| Matter of Kyle K. |
| 2008 NY Slip Op 02655 [49 AD3d 1333] |
| March 21, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Kyle K. and Another, Infants. Erie CountyDepartment of Social Services, Respondent; Harry K., Appellant. |
—[*1] David C. Schopp, Law Guardian, the Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D.Halvorsen of counsel), for Kyle K. and Kara K.
Appeal from an order of the Family Court, Erie County (Margaret O. Szczur, J.), enteredMarch 1, 2007 in a proceeding pursuant to Social Services Law § 384-b. The order, amongother things, terminated the parental rights of respondent.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydismissing the petition filed February 14, 2006 and as modified the order is affirmed withoutcosts, and the matter is remitted to Family Court, Erie County, for a dispositional hearing on thepetition filed March 14, 2006.
Memorandum: Petitioner commenced this proceeding to terminate the parental rights ofrespondent father with respect to his two children. Petitioner initially filed a petition seekingtermination of the father's parental rights on the ground of mental illness and subsequently filed asecond petition seeking termination on the ground of permanent neglect. Following a singlefact-finding hearing, Family Court granted both petitions, terminated the father's parental rights,and committed the guardianship and custody of the children to petitioner. We note at the outsetthat it was logically inconsistent for the court to grant both petitions. With respect to the petitionalleging mental illness, petitioner was required to present clear and convincing evidence that thefather is "presently and for the forseeable future unable, by reason of mental illness. . . , to provide proper and adequate care" for the children (Social Services Law§ 384-b [4] [c]) while, with respect to the petition alleging permanent neglect, petitionerwas required to present, inter alia, evidence that the father failed for the statutory period"substantially and continuously or repeatedly to maintain contact with or plan for the future ofthe child[ren], although physically and financially able to do so" (§ 384-b [7] [a]). Thefather could not be found to be mentally ill to a degree warranting termination of his parentalrights and at the same time be found to have failed to plan for the future of the children althoughphysically and financially able to do so (see generally Matter of Olivia L., 43 AD3d 1339, 1340 [2007]).
Addressing first the petition seeking termination of the father's parental rights based onmental illness, we conclude that petitioner failed to establish "by clear and convincing evidence[*2]that [the father], by reason of mental illness, is presently andfor the foreseeable future unable to provide proper and adequate care for [his] children"(Matter of Jarred R., 236 AD2d 888, 889 [1997]; see Social Services Law§ 384-b [3] [g]; [4] [c]), and we therefore modify the order accordingly. The psychologistwho examined the father on petitioner's behalf testified that the psychological tests administeredto him were inconclusive and that, during interviews, the father displayed no symptoms of mentalillness. The psychologist's conclusion that the father suffered from paranoid schizophrenia wasbased on the children's statements to the psychologist that the father had stated that other peoplesent "impulses" to him and that the children would be "switched" and replaced with evil people ifthey went outside, as well as statements from unnamed individuals that the father covered thelights on his microwave oven with a towel and altered the grades on the children's report cards.No witnesses testified that they observed the father engaging in strange behavior, and there wasno testimony concerning the frequency of strange behavior or testimony connecting suchbehavior with the circumstances that led to the removal of the children from the father's home.Thus, although the father's reported behavior was indeed strange, petitioner failed to establish byclear and convincing evidence that the father suffered from a mental illness that rendered himpresently and for the foreseeable future unable to provide proper and adequate care for thechildren (cf. Matter of August ZZ.,42 AD3d 745, 748 [2007]; Matterof Charity A., 38 AD3d 1276 [2007]; Matter of Harris AA., 285 AD2d 755[2001]).
We conclude, however, that the court properly granted the petition seeking termination of thefather's parental rights on the ground of permanent neglect. Contrary to the father's contention,petitioner met its burden of establishing "by clear and convincing evidence that it has fulfilled itsstatutory duty to exercise diligent efforts to strengthen the parent-child relationship and to reunitethe family" (Matter of Sheila G., 61 NY2d 368, 373 [1984]; see Social ServicesLaw § 384-b [7] [f]; Matter of Gregory B., 74 NY2d 77, 86 [1989]). Contrary tothe further contention of the father, petitioner established that he failed to plan for the future ofthe children based on his failure to complete a required program of mental health counseling (see Matter of Jose R., 32 AD3d1284 [2006], lv denied 7 NY3d 718 [2006]; Matter of Krystal J., 267 AD2d1097 [1999]), as well as his failure to acknowledge the children's educational problems, both ofwhich indicated that he was unwilling "to correct the conditions that led to the placement of thechildren in the custody of petitioner" (Matter of James H., 281 AD2d 920, 920 [2001],appeal dismissed 96 NY2d 896 [2001], cert denied sub nom. Brenda H. v Erie CountyDept. of Social Services., 534 US 1090 [2002]; see Matter of Nathaniel T., 67 NY2d838, 842 [1986]).
Finally, although not raised by the father, we conclude that a dispositional hearing is requiredbased on the termination of his parental rights on the ground of permanent neglect, and "FamilyCourt's failure to hold one requires a remittal for that purpose" (Matter of Brian W., 199AD2d 1021, 1021-1022 [1993], appeal dismissed 83 NY2d 952, 85 NY2d 923 [1994],lv denied 86 NY2d 711 [1995]; see Family Ct Act §§ 623, 625 [a];§ 631; Matter of Orange County Dept. of Social Servs. [Edward L.], 250 AD2d853 [1998]; Matter of Casondra W., 184 AD2d 1070, 1071 [1992]).Present—Scudder, P.J., Hurlbutt, Lunn, Pine and Gorski, JJ.