| Matter of Jamaal NN. |
| 2009 NY Slip Op 02504 [61 AD3d 1056] |
| April 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of Jamaal NN. and Another, Children Alleged to beSeverely Abused. Chemung County Department of Social Services, Respondent; Avery NN.,Respondent-Appellant. |
—[*1] Bryan Maggs, County Attorney, Elmira (Scott Fierro of counsel), for respondent. Susan B. Marris, Law Guardian, Manlius.
Kane, J. Appeal from an order of the Family Court of Chemung County (Hayden, J.), enteredJanuary 15, 2008, which granted petitioner's application, in a proceeding pursuant to SocialServices Law § 384-b, to, among other things, adjudicate respondent's children to beseverely abused, and terminated respondent's parental rights.
In September 2006, respondent became frustrated and angry with his paramour's20-month-old child, shook him and threw him to the floor, resulting in the child's death. Inconnection with this incident and a previous incident of abuse, respondent was convicted ofmurder in the second degree, manslaughter in the first degree, manslaughter in the seconddegree, endangering the welfare of a child and reckless endangerment in the second degree, andreceived [*2]an aggregate sentence of 20 years to life inprison.[FN1]Petitioner commenced this proceeding alleging derivative and severe abuse of respondent's twochildren, seeking to terminate his parental rights (see Social Services Law § 384-b[8] [a] [iii]). Family Court granted petitioner's motion for summary judgment on the issue ofsevere abuse and determined that petitioner was not required to make diligent efforts towardreunification. Following a dispositional hearing, the court terminated respondent's parentalrights. Respondent appeals.
Family Court properly granted summary judgment on the issue of severe abuse. Whilerespondent contends that the court should not have retroactively applied a 2006 amendment toSocial Services Law § 384-b (8) (a) (iii), the amendment was appropriately givenretroactive effect because it was remedial in nature and merely closed a loophole that existed inthe statute (see Matter of Marino S., 100 NY2d 361, 370-371 [2003]). Additionally, theamendment specifically states that it applies to all petitions filed more than 90 days following itsAugust 16, 2006 enactment (see L 2006, ch 460, § 4), implying that it appliesretroactively to behavior committed prior to the November 14, 2006 effective date as long as thepetition is filed after that date. Even though respondent's underlying behavior was committedprior to the amendment's effective date, the amendment was properly applied to this petitionfiled in February 2007 (cf. Matter of Marino S., 100 NY2d at 370-371).
Petitioner proved by clear and convincing evidence, based upon the undisputed facts, thatrespondent was a person legally responsible for his paramour's child, as required under SocialServices Law § 384-b (8) (a) (iii) (A). The term "[p]erson legally responsible" includes notonly guardians and custodians, but "any other person responsible for the child's care at therelevant time" (Family Ct Act § 1012 [g]). This phrase has been interpreted to mean aperson who "acts as the functional equivalent of a parent in a familial or household setting"(Matter of Yolanda D., 88 NY2d 790, 796 [1996]). Here, respondent began a romanticrelationship with the child's mother in May 2006, visiting often until he began regularly spendingthe night with the mother and child in July 2006. A neighbor stated that she ate dinner everynight with the mother, child and respondent. In a statement to police, respondent called themother's apartment his "home." Respondent was sometimes left alone with the child andpreviously disciplined him on several occasions, even when the mother was present. Under thecircumstances, Family Court correctly found that respondent was a person legally responsible forthe child, thus permitting a finding of severe abuse of his own children (see SocialServices Law § 384-b [8] [a] [iii] [A]; Matter of Yolanda D., 88 NY2d at 796; Matter of Harmony S., 22 AD3d972, 973 [2005]; Matter of RebeccaX., 18 AD3d 896, 898 [2005], lv denied 5 NY3d 707 [2005]).
Respondent received meaningful representation. Counsel did not contest petitioner's motionfor summary judgment on the issue of severe abuse, instead merely requesting a dispositionalhearing. This could be a reasonable strategy. Counsel, who also represented respondent in hiscriminal case,[FN2]could have reasonably determined that respondent should not [*3]submit an affidavit in response to the motion, lest he make astatement which could negatively affect him in the criminal context. While counsel could havemade a legal argument that summary judgment was inappropriate because a factual hearing wasrequired as to whether respondent was a person legally responsible for the child, we havereviewed that legal argument and found the evidence sufficient on that issue. Counsel cannot bedeemed ineffective for failing to make a motion or response to a motion that is unlikely to besuccessful (cf. People v Caban, 5NY3d 143, 152 [2005]).
Mercure, J.P., Peters, Lahtinen and Malone Jr., concur. Ordered that the order is affirmed,without costs.
Footnote 1: This Court recently affirmedrespondent's criminal convictions.
Footnote 2: Respondent had been foundguilty after trial and was awaiting sentencing when petitioner filed the instant motion in FamilyCourt.