| Matter of Fay GG. (John GG.) |
| 2012 NY Slip Op 05573 [97 AD3d 918] |
| July 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Fay GG. and Another, Children Alleged to beSexually Abused and/or Neglected Children. Broome County Department of Social Services,Respondent; John GG., Appellant. |
—[*1] Philomena M. Stamato, Broome County Department of Social Services, Binghamton, forrespondent. Allen E. Stone, Vestal, attorney for the child.
Lahtinen, J. Appeals (1) from an order of the Family Court of Broome County (Connerton,J.), entered February 24, 2011, which, in a proceeding pursuant to Family Ct Act article 10,among other things, denied respondent John GG.'s motion to dismiss the petition for lack ofsubject matter jurisdiction, and (2) from an order of said court, entered March 18, 2011, which,among other things, granted petitioner's application, in a proceeding pursuant to Family Ct Actarticle 10, to adjudicate Michael GG. to be abused and neglected.
Petitioner commenced proceedings in August 2009 alleging, among other things, thatrespondent abused and neglected his then 17-year-old daughter, Fay GG. (born in 1991), andneglected his then 16-year-old son, Michael GG. (born in 1992). Following a fact-finding hearingthat commenced in January 2010 and concluded in August 2010, Family Court determined thatpetitioner had established the abuse and neglect claims asserted against [*2]respondent. Although both children had turned 18 years old by thetime of the dispositional hearing, Michael consented to continued placement in foster care(see Family Ct Act § 1055 [e]). Respondent agreed that Michael, who hassignificant mental health challenges, should continue in his placement, but asserted that FamilyCourt lacked jurisdiction to require respondent to engage in any services. Family Court, notingthat Michael was in petitioner's care and respondent had ongoing supervised visitation, directedrespondent to participate in anger management counseling, sexual abuse evaluation and mentalhealth assessment. Respondent appeals.[FN1]
We consider first respondent's argument that Family Court erred in finding that he hadabused and neglected Fay and neglected Michael. "In a Family Ct Act article 10 proceeding,petitioner bears the burden of proving abuse and/or neglect by a preponderance of the evidence"(Matter of Telsa Z. [RickeyZ.—Denise Z.], 71 AD3d 1246, 1249 [2010] [citation omitted]; seeFamily Ct Act § 1046 [b]). Fay testified about an incident where respondent forced her toput her hand on and then stroke his erect penis. Respondent acknowledged to authorities that,many years earlier and after he had consumed alcoholic beverages, a sexual incident hadoccurred with Fay. The children further related incidents where respondent physically assaultedthem and threw objects, including furniture, at them. Respondent, who had custody of thechildren, failed to seek vision and dental care for Michael. When Michael was removed fromliving with respondent, it was discovered that he needed glasses and had numerous cavities.Respondent elected not to testify, permitting a strong inference to be drawn against him (see Matter of Branden P. [Corey P.], 90AD3d 1186, 1188 [2011]). The evidentiary errors that respondent contends occurred at thehearing have been considered and do not require reversal. The record sufficiently supportsFamily Court's determination regarding abuse and neglect.
Respondent contends that Michael did not knowingly consent to remain in foster care beyondthe age of 18. This argument was waived since respondent did not object to Michael's continuedcustody with petitioner. In any event, the record supports the determination that, despite hislower intellect and mental health challenges, Michael knowingly and intelligently chose toremain in foster care.
Further, under the narrow circumstances in this case, Family Court did not act beyond itsjurisdiction in directing respondent to participate in services. Although "Family Court is a courtof limited jurisdiction" (Matter of H.M.v E.T., 14 NY3d 521, 526 [2010]), a neglected child who has turned 18 but is not yet 21can elect to stay in or return to foster care (see Family Ct Act § 1055 [e]; Matter of Sheena B. [Rory F.], 83AD3d 1056, 1058 [2011]). Michael made such an election, resulting in petitioner havingcontinued responsibility for him. Respondent sought to remain involved in Michael's life and acaseworker indicated that his role might be helpful in the rapidly approaching transition fromfoster care facing Michael (see Family Ct Act § [*3]1052 [b] [1] [B]). Respondent was permitted supervised visitationand sought to attend service plan meetings. In light of petitioner's continued responsibilities forMichael arising from his election to stay in foster care, Family Court had jurisdiction during thetime that Michael remained in foster care to require respondent's participation in servicesdesigned to help ensure that his role and access were in the best interests of the child.[FN2]
Our review of the record reveals that respondent received meaningful representation and,thus, his ineffective assistance of counsel argument is unavailing (see Matter of Hailey JJ. [Garfield KK.],84 AD3d 1432, 1432 [2011]; Matter of Hurlburt v Behr, 70 AD3d 1266, 1267 [2010], lvdismissed 15 NY3d 943 [2010]). Counsel adequately cross-examined witnesses, madeappropriate objections and engaged in useful motion practice. Respondent failed to establish thatthe omissions of which he now complains fell outside the realm of legitimate trial strategy (see Matter of Spiewak v Ackerman, 88AD3d 1191, 1193 [2011]; Matter ofChristiana C. [Carleton C.], 86 AD3d 606, 607-608 [2011], lv denied 17 NY3d715 [2011]). The remaining arguments have been considered and are unpersuasive.
Peters, P.J., Spain, Malone Jr. and Garry, JJ., concur. Ordered that the appeal from the orderentered February 24, 2011 is dismissed, without costs. Ordered that the order entered March 18,2011 is affirmed, without costs.
Footnote 1: Respondent appealed from boththe February 2011 decision and order and the March 2011 order. The March 2011 order wasprepared pursuant to Family Court's directive at the end of its February 2011 decision thatpetitioner submit an order within 10 days. Although the appeal from the February 2011 decisionwas unnecessary and untimely, the appeal from the March 2011 order was nevertheless timelyand preserved all issues (see Matter ofSantino B. [Lisette C.], 93 AD3d 1086, 1087 [2012]).
Footnote 2: As noted by petitioner in itsbrief, respondent's participation in services at this point is a voluntary choice for him. Althoughfailure to participate could reduce his role with Michael while the child is still in petitioner'scustody, it would not result in enforcement under Family Ct Act § 1072 (b).