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In re Kelsey R.K.

Supreme Court of New York, Fourth Department

January 3, 2014

In the Matter of Kelsey R.K. AND MOLLY T.K JEFFERSON COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; JOHN J.K., JR. AND SHEILA K., RESPONDENTS-APPELLANTS

Appeals from an order of the Family Court, Jefferson County (Richard V. Hunt, J.), entered August 17, 2012 in a proceeding pursuant to Social Services Law § 384-b. The order, among other things, terminated respondents' parental rights with respect to the subject children.

THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR RESPONDENT-APPELLANT JOHN J.K., JR.

LEAH K. BOURNE, ROCHESTER, FOR RESPONDENT-APPELLANT SHEILA K.

KRISTOPHER STEVENS, WATERTOWN, FOR PETITIONER-RESPONDENT.

LISA A. PROVEN, ATTORNEY FOR THE CHILDREN, WATERTOWN.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Respondent father and respondent mother appeal from an order terminating their parental rights pursuant to Social Services Law § 384-b on the ground of permanent neglect. We affirm. Petitioner met its burden of proving "by clear and convincing evidence that it made diligent efforts to encourage and strengthen the relationship between [the parents] and the child[ren]" (Matter of Ja-Nathan F., 309 A.D.2d 1152, 1152; see § 384-b [7] [a]). Among other things, petitioner provided the parents with the opportunity to obtain appropriate housing, provided supervised visitation with the children, and provided the parents with counseling (see generally § 384-b [7] [f] [1] - [4]; Matter of Star Leslie W., 63 N.Y.2d 136, 142). Contrary to the parents' further contention, the evidence at the hearing establishes that, despite petitioner's diligent efforts to reunite them with the children, the parents chose to obtain different housing and then denied petitioner access to their home after one visit; the visits with the children did not go well and were stressful for the children; and the parents failed to make progress in counseling due to their refusal to acknowledge the sexual abuse inflicted on the children and to take responsibility for their failure to protect the children. Thus, petitioner established that the parents "failed to address successfully the problems that led to the removal of the child[ren] and continued to prevent the child[ren's] safe return" (Ja-Nathan F., 309 A.D.2d at 1152; see Matter of Jesus JJ., 232 A.D.2d 752, 754-755, lv denied 89 N.Y.2d 809).

The father's contention that Family Court improperly limited his cross-examination of a witness is not preserved for our review (see generally Matter of Clime v Clime, 85 A.D.3d 1671, 1672). In any event, the court did not abuse its discretion in simply restating petitioner's position following an overly broad question posed by the father's attorney that would have merely elicited repetitive testimony (see generally Matter of Heather J., 244 A.D.2d 762, 763-764). Finally, we reject the mother's contention that she was denied effective assistance of counsel. It is axiomatic that, "because the potential consequences are so drastic, the Family Court Act affords protections equivalent to the constitutional standard of effective assistance of counsel afforded defendants in criminal proceedings' " (Matter of James R., 238 A.D.2d 962, 963; see Matter of Sarah A., 60 A.D.3d 1293, 1294-1295). The mother contends that her attorney was ineffective in failing to object to the qualification of certain witnesses as experts and in failing to call as a witness her new counselor, whom she did not start seeing until after the diligent efforts period. There is no denial of effective assistance of counsel, however, arising from a failure to make a motion or argument that has little or no chance of success (see People v Stultz, 2 N.Y.3d 277, 287, rearg denied 3 N.Y.3d 702).


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