| Matter of Sean W. (Brittany W.) |
| 2011 NY Slip Op 06719 [87 AD3d 1318] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Sean W., an Infant. Onondaga County Departmentof Social Services, Respondent; Brittany W., Appellant; Christopher R., Respondent. Vincent M.et al., Intervenors-Respondents. |
—[*1] Gordon J. Cuffy, County Attorney, Syracuse (Sara J. Langan of counsel), forpetitioner-respondent. Paul L. Chapman, Attorney for the Child, Syracuse, for Sean W. Hancock & Estabrook, LLP, Syracuse (Janet D. Callahan of counsel), forintervenors-respondents.
Appeal from an order of the Family Court, Onondaga County (Bryan R. Hedges, J.), enteredMay 25, 2010 in a proceeding pursuant to Social Services Law § 384-b. The order, amongother things, terminated the parental rights of respondent Brittany W.
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 rights withrespect to her son based on a finding of permanent neglect and freeing her son for adoption. Themother failed to preserve for our review her contention that Family Court should have entered asuspended judgment (see Matter ofAndrea E. [Valerie E.], 72 AD3d 1617, 1617-1618 [2010], lv denied 15 NY3d703 [2010]; Matter of Charles B.,46 AD3d 1430, 1431 [2007], lv denied 10 NY3d 705 [2008]). In any event, thatcontention lacks merit because " 'there was no evidence that [the mother] had a realistic, feasibleplan to care for the child[ ]' " (Matter ofNicholas B. [Eleanor J.], 83 AD3d 1596, 1598 [2011], lv denied 17 NY3d 705[2011]), and the record establishes that the mother was not likely to change her behavior (see Matter of Kyle S., 11 AD3d935, 936 [2004]). Any " 'progress made by the [mother] in the [weeks] preceding thedispositional determination was not sufficient to warrant any further prolongation of the child['s]unsettled familial status' " (Matter ofKyle K. [Harry K.], 72 AD3d 1592, 1593-1594 [2010], lv denied 15 NY3d 705[2010]). In addition, the mother failed to preserve for our review her contention that the courtshould have provided for post-termination contact with the child, and we conclude [*2]in any event that she failed to establish that "such contact would bein the best interests of the child[ ]" (Andrea E., 72 AD3d at 1618 [internal quotationmarks omitted]).
We reject the mother's further contention that she was denied effective assistance of counsel."There was no showing of ineffectiveness here, nor may ineffectiveness be inferred merelybecause the attorney counseled [the parent] to admit [to] the allegations in the petition"(Matter of Nasir H., 251 AD2d 1010, 1010 [1998], lv denied 92 NY2d 809[1998]; see Matter of Yusef P., 298 AD2d 968, 969 [2002]; Matter of MichaelW., 266 AD2d 884, 884-885 [1999]). Further, a parent alleging ineffective assistance ofcounsel in a Family Court case "has the burden of demonstrating . . . that thedeficient representation resulted in actual prejudice" (Matter of Michael C., 82 AD3d 1651, 1652 [2011], lv denied17 NY3d 704 [2011]; see Matter ofAmanda T., 4 AD3d 846, 847 [2004]), and the mother failed to meet that burden herewith respect to her attorney's alleged failure to request a suspended judgment or postterminationcontact. Indeed, the evidence at the dispositional hearing established that neither a suspendedjudgment nor post-termination contact was in the child's best interests.
The mother further contends that the court lacked jurisdiction over the instant terminationproceeding because there was no compliance with Social Services Law § 384-b (3) (c-1),which applies where one Family Court Judge presided over a prior permanency hearing and atermination of parental rights petition involving the same child is assigned to a different FamilyCourt Judge. We reject that contention. Social Services Law § 384-b (3) (d) and (4) (d)specifically grant Family Court jurisdiction over proceedings to terminate parental rights basedupon permanent neglect and, contrary to the mother's contention, Social Services Law §384-b (3) (c-1) does not concern subject matter jurisdiction (see Carrieri, PracticeCommentaries, McKinney's Cons Laws of NY, Book 52A, Social Services Law § 384-b, at225). Rather, that statute concerns venue, which may be waived if not raised, as was the casehere (see generally Matter of BrayannaG., 66 AD3d 1375, 1376 [2009], lv denied 13 NY3d 714 [2009]). Moreover, theprovision in Social Services Law § 384-b (3) (c-1) that "[t]he petition [to terminateparental rights] shall be assigned, wherever practicable, to the judge who heard the most recentproceeding" expresses no more than a preference in the assignment of judges and does notconstitute a mandate (see generally Matter of Michael M., 162 Misc 2d 676, 677-678[1994]). Such preference in the assignment of judges "[i]n no way . . .circumscribes the power of [Family C]ourt in the sense of competence to adjudicate causes [ofaction for termination of parental rights]," and therefore cannot be said to implicate the court'ssubject matter jurisdiction (Lacks v Lacks, 41 NY2d 71, 75-76 [1976], rearg denied41 NY2d 862, 901 [1977]; see Brayanna G., 66 AD3d at 1376).
Finally, the mother failed to preserve for our review her contention that the court erred inpermitting the foster parents to participate in the dispositional hearing pursuant to Social ServicesLaw § 383 (3) in the absence of a written motion to intervene (see CPLR 1012 [a][1]; 1014). "An issue may not be raised for the first time on appeal . . . where it'could have been obviated or cured by factual showings or legal countersteps' in the trial court"(Oram v Capone, 206 AD2d 839, 840 [1994], quoting Telaro v Telaro, 25 NY2d433, 439 [1969], rearg denied 26 NY2d 751 [1970]). Here, the alleged deficiency couldhave been cured upon the mother's objection by the filing of a written motion to intervenebecause the foster parents were entitled to intervene as a matter of right, having continuouslycared for the child for more than 12 months (see Social Services Law § 383 [3];CPLR 1012 [a] [1]). Present—Smith, J.P., Fahey, Peradotto, Lindley and Sconiers, JJ.