                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 11, 2015                     517091
________________________________

In the Matter of JULIAN P.
   and Others, Alleged to be
   Abused and Neglected
   Children.

COLUMBIA COUNTY DEPARTMENT OF               MEMORANDUM AND ORDER
   SOCIAL SERVICES,
                    Respondent;

COLLEEN Q.,
                    Appellant,
                    et al.,
                    Respondent.
________________________________


Calendar Date:   May 1, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

                               __________


     Ira Halfond, Craryville, for appellant.

      Willow Baer, Columbia County Department of Social Services,
Hudson (N. Daniel Reeder of William J. Better, PC, Kinderhook of
counsel), for Columbia County Department of Social Services,
respondent.

     Alexander Bloomstein, Hillsdale, attorney for the children.

                               __________


Egan Jr., J.

      Appeal from an order of the Family Court of Columbia County
(Nichols, J.), entered June 5, 2013, which granted petitioner's
application, in a proceeding pursuant to Family Ct Act article
10, to adjudicate the subject children to be abused and
                              -2-                517091

neglected, and changed the permanency goal for the children to
placement for adoption.

      Respondent Melissa P. (hereinafter the mother) is the
mother of three children — Julian P., Sierra P. and Lily P. (born
in 2004, 2006 and 2009, respectively) — and respondent Colleen Q.
(hereinafter the grandmother) is the children's maternal
grandmother. In June 2010, Family Court adjudicated the children
to have been neglected by the mother and placed them in the
grandmother's temporary custody, with supervised visitation, and
later approved a permanency goal of reunification with the mother
(Matter of Julian P. [Melissa P.-Zachary L.], 106 AD3d 1383
[2013]). Shortly thereafter, in November 2010, Lily, then one
year old, was taken to the hospital with a swollen right leg,
where X rays disclosed a fractured right femur (thigh bone) that
had been caused by "tremendous force" within the prior four to
seven days. Further X rays revealed multiple additional
fractures that were in varying stages of healing, including
fractures to the left tibia (shin bone), the left ulna and radius
(wrist) and five ribs on both sides of her rib cage, all of which
occurred during the period of time that Lily was in her
grandmother's custody.

      Petitioner then commenced this abuse and neglect proceeding
against the mother and grandmother; the children were removed
from the grandmother's custody and orders of protection were
issued. At the ensuing fact-finding hearing, the medical
testimony established the approximate age of Lily's fractures and
that they had been caused by multiple instances of nonaccidental
and "significant" trauma. The medical experts also testified
that the physical manifestations of Lily's injuries – pain,
crying, swelling and impeded mobility – would have been apparent
to any caregiver, and that none of those injuries had received
medical treatment prior to the femur fracture. During the
relevant time period, the children resided with and were cared
for by the grandmother, the mother and the mother's boyfriend.
Expert testimony ruled out osteogenesis imperfecta, or brittle
bone disease, as the cause of Lily's fractures, and the older
children reported many acts of physical and mental abuse and
neglect by the mother and grandmother, including being put in
day-long timeouts without food or bathroom breaks and being
                              -3-                517091

forced outside — in winter, at night and without coats — and told
that coyotes would eat them. It also was established that the
mother's boyfriend had entered a guilty plea to criminal charges,
wherein he admitted causing certain of the documented fractures —
namely, to Lily's femur and some of her ribs.

      At the conclusion of the hearing, Family Court determined
that the mother and grandmother had abused Lily, derivatively
abused Julian and Sierra and neglected all three children.
Following a dispositional hearing, Family Court concluded that
the grandmother was not a resource for the children and that
their best interests would be served by changing their permanency
plan to allow for their placement for adoption. The
grandmother's request for visitation was denied,1 and the
grandmother now appeals.

      We affirm. The grandmother's primary contention is that
she was denied the effective assistance of counsel due to
counsel's failure to retain an expert to review the medical
evidence and refute the testimony of petitioner's experts. While
the grandmother, as a respondent in a Family Ct Act article 10
proceeding, was entitled to the effective assistance of counsel
(see Family Ct Act § 262 [a] [i]; Matter of Thompson v Gibeault,
305 AD2d 873, 875 [2003]), she has not demonstrated the absence
of a legitimate or strategic reason for counsel's decisions (see
Matter of Destiny C. [Goliath C.], 127 AD3d 1510, 1513-1514
[2015]; Matter of Ramsey H. [Benjamin K.], 99 AD3d 1040, 1043-
1044 [2012], lv denied 20 NY3d 858 [2013]). The standard for
evaluating an ineffective assistance of counsel claim is
"whether, viewed in its totality, the representation was
meaningful and whether actual prejudice was suffered as a result
of claimed deficiencies" (Matter of Martin v Martin, 46 AD3d
1243, 1246 [2007]; see Matter of Daniel BB., 26 AD3d 687, 689
[2006]; Matter of James P., 17 AD3d 733, 734 [2005]).


