Matter of Julian P.
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
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 bеen 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 mоther (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
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 еstablished 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 forced outside—in winter, at night and without coats—and told that coyotes would eat them. It also was establishеd 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 conсlusion 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 сoncluded 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 adоption. The grandmother’s request for visitation was denied,1 and the grandmother now appeals.
Here, counsel fоr 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-examinаtion 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 thе 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 оtherwise made appropriate objections, elicited favorable testimony and successfully opposed a request to draw a negative inference against her.
With regard tо 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 failurе 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
We likewise arе 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 аs 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, сalled 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 relаted 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
McCarthy, J.P., Lynch and Clark, JJ., concur. Ordered thаt the order is affirmed, without costs.