Opinion
328 CAF 19-00279
10-09-2020
In the MATTER OF ETHAN F. and Michael F. Oneida County Department of Social Services, Petitioner-Respondent; v. Corrie L., Respondent-Appellant. (Appeal No. 1.)
KATHRYN F. HARTNETT, UTICA, FOR RESPONDENT-APPELLANT. DENISE MORGAN, UTICA, FOR PETITIONER-RESPONDENT. PETER J. DIGIORGIO, JR., UTICA, ATTORNEY FOR THE CHILD. PAUL A. NORTON, CLINTON, ATTORNEY FOR THE CHILD.
KATHRYN F. HARTNETT, UTICA, FOR RESPONDENT-APPELLANT.
DENISE MORGAN, UTICA, FOR PETITIONER-RESPONDENT.
PETER J. DIGIORGIO, JR., UTICA, ATTORNEY FOR THE CHILD.
PAUL A. NORTON, CLINTON, ATTORNEY FOR THE CHILD.
PRESENT: PERADOTTO, J.P., TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In appeal No. 1, respondent appeals from an order of fact-finding adjudging, inter alia, that he had severely abused one of the subject children and, in appeal No. 2, he appeals from the order of disposition. Inasmuch as the order at issue in appeal No. 2 was entered upon the consent of the parties, appeal No. 2 must be dismissed (see Matter of Edward T. [Maria T.] , 175 A.D.3d 1115, 1115, 105 N.Y.S.3d 316 [4th Dept. 2019] ; Matter of Lasondra D. [Cassandra D.—Victor S.] , 151 A.D.3d 1655, 1655-1656, 56 N.Y.S.3d 713 [4th Dept. 2017], lv denied 30 N.Y.3d 902, 2017 WL 4653554 [2017] ).
Respondent failed to preserve for our review his contention that Family Court erred in failing to conduct an inquiry into his legal and financial circumstances before denying his request to appear by telephone (see Matter of Jaydalee P. [Codilee R.] , 156 A.D.3d 1477, 1477, 67 N.Y.S.3d 371 [4th Dept. 2017], lv denied 31 N.Y.3d 904, 2018 WL 1957464 [2018] ). We reject respondent's further contention that his counsel was ineffective in failing to request such an inquiry inasmuch as respondent failed to "demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings" ( Matter of Buckley v. Kleinahans , 162 A.D.3d 1561, 1563, 78 N.Y.S.3d 569 [4th Dept. 2018] [internal quotation marks omitted] ).
Respondent next contends that the court erred in taking judicial notice of testimony from a custody hearing involving the children's biological parents from which his counsel was absent. Respondent also contends that his counsel was ineffective for failing to object. We reject those contentions. Both contentions are belied by the record, which reflects that counsel did object and that the court, in effect, sustained the objection and declined to take judicial notice of the testimony. In any event, any error by the court in taking judicial notice was harmless (see Matter of Cyle F. [Alexander F.] , 155 A.D.3d 1626, 1627, 64 N.Y.S.3d 842 [4th Dept. 2017], lv denied 30 N.Y.3d 911, 71 N.Y.S.3d 5, 94 N.E.3d 487 [2018] ).