Opinion
2018–01862 Docket No. B–25581–16
02-06-2019
In the MATTER OF DEANNA E.R. (Anonymous). SCO Family of Services, Petitioner-Respondent; v. Latisha M. (Anonymous), Respondent-Appellant, et al., Respondent.
Michael E. Lipson, Jericho, NY, for appellant. Carrieri & Carrieri, P.C., Mineola, N.Y. (Ralph R. Carrieri of counsel), for respondent. Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Diane Pazar of counsel), attorney for the child.
Michael E. Lipson, Jericho, NY, for appellant.
Carrieri & Carrieri, P.C., Mineola, N.Y. (Ralph R. Carrieri of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Diane Pazar of counsel), attorney for the child.
JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.
DECISION & ORDERORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.
The petitioner commenced this proceeding pursuant to Social Services Law § 384–b, inter alia, to terminate the mother's parental rights to the subject child on the ground of permanent neglect. The Family Court found, after a fact-finding hearing, that the mother permanently neglected the child, and, after a dispositional hearing, the court terminated the mother's parental rights and transferred guardianship and custody of the child to the petitioner and the Commissioner of Social Services of the City of New York for the purpose of adoption.
A respondent in a proceeding pursuant to Social Services Law § 384–b has the right to the assistance of counsel (see Family Ct Act 262[a][iv] ), which encompasses the right to the effective assistance of counsel (see Matter of Louise M.L. [Melinda M.T.], 137 A.D.3d 915, 916, 25 N.Y.S.3d 904 ; Matter of Alfred C., 237 A.D.2d 517, 655 N.Y.S.2d 589 ). An attorney representing a client is entitled to make "strategic and tactical decisions concerning the conduct of trials" ( People v. Colon, 90 N.Y.2d 824, 826, 660 N.Y.S.2d 377, 682 N.E.2d 978 ; see e.g. People v. Colville, 20 N.Y.3d 20, 29, 955 N.Y.S.2d 799, 979 N.E.2d 1125 ; People v. Parker, 290 A.D.2d 650, 651, 736 N.Y.S.2d 162 ). Contrary to the mother's contention, her trial counsel was entitled to make the strategic and tactical decision as to whether to present summation remarks, and the record does not show that counsel lacked a legitimate, strategic reason for that decision (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ). Further, the record in totality shows that the mother was afforded meaningful representation (see Matter of Louise M.L. [Melinda M.J.], 137 A.D.3d at 916, 25 N.Y.S.3d 904 ; Matter of Dean J.K. [Joseph D.K.], 121 A.D.3d 896, 897–898, 994 N.Y.S.2d 391 ; Matter of Alfred C., 237 A.D.2d at 517, 655 N.Y.S.2d 589 ).
The petitioner met its initial burden of establishing by clear and convincing evidence that it exercised diligent efforts to strengthen the parental relationship between the mother and the child by, among other things, developing an appropriate service plan, scheduling regular parental access between the mother and the child, and referring the mother to programs for substance-abuse treatment (see Social Services Law § 384–b[7][a] ; Matter of Hailey ZZ. [Ricky Z.Z.], 19 N.Y.3d 422, 430, 948 N.Y.S.2d 846, 972 N.E.2d 87 ; Matter of Sheila G., 61 N.Y.2d 368, 384–385, 474 N.Y.S.2d 421, 462 N.E.2d 1139 ; Matter of Sarah J.A. [Ramadan G.O.-A.], 156 A.D.3d 691, 692, 66 N.Y.S.3d 668 ; Matter of Daniel K.L. [Shaquanna L.], 138 A.D.3d 743, 744, 29 N.Y.S.3d 436 ). The record showed that, despite the petitioner's diligent efforts, the mother failed to plan for the return of the child as, inter alia, she failed to successfully complete substance-abuse treatment and did not consistently attend scheduled parental access. Under these circumstances, the petitioner established by clear and convincing evidence the mother's permanent neglect of the child (see Matter of Jamayla C.M. [Marcela A.C.], 163 A.D.3d 820, 821, 81 N.Y.S.3d 171 ; Matter of Vaughn M.S. [Patricia C.S.], 144 A.D.3d 811, 812, 40 N.Y.S.3d 533 ; Matter of Mercedes R.B. [Heather C.], 130 A.D.3d 1022, 1023, 12 N.Y.S.3d 909 ; Matter of Travis G. [Carmen M.], 117 A.D.3d 1049, 1050, 986 N.Y.S.2d 569 ).
We agree with the Family Court's determination that the termination of the mother's parental rights was in the best interests of the child (see Matter of Jamayla C.M. [Marcela A.C.], 163 A.D.3d at 821, 81 N.Y.S.3d 171 ; Matter of Mercedes R.B. [Heather C.], 130 A.D.3d at 1023, 12 N.Y.S.3d 909 ; Matter of Tarmara F.J. [Jaineen J.], 108 A.D.3d 543, 544, 969 N.Y.S.2d 119 ).
LEVENTHAL, J.P., ROMAN, MALTESE and IANNACCI, JJ., concur.