IN RE: CHRISTIANA C. (Anonymous).

Reset A A Font size: Print

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

IN RE: CHRISTIANA C. (Anonymous). Suffolk County Department of Social Services, respondent, v. Carleton C. (Anonymous), appellant.

Decided: July 19, 2011

MARK C. DILLON, J.P., RANDALL T. ENG, SANDRA L. SGROI and ROBERT J. MILLER, JJ. Karl E. Bonheim, Riverhead, N.Y., for appellant. Christine Malafi, County Attorney, Central Islip, N.Y. (James G. Bernet of counsel), for respondent. Diane B. Groom, Central Islip, N.Y., attorney for the child.

In a child protective proceeding pursuant to Family Court Act article 10, the father appeals from an order of fact-finding and disposition of the Family Court, Suffolk County (Crecca, J.), dated February 8, 2010, which, after fact-finding and dispositional hearings, found that he neglected the subject child and placed him under the supervision of the Suffolk County Department of Social Services, pursuant to stated terms and conditions, until January 14, 2011.

ORDERED that the appeal from so much of the order of fact-finding and disposition as placed the father under the supervision of the Suffolk County Department of Social Services, pursuant to stated terms and conditions, until January 14, 2011, is dismissed as academic, without costs or disbursements, as that portion of the order expired by its own terms (see Matter of Dave D. [Mary E.S.], 78 A.D.3d 829, 912 N.Y.S.2d 70);  and it is further,

ORDERED that the order of fact-finding and disposition is affirmed insofar as reviewed, without costs or disbursements.

 The Family Court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record (see Matter of Robbins v. Robbins, 48 A.D.3d 822, 851 N.Y.S.2d 877).   Here, the Family Court credited the testimony of the mother regarding an incident of domestic violence in the home, and there is no basis to disturb that determination on appeal (see Matter of Stefani C., 61 A.D.3d 681, 876 N.Y.S.2d 501).

 Furthermore, the Family Court was entitled to draw a strong inference against the father upon his failure to testify at the fact-finding hearing (see Matter of Nassau County Dept. of Social Servs. v. Denise J., 87 N.Y.2d 73, 79, 637 N.Y.S.2d 666, 661 N.E.2d 138;  Matter of Tami G., 209 A.D.2d 869, 619 N.Y.S.2d 222), and the Family Court providently exercised its discretion in doing so (see Matter of Andrew W. [Randolph A. W.], 83 A.D.3d 727, 919 N.Y.S.2d 890;  Matter of Tajani B., 49 A.D.3d 876, 854 N.Y.S.2d 518;  Matter of LeVonn G., 20 A.D.3d 530, 800 N.Y.S.2d 428;  Matter of Joseph C., 297 A.D.2d 673, 747 N.Y.S.2d 182).

 The Family Court properly found that the Suffolk County Department of Social Services (hereinafter DSS) established by a preponderance of the evidence that the father neglected the subject child (see Family Ct. Act § 1046[b] ).  DSS showed that the child was actually or imminently harmed by reason of the father's failure to exercise even minimal care in providing her with proper oversight (see Family Ct. Act § 1012[f][i];  Matter of Afton C. [James C.], 17 N.Y.3d 1, 926 N.Y.S.2d 365, 950 N.E.2d 101;  Nicholson v. Scoppetta, 3 N.Y.3d 357, 372, 787 N.Y.S.2d 196, 820 N.E.2d 840;  Matter of Angelique L., 42 A.D.3d 569, 840 N.Y.S.2d 811).

In addition, DSS established by a preponderance of the evidence that the father neglected the child by engaging in acts of domestic violence against the mother in the child's presence, thereby creating an imminent danger that the child's physical, mental, and emotional health would be harmed (see Matter of Jayda D.-B., 33 A.D.3d 998, 822 N.Y.S.2d 723;  see also Matter of Briana F. [Oswaldo F.], 69 A.D.3d 718, 892 N.Y.S.2d 526).

 The father's contention that he did not receive effective assistance of counsel is without merit.   The evidence, the law, and the circumstances of the case, viewed in totality and as of the time of the representation, reveal that the father's attorney provided meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Counsel presented a reasonable defense, made appropriate objections throughout the hearings, and effectively cross-examined witnesses.   Unsuccessful trial strategies and tactics do not constitute ineffective assistance of counsel (see People v. Smith, 12 A.D.3d 707, 784 N.Y.S.2d 882;  People v. Adams, 12 A.D.3d 523, 783 N.Y.S.2d 867;  People v. Washington, 5 A.D.3d 615, 772 N.Y.S.2d 851).

Copied to clipboard