IN RE: NEDIA M. (2025)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In these proceedings for appointment of a kinship guardian pursuant to Family Court Act article 6 and SCPA article 17, respondent mother (respondent) appeals in appeal No. 1 and in appeal No. 2 from orders appointing petitioner, the paternal aunt of the subject children, as their kinship guardian.

Respondent contends in each appeal that Family Court lacked subject matter jurisdiction over these proceedings because the guardianship petitions were filed at a time when the permanency goal in each child's Family Court Act article 10-A proceeding was return to parent rather than referral for legal guardianship (see generally Family Ct Act § 661 [c]). We reject that contention. Family Court Act § 661 (c) allows a child's relative to file a kinship guardianship petition while an article 10 or 10-A proceeding is pending (see Merril Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Family Ct Act § 661; see generally Matter of Rebecca B. v. Michael B., 152 A.D.3d 675, 676, 58 N.Y.S.3d 588 [2d Dept. 2017]). Indeed, the court was required to consider all potential placement options, including the possibility of referral for legal guardianship or other permanent placement with a relative, at each permanency hearing held pursuant to article 10-A for the subject children (see § 1089 [c] [1]; [d] [2] [i]). Further, although a court may not impose “concurrent and contradictory permanency goals” (Matter of Dakota F. [Angela F.], 92 A.D.3d 1097, 1098-1099, 939 N.Y.S.2d 586 [3d Dept. 2012]), “simultaneously considering [guardianship] and working with a parent is not necessarily inappropriate” (Matter of Kiara F. [Evan F.], 231 A.D.3d 1489, 1490-1491, 219 N.Y.S.3d 845 [4th Dept. 2024] [internal quotation marks omitted]; see Matter of Steven S. [Lyndsey M.], 229 A.D.3d 1207, 1209, 214 N.Y.S.3d 585 [4th Dept. 2024]).

Respondent further contends that the court erred in failing to hold a joint hearing on the issues of permanency and guardianship, particularly inasmuch as the permanency goal for the children had not changed from return to parent. We reject that contention. Initially, we note that the court was not required to hold a joint hearing; rather, the Family Court Act provides that the court “may consolidate the hearing of the guardianship petition ․ with ․ a permanency hearing under article [10-A]” (Family Ct Act § 661 [c]; see also § 1089-a [a]). Nevertheless, the record demonstrates that the court held a joint permanency and guardianship hearing—regardless of how that hearing was formally denominated—inasmuch as the court considered both the appropriate permanency goal and the merits of the guardianship petitions. The record further demonstrates that, in connection with granting the guardianship petitions, the court ultimately determined that referral for guardianship was an appropriate permanency goal and that there were compelling reasons why return to parent was not an appropriate goal. Contrary to respondent's contention, the court's determination that return to parent was no longer an appropriate permanency goal is supported by a sound and substantial basis in the record inasmuch as a preponderance of the evidence established that the children would be at risk of neglect if returned to respondent because of her ongoing relationship with respondent father, despite the danger he posed to the children, and because of her refusal to substantiate that she was no longer using drugs (see Matter of Nevaeh L. [Katherine L.], 177 A.D.3d 1400, 1402, 113 N.Y.S.3d 454 [4th Dept. 2019]; Matter of Carson W. [Jamie G.], 128 A.D.3d 1501, 1504, 8 N.Y.S.3d 828 [4th Dept. 2015], lv dismissed 26 N.Y.3d 976, 18 N.Y.S.3d 588, 40 N.E.3d 565 [2015]).

