In thе Matter of STEVEN B., Respondent. MAKEBA S., Appellant, et al., Respondent.
Appellate Division of the Supreme Court of New York, First Department
[807 NYS2d 29]
The hearing record strongly supports Family Court‘s conclusion that the award of custody to petitioner father, whose children had been in foster care since January 2004, is in their best interests (see Eschbach v Eschbach, 56 NY2d 167 [1982]). The evidence demonstrated that petitioner is a caring and attentive father who is in a sustained and reliable state of recovery from his drug involvement, and who has a realistic, feаsible plan to care for the children and provide them with a stable home. The mother‘s proof, by contrast, left serious questions about whether she had satisfactorily resolved her substance abuse problems and failed adequаtely to address doubts as to her competence as a parental caregiver, doubts persisting since the children were removed from her care and custody on two separate occasions.
The dissent‘s footnote challenges our conclusion that the mother‘s recovery by the hearing date was in doubt. We disagree. Instead, we believe that the mother‘s abstinence for a mere seven months, compared with the undisputed evidence thаt the father had been drug free for at least nine years, more
The decision to grant an adjournment for any reasоn is one which rests in the sound discretion of the trial court (Matter of Anthony M., 63 NY2d 270, 283 [1984]; Matter of Sakow, 21 AD3d 849 [2005]). On this record, we cannot say that Family Court improvidently exercised or abused its discretion in denying the mother‘s request for a continuance in light of her substantively vague offer of proоf and her inadequate explanation for her failure: (1) to prepare fully for the hearing; or (2) to advise the court sufficiently in advance that she would be unable to proceed. Indeed, the record fully supports Family Court‘s finding that the mother‘s unpreparedness to proceed, which she claimed was unavoidable, was, rather, of her own making.
Specifically, she failed to demonstrate that the alleged conflicts in her schedule prevented her from conferring with counsel during the month between the filing of the petition and the hearing. Furthermore, her need for an adjournment to call a “few” people was vague, and she failed to explain why she had not arranged for their testimony еarlier. In any event, a written report by the mother‘s proffered psychologist was in fact later received in evidence at the hearing, a report which was clearly favorable to the mother.
While the question whether Family Court should have rejected the foregoing factors, and thus granted the mother‘s adjournment request, is a fair one for her to have raised on appeal, the court‘s denial of that application, in our judgment, was neither an imprоvident exercise nor an abuse of its discretion.
Although our dissenting colleague correctly points out that the children were not in immediate physical peril during the pendency of this proceeding, nevertheless a Family Court judge‘s primary focus must always be on the children‘s best interests, and presumably their interests are best served when they are reared by a suitable parent. With that in mind, and given the crushing caseloads Family Court judges face, often in highly emotional settings, they are vested with broad discretion to advance cases fairly and cautiously, but also expeditiously. In our opinion, that is exactly what this judge did, notwithstanding that we recognize others may rationally differ with our conclusion. Such differences of opinion are inherent in, and the inevitable by-product of any process that, most appropriately,
On the totality of the record, we also find that the mother received effective assistance of counsel (see Matter of Kayla A., 248 AD2d 243, 244 [1998]). Notably, the mother does not refer to any specific error by counsel which adversely affected her. In any event, the record reflects that counsel corresponded with the court on her behalf, ably elicited testimony from her, and competently cross-examined рetitioner. In addition, the mother‘s lawyer offered, and Family Court received in evidence, several documents which, among other things, attested to the mother‘s successful completion of a drug program to address her serious addiction, her cooperation and compliance in completing agency requirements, and her abstinence from drugs for seven months. The production of these documents bespeaks counsel‘s prehearing investigation аnd more than adequate preparation in order to present his client‘s case to the court in its most favorable light. Concur—Saxe, J.P., Marlow and Gonzalez, JJ.
Ellerin and McGuire, JJ., dissent in a memorandum by McGuire, J., as follows: I respectfully dissent. The father‘s petition for permanent custody of the children was filed on April 27, 2004 and a hearing on the petition apparently was scheduled for May 26, 2004. By a letter dated May 24, 2004, however, the mother‘s attorney advised Family Court that he would not be prepared “to go ahead that day” and would be requesting an adjournment. Counsel also advised Family Court that he had informed the father‘s counsel that he would be applying for an adjournment.
On May 26, 2004, Family Court heard testimony on the petition from the father and his mother. Consistent with his letter, at the close of the father‘s case the mother‘s attorney requested a continuance to “prepare [his] client‘s case.” In response to Family Court‘s questions, counsel stated that his inability to prepare stemmed from not having “had a chance to meet with [his] client.” As counsel went on to explain, he had made “at least one appointment” with her; counsel indicated as well that he thought that аnother appointment had been made after his client missed the first one. When Family Court asked counsel, in effect, if the fault was not his client‘s, the mother interjected as follows: “Your Honor, but I am in a specialized parenting [course]. Sometimes they change the dates.” Family Court then denied the request for a continuance, after expressing awareness that the dates of the parenting course sometimes are changed: “Well, I know that. But not so many times you сouldn‘t
First, there was no urgency at all that required an immediate resolution of the father‘s petition for custody. To thе contrary, the children were residing with the paternal grandmother under the legal custody of Administration for Children‘s Services of the City of New York (ACS) and neither the father nor the Law Guardian—neither of whom voiced any objection to the requеst for a continuance—suggested that the children were in any peril or even that there was anything like a pressing need for an immediate decision on the petition. Second, there was not only no apparent history of delаys by the mother on the father‘s custody petition, there was no history. As noted, the hearing was held just a month after the filing of the petition.
Third, the mother advised Family Court that she wanted to call as witnesses persons who knew her and also that her рsychiatrist wanted to testify on her behalf. To be sure, the mother did not provide any particulars about the testimony these witnesses might give. But Family Court did not ask either counsel or the mother for any details. In any event, the “vague” nature of the mother‘s request to call witnesses hardly provides a reason for denying the request for an adjournment. After all, the mother explained that her attorney had informed her that there would be an adjournment. Obviously, the court and not counsel dеcide such issues. However, it is significant that counsel did not dispute the mother‘s representation that counsel had told her there would be an adjournment. If counsel did so inform her, the fault appears to lie not with the mother but with counsel. Inеxplicably, the majority nonetheless blames the mother for her “failure ... to prepare fully for the hearing” and her “fail[ure] to explain why she had not earlier arranged for their testimony.” Belatedly, one would think it a point in the mother‘s fаvor that counsel gave advance notice to the court that a continuance would be sought. The majority, however, counts against the mother her alleged failure (not her counsel‘s) to give notice earlier when even Family Court did not hold that against the mother. Moreover, even Family Court appears to have recognized that there was at least some legitimacy to the mother‘s explanation for why she had missed an appointment or appointments with her counsel.
Fourth, fundamental constitutional interests were at stake (see Kia P. v McIntyre, 235 F3d 749, 759 [2d Cir 2000] [“parents have a constitutionally protected liberty interest in the care, custody and management of their children” (internal quotatiоn