Opinion
02-20-2024
In the MATTER OF T. J. J. J. P., A Child Under Eighteen Years of Age, etc., Deryck T. J., Respondent-Appellant, v. J. J. P., Respondent, Rising Ground formerly known as Leake & Watts Children’s Home, Petitioner-Respondent.
Larry S. Bachner, New York, for appellant. Rosin Steinhagen Mendel, PLLC, New York (Marion C. Perry of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the child. Webber, J.P., Gesmer, González, Pitt-Burke,
Larry S. Bachner, New York, for appellant.
Rosin Steinhagen Mendel, PLLC, New York (Marion C. Perry of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the child.
Webber, J.P., Gesmer, González, Pitt-Burke,
Rosado, JJ.
Appeal from order, Family Court, New York County (Clark V. Richardson, J.), entered on or about May 16, 2022, which, upon respondent father’s default in appearing at the fact-finding and dispositional hearings, found that he permanently neglected the subject child, terminated his parental rights, and committed the custody and guardianship of the child to petitioner agency and the Commissioner of Social Services for the purpose of adoption, unanimously dismissed, without costs, as taken from a nonappealable paper.
The father may not challenge the fact-finding determination of permanent ne- glect, including whether the agency expended diligent efforts to strengthen the parental relationship between him and the child, because it was entered upon his default and he has not moved for vacatur (see CPLR 5511; Matter of Felicia Malon Rogue J. [Lena J.], 146 A.D.3d 725, 726, 46 N.Y.S.3d 66 [1st Dept. 2017]).
Contrary to the father’s contention, his refusal to participate in a virtual trial constituted a default (see Matter of Rodney W. v. Josephine F., 126 A.D.3d 605, 606, 6 N.Y.S.3d 239 [1st Dept. 2015]), and Family Court was entitled to draw the strongest negative inference against him for failing to testify (see Matter of Joseph P. [Edwin P.], 143 A.D.3d 529, 530, 39 N.Y.S.3d 142 [1st Dept. 2016], lv denied 28 N.Y.3d 1110, 45 N.Y.S.3d 353, 68 N.E.3d 79 [2016]).
Even if Family Court’s fact-finding determination were properly before this Court, the finding of permanent neglect was supported by clear and convincing evidence. The record shows that the agency expended diligent efforts by meeting with the father and discussing with him the necessity of completing his service plan, scheduling visitation, referring him for mental health services, substance abuse treatment, drug testing, and parenting skills and domestic violence programs, and attempting to contact the father’s prison counselors to monitor his progress with services there (see Matter of Messiah G. [Giselle F.], 168 A.D.3d 420, 421, 91 N.Y.S.3d 43 [1st Dept. 2019], lv dismissed in part, denied in part 32 N.Y.3d 1212, 98 N.Y.S.3d 755, 122 N.E.3d 553 [2019]).
The record demonstrated that the father continued to test positive for marijuana, failed to regularly visit the child, and was not consistently engaged in the required services (see Matter of Micah Zyair F. W. [Tiffany L.], 110 A.D.3d 579, 579, 973 N.Y.S.2d 600 [1st Dept. 2013]). The father’s incarceration during the statutory period did not relieve him of the responsibility to communicate with the child or to plan for his future (see Matter of Paul Antoine Devontae R. [Paul R.], 78 A.D.3d 610, 611, 912 N.Y.S.2d 191 [1st Dept. 2010], lv denied 16 N.Y.3d 707, 2011 WL 1120081 [2011]).
The father’s contention that he received ineffective assistance of counsel is raised for the first time on appeal and unpreserved for appellate review (see Matter of Judith L.C. v. Lawrence Y., 179 A.D.3d 616, 617, 118 N.Y.S.3d 573 [1st Dept. 2020]). On the merits, the attorney’s refusal to participate in the fact-finding hearing after the father declined to participate was not ineffective representation, since the attorney’s strategic decision preserved the father’s opportunity to move to open the default (see Matter of Mishelys R. [Garland R.], 165 A.D.3d 554, 554, 87 N.Y.S.3d 161 [1st Dept. 2018], lv dismissed 32 N.Y.3d 1192, 95 N.Y.S.3d 145, 119 N.E.3d 785 [2019]).
We have reviewed the father’s remaining contentions and find them unavailing.