    1
        Family Court also noted that petitions to terminate
parental rights had been filed against both parents. The record
reflects that the father has not been involved in the children's
lives, has only minimally participated in the hearings and was
deemed not to be a resource for the children.
                              -4-                517091

      Here, counsel for the grandmother and the mother presented
the united defense that they had neither caused nor were aware of
any mistreatment of or injuries to Lily or the older children,
placing all of the blame on the mother's boyfriend. While the
mother's counsel took the lead in cross-examining petitioner's
witnesses and calling witnesses in furtherance of the united
defense – including the pediatrician and pediatric nurse who
previously had cared for the children and had not observed signs
of abuse or neglect – the grandmother's counsel undertook
relevant follow-up cross-examination of those witnesses and,
further, called the pediatrician and the mother's boyfriend as
witnesses on her behalf. In addition to presenting a cogent and
cohesive defense establishing that the grandmother worked full-
time outside of the home during the period when the abuse
occurred and postulating that the mother's boyfriend was
responsible for the injuries sustained, the grandmother's counsel
otherwise made appropriate objections, elicited favorable
testimony and successfully opposed a request to draw a negative
inference against her.

      With regard to the grandmother's specific complaint that
counsel did not call favorable medical experts to rebut
petitioner's experts, the case law makes clear that "[t]he
failure to call particular witnesses . . . does not necessarily
constitute ineffective assistance" of counsel (Matter of James
P., 17 AD3d at 734-735; accord Matter of Thompson v Gibeault, 305
AD2d at 875). To that end, the grandmother has not demonstrated
that there were "relevant experts who would have been willing to
testify in a manner helpful [and favorable] to [her] case[]"
(Matter of Destiny C. [Goliath C.], 127 AD3d at 1513), and her
speculation that counsel could have found an expert with a
contrary, exculpatory medical opinion is insufficient to
establish deficient representation or prejudice (see Matter of
Troy SS. v Judy UU., 69 AD3d 1128, 1133-1134 [2010], lv dismissed
and denied 14 NY3d 912 [2010]; Matter of Brenden O., 20 AD3d 722,
723 [2005]; Matter of James P., 17 AD3d at 735; Matter of Bates v
Bates, 290 AD2d 732, 734 [2002]). As our review of the record
reveals that the grandmother's attorney "advocated her . . .
position with sufficient skill to clearly constitute meaningful
representation" (Matter of Brenden O., 20 AD3d at 723), we find
that she received the effective assistance of counsel.
                              -5-                517091

      We likewise are unpersuaded by the grandmother's argument
that Family Court erred in taking judicial notice of the
boyfriend's criminal plea allocution, which the trial judge had
accepted in his dual capacity as a County Judge, wherein the
mother's boyfriend admitted causing Lily's femur and some of her
rib fractures in November 2010. Under established law, "[a]
court may take judicial notice of prior judicial proceedings
though in a different court and involving different parties"
(Matter of Justin EE., 153 AD2d 772, 774 [1989], lv denied 75
NY2d 704 [1990]). Here, Family Court made clear at the outset of
the fact-finding hearing that it intended to take judicial notice
of all "prior orders and findings," to which no objection was
raised. It is significant that the mother's boyfriend testified
at the fact-finding hearing regarding his guilty plea; the
grandmother's counsel had a full opportunity to cross-examine him
and, in fact, called him as a witness in pursuit of the theory
that he had inflicted Lily's injuries.2 Thus, it cannot be said
that the grandmother did not have notice of and an opportunity to
elicit and challenge the facts related to the plea allocution of
which Family Court took judicial notice (compare Matter of Dakota
CC. [Arthur CC.], 78 AD3d 1430, 1431 [2010]).

      Moreover, Family Court's primary purpose in taking judicial
notice of the plea allocution was to assess the boyfriend's
credibility as a witness at the fact-finding hearing, ultimately
concluding that the boyfriend's plea admissions were consistent
with the medical testimony adduced at the underlying hearing and
that he had no motive to testify falsely. It bears emphasis that
the plea allocution established the boyfriend's admitted
misconduct, which the grandmother used to support her theory that
he alone was responsible for all of the injuries sustained. The
boyfriend's plea did not constitute evidence that the grandmother


    2
        While a transcript of the plea allocution was not
introduced into evidence at the fact-finding hearing and the
specific crimes to which the boyfriend pleaded guilty were not
elicited, the grandmother did not assert that her counsel was
unable to obtain a copy of that transcript and Family Court
concluded that "it was readily available to all of the
attorneys."
                              -6-                  517091

had inflicted any of the injuries but, rather, at most
established that, as the sole custodian, she was aware of or
should have been aware of the boyfriend's mistreatment of Lily
and allowed such mistreatment to occur (compare Matter of Justin
EE., 153 AD3d at 774). Under these circumstances, we do not find
that taking judicial notice was inappropriate and further
conclude that any error in this regard was harmless in view of
the substantial compelling proof of abuse and neglect (cf. Matter
of Billets v Bush, 63 AD3d 1203, 1204 [2009]; Matter of Martin v
Martin, 61 AD3d 1297, 1298 n [2009]). The grandmother's
remaining arguments, to the extent not specifically addressed,
have been examined and found to be lacking in merit.

     McCarthy, J.P., Lynch and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
