By Scheinkman, P.J.; Roman, Hinds-Radix, Lasalle, JJ. IN THE MATTER OF ALIAH M. J.-N. (ANONYMOUS). EDWIN GOULD SERVICES FOR CHILDREN AND FAMILIES, pet-res; CANDICE J. (ANONYMOUS), app-res, ANNA J. (ANONYMOUS), inter-res-app, ET AL., res — (Proceeding No. 1); IN THE MATTER OF ANNA J. (ANONYMOUS), res-app, v. CANDICE J. (ANONYMOUS), app-res, ADMINISTRATION FOR CHILDREN’S SERVICES, res-res, ET AL., res — (Proceeding No. 2) — (Index No. B-7800-14, V-1745-14) Barbara J. Caravello, Jamaica, NY, for appellant-respondent. Marion C. Perry, Brooklyn, NY, for intervenor-respondent-appellant in Proceeding No. 1 and respondent-appellant in Proceeding No. 2. John R. Eyerman, New York, NY, for petitioner-respondent. Rayaaz N. Khan, Jamaica, NY, attorney for the child. In related proceedings pursuant to Social Services Law §384-b and Family Court Act article 6, the maternal great grandmother appeals from a decision of the Family Court, Queens County (Emily Ruben, J.), dated August 23, 2018, and an order of fact-finding and disposition of the same court dated October 11, 2018, and the mother cross-appeals from the order of fact-finding and disposition. The order of fact-finding and disposition, insofar as appealed from, upon the decision, after a hearing, in effect, denied the maternal great grandmother’s petition for custody of the child and transferred custody of the child to the Commissioner of Social Services of the City of New York and Edwin Gould Services for Children and Families for the purpose of adoption. The order of fact-finding and disposition, insofar as cross-appealed from, upon the decision, after a hearing, found that it was in the best interests of the subject child to be freed for adoption, terminated the mother’s parental rights, and transferred custody of the child to the Commissioner of Social Services of the City of New York and Edwin Gould Services for Children and Families for the purpose of adoption. ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 AD2d 509); and it is further, ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed and cross-appealed from, without costs or disbursements. Anna J. (hereinafter the mother) and Candice J. (hereinafter the great grandmother) are the mother and the maternal great grandmother, respectively, of the subject child and two half-siblings of the subject child. One of the half-siblings (hereinafter the sibling) was killed in March 2010 by the mother’s then paramour, approximately two years before the subject child was born. The sibling, who was 19 months old, died of multiple injuries, including various fractures, internal organ injuries, and bleeding, and was found at the time of her death to have older untreated serious injuries including, inter alia, broken ribs and a broken jaw. As a result of the death of the sibling and the mother’s acts and omissions in connection with the death, in 2010, the Administration for Children’s Services (hereinafter ACS) filed a petition pursuant to Family Court Act article 10 against the mother, alleging, inter alia, that the mother had derivatively severely abused the surviving half-sibling (hereinafter the oldest child). The Family Court (Barbara Salinitro, J.) found that the mother had derivatively abused the oldest child, but dismissed the allegation of derivative severe abuse (see Matter of Amirah L., 37 Misc 3d 1003 [Fam Ct, Queens County], revd 118 AD3d 792). On appeal, this Court reversed and found that ACS had proven that the mother severely abused the sibling and derivatively severely abused the oldest child (see Matter of Amirah L. [Candice J.], 118 AD3d 792, 795). These findings were based upon, inter alia, the mother’s acts and omissions in failing to immediately summon emergency medical care for the sibling despite the child’s grave injuries, providing false and misleading information about the nature and circumstances of the injuries to medical personnel who were trying to save the sibling’s life, instructing the oldest child to lie about the circumstances of the injuries, and failing, in the weeks prior to the sibling’s death, to seek medical care for the sibling for the earlier untreated serious injuries which, according to a medical expert at the hearing, would have caused the sibling to noticeably display pain and suffer an inability to chew (see id. at 794). In October 2012, when the mother gave birth to the subject child, the subject child was immediately placed in foster care and ACS filed a petition pursuant to Family Court Act article 10 against the mother, among others, alleging derivative severe abuse of the subject child. Thereafter, the