IN RE: SEAN W.

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

IN RE: SEAN W. Onondaga County Department of Social Services, Petitioner–Respondent; Brittany W., Respondent–Appellant, Christopher R., Respondent. Vincent M. and Michelle M., Intervenors–Respondents.

Decided: September 30, 2011

PRESENT:  SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ. Linda M. Campbell, Syracuse (Shirley Gorman of Counsel), for Respondent–Appellant. Gordon J. Cuffy, County Attorney, Syracuse (Sara J. Langan of Counsel), for Petitioner–Respondent. Paul L. Chapman, Attorney for the Child, Syracuse, for Sean W. Hancock & Estabrook, LLP, Syracuse (Janet D. Callahan of Counsel), for Intervenors–Respondents.

 Respondent mother appeals from an order terminating her parental rights with respect to her son based on a finding of permanent neglect and freeing her son for adoption.   The mother failed to preserve for our review her contention that Family Court should have entered a suspended judgment (see Matter of Andrea E., 72 A.D.3d 1617, 1617–1618, 899 N.Y.S.2d 684, lv. denied 15 N.Y.3d 703, 2010 WL 2605949;  Matter of Charles B., 46 A.D.3d 1430, 1431, 848 N.Y.S.2d 470, lv. denied 10 N.Y.3d 705, 857 N.Y.S.2d 38, 886 N.E.2d 803).   In any event, that contention lacks merit because “ ‘there was no evidence that [the mother] had a realistic, feasible plan to care for the child[ ]’ ” (Matter of Nicholas B., 83 A.D.3d 1596, 1598, 921 N.Y.S.2d 762, lv. denied 17 N.Y.3d 705, 2011 WL 2566514), and the record establishes that the mother was not likely to change her behavior (see Matter of Kyle S., 11 A.D.3d 935, 936, 782 N.Y.S.2d 213).   Any “ ‘progress made by the [mother] in the [weeks] preceding the dispositional determination was not sufficient to warrant any further prolongation of the child['s] unsettled familial status' ” (Matter of Kyle K., 72 A.D.3d 1592, 1593–1594, 899 N.Y.S.2d 512, lv. denied 15 N.Y.3d 705, 2010 WL 3430842).   In addition, the mother failed to preserve for our review her contention that the court should have provided for post-termination contact with the child, and we conclude in any event that she failed to establish that “such contact would be in the best interests of the child[ ]” (Andrea E., 72 A.D.3d at 1618, 899 N.Y.S.2d 684 [internal quotation marks 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 merely because the attorney counseled [the parent] to admit [to] the allegations in the petition” (Matter of Nasir H., 251 A.D.2d 1010, 1010, 674 N.Y.S.2d 179, lv. denied 92 N.Y.2d 809, 678 N.Y.S.2d 595, 700 N.E.2d 1231;  see Matter of Yusef P., 298 A.D.2d 968, 969, 748 N.Y.S.2d 120;  Matter of Michael W., 266 A.D.2d 884, 884–885, 697 N.Y.S.2d 898).   Further, a parent alleging ineffective assistance of counsel in a Family Court case “has the burden of demonstrating ․ that the deficient representation resulted in actual prejudice” (Matter of Michael C., 82 A.D.3d 1651, 1651, 920 N.Y.S.2d 502, lv. denied 17 N.Y.3d 704, 2011 WL 2535216;  see Matter of Amanda T., 4 A.D.3d 846, 847, 771 N.Y.S.2d 763), and the mother failed to meet that burden here with respect to her attorney's alleged failure to request a suspended judgment or post-termination contact.   Indeed, the evidence at the dispositional hearing established that neither a suspended judgment nor post-termination contact was in the child's best interests.

 The mother further contends that the court lacked jurisdiction over the instant termination proceeding 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 a termination of parental rights petition involving the same child is assigned to a different Family Court 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 based upon 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, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 52A, Social Services Law § 384–b at 225).   Rather, that statute concerns venue, which may be waived if not raised, as was the case here (see generally Matter of Brayanna G., 66 A.D.3d 1375, 1376, 891 N.Y.S.2d 565, lv. denied 13 N.Y.3d 714, 2010 WL 92458).   Moreover, the provision in Social Services Law § 384–b(3)(c–1) that “[t]he petition [to terminate parental rights] shall be assigned, wherever practicable, to the judge who heard the most recent proceeding” expresses no more than a preference in the assignment of judges and does not constitute a mandate (see generally Matter of Michael M., 162 Misc.2d 676, 677–678, 619 N.Y.S.2d 249).   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 [of action for termination of parental rights],” and therefore cannot be said to implicate the court's subject matter jurisdiction (Lacks v. Lacks, 41 N.Y.2d 71, 75–76, 390 N.Y.S.2d 875, 359 N.E.2d 384, rearg. denied 41 N.Y.2d 862, 901, 393 N.Y.S.2d 710, 1028, 362 N.E.2d 261, 640;  see Brayanna G., 66 A.D.3d at 1376, 891 N.Y.S.2d 565).

 Finally, the mother failed to preserve for our review her contention that the court erred in permitting the foster parents to participate in the dispositional hearing pursuant to Social Services Law § 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 A.D.2d 839, 840, 615 N.Y.S.2d 799, quoting Telaro v. Telaro, 25 N.Y.2d 433, 439, 306 N.Y.S.2d 920, 255 N.E.2d 158, rearg. denied 26 N.Y.2d 751, 309 N.Y.S.2d 1031, 257 N.E.2d 296).   Here, the alleged deficiency could have been cured upon the mother's objection by the filing of a written motion to intervene because the foster parents were entitled to intervene as a matter of right, having continuously cared for the child for more than 12 months (see Social Services Law § 383[3];  CPLR 1012[a][1] ).

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

MEMORANDUM: