| Matter of Sean P.H. (Rosemarie H.) |
| 2014 NY Slip Op 08022 [122 AD3d 850] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Sean P.H. Edwin Gould Services forChildren and Families et al., Respondents; Rosemarie H., Appellant, et al.,Respondent. |
Richard L. Herzfeld, New York, N.Y., for appellant.
John R. Eyerman, New York, N.Y., for petitioner-respondent Edwin GouldServices for Children and Families.
Seymour W. James, Jr., New York, N.Y. (Judith Waksberg, Vilia B. Hayes,Cecily C. Williams, Michael A. Rodriguez, and Debbie Placid of counsel), attorney forthe child.
Appeal from an order of fact-finding and disposition of the Family Court, RichmondCounty (Karen Wolff, J.), dated November 5, 2012. The order, after fact-finding anddispositional hearings, found that the mother permanently neglected the subject child,terminated the mother's parental rights, and transferred the guardianship and custody ofthe subject child to the Commissioner of the Administration for Children's Services ofthe City of New York and Edwin Gould Services for Children and Families for thepurpose of adoption.
Ordered that the order is affirmed, without costs or disbursements.
Contrary to the mother's contention, she was not deprived of her right to be presentwhen the Family Court denied her attorney's application to delay the start of thefact-finding hearing until the mother's arrival. A parent's right to be present forfact-finding and dispositional hearings in proceedings to terminate parental rights is notabsolute (see Matter of LillianD.L., 29 AD3d 583, 584 [2006]; Matter of Ramon David W., 290 AD2d357 [2002]; Matter of Raymond Dean L., 109 AD2d 87, 88 [1985]). The childwhose guardianship and custody is at stake also has a fundamental right to a prompt andpermanent adjudication (see Matter of Lillian D.L., 29 AD3d at 584; Matterof Raymond Dean L., 109 AD2d at 90). Thus, when faced with the unavoidableabsence of a parent, a court must balance the respective rights and interests of both theparent and the child in determining whether to proceed (see Matter of LillianD.L., 29 AD3d at 584; Matter of James Carton K., 245 AD2d 374, 377[1997]). Here, the mother's attorney could not offer an excuse for the mother's absence atthe beginning of the fact-finding hearing. The mother did not call her attorney, herguardian ad litem, the court, or the agency to state that she would be delayed. Moreover,the mother was afforded due process, because both her attorney and her guardian adlitem were present during the direct testimony of the witness who testified in the mother'sabsence (see Matter of Lillian D.L., 29 AD3d at 584). In addition, after themother appeared late, the court afforded the mother's attorney an opportunity to conductcross-[*2]examination.
The Family Court properly determined that there was clear and convincing evidencethat the mother permanently neglected the subject child by failing, for a year followingthe child's entrance into foster care, to plan for his return (see Matter of Todd Andre'D.[Kenyetta L.], 88 AD3d 876 [2011]; Matter of Kendra D. [Amanda D.], 81 AD3d 644 [2011];Matter of Wesley F., 190 AD2d 576 [1993]; Matter of Gregory MichaelM., 167 AD2d 469, 470-471 [1990]; Matter of June Y., 128 AD2d 538[1987]). The record establishes that the petitioner Edwin Gould Services for Childrenand Families made diligent efforts to help the mother comply with her service plan,which required the mother to obtain a mental health evaluation, seek recurrent mentalhealth services, attend parenting skills classes, and have regular supervised visitationwith the child. Further, at the time of the filing of the petition, the mother still had notparticipated in mental health services, and supervised visitation with the child had beenterminated two years prior, because the mother had a physical altercation with the fostermother and agency worker in the child's presence. Furthermore, there is no merit to themother's contention that the foster care mother thwarted the mother's reunification withthe subject child (cf. Matter ofChristopher John B. [Christopher B.], 87 AD3d 1133 [2011]; State of NewYork ex rel. Wallace v Lhotan, 51 AD2d 252, 259 [1976]). As the mother failed tocomplete the required programs, the court properly denied the mother's application for asuspended judgment (cf. Matterof Jalil U. [Rachel L.-U.], 103 AD3d 658 [2013]; Matter of Christopher Lee B.,65 AD3d 549, 550 [2009]; Matter of Christopher C., 58 AD3d 622, 624 [2009]; Matter of Shaquill Dywon M.,50 AD3d 1142, 1145 [2008]; Matter of Antonette Alasha E., 8 AD3d 375, 376 [2004]).Moreover, the court properly determined that termination of the mother's parental rightswas in the child's best interests (see Matter of Todd Andre'D. [Kenyetta L.], 88 AD3d 876[2011]; Matter of Kendra D. [Amanda D.], 81 AD3d at 644; Matter ofShawna DD., 289 AD2d 892, 894 [2001]; Matter of Kenneth A., 206 AD2d602, 604 [1994]).
Contrary to the mother's contention, the Family Court properly denied her attorney'smotion, made during his summation, to withdraw as counsel. The mother's attorney failedto make a showing sufficient to warrant his withdrawal as counsel (see George vGeorge, 217 AD2d 913, 914 [1995]; Catrone v Catrone, 92 AD2d 559[1983]). The mother's contention that she was deprived of the effective assistance ofcounsel is without merit. Viewed in totality, the record establishes that the motherreceived meaningful representation during the fact-finding hearing and during herattorney's summation (seeMatter of Darrell W. [Tenika C.], 110 AD3d 1088 [2013]; Matter of Dylan Mc. [Michelle M.Mc.], 105 AD3d 1049 [2013]; Matter of Christiana C. [Carleton C.], 86 AD3d 606[2011]). Rivera, J.P., Skelos, Dickerson and Barros, JJ., concur.