B., BRANDON, MTR. OF ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
285
CAF 10-02071
PRESENT: CENTRA, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
IN THE MATTER OF BRANDON B., JASON B.,
JOSHUA B., KRISTINA B., AND SAMANTHA B.
------------------------------------------ MEMORANDUM AND ORDER
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;
SCOTT B., RESPONDENT-APPELLANT.
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT-APPELLANT.
JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR JASON B.
KENNETH W. GIBBONS, ATTORNEY FOR THE CHILD, BUFFALO, FOR BRANDON B.
THOMAS A. DEUSCHLE, ATTORNEY FOR THE CHILD, WEST SENECA, FOR JOSHUA B.
ELIZABETH M. DIPIRRO, ATTORNEY FOR THE CHILDREN, GETZVILLE, FOR
KRISTINA B. AND SAMANTHA B.
Appeal from an order of the Family Court, Erie County (Patricia
A. Maxwell, J.), entered September 28, 2010 in a proceeding pursuant
to Social Services Law § 384-b. The order terminated the parental
rights of respondent.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Respondent father appeals from an order terminating
his parental rights with respect to the five children who are the
subject of this proceeding based on a finding of permanent neglect and
freeing the children for adoption. We reject the father’s contention
that he was denied effective assistance of counsel at the fact-finding
stage of the proceeding. “ ‘There was no showing of ineffectiveness
here, nor may ineffectiveness be inferred merely because the attorney
counseled [the father] to admit [to] the allegations in the
petition[s]’ ” (Matter of Sean W., 87 AD3d 1318, 1319, lv denied 18
NY3d 802). It is clear from the record that the attorney’s
recommendation that the father admit to the allegations of permanent
neglect was a matter of strategy (see Matter of Elijah D., 74 AD3d
1846, 1847; see generally People v Benevento, 91 NY2d 708, 712-713).
Further, “[a] parent alleging ineffective assistance of counsel [in a
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CAF 10-02071
Family Court case] has the burden of demonstrating . . . that the
deficient representation resulted in actual prejudice” (Matter of
Michael C., 82 AD3d 1651, 1652, lv denied 17 NY3d 704; see Sean W., 87
AD3d at 1319), and the father failed to meet that burden here.
Entered: March 16, 2012 Frances E. Cafarell
Clerk of the Court