]; see People v. Padgett, 87 A.D.3d 1166, 1167, 930 N.Y.S.2d 455; Matter of Ruvolo v. Herrera, 62 A.D.3d 1012, 878 N.Y.S.2d 916; Matter of Alfred C., 237 A.D.2d 517, 655 N.Y.S.2d 589).