Family Court found that the mother had derivatively severely abused the subject child based on the mother’s conduct in connection with the death of the sibling. ACS then moved pursuant to Family Court Act §1039-b for a finding that reasonable efforts to reunite the mother with the subject child were no longer required. In an order dated January 25, 2018, after a hearing, the Family Court granted ACS’s motion. On appeal, this Court affirmed (see Matter of Aliah J. [Candice J.], 174 AD3d 898). In April 2014, Edwin Gould Services for Children and Families (hereinafter the petitioner) commenced a proceeding pursuant to Social Services Law §384-b to terminate the mother’s parental rights and free the subject child for adoption. The great grandmother filed a petition for custody of the child, and a hearing on her custody petition was consolidated with a dispositional hearing in the termination proceeding. Following the consolidated hearing, the Family Court found that it was in the best interests of the child to be freed for adoption by her foster mother, in effect, denied the great grandmother’s petition, terminated the mother’s parental rights, and transferred custody of the child to the Commissioner of Social Services of the City of New York and the petitioner for the purpose of adoption. The great grandmother appeals and the mother cross-appeals. At the dispositional stage of a proceeding to terminate parental rights, the court focuses solely on the best interests of the child (see Family Ct Act §631; Matter of Star Leslie W., 63 NY2d 136, 147; Matter of Isabella R.W. [Jessica W.], 161 AD3d 990, 991). There is no presumption that those interests will be served best by a return to the biological parent (see Family Ct Act §631; Matter of Star Leslie W., 63 NY2d at 147-148; Matter of Isabella R.W. [Jessica W.], 161 AD3d at 991). The court may: (1) dismiss the petition if the allegations are not established; (2) suspend judgment for up to one year; or (3) terminate parental rights, freeing the child for adoption (see Family Ct Act §§631, 632[a], 633[b]; Social Services Law §384-b[8][f]). Here, we agree with the Family Court’s determination that terminating the mother’s parental rights and freeing the subject child for adoption by the foster mother was in the child’s best interests (see Family Ct Act §631). Contrary to the mother’s contention, a suspended judgment was not appropriate in light of her continued failure to fully acknowledge and accept responsibility for her role in the events leading to the child’s removal and the derivative severe abuse finding, and inasmuch as the child has lived with the foster mother and her foster sister for virtually her entire life, is strongly bonded to them, and is well-cared for in their home (see Matter of J., Amina I.M. [Chantilly M.J.], 176 AD3d 938, 939; Matter of Vincent N.B. [Gregory B.], 173 AD3d 855, 856; Matter of Adam M.D. [Victoria M.C.], 170 AD3d 1006; Matter of Joshua E.R. [Yolaine R.], 123 AD3d 723, 726-727). A suspended judgment would serve only to prolong the delay of stability and permanence in the child’s living situation (see Matter of Vincent N.B. [Gregory B.], 173 AD3d at 856). Contrary to the petitioner’s contention, the great grandmother had standing to seek custody of the subject child (see Domestic Relations Law §72[2][a]; Matter of Bennett v. Jeffreys, 40 NY2d 543, 546; Matter of Weiss v. Weiss, 161 AD3d 992, 993; Matter of Weiss v. Weiss, 142 AD3d 507, 508). However, we agree with the determination to deny her custody petition. Given the child’s residence with the foster family for virtually her entire life, and her bond to them and good care in their home, as well as concerns raised by the evidence at the hearing about the impact of the great grandmother’s age and medical condition on her ability to physically care for the child, it was in the child’s best interests to be freed for adoption by the foster mother rather than be removed to the great grandmother’s custody (see Matter of Kadi W. v. ACS-Kings, 167 AD3d 757, 758; Matter of Weiss v. Weiss, 161 AD3d at 993; Matter of Patricia I.H. v. ACS-Kings, 140 AD3d 1165, 1166; Matter of Jade D.S.M.A.S. [Sakina S.O.A.S.], 140 AD3d 1077, 1078). SCHEINKMAN, P.J., ROMAN, HINDS-RADIX and LASALLE, JJ., concur.
