HEY WAIT A SECOND, MY LAWYER STANK IT UP!
NO THEY DIDN’T – THE LAWYER IS ENTITLED TO MAKE STRATEGIC AND TACTICAL DECISIONS
An agency seeking termination of parental rights on the ground of mental illness or intellectual disability must demonstrate by clear and convincing evidence that the parent is presently and for the foreseeable future unable, by reason of mental illness or intellectual disability, to provide proper and adequate care for the subject child who has been in the care of the agency for the period of one year immediately prior to the date on which the petition is filed.
Here, the petitioner presented the testimony of an expert forensic psychiatrist who opined that the mother suffered from developmental intellectual disorder and attention deficit hyperactivity disorder, which impaired her parental functioning.
The expert testified, among other things, that the mother failed to seek treatment for her attention deficit hyperactivity disorder and exhibited impulsive behavior, which caused her to have an unstable living situation and poor relationships with individuals who could otherwise provide support.
The expert also testified that the mother required assistance to keep the children safe during visits. The expert opined that if the children were returned to the mother, they would be at risk of being neglected as a result of the mother’s mental condition.
Contrary to the mother’s contention, the evidence presented at the hearing established, by clear and convincing evidence, that the mother was presently and for the foreseeable future unable, by reason of mental illness and intellectual disability, to provide proper and adequate care for the children, and supported the Family Court’s determination to terminate the mother’s parental rights to the children.
Contrary to the mother’s further contention, she was not deprived of the effective assistance of counsel. A respondent in a proceeding pursuant to Social Services Law § 384–b has the right to the assistance of counsel (see Family Ct Act § 262[a][iv]), which encompasses the right to the effective assistance of counsel. An attorney representing a client is entitled to make strategic and tactical decisions concerning the conduct of trials.
Here, the record does not show that counsel lacked a legitimate, strategic reason for the decisions made as to the conduct of the hearing. Viewed in totality, the record reflects that the mother received meaningful representation.
Matter of Sebastian Y., – NYS3d – , 2023 WL 2590823 (2nd Dep’t. 2023)
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