SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1393 

CAF 12-01659 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ. 

 

IN THE MATTER OF KELSEY R.K. AND MOLLY T.K. 

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JEFFERSON COUNTY DEPARTMENT OF SOCIAL SERVICES, MEMORANDUM AND ORDER

PETITIONER-RESPONDENT; 

 

JOHN J.K., JR. AND SHEILA K., 

RESPONDENTS-APPELLANTS. 

THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF

COUNSEL), FOR RESPONDENT-APPELLANT JOHN J.K., JR. 

LEAH K. BOURNE, ROCHESTER, FOR RESPONDENT-APPELLANT SHEILA K.

KRISTOPHER STEVENS, WATERTOWN, FOR PETITIONER-RESPONDENT. 

LISA A. PROVEN, ATTORNEY FOR THE CHILDREN, WATERTOWN. 

 

Appeals from an order of the Family Court, Jefferson County

(Richard V. Hunt, J.), entered August 17, 2012 in a proceeding

pursuant to Social Services Law § 384-b. The order, among other

things, terminated respondents’ parental rights with respect to the

subject children. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Respondent father and respondent mother appeal from

an order terminating their parental rights pursuant to Social Services

Law § 384-b on the ground of permanent neglect. We affirm. 

Petitioner met its burden of proving “by clear and convincing evidence

that it made diligent efforts to encourage and strengthen the

relationship between [the parents] and the child[ren]” (Matter of JaNathan F., 309 AD2d 1152, 1152; see § 384-b [7] [a]). Among other

things, petitioner provided the parents with the opportunity to obtain

appropriate housing, provided supervised visitation with the children,

and provided the parents with counseling (see generally § 384-b [7]

[f] [1] - [4]; Matter of Star Leslie W., 63 NY2d 136, 142). Contrary

to the parents’ further contention, the evidence at the hearing

establishes that, despite petitioner’s diligent efforts to reunite

them with the children, the parents chose to obtain different housing

and then denied petitioner access to their home after one visit; the

visits with the children did not go well and were stressful for the

children; and the parents failed to make progress in counseling due to

their refusal to acknowledge the sexual abuse inflicted on the
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CAF 12-01659 

children and to take responsibility for their failure to protect the

children. Thus, petitioner established that the parents “failed to

address successfully the problems that led to the removal of the

child[ren] and continued to prevent the child[ren’s] safe return” (JaNathan F., 309 AD2d at 1152; see Matter of Jesus JJ., 232 AD2d 752,

754-755, lv denied 89 NY2d 809).

The father’s contention that Family Court improperly limited his

cross-examination of a witness is not preserved for our review (see

generally Matter of Clime v Clime, 85 AD3d 1671, 1672). In any event,

the court did not abuse its discretion in simply restating

petitioner’s position following an overly broad question posed by the

father’s attorney that would have merely elicited repetitive testimony

(see generally Matter of Heather J., 244 AD2d 762, 763-764). Finally,

we reject the mother’s contention that she was denied effective

assistance of counsel. It is axiomatic that, “because the potential

consequences are so drastic, the Family Court Act ‘affords protections

equivalent to the constitutional standard of effective assistance of

counsel afforded defendants in criminal proceedings’ ” (Matter of

James R., 238 AD2d 962, 963; see Matter of Sarah A., 60 AD3d 1293,

1294-1295). The mother contends that her attorney was ineffective in

failing to object to the qualification of certain witnesses as experts

and in failing to call as a witness her new counselor, whom she did

not start seeing until after the diligent efforts period. There is no

denial of effective assistance of counsel, however, arising from a

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

success (see People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d

702).

Entered: January 3, 2014 Frances E. Cafarell

Clerk of the Court