By Scheinkman, P.J.; Mastro, Rivera, Dillon, Roman, JJ. IN THE MATTER OF MATTHEW J. MCGOWAN, ADMITTED AS MATTHEW JOSEPH MCGOWAN, AN ATTORNEY AND COUNSELOR-AT-LAW; GRIEVANCE COMMITTEE FOR THE NINTH JUDICIAL DISTRICT, pet; MATTHEW J. MCGOWAN, res — (Index No. 4045332) APPLICATION pursuant to 22 NYCRR 1240.10 by Matthew J. McGowan, who was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on July 24, 2002, under the name Matthew Joseph McGowan, to resign as an attorney and counselor-at-law. Gary L. Casella, White Plains, NY (Michael J. Kearse of counsel), for petitioner. Matthew J. McGowan, Rye Brook, NY, respondent pro se. PER CURIAM. The respondent, Matthew J. McGowan, admitted as Matthew Joseph McGowan, has submitted an affidavit sworn to on November 14, 2019, in support of his application to resign as an attorney and counselor-at-law (see 22 NYCRR 1240.10). The respondent acknowledges in his affidavit that he is the subject of eight investigations conducted by the Grievance Committee for the Ninth Judicial District. He further acknowledges that the allegations include the following acts of professional misconduct: 1. that during his representation of Andrew Bisagna in a matrimonial action in January 2019, he issued a check, drawn on his attorney IOLA account, in the amount of $12,500, payable to Makenzie Rodgers, his client’s former spouse, in payment of child support obligations, and that the check was dishonored because there were insufficient funds in his attorney IOLA account; 2. that in February 2019, he issued a check in the amount of $18,870, drawn on his attorney IOLA account, payable to Denise Grasso, and the check was dishonored because there were insufficient funds in his attorney IOLA account; 3. that in March 2019, he issued a check in the amount of $3,542, drawn on his attorney IOLA account, payable to Jennifer Berry, and the check was dishonored because there were insufficient funds in his attorney IOLA account; 4. that in March 2019, he issued a check in the amount of $5,000, drawn on his attorney IOLA account, payable to Janet M. Sully-Dooley, and the check was dishonored because there were insufficient funds in his attorney IOLA account; 5. that he received $16,271.36 from his client Henry Dong, to be disbursed in payment of his child support obligation and his daughter’s college tuition in April and May 2019, respectively, that he failed to return those funds to his client, that he failed to disburse those funds as directed, and that he willfully misappropriated those funds; 6. that in January 2017, he received a personal injury settlement totaling $18,000 on behalf of his client Georgiana Krisch, that he failed to disburse any of the $18,000 settlement funds to his client, that following the death of Georgiana Krisch in February 2019, he told her daughter, Deborah Schmidt, that he would pay the settlement funds to her, that he failed to do so, and that he willfully misappropriated those funds; 7. that in January 2019, he accepted a retainer fee of $10,000 from his client Edward J. Schroeder, that he failed to take any legal action on his client’s behalf, that when Edward J. Schroeder demanded a return of the retainer, he issued two checks to him, both of which were dishonored, and that he willfully misappropriated the $10,000 retainer; and 8. that he failed to register as an attorney for the 2018-2019 registration period. The respondent attests that he cannot successfully defend against the allegations based upon the facts and circumstances of his above described professional misconduct. The respondent acknowledges that his resignation is freely and voluntarily tendered, without coercion or duress by anyone, with full awareness of the consequences, including that the Court’s acceptance and approval shall result in the entry of an order of disbarment striking his name from the roll of attorneys and counselors at law. The respondent consents to entry of an order by the Court, pursuant to Judiciary Law §90(6-a), directing that he make monetary restitution to the following individuals: (1) Makenzie Rodgers in the amount of $12,500; (2) Denise Grasso in the amount of $18,870; (3) Jennifer Berry in the amount of $3,542; (4) Janet M. Sully-Dooley in the amount of $5,000; (5) Henry Dong in the amount of $16,271.36; (6) Deborah Schmidt in the amount of $18,000; and (7) Edward J. Schroeder in the amount of $10,000. He further acknowledges that he will reimburse the Lawyers’ Fund for Client Protection for any sum that it awards to any other individuals who filed or may file claims against him. The respondent acknowledges that his resignation is submitted subject to any future application that may be made by a Grievance Committee to any Department of the Appellate Division for an order, pursuant to Judiciary Law §90(6-a), directing that he make restitution or reimburse the Lawyers’ Fund for Client Protection, and that he consents to the continuing jurisdiction of the