Opinion
882.1 CAF 19-01343
10-09-2020
In the MATTER OF MATILDA B. Yates County Department of Social Services, Petitioner-Respondent; v. Gerald B. and Phyllis B., Respondents-Appellants.
TODD G. MONAHAN, LITTLE FALLS, FOR RESPONDENT-APPELLANT GERALD B. D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT-APPELLANT PHYLLIS B. DANIELLE A. WARD, PENN YAN, FOR PETITIONER-RESPONDENT. JOSEPH S. DRESSNER, CANANDAIGUA, ATTORNEY FOR THE CHILD.
TODD G. MONAHAN, LITTLE FALLS, FOR RESPONDENT-APPELLANT GERALD B.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT-APPELLANT PHYLLIS B.
DANIELLE A. WARD, PENN YAN, FOR PETITIONER-RESPONDENT.
JOSEPH S. DRESSNER, CANANDAIGUA, ATTORNEY FOR THE CHILD.
PRESENT: CENTRA, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, 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, both respondent mother and respondent father appeal from an order that terminated their parental rights with respect to the subject child on the ground of mental illness. We affirm.
Contrary to respondents' contentions, we conclude that petitioner established " ‘by clear and convincing evidence that [respondents], by reason of mental illness, [are] presently and for the foreseeable future unable to provide proper and adequate care for [the] child[ ]’ " ( Matter of Jason B. [Phyllis B.] , 160 A.D.3d 1433, 1434, 72 N.Y.S.3d 868 [4th Dept. 2018], lv denied 32 N.Y.3d 902, 84 N.Y.S.3d 856, 109 N.E.3d 1156 [2018] ; see Matter of Jason B. [Gerald B.] , 155 A.D.3d 1575, 1575, 63 N.Y.S.3d 630 [4th Dept. 2017], lv denied 31 N.Y.3d 901, 77 N.Y.S.3d 656, 102 N.E.3d 432 [2018] ). Testimony from petitioner's expert psychologists established that the child "would be in danger of being neglected if [she] returned to [their] care at the present time or in the foreseeable future" ( Jason B. , 160 AD3d at 1434 ).
We also reject respondents' contentions that they were denied effective assistance of counsel (see Jason B. , 155 A.D.3d at 1576, 63 N.Y.S.3d 630 ; Matter of Deon M. [Vernon B.] , 155 A.D.3d 1586, 1586, 63 N.Y.S.3d 786 [4th Dept. 2017], lv denied 30 N.Y.3d 910, 71 N.Y.S.3d 4, 94 N.E.3d 486 [2018] ). Contrary to respondents' contentions that they should have been provided with separate counsel, respondents made a motion to Family Court requesting that the same counsel represent both of them, which the court properly granted (see generally Matter of Jason C. , 268 A.D.2d 587, 587-588, 702 N.Y.S.2d 613 [2d Dept. 2000] ), and thus respondents waived any challenge to joint representation (see generally Matter of Aaron W. v. Shannon W. , 96 A.D.3d 960, 962, 946 N.Y.S.2d 648 [2d Dept. 2012] ). In any event, respondents failed to establish that there were not strategic or other legitimate explanations for counsel's choices during the underlying proceedings (see Jason B. , 155 A.D.3d at 1576, 63 N.Y.S.3d 630 ; Deon M. , 155 A.D.3d at 1586, 63 N.Y.S.3d 786 ).
The father's contention that the court should have recused itself is unpreserved because he failed to request that relief at the factfinding hearing (see generally Matter of Justin T. [Wanda T.–Joseph M.] , 154 A.D.3d 1338, 1339-1340, 61 N.Y.S.3d 788 [4th Dept. 2017], lv denied 30 N.Y.3d 910, 71 N.Y.S.3d 4, 94 N.E.3d 486 [2018] ), and we decline to address that issue in the interest of justice (see generally Matter of Reska v. Browne , 182 A.D.3d 1052, 1053, 120 N.Y.S.3d 913 [4th Dept. 2020] ; Matter of Tumario B. [Valerie L.] , 83 A.D.3d 1412, 1412, 919 N.Y.S.2d 730 [4th Dept. 2011], lv denied 17 N.Y.3d 705, 929 N.Y.S.2d 96, 952 N.E.2d 1091 [2011] ).
We reject the father's contention that the court erred in admitting into evidence certain permanency reports inasmuch as the reports were admissible under the business record exception to the hearsay rule (see CPLR 4518 [a] ; Matter of Shirley A.S. [David A.S.] , 90 A.D.3d 1655, 1655, 936 N.Y.S.2d 825 [4th Dept. 2011], lv denied 18 N.Y.3d 811, 945 N.Y.S.2d 645, 968 N.E.2d 1001 [2012] ; Matter of Noemi D. , 43 A.D.3d 1303, 1304, 842 N.Y.S.2d 808 [4th Dept. 2007], lv denied 9 N.Y.3d 814, 848 N.Y.S.2d 26, 878 N.E.2d 609 [2007] ).
Finally, with respect to the father's contention that the court should have granted him a suspended judgment, we conclude that the issue is unpreserved (see Justin T. , 154 A.D.3d at 1339-1340, 61 N.Y.S.3d 788 ) and, in any event, "[t]here is no statutory provision providing for a suspended judgment when parental rights are terminated based on mental illness" ( Matter of Dionne W. , 267 A.D.2d 1096, 1097, 700 N.Y.S.2d 784 [4th Dept. 1999] ).