E., ALISA, MTR. OF ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1006
CAF 11-01526
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.
IN THE MATTER OF ALISA E.
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LIVINGSTON COUNTY DEPARTMENT OF SOCIAL MEMORANDUM AND ORDER
SERVICES, PETITIONER-RESPONDENT;
WENDY F., RESPONDENT-APPELLANT.
JEANNIE D. MICHALSKI, CONFLICT DEFENDER, GENESEO (P. ADAM MILITELLO OF
COUNSEL), FOR RESPONDENT-APPELLANT.
DAVID J. MORRIS, COUNTY ATTORNEY, GENESEO (WENDY S. SISSON OF
COUNSEL), FOR PETITIONER-RESPONDENT.
JAMES W. CAMPBELL, JR., ATTORNEY FOR THE CHILD, LIMA, FOR ALISA E.
Appeal from an order of the Family Court, Livingston County
(Robert B. Wiggins, J.), entered July 12, 2011 in a proceeding
pursuant to Social Services Law § 384-b. The order, among other
things, suspended judgment until May 13, 2012.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: We reject respondent mother’s contention in this
permanent neglect proceeding that she was denied effective assistance
of counsel at the fact-finding stage of the proceeding. “A parent
alleging ineffective assistance of counsel has the burden of
demonstrating both that he or she was denied meaningful representation
and that the deficient representation resulted in actual prejudice”
(Matter of Michael C., 82 AD3d 1651, 1652, lv denied 17 NY3d 704; see
Matter of James R., 238 AD2d 962, 962-963). Here, the mother failed
to demonstrate that any of her attorney’s shortcomings resulted in
actual prejudice. While we agree with the mother that her attorney
should have objected to the use of leading questions, any error with
respect thereto did not affect the outcome of the hearing and thus is
harmless. The mother also contends that her attorney should have
objected to the admission of hearsay. While the mother’s attorney
would have had grounds to object to some of the statements made during
petitioner’s direct case, the mother has failed to show that her
attorney’s failure to object was not strategic, i.e., an effort to
establish leniency for his own line of questioning. Indeed, later in
the hearing, Family Court allowed the mother’s attorney to elicit
hearsay during his examination, reasoning, “there has been a lot of
hearsay in this hearing so far.” Lastly, contrary to the mother’s
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CAF 11-01526
contention, her attorney did not admit on summation that the subject
child was neglected.
Entered: September 28, 2012 Frances E. Cafarell
Clerk of the Court