Ann W. and Wesley W., Respondents–Appellants. v. <<

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of BRYAN W., Katheryne W., Brittney W., Rebeckah W., and Makelah W. Chautauqua County Department of Social Services, Petitioner–Respondent, Ann W. and Wesley W., Respondents–Appellants.

Decided: November 15, 2002

Present:  HAYES, J.P., HURLBUTT, KEHOE, BURNS, and LAWTON, JJ. Kathleen E. Casey, Middleport, for Respondent–Appellant Ann W. Bonnie Burgio, Watertown, for Respondent–Appellant Wesley W. Thomas A. Dorey, Mayville, for Petitioner–Respondent. Dennis W. Jones, Law Guardian, Findley Lake, for Bryan W., Katheryne W., Brittney W., Rebeckah W., and Makelah W.

 Respondents each appeal from an order that revoked prior suspended judgments, terminated their parental rights with respect to their five children, transferred guardianship and custody of the children to petitioner, and freed the children for adoption.   Contrary to the contentions of respondents, Family Court properly found that they had violated the conditions of the suspended judgments and properly revoked the suspended judgments and terminated their parental rights (see Matter of Shavira P., 283 A.D.2d 1027, 1028, 723 N.Y.S.2d 919, lv. denied 97 N.Y.2d 604, 736 N.Y.S.2d 308, 761 N.E.2d 1035;  Matter of Brendan A., 278 A.D.2d 784, 784–785, 722 N.Y.S.2d 929;  Matter of Alka H., 278 A.D.2d 326, 718 N.Y.S.2d 598;  Matter of Robert T., 270 A.D.2d 961, 704 N.Y.S.2d 436, lv. denied 95 N.Y.2d 758, 713 N.Y.S.2d 2, 734 N.E.2d 1213).   The contention of respondent Wesley W. that petitioner “intentionally foiled” the reuniting of the family by obstructing the removal of a restrictive condition of his probation is not properly before us.   That contention relates to whether petitioner exercised “diligent efforts to encourage and strengthen the parental relationship” (Social Services Law § 384–b [7][a] ), an issue that was conclusively determined in prior proceedings conducted on the petitions to terminate respondents' parental rights. Indeed, each prior order finding permanent neglect and suspending judgment was entered on consent of respondents and thus is beyond appellate review (see Matter of Nicole Lee B., 256 A.D.2d 1103, 1105, 685 N.Y.S.2d 162, citing Matter of Cherilyn P., 192 A.D.2d 1084, 596 N.Y.S.2d 233, lv. denied 82 N.Y.2d 652, 601 N.Y.S.2d 582, 619 N.E.2d 660).   These appeals from the order revoking the suspended judgments do not bring up for review the prior orders and proceedings in the matter (see id.).   Similarly beyond review is the contention of respondent Ann W. that a conflict of interest inhered in one attorney's joint representation of both respondents during prior proceedings in the matter, leading to a denial of effective assistance of counsel.   That contention likewise pertains to the prior proceedings conducted in the matter (see id.).   In any event, in order to prevail upon a claim of ineffective assistance, Ann W. must demonstrate that she was deprived of meaningful representation and that she suffered actual prejudice as a result of the claimed deficiencies of counsel (see Matter of Jonathan LL., 294 A.D.2d 752, 753, 742 N.Y.S.2d 430;  Matter of Nicholas GG., 285 A.D.2d 678, 679, 726 N.Y.S.2d 802), and she has made no such showing.

Finally, we conclude that the court did not abuse its discretion in declaring Ann W. a hostile witness for purposes of direct examination by petitioner at the violation hearing (see Matter of Ostrander v. Ostrander, 280 A.D.2d 793, 720 N.Y.S.2d 635;  Marzuillo v. Isom, 277 A.D.2d 362, 363, 716 N.Y.S.2d 98;  Jordan v. Parrinello, 144 A.D.2d 540, 541, 534 N.Y.S.2d 686).

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

MEMORANDUM: