| Matter of Anthony M. |
| 2008 NY Slip Op 08775 [56 AD3d 1124] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Anthony M. and Another, Infants. Seneca CountyDivision of Human Services, Respondent; William M. et al.,Appellants. |
—[*1] Frank R. Fisher, County Attorney, Waterloo (Brian James Fay of counsel), forpetitioner-respondent. Brendan O'Donnell, Law Guardian, Interlaken, for Anthony M. and Carolann M.
Appeal from an order of the Family Court, Seneca County (Dennis F. Bender, J.), enteredMarch 26, 2007 in a proceeding pursuant to Social Services Law § 384-b. The order,among other things, terminated respondents' parental rights.
It is hereby ordered that said appeal from the order insofar as it concerned respondents' olderchild is unanimously dismissed and the order is affirmed without costs.
Memorandum: In this proceeding pursuant to Social Services Law § 384-b, respondentparents have improperly appealed from the fact-finding order rather than the order of disposition.Nevertheless, we exercise our discretion to treat the notice of appeal as valid and deem the appealas taken from the order of disposition (see Matter of Danielle S. v Larry R.S., 41 AD3d 1188 [2007];see also CPLR 5520 [c]). We dismiss as moot the appeal from the order insofar as itconcerned the parents' older child inasmuch as she has attained the age of 18 (see Matter of Krest v Kawczynski, 9AD3d 907 [2004]).
With respect to the parents' younger child, petitioner met its burden of demonstrating by clearand convincing evidence that the parents are each presently and for the foreseeable future unableto provide proper and adequate care for him by reason of their mental illness (see SocialServices Law § 384-b [4] [c]; Matter of Shawndalaya II., 46 AD3d 1172, 1174 [2007], lvdenied 10 NY3d 703 [2008]). Family Court was entitled to credit the testimony of thecourt-appointed psychologist that the parents, by reason of their mental illness, were unable toacknowledge or meet the special needs of their son, who has Down syndrome, and that theprognosis for recovery with respect to each parent was poor. That testimony was based upon theresults of standardized tests, extensive interviews with the parents and a review of their legal andother records (see generally Matter of Dylan K., 269 AD2d 826 [2000], lv denied95 NY2d 766 [2000]). Contrary to the [*2]contention of theparents, "[t]he mere possibility that [their] condition[s], with proper treatment, could improve inthe future is insufficient to vitiate Family Court's conclusion" (Matter of Vaketa Y., 141AD2d 892, 893 [1988]). In view of our decision, we do not address the parents' remainingcontentions. Present—Centra, J.P., Lunn, Peradotto, Green and Pine, JJ.