SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

803 

CAF 14-00329 

PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ. 

 

IN THE MATTER OF LUNDYN S. 

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CAYUGA COUNTY DEPARTMENT OF HEALTH AND HUMAN 

SERVICES, PETITIONER; 

 MEMORANDUM AND ORDER

AL-RAHIM S., RESPONDENT. 

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IN THE MATTER OF VELVIA S., PETITIONER-APPELLANT, 

 

V

CARRIE L., CAYUGA COUNTY DEPARTMENT OF HEALTH AND 

HUMAN SERVICES, AND AL-RAHIM S., 

RESPONDENTS-RESPONDENTS. 

 

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF

COUNSEL), FOR PETITIONER-APPELLANT.

HARRIS BEACH PLLC, BUFFALO (ALLISON A. FIUT OF COUNSEL), FOR

RESPONDENT-RESPONDENT CAYUGA COUNTY DEPARTMENT OF HEALTH AND HUMAN

SERVICES. 

MICHELE R. DRISCOLL, ATTORNEY FOR THE CHILD, AUBURN.

 

Appeal from an order of the Family Court, Cayuga County (Mark H.

Fandrich, A.J.), entered February 7, 2014 in proceedings pursuant to

Social Services Law § 384-b and Family Court Act article 6. The

order, among other things, denied the petition of Velvia S. seeking

custody of the subject child. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Petitioner Cayuga County Department of Health and

Human Services (DHS) commenced a proceeding seeking to terminate the

parental rights of respondent father Al-Rahim S. with respect to the

subject child, and the father’s mother, petitioner Velvia S.

(petitioner), also sought custody of the child. Petitioner now

appeals from an order that denied her petition and continued custody

of the child with DHS. 

Petitioner contends that reversal is required because DHS did not

comply with the statutory requirement to contact her and advise her of

the pendency of this proceeding and her right to seek to become a
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CAF 14-00329 

foster parent or obtain custody of the child (see Family Ct Act 

§ 1017 [1]). We reject that contention. Even assuming, arguendo,

that DHS failed to fulfill its statutory duty to locate the subject

child’s relatives and inform them of the pendency of the proceeding

and of the opportunity for becoming foster parents or for seeking

custody of the child, “[u]nder the provisions of article 10 . . . ,

there is . . . an explicit ‘best interests’ standard of review” for

review of petitions seeking placement of a child with a relative

(Matter of Deborah E.C. v Shawn K., 63 AD3d 1724, 1725, lv denied 13

NY3d 710; see § 1055-b [a] [ii]). On the father’s prior appeal from

the same order, we rejected his contention that the best interests of

the child would be served by awarding custody of her to petitioner,

rather than “awarding custody to [DHS] so that the child may be

adopted by her foster parents” (Matter of Lundyn S. [Al-Rahim S.], 128

AD3d 1406, 1407-1408). For reasons stated by this Court in the

father’s prior appeal, we reject petitioner’s contention that the best

interests of the child would be served by awarding custody to

petitioner (see id.). In addition, we note that a “nonparent relative

of the child does not have ‘a greater right to custody’ than the

child’s foster parents” (Matter of Matthew E. v Erie County Dept. of

Social Servs., 41 AD3d 1240, 1241; see Matter of Gordon B.B., 30 AD3d

1005, 1006; see generally Matter of Thurston v Skellington, 89 AD3d

1520, 1520).

Finally, petitioner contends that she was deprived of effective

assistance of counsel because her attorney failed to move to vacate

the prior placement order pursuant to Family Court Act § 1061 at the

same time that her attorney filed the instant petition seeking custody

of the child. Even assuming, arguendo, that petitioner is entitled to

assigned counsel or may otherwise raise the issue of effective

assistance of counsel (cf. § 262; see generally Matter of Brittni K.,

297 AD2d 236, 240-241), we reject that contention. “There is no

denial of effective assistance of counsel . . . arising from a failure

to make a motion or argument that has little or no chance of success”

(Matter of Kelsey R.K. [John J.K.], 113 AD3d 1139, 1140, lv denied 22

NY3d 866). On a motion pursuant to section 1061, a court may modify

or vacate an order of custody upon a showing of good cause (see

generally Matter of Arkadian S. [Crystal S.], 130 AD3d 1457, 1457-

1458, lv dismissed 26 NY3d 995), and “the modified order ‘must reflect

a resolution consistent with the best interests of the children after

consideration of all relevant facts and circumstances, and must be

supported by a sound and substantial basis in the record’ ” (Matter of

Kenneth QQ. [Jodi QQ.], 77 AD3d 1223, 1224). Here, because the court

properly determined after a hearing that the best interests of the

child were served by awarding custody to DHS so that the child may be

adopted by her foster parents (see Lundyn S., 128 AD3d at 1407-1408),

there is little or no chance that a motion pursuant to section 1061

would have been successful. 

Entered: November 10, 2016 Frances E. Cafarell

Clerk of the Court