Even assuming, arguendo, that respondent preserved for our review her contention that the court erred in granting those parts of petitioner's motions seeking partial summary judgment on the issue of the existence of extraordinary circumstances (cf. Matter of Torres v. Burchell, 228 A.D.3d 1303, 1303, 213 N.Y.S.3d 610 [4th Dept. 2024], lv denied 42 N.Y.3d 908, 2024 WL 4845156 [2024]; Van Sharma, Inc. v. Chamberlain, 109 A.D.3d 1094, 1095, 972 N.Y.S.2d 132 [4th Dept. 2013]), we conclude that the court did not err in granting those parts of the motions. Petitioner sustained her initial burden of demonstrating the existence of extraordinary circumstances based on, inter alia, the court's prior finding that respondent neglected the subject children (see Matter of Emma D. [Kelly V.(D.)], 180 A.D.3d 1331, 1332-1333, 117 N.Y.S.3d 412 [4th Dept. 2020], lv denied 35 N.Y.3d 907, 2020 WL 3422294 [2020]; see generally Matter of Holmes v. Glover, 68 A.D.3d 868, 869, 890 N.Y.S.2d 629 [2d Dept. 2009]). Respondent failed to raise a triable issue of fact on that discrete issue (see generally Matter of Paige K. [Jay J.B.], 81 A.D.3d 1284, 1285, 916 N.Y.S.2d 542 [4th Dept. 2011]).

We reject respondent's contention that the court erred in failing to hold age-appropriate consultation with the children pursuant to Family Court Act § 1089-a (e). The Family Court Act does not require that a young child be personally produced in court for such consultation, and we conclude that the court's obligation was satisfied by “eliciting ․ the child[ren]’s wishes from the attorney for the child[ren]” (Dakota F., 92 A.D.3d at 1098, 939 N.Y.S.2d 586; see also Matter of Isayah R. [Shaye R.], 189 A.D.3d 1942, 1944, 137 N.Y.S.3d 588 [3d Dept. 2020]).

Contrary to respondent's contention, the court had the authority to set terms for respondent's visitation with the children upon its appointment of petitioner as their kinship guardian (see Matter of Eliza JJ. v. Felipe KK., 173 A.D.3d 1285, 1285, 102 N.Y.S.3d 748 [3d Dept. 2019]; Matter of Caron C.G.G. [Alicia G.–Jasmine D.], 165 A.D.3d 476, 477, 85 N.Y.S.3d 430 [1st Dept. 2018]). “[T]he propriety of visitation is generally left to the sound discretion of Family Court[,] whose findings are accorded deference by this Court and will remain undisturbed unless lacking a sound basis in the record” (Matter of Mountzouros v. Mountzouros, 191 A.D.3d 1388, 1389, 140 N.Y.S.3d 343 [4th Dept. 2021], lv denied 37 N.Y.3d 902, 2021 WL 2153106 [2021] [internal quotation marks omitted]). Although neither petitioner nor respondent requested supervised visitation, the record supports the court's determination that “the best interests of the child[ren] would be served by the continuation of supervised visitation” (Matter of Burczynski v. Rodgers, 61 A.D.3d 1401, 1401, 877 N.Y.S.2d 712 [4th Dept. 2009]; see Matter of Reska v. Browne, 182 A.D.3d 1052, 1052, 120 N.Y.S.3d 913 [4th Dept. 2020]).

Finally, we reject respondent's contention that she was denied effective assistance of counsel. Respondent asserts that counsel was ineffective in failing to oppose petitioner's motions, each of which sought partial summary judgment on the issue of extraordinary circumstances and an order requiring respondent to submit to drug testing, and in failing to obtain certification for certain other drug test results and introduce them as a part of respondent's case. We note, however, that “[t]here is no denial of effective assistance of counsel ․ arising from a failure to make a motion or argument that has little or no chance of success” (Matter of DeVita v. DeVita, 155 A.D.3d 1587, 1588, 63 N.Y.S.3d 787 [4th Dept. 2017], lv denied 31 N.Y.3d 901, 2018 WL 1415203 [2018] [internal quotation marks omitted]). With respect to respondent's assertion that counsel was ineffective in failing to certify and introduce certain other drug test results during the guardianship hearing, we conclude that respondent failed to demonstrate “the absence of strategic or other legitimate explanations for counsel's alleged shortcomings” (Matter of Doner v. Flora, 229 A.D.3d 1158, 1158, 213 N.Y.S.3d 804 [4th Dept. 2024] [internal quotation marks omitted]). Despite respondent's contentions that counsel did not sufficiently communicate with her during the proceedings, we conclude that the record, viewed in totality, establishes that respondent received meaningful representation (see Matter of Rotundo v. Deptola, 232 A.D.3d 1323, 1324, 222 N.Y.S.3d 295 [4th Dept. 2024]).