        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

935
CAF 10-01355
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


IN THE MATTER OF SEAN W.
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ONONDAGA COUNTY DEPARTMENT OF SOCIAL SERVICES,   MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

BRITTANY W., RESPONDENT-APPELLANT,
AND CHRISTOPHER R., RESPONDENT.
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VINCENT M. AND MICHELLE M.,
INTERVENORS-RESPONDENTS.


LINDA M. CAMPBELL, SYRACUSE (SHIRLEY GORMAN OF COUNSEL), FOR
RESPONDENT-APPELLANT.

GORDON J. CUFFY, COUNTY ATTORNEY, SYRACUSE (SARA J. LANGAN OF
COUNSEL), FOR PETITIONER-RESPONDENT.

PAUL L. CHAPMAN, ATTORNEY FOR THE CHILD, SYRACUSE, FOR SEAN W.

HANCOCK & ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR
INTERVENORS-RESPONDENTS.


     Appeal from an order of the Family Court, Onondaga County (Bryan
R. Hedges, J.), entered May 25, 2010 in a proceeding pursuant to
Social Services Law § 384-b. The order, among other things,
terminated the parental rights of respondent Brittany W.

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

     Memorandum: Respondent mother appeals from an order terminating
her parental rights with respect to her son based on a finding of
permanent neglect and freeing her son for adoption. The mother failed
to preserve for our review her contention that Family Court should
have entered a suspended judgment (see Matter of Andrea E., 72 AD3d
1617, 1617-1618, lv denied 15 NY3d 703; Matter of Charles B., 46 AD3d
1430, 1431, lv denied 10 NY3d 705). In any event, that contention
lacks merit because “ ‘there was no evidence that [the mother] had a
realistic, feasible plan to care for the child[ ]’ ” (Matter of
Nicolas B., 83 AD3d 1596, 1598, lv denied 17 NY3d 705), and the record
establishes that the mother was not likely to change her behavior (see
Matter of Kyle S., 11 AD3d 935, 936). Any “ ‘progress made by the
[mother] in the [weeks] preceding the dispositional determination was
not sufficient to warrant any further prolongation of the child[’s]
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unsettled familial status’ ” (Matter of Kyle K., 72 AD3d 1592,
1593-1594, lv denied 15 NY3d 705). In addition, the mother failed to
preserve for our review her contention that the court should have
provided for post-termination contact with the child, and we conclude
in any event that she failed to establish that “such contact would be
in the best interests of the child[ ]” (Andrea E., 72 AD3d at 1618
[internal quotation marks omitted]).

     We reject the mother’s further contention that she was denied
effective assistance of counsel. “There was no showing of
ineffectiveness here, nor may ineffectiveness be inferred merely
because the attorney counseled [the parent] to admit [to] the
allegations in the petition” (Matter of Nasir H., 251 AD2d 1010, 1010,
lv denied 92 NY2d 809; see Matter of Yusef P., 298 AD2d 968, 969;
Matter of Michael W., 266 AD2d 884, 884-885). Further, a parent
alleging ineffective assistance of counsel in a Family Court case “has
the burden of demonstrating . . . that the deficient representation
resulted in actual prejudice” (Matter of Michael C., 82 AD3d 1651,
1651, lv denied 17 NY3d 704; see Matter of Amanda T., 4 AD3d 846,
847), and the mother failed to meet that burden here with respect to
her attorney’s alleged failure to request a suspended judgment or
post-termination contact. Indeed, the evidence at the dispositional
hearing established that neither a suspended judgment nor post-
termination contact was in the child’s best interests.

     The mother further contends that the court lacked jurisdiction
over the instant termination proceeding because there was no
compliance with Social Services Law § 384-b (3) (c-1), which applies
where one Family Court Judge presided over a prior permanency hearing
and a termination of parental rights petition involving the same child
is assigned to a different Family Court Judge. We reject that
contention. Social Services Law § 384-b (3) (d) and (4) (d)
specifically grant Family Court jurisdiction over proceedings to
terminate parental rights based upon permanent neglect and, contrary
to the mother’s contention, Social Services Law § 384-b (3) (c-1) does
not concern subject matter jurisdiction (see Carrieri, Practice
Commentaries, McKinney’s Cons Laws of NY, Book 52A, Social Services
Law § 384-b at 225). Rather, that statute concerns venue, which may
be waived if not raised, as was the case here (see generally Matter of
Brayanna G., 66 AD3d 1375, 1376, lv denied 13 NY3d 714). Moreover,
the provision in Social Services Law § 384-b (3) (c-1) that “[t]he
petition [to terminate parental rights] shall be assigned, wherever
practicable, to the judge who heard the most recent proceeding”
expresses no more than a preference in the assignment of judges and
does not constitute a mandate (see generally Matter of Michael M., 162
Misc 2d 676, 677-678). Such preference in the assignment of judges
“[i]n no way . . . circumscribes the power of [Family C]ourt in the
sense of competence to adjudicate causes [of action for termination of
parental rights],” and therefore cannot be said to implicate the
court’s subject matter jurisdiction (Lacks v Lacks, 41 NY2d 71, 75-76,
rearg denied 41 NY2d 862, 901; see Brayanna G., 66 AD3d at 1376).

     Finally, the mother failed to preserve for our review her
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contention that the court erred in permitting the foster parents to
participate in the dispositional hearing pursuant to Social Services
Law § 383 (3) in the absence of a written motion to intervene (see
CPLR 1012 [a] [1]; 1014). “An issue may not be raised for the first
time on appeal . . . where it ‘could have been obviated or cured by
factual showings or legal countersteps’ in the trial court” (Oram v
Capone, 206 AD2d 839, 840, quoting Telaro v Telaro, 25 NY2d 433, 439,
rearg denied 26 NY2d 751). Here, the alleged deficiency could have
been cured upon the mother’s objection by the filing of a written
motion to intervene because the foster parents were entitled to
intervene as a matter of right, having continuously cared for the
child for more than 12 months (see Social Services Law § 383 [3]; CPLR
1012 [a] [1]).




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
