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In re Adam M. M. (Anonymous)

Supreme Court of New York, Second Department

January 15, 2020

In the Matter of Adam M. M. (Anonymous). SCO Family of Services, petitioner-respondent; Sophia M. (Anonymous), appellant, et al., respondent. (Proceeding No. 1.) In the Matter of "No Given Name" F. (Anonymous), also known as Matthew M. (Anonymous). SCO Family of Services, petitioner-respondent; Sophia M. (Anonymous), appellant, et al., respondent. (Proceeding No. 2.)

          Helen Chowes, New York, NY, for appellant.

          Leventhal, Mullaney & Blinkoff, LLP, Roslyn, NY (Jeffrey Blinkoff of counsel), for petitioner-respondent.

          Janet E. Sabel, New York, NY (Dawne A. Mitchell and Susan Clement of counsel), attorney for the children.

          RUTH C. BALKIN, J.P. JOHN M. LEVENTHAL ROBERT J. MILLER LINDA CHRISTOPHER, JJ.

          DECISION & ORDER

         In related proceedings pursuant to Social Services Law § 384-b, the mother appeals from two orders of fact-finding and disposition (one as to each child) of the Family Court, Queens County (Joan L. Piccirillo, J.), both dated November 14, 2018. The orders of fact-finding and disposition, insofar as appealed from, after fact-finding and dispositional hearings, and upon the mother's failure to appear at the fact-finding hearings, found that the mother abandoned and permanently neglected the subject children, terminated her parental rights, and transferred custody and guardianship of the subject children to the petitioner for the purpose of adoption.

         ORDERED that the appeals from so much of the orders of fact-finding and disposition as found that the mother abandoned and permanently neglected the subject children are dismissed, without costs or disbursements, as no appeal lies from those portions of the orders which were entered on the mother's default (see Matter of Serenity C.W. [Antoinette W.], 158 A.D.3d 716); and it is further, ORDERED that the orders of fact-finding and disposition are affirmed insofar as reviewed, without costs or disbursements.

         The two subject children, born in 2011 and 2012, respectively, were placed in kinship foster care in 2015. In 2017, the petitioner commenced these related proceedings pursuant to Social Services Law § 384-b, inter alia, to terminate the mother's parental rights on the grounds of abandonment and permanent neglect. After fact-finding and dispositional hearings, the Family Court found that the mother abandoned and permanently neglected the children, terminated her parental rights, and transferred custody and guardianship of the children to the petitioner for the purpose of adoption.

         The mother did not appear at the fact-finding hearings until the hearings had concluded and decisions had been rendered. Under the circumstances, she may not challenge on these appeals those portions of the orders of fact-finding and disposition which found that she abandoned and permanently neglected the children (see Matter of Serenity C.W. [Antoinette W.], 158 A.D.3d 716, 717; Matter of Dupree J.P. [Richard P.], 128 A.D.3d 967, 968).

         Contrary to the mother's contention, the record supports the Family Court's determinations, by a preponderance of evidence, that it was in the best interests of the children to terminate her parental rights and free the children for adoption (see Matter of Stefano E.W., 172 A.D.3d 882, 883-884; Matter of Amber L.M., 167 A.D.3d 746, 747).

         The mother contends that she was deprived of the effective assistance of counsel. "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" (Matter of Deanna E.R. [Latisha M.], 169 A.D.3d 691, 692). "[T]he statutory right to counsel under Family Court Act § 262 affords protections equivalent to the constitutional standard of effective assistance of counsel afforded to defendants in criminal proceedings" (Matter of Nassau County Dept. of Social Servs. v King, 149 A.D.3d 942, 943).

         "An attorney representing a client is entitled to make strategic and tactical decisions concerning the conduct of trials'" (Matter of Deanna E.R. [Latisha M.], 169 A.D.3d at 692, quoting People v Colon, 90 N.Y.2d 824, 826). Accordingly, "what constitutes effective assistance is not and cannot be fixed with precision, but varies according to the particular circumstances of each case" (People v Rivera, 71 N.Y.2d 705, 708). To prevail on a claim of ineffective assistance of counsel, it is incumbent on the respondent to "demonstrate the absence of strategic or other legitimate explanations" for counsel's alleged shortcomings (id. at 709; see People v Mendoza, 33 N.Y.3d 414, 418). Here, contrary to the mother's contention, she failed to establish "the absence of strategic or other legitimate explanations" for her counsel's alleged shortcomings (People v Rivera, 71 ...


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