| Matter of Elijah D. (Allison D.) |
| 2010 NY Slip Op 05170 [74 AD3d 1846] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Elijah D. Erie County Department of SocialServices, Respondent; Allison D., Appellant. |
—[*1] Joseph T. Jarzembek, Buffalo, for petitioner-respondent. David C. Schopp, Attorney for the Child, the Legal Aid Bureau of Buffalo, Inc., Buffalo(Charles D. Halvorsen of counsel), for Elijah D.
Appeal from an order of the Family Court, Erie County (Patricia A. Maxwell, J.), enteredApril 21, 2009 in a proceeding pursuant to Family Court Act article 10. The order, inter alia,terminated the parental rights of respondent.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order terminating her parental rightswith respect to her son on the ground of permanent neglect. The child was placed in foster care10 days after his birth as a result of positive toxicology reports indicating that a variety ofsubstances were found in his system at birth, including prescribed medication that the motheringested during her pregnancy. Contrary to the mother's contention, Family Court did not abuseits discretion in refusing to enter a suspended judgment (see Matter of Arella D.P.-D., 35 AD3d 1222 [2006], lv denied8 NY3d 809 [2007]). Although the mother had made progress in completing therequirements of petitioner's plan for services and had discontinued the use of prescribed painmedication, that progress was made after the petition was filed, and she failed to complete thoserequirements during the 10 months from the time the petition was filed and the hearing wasconcluded (cf. Matter of ChristopherC., 58 AD3d 622, 623-624 [2009]). The record supports our conclusion that " '[t]heprogress made by [the mother] in the months preceding the dispositional determination was notsufficient to warrant any further prolongation of the child's unsettled familial status' " (Matter of Roystar T. [Samarian B.], 72AD3d 1569, 1569 [2010]). The court's determination that it was in the child's best intereststo be adopted by the foster parents with whom he had lived since his birth rather than to bereturned to the mother is entitled to great deference (see Matter of Kyle S., 11 AD3d 935 [2004]).
We reject the further contention of the mother that she was denied effective assistance ofcounsel. It is axiomatic that, "because the potential consequences are so drastic, the Family CourtAct[*2]'affords protections equivalent to the constitutionalstandard of effective assistance of counsel afforded defendants in criminal proceedings' "(Matter of James R., 238 AD2d 962, 963 [1997]; see Matter of Sarah A., 60 AD3d 1293, 1294-1295 [2009]). Therecord establishes that the mother's attorney effectively cross-examined petitioner's witnesses.Furthermore, the mother's attorney called several witnesses and effectively demonstrated that theinability of the mother to care for her son was related to prescribed pain medication, that she wasno longer taking that medication, that she had progressed in completing the requirements ofpetitioner's plan for services and that she visited her son consistently in the several monthspreceding the dispositional determination. We conclude that the mother failed to " 'demonstratethe absence of strategic or other legitimate explanations' for counsel's alleged shortcomings" andthat the mother received meaningful representation (People v Benevento, 91 NY2d 708,712 [1998]; see generally James R., 238 AD2d 962 [1997]). Present—Scudder,P.J., Martoche, Sconiers, Green and Gorski, JJ.