Opinion
1025 CAF 19-02082
02-05-2021
In the MATTER OF CARTER H. and Parker H. Oswego County Department of Social Services, Petitioner-Respondent; v. Seth H., Respondent-Appellant.
AMDURSKY, PELKY, FENNELL & WALLEN, P.C., OSWEGO (COURTNEY S. RADICK OF COUNSEL), FOR RESPONDENT-APPELLANT. JEFFERY G. TOMPKINS, CAMDEN, FOR PETITIONER-RESPONDENT. CATHERINE M. SULLIVAN, BALDWINSVILLE, ATTORNEY FOR THE CHILDREN.
AMDURSKY, PELKY, FENNELL & WALLEN, P.C., OSWEGO (COURTNEY S. RADICK OF COUNSEL), FOR RESPONDENT-APPELLANT.
JEFFERY G. TOMPKINS, CAMDEN, FOR PETITIONER-RESPONDENT.
CATHERINE M. SULLIVAN, BALDWINSVILLE, ATTORNEY FOR THE CHILDREN.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Social Services Law § 384-b, respondent father appeals from an order terminating his parental rights with respect to the subject children on the ground of permanent neglect. From the time the father admitted neglect to the time of the fact-finding hearing on the petition alleging permanent neglect, which was a period of two years, the father was released from incarceration and then returned to incarceration four times. Each time he was released during those two years, he returned to incarceration within two months for violating his parole. Contrary to the father's contention, petitioner established by clear and convincing evidence that it made diligent efforts to encourage and strengthen the father's relationship with the children, both during the times he was incarcerated and during the times he was released (see Matter of Jamarion N. [Ernest N.] , 181 A.D.3d 1200, 1201, 117 N.Y.S.3d 913 [4th Dept. 2020] ; Matter of Lennox M. [Sarah M.-S.] , 173 A.D.3d 1668, 1669, 103 N.Y.S.3d 210 [4th Dept. 2019] ; Matter of Jaxon S. [Jason S.] , 170 A.D.3d 1687, 1688, 96 N.Y.S.3d 794 [4th Dept. 2019] ). While the father was incarcerated, petitioner's caseworkers sent him monthly letters and met with him on several occasions, they arranged for visitation with the children, they provided him with a prepaid phone card so that he could call the children twice a week, and they advised him of the services he needed when he was released from incarceration. When the father was released, petitioner provided him with temporary housing, and the caseworkers attempted to locate him when he failed to make contact with them. Petitioner also established that, notwithstanding its diligent efforts, the father permanently neglected the children inasmuch as he "failed substantially and continuously or repeatedly to ... plan for the future of the child[ren] although ... able to do so" ( Matter of Star Leslie W. , 63 N.Y.2d 136, 142, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984] ; see Jamarion N. , 181 A.D.3d at 1201, 117 N.Y.S.3d 913 ; Jaxon S. , 170 A.D.3d at 1689, 96 N.Y.S.3d 794 ). While he was incarcerated, the father called the children only a few times a month when they were placed with a relative and not at all when they were subsequently placed in foster care, which is where they had been placed for over a year at the time of the fact-finding hearing. During the times the father was released from incarceration, he made no effort to contact petitioner or comply with his court-ordered services, and he visited the children only one time. In fact, in the period of over a year when the children were in foster care, he never called the children there, never sent them letters, never sent them gifts, and never arranged for visits with them when he was released from incarceration.
The father did not request a suspended judgment and thus failed to preserve for our review his contention that Family Court should have granted one (see Jamarion N. , 181 A.D.3d at 1201-1202, 117 N.Y.S.3d 913 ). In any event, the court did not abuse its discretion in terminating the father's parental rights rather than issuing a suspended judgment (see id. at 1202, 117 N.Y.S.3d 913 ; Lennox M. , 173 A.D.3d at 1670, 103 N.Y.S.3d 210 ). The father made no progress in addressing the issues that led to the removal of the children, and thus a suspended judgment was not warranted (see Jamarion N. , 181 A.D.3d at 1202, 117 N.Y.S.3d 913 ).
We reject the father's contention that he was denied effective assistance of counsel. The father failed to "demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings" ( Matter of Aiden T. [Melissa S.] , 164 A.D.3d 1663, 1664-1665, 84 N.Y.S.3d 658 [4th Dept. 2018], lv denied 32 N.Y.3d 917, 2019 WL 1285104 [2019] [internal quotation marks omitted]; see Matter of Jason B. [Gerald B.] , 155 A.D.3d 1575, 1576, 63 N.Y.S.3d 630 [4th Dept. 2017], lv denied 31 N.Y.3d 901, 2018 WL 1414507 [2018] ). While counsel's performance was not perfect, the record, viewed in totality, reveals that the father received meaningful representation (see Matter of Brooke T. [Terri T.] , 175 A.D.3d 1842, 1842, 107 N.Y.S.3d 755 [4th Dept. 2019] ; Matter of Kemari W. [Jessica J.] , 153 A.D.3d 1667, 1668, 61 N.Y.S.3d 436 [4th Dept. 2017], lv denied 30 N.Y.3d 909, 2018 WL 358524 [2018] ; Matter of Nicholson v. Nicholson , 140 A.D.3d 1689, 1690, 34 N.Y.S.3d 289 [4th Dept. 2016], lv denied 28 N.Y.3d 903, 2016 WL 5001222 [2016] ).
Finally, we reject the father's contention that the court erred in denying his request for the assignment of a new attorney or, alternatively, for an adjournment for him to retain a new attorney. With respect to the father's request for assignment of new counsel, he failed to show good cause for a substitution (see Matter of Alexander S. [David S.] , 130 A.D.3d 1463, 1464, 12 N.Y.S.3d 747 [4th Dept.2015], appeal dismissed and lv denied 26 N.Y.3d 1030, 20 N.Y.S.3d 339, 41 N.E.3d 1154 [2015], rearg denied 26 N.Y.3d 1132, 27 N.Y.S.3d 495, 47 N.E.3d 775 [2016] ; Matter of Wiley v.Musabyemariya , 118 A.D.3d 898, 900, 988 N.Y.S.2d 259 [2d Dept.2014], lv denied 24 N.Y.3d 907, 2014 WL 5369092 [2014] ; see generally People v. Sides , 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ). His statements regarding counsel were conclusory and reflected only a delaying tactic (see Wiley , 118 A.D.3d at 900-901, 988 N.Y.S.2d 259 ). With respect to the father's request for an adjournment to retain his own counsel, it is well settled that "[t]he granting of an adjournment [to obtain new counsel] is addressed to the sound discretion of the court ... In making such a determination, the court must undertake a balanced consideration of all relevant factors" ( Matter of Sicurella v. Embro , 31 A.D.3d 651, 651, 819 N.Y.S.2d 75 [2d Dept. 2006], lv denied 7 N.Y.3d 717, 827 N.Y.S.2d 687, 860 N.E.2d 989 [2006] ; see generally Matter of Steven B. , 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 [2006] ). The father made his request on the day of the rescheduled fact-finding hearing, after having been granted two prior adjournments. Under the circumstances, the court did not abuse its discretion in denying the request for another adjournment (see Matter of Logan R. [Manuel R.] , 168 A.D.3d 946, 947, 92 N.Y.S.3d 346 [2d Dept. 2019], lv denied 33 N.Y.3d 911, 2019 WL 4071735 [2019] ; Matter of Latonia W. [Anthony W.] , 144 A.D.3d 1692, 1693-1694, 41 N.Y.S.3d 643 [4th Dept. 2016], lv denied 28 N.Y.3d 914, 2017 WL 582524 [2017] ).