| Matter of Olivia L. |
| 2007 NY Slip Op 07143 [43 AD3d 1339] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| In the Matter of Olivia L., an Infant. Cayuga County Department ofHealth and Human Services, Respondent; Michael L., Appellant, et al.,Respondent. |
—[*1] Samuel P. Giacona, Auburn, for petitioner-respondent. Cynthia B. Brennan, Law Guardian, Auburn, for Olivia L.
Appeal from an order of the Family Court, Cayuga County (Peter E. Corning, J.), enteredMarch 7, 2006 in a proceeding pursuant to Social Services Law § 384-b. The order, insofaras appealed from, adjudged that the child is permanently neglected, terminated the parental rightsof respondent Michael L. and transferred guardianship and custody of the child to petitioner.
It is hereby ordered that the order insofar as appealed from be and the same hereby isunanimously reversed on the law without costs and the petition against respondent Michael L. isdismissed.
Memorandum: Petitioner commenced these proceedings to terminate respondents' parentalrights on the ground of permanent neglect. Following a fact-finding hearing on the petitions,Family Court found that respondents had permanently neglected their child, terminated theirparental rights and transferred guardianship and custody of the child to petitioner. Respondentfather appeals.
We agree with the father that petitioner failed to establish that he failed to plan for the child'sfuture although physically and financially able to do so (see Social Services Law §384-b [7] [a]). Inasmuch as petitioner established that the father was unable, by reason of hispersonality disorders and mental health problems, to plan for the child's future, we conclude thatpetitioner failed to establish that he permanently neglected the child (see Matter of Olivia L., 41 AD3d1226 [2007]; Matter of Michael E., 241 AD2d 635, 637 [1997]). Under thecircumstances of this case, a petition for termination of parental rights on the ground of mentalillness may be appropriate (see Social Services Law § 384-b [3] [g]; [4] [c];Matter of Stephen B., 176 AD2d 1204 [1991], lv denied 79 NY2d 752 [1991],appeal dismissed 79 NY2d 914 [1992]). In view of our determination, we see no need toaddress the father's remaining contentions. Present—Gorski, J.P., Smith, Centra, Faheyand Pine, JJ.