| Matter of Amodea D. (Jason D.) |
| 2013 NY Slip Op 08757 [112 AD3d 1367] |
| December 27, 2013 |
| Appellate Division, Fourth Department |
| In the Matter of Amodea D. and Another, Infants. GeneseeCounty Department of Social Services, Respondent; Jason D.,Appellant. |
—[*1] Charles N. Zambito, County Attorney, Batavia (Paula A. Campbell of counsel), forpetitioner-respondent. Linda M. Jones, Attorney for the Children, Batavia
Appeal from an order of the Family Court, Genesee County (Eric R. Adams, J.),entered June 19, 2012 in a proceeding pursuant to Family Court Act article 10. Theorder, among other things, adjudged that respondent had neglected the subject children.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: In this proceeding pursuant to article 10 of the Family Court Act,respondent father appeals from an order of fact-finding and disposition adjudging that heneglected the subject children. Contrary to the father's contention, Family Court's findingof neglect is supported by a preponderance of the evidence (see Family Ct Act§§ 1012 [f] [i] [B]; 1046 [b] [i]; Matter of Jayden B. [Erica R.], 91 AD3d 1344, 1345[2012]). The testimony presented at the fact-finding hearing established that one childwitnessed, and the other was in proximity to, a physical altercation between the partieswherein the father kicked the mother in the face and placed his hands around her neck toprevent her from breathing. The child who witnessed the altercation told a caseworkerfor petitioner later that day that she was "very sad and scared" upon seeing the mother'sbloodied face after the altercation, and both children indicated to the caseworker thatthey were afraid of the father. We conclude that the children's proximity to thealtercation, "together with the evidence of a pattern of ongoing domestic violence in thehome, placed [the children] in imminent risk of emotional harm" (Jayden B., 91AD3d at 1345). We reject the father's further contention that he was denied effectiveassistance of counsel, which is "impermissibly based on speculation, i.e., that favorableevidence could and should have been offered on his behalf" (Matter of Devonte M.T. [LeroyT.], 79 AD3d 1818, 1819 [2010]). Indeed, " '[i]t is not the role of this Court tosecond-guess the attorney's tactics or trial strategy' " (Matter of Derrick C., 52 AD3d 1325, 1326 [2008], lvdenied 11 NY3d 705 [2008]). Present—Smith, J.P., Fahey, Lindley, Valentinoand Whalen, JJ.