In re Brian S.

• Citation: 2016 N.Y. Slip Op. 05464,34 N.Y.S.3d 851,141 A.D.3d 1145
• Parties: In the Matter of BRIAN S., Katie S., and Alyssa S. Cayuga County Department of Social Services, Petitioner–Respondent, Scott S., Respondent, and Tanya S., Respondent–Appellant. Susan James, Esq., Attorney for the Child Katie S., Appellant. Marybeth D. Barnet, Esq., Attorney for the Child Alyssa S., Appellant. Theodore W. Stenuf, Esq., Attorney for the Child Brian S., Appellant.
• Decision Date: 08 July 2016
• Court: New York Supreme Court Appellate Division

141 A.D.3d 1145
34 N.Y.S.3d 851
2016 N.Y. Slip Op. 05464

In the Matter of BRIAN S., Katie S., and Alyssa S.

Cayuga County Department of Social Services, Petitioner–Respondent,

Scott S., Respondent,
and
Tanya S., Respondent–Appellant.

Susan James, Esq., Attorney for the Child Katie S., Appellant.

Marybeth D. Barnet, Esq., Attorney for the Child Alyssa S., Appellant.

Theodore W. Stenuf, Esq., Attorney for the Child Brian S., Appellant.

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

July 8, 2016.

34 N.Y.S.3d 852

Karpinski, Stapleton & Tehan, P.C., Auburn (Adam H. Vanbuskirk of Counsel), for Respondent–Appellant.

Susan James, Attorney for the Child, Waterloo, Appellant Pro Se.

Marybeth D. Barnet, Attorney for the Child, Canandaigua, Appellant Pro Se.

Theodore W. Stenuf, Attorney for the Child, Minoa, Appellant Pro Se.

Harris Beach PLLC, Buffalo (Allison A. Bosworth of Counsel), for Petitioner–Respondent.

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DeJOSEPH, and NEMOYER, JJ.

MEMORANDUM:

141 A.D.3d 1146

In this proceeding pursuant to Family Court Act article 10, respondent mother and each Attorney for the Child assigned to the three subject children (appellate AFC) appeal from an order that, inter alia, determined that the mother neglected the children and placed the children in the custody of petitioner. Initially, we reject the contentions of the mother and the appellate AFCs that petitioner failed to meet its burden of establishing neglect by a preponderance of the evidence (see Family Ct. Act § 1046[b] [i] ). Although the evidence of neglect at the fact-finding hearing consisted largely of hearsay statements made by the children to a caseworker employed by petitioner, those statements were adequately corroborated by other evidence tending to establish their reliability (see § 1046[a][vi] ; Matter of Gabriel J. [Stacey J.], 127 A.D.3d 667, 667, 8 N.Y.S.3d 189 ; Matter of Tristan R., 63 A.D.3d 1075, 1076–1077, 883 N.Y.S.2d 229 ). Moreover, the children's out-of-court statements to the caseworker cross-corroborated each other (see Gabriel J., 127 A.D.3d at 667, 8 N.Y.S.3d 189 ; Tristan R., 63 A.D.3d at 1076–1077, 883 N.Y.S.2d 229 ). In sum, we conclude that

34 N.Y.S.3d 853

the children's statements, “together with [the] negative inference drawn from the [mother's] failure to testify, [were] sufficient to support [Family Court's] finding of neglect” (Matter of Imman H., 49 A.D.3d 879, 880, 854 N.Y.S.2d 517 ).

The mother failed to preserve her further contention that her attorney was improperly excluded from an in camera examination of two of the subject children (see Matter of Jennifer WW., 274 A.D.2d 778, 779, 710 N.Y.S.2d 733, lv. denied 95 N.Y.2d 764, 716 N.Y.S.2d 39, 739 N.E.2d 295 ). In any event, it appears that the limited purpose of the examination was for the court to determine where the children would live during the pendency of the proceeding, and the court did not consider the children's statements at the examination as evidence of the mother's neglect.

141 A.D.3d 1147

Children in a neglect proceeding are entitled to effective assistance of counsel (see Matter of Jamie TT., 191 A.D.2d 132, 136–137, 599 N.Y.S.2d 892 ). Here, the appellate AFC for Katie and the appellate AFC for Brian contend that Katie and Brian were deprived of effective assistance of counsel by the Attorney for the Children who jointly represented them as well as their sister Alyssa during the proceeding (trial AFC). Katie's appellate AFC contends that the trial AFC never met with or spoke to Katie. Although an AFC is obligated to “consult with and advise the child to the extent of and in a manner consistent with the child's capacities” (22 NYCRR 7.2 [d][1]; see Matter of Lamarcus E. [Jonathan E.], 90 A.D.3d 1095, 1096, 934 N.Y.S.2d 553 ), there is no indication in the record whether the trial AFC consulted with Katie. The contention of Katie's appellate AFC is therefore based on matters outside the record and is not properly before us (see Matter of Gridley v. Syrko, 50 A.D.3d 1560, 1561, 857 N.Y.S.2d 838 ; Matter of Harry P. v. Cindy W., 48 A.D.3d 1100, 1100, 850 N.Y.S.2d 783 ).

We agree with Brian's appellate AFC, however, that Brian was deprived of effective assistance of counsel because the trial AFC failed to advocate his position. The Rules of the Chief Judge provide that an AFC “must zealously advocate the child's position” (22 NYCRR 7.2 [d] ), even if the AFC “believes that what the child wants is not in the child's best interests” (22 NYCRR 7.2 [d][2]; see Matter of Mark T. v. Joyanna U., 64 A.D.3d 1092, 1093–1094, 882 N.Y.S.2d 773 ). There are two exceptions to this rule: (1) where the AFC is convinced that the “child lacks the capacity for knowing, voluntary and considered judgment”; or (2) where the AFC is convinced that “following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child” (22 NYCRR 7.2 [d][3]; see Matter of Viscuso v. Viscuso, 129 A.D.3d 1679, 1680, 12 N.Y.S.3d 684 ; Matter of Lopez v. Lugo, 115 A.D.3d 1237, 1238, 982 N.Y.S.2d 640 ). Here, there is no dispute that the trial AFC took a position contrary to the position of two of the subject children, Brian and Alyssa, both of whom maintained that Katie was lying with respect to her allegations against the mother. Alyssa expressed a strong desire to continue living with the mother, while Brian said that he wanted to live with either the mother or his father, who entered an admission of neglect prior to the hearing and was thus not a custodial option. Nevertheless, when the mother moved to dismiss the petition at the close of petitioner's case based on insufficient evidence of neglect, the trial AFC opposed the motion, stating that, although this was “probably not a very strong case,” petitioner had met its burden of...