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Steuben Cnty. Dep't of Soc. Servs. v. Daniel B. (In re Daltun A.B.)

Supreme Court, Appellate Division, Fourth Department, New York.
Feb 1, 2013
103 A.D.3d 1181 (N.Y. App. Div. 2013)

Opinion

2013-02-1

In the Matter of DALTUN A.B. Steuben County Department of Social Services, Petitioner–Respondent; Daniel B., Jr., Respondent–Appellant. (Appeal No. 1.).

Paul B. Watkins, Fairport, for Respondent–Appellant. Alan P. Reed, County Attorney, Bath (Craig A. Patrick of Counsel), for Petitioner–Respondent.



Paul B. Watkins, Fairport, for Respondent–Appellant. Alan P. Reed, County Attorney, Bath (Craig A. Patrick of Counsel), for Petitioner–Respondent.
Sally A. Madigan, Attorney for the Child, Bath, for Daltun A.B.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.

MEMORANDUM:

Respondent father appeals from three orders terminating his parental rights with respect to each of his three children upon a finding of severe abuse arising from his conviction of the murder of their mother ( seeSocial Services Law § 384–b[4][e]; [8][a][iii][A] ). Based on that finding, Family Court conducted a dispositional hearing and concluded that the best interests of the children required that they be placed for adoption.

Preliminarily, we take judicial notice that the father has filed a notice of appeal from the judgment convicting him of murder. Contrary to the father's contention, however, his attorney's failure to seek a stay of the Family Court proceedings based upon the pendency of such appeal does not constitute ineffective assistance of counsel. Because an order terminating parental rights on the ground that such parent was convicted of murdering the other parent may be affirmed notwithstanding the pendency of an appeal challenging such conviction ( see Social Services Law § 384–b[8][a][iii][A]; CPL 1.20[13]; see e.g. Matter of Brendan N., 79 A.D.3d 1175, 1179, 912 N.Y.S.2d 706,lv. denied16 N.Y.3d 735, 917 N.Y.S.2d 99, 942 N.E.2d 310), there is no merit to the premise upon which the father's ineffective assistance contention is based, namely, that Family Court would have been required to stay these proceedings due to the pendency of his criminal appeal had his attorney simply moved for such relief. As such, the father's attorney “cannot be deemed ineffective for [having] fail[ed] to make a motion ... that [wa]s unlikely to [have] be[en] successful” ( Matter of Jamaal NN., 61 A.D.3d 1056, 1058, 878 N.Y.S.2d 205,lv. denied12 N.Y.3d 711, 2009 WL 1299012;see Matter of Kenneth L. [Michelle B.], 92 A.D.3d 1245, 1246, 938 N.Y.S.2d 713). Furthermore, during the dispositional phase of the Family Court proceedings, the father's attorney unequivocally stated that the father did not oppose the termination of his parental rights. Thus, the “ allegation that counsel's failure to [seek a stay] was an error-as opposed to a strategic decision made by counsel not to pursue the matter-is speculative” ( Matter of Kilmartin v. Kilmartin, 44 A.D.3d 1099, 1104, 845 N.Y.S.2d 466;see Matter of Katherine D. v. Lawrence D., 32 A.D.3d 1350, 1351–1352, 822 N.Y.S.2d 349,lv. denied7 N.Y.3d 717, 827 N.Y.S.2d 688, 860 N.E.2d 990;Matter of Brian S.M., 309 A.D.2d 1224, 1225, 764 N.Y.S.2d 755).

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


Summaries of

Steuben Cnty. Dep't of Soc. Servs. v. Daniel B. (In re Daltun A.B.)

Supreme Court, Appellate Division, Fourth Department, New York.
Feb 1, 2013
103 A.D.3d 1181 (N.Y. App. Div. 2013)
Case details for

Steuben Cnty. Dep't of Soc. Servs. v. Daniel B. (In re Daltun A.B.)

Case Details

Full title:In the Matter of DALTUN A.B. Steuben County Department of Social Services…

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

Date published: Feb 1, 2013

Citations

103 A.D.3d 1181 (N.Y. App. Div. 2013)
959 N.Y.S.2d 330
2013 N.Y. Slip Op. 645

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