Appellate Division to make such an order. In addition, the respondent acknowledges and agrees that, pending the issuance of an order accepting his resignation, he shall not undertake to represent any new clients or accept any retainers for future legal services to be rendered, and that there will be no transactional activity in any fiduciary account to which he has access, other than for the payment of funds held therein on behalf of clients or others entitled to receive them. Lastly, the respondent acknowledges that in the event that the Court accepts his resignation, the order resulting therefrom and the records and documents filed in relation to the aforementioned allegations, including the affidavits, shall be deemed public records pursuant to Judiciary Law §90(10). The Grievance Committee recommends that the respondent’s application to resign be granted. In view of the foregoing, the Grievance Committee asks that a motion by order to show cause seeking, inter alia, the respondent’s interim suspension, now pending before this Court, be withdrawn. Inasmuch as the proffered affidavit to resign complies with 22 NYCRR 1240.10, the application is granted, and effective immediately, the respondent is disbarred, and his name is stricken from the roll of attorneys and counselors-at-law. SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON, and ROMAN, JJ.,concur. ORDERED that the application of the respondent, Matthew J. McGowan, admitted as Matthew Joseph McGowan, to resign as an attorney and counselor-at-law is granted; and it is further, ORDERED that pursuant to Judiciary Law §90, effective immediately, the respondent, Matthew J. McGowan, admitted as Matthew Joseph McGowan, is disbarred and his name is stricken from the roll of attorneys and counselors-at-law; and it is further, ORDERED that the respondent, Matthew J. McGowan, admitted as Matthew Joseph McGowan, shall comply with the rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15); and it is further, ORDERED that pursuant to Judiciary Law §90, effective immediately, the respondent, Matthew J. McGowan, admitted as Matthew Joseph McGowan, shall desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further, ORDERED that pursuant to Judiciary Law §90(6-a)(a), the respondent, Matthew J. McGowan, admitted as Matthew Joseph McGowan, shall reimburse the Lawyers’ Fund for Client Protection of the State of New York for any awards made to Makenzie Rodgers, Denise Grasso, Jennifer Berry, Janet M. Sully-Dooley, Henry Dong, Deborah Schmidt, and Edward J. Schroeder; and it is further, ORDERED that in the event that no awards have been made by the Lawyers’ Fund for Client Protection of the State of New York to Makenzie Rodgers, Denise Grasso, Jennifer Berry, Janet M. Sully-Dooley, Henry Dong, Deborah Schmidt, and Edward J. Schroeder, the respondent, Matthew J. McGowan, admitted as Matthew Joseph McGowan, shall make monetary restitution to (1) Makenzie Rodgers in the amount of $12,500, (2) Denise Grasso in the amount of $18,870, (3) Jennifer Berry in the amount of $3,542, (4) Janet M. Sully-Dooley in the amount of $5,000, (5) Henry Dong in the amount of $16,271.36, (6) Deborah Schmidt in the amount of $18,000, and (7) Edward J. Schroeder in the amount of $10,000, pursuant to Judiciary Law §90(6-a); and it is further, ORDERED that in the event that partial awards have been made by the Lawyers’ Fund for Client Protection of the State of New York to Makenzie Rodgers, Denise Grasso, Jennifer Berry, Janet M. Sulley-Dooley, Henry Dong, Deborah Schmidt, and Edward J. Schroeder, the respondent, Matthew J. McGowan, admitted as Matthew Joseph McGowan, shall make partial restitution to those individuals to the extent that they have not been fully reimbursed, pursuant to Judiciary Law §90(6-a); and it is further, ORDERED that pursuant to Judiciary Law §90(6-a)(d), this opinion and order may be entered as a civil judgment, and such judgment shall be enforceable as a money judgment in any court of competent jurisdiction by the party to whom payments are due hereunder in the amount set forth herein, minus any amount reimbursed by the Lawyers’ Fund for Client Protection or by the Lawyers’ Fund for Client Protection where it has been subrogated to the rights of such party; and it is further, ORDERED that if the respondent, Matthew J. McGowan, admitted as Matthew Joseph McGowan, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 1240.15(f); and it is further, ORDERED that the pending motion of the Grievance Committee for the Ninth Judicial District for, inter alia, the respondent’s interim suspension is marked withdrawn.
