| Matter of Josh M. |
| 2009 NY Slip Op 03244 [61 AD3d 1366] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Josh M., an Infant. Ontario County Department ofSocial Services, Respondent; Lloyd M., Appellant. |
—[*1] John W. Park, County Attorney, Canandaigua (Holly A. Adams of counsel), forpetitioner-respondent. Marybeth D. Barnet, Law Guardian, Canandaigua, for Josh M.
Appeal from an order of the Family Court, Ontario County (Craig J. Doran, J.), enteredJanuary 4, 2008 in a proceeding pursuant to Social Services Law § 384-b. The order,among other things, terminated respondent's parental rights.
It is hereby ordered that the order so appealed from is unanimously modified on the law byremitting the matter to Family Court, Ontario County, for further proceedings in accordance withthe memorandum and as modified the order is affirmed without costs.
Memorandum: Respondent father appeals from an order terminating his parental rightspursuant to Social Services Law § 384-b (4) (c) on the ground of mental retardation. Weconclude that petitioner established by clear and convincing evidence that the father is "presentlyand for the foreseeable future unable, by reason of . . . mental retardation, toprovide proper and adequate care for [his] child" (id.; see § 384-b [6][b]; Matter of Adam NN., 33 AD3d1187, 1188 [2006], lv denied 8 NY3d 802 [2007]; Matter of Michael F., 16 AD3d1116 [2005]). Petitioner presented the testimony of a psychologist and a psychiatrist whoeach testified that the father is mildly mentally retarded, which is a life-long condition, and thathis mental retardation rendered him incapable of providing proper and adequate care for hischild, who has developmental disabilities. The father presented no evidence to the contrary (see Matter of Donald W., 17 AD3d728, 729 [2005], lv denied 5 NY3d 705 [2005]; Matter of Lisa Marie S., 304AD2d 762 [2003], lv denied 100 NY2d 508 [2003], lv dismissed 100 NY2d 575[2003]).
We agree with the father, however, that Family Court erred in failing to determine whetherpost-termination contact with the father is in the best interests of the child. After the court issuedits written decision finding that the father is by reason of his mental retardation unable to care forhis child, both the court and the Law Guardian expressed their belief that post-[*2]termination contact might be appropriate. The court urged theparties to come to an agreement pursuant to which the father would conditionally surrender hisparental rights and some form of continued contact would be arranged. The parties were unableto come to such an agreement, however, and the father refused to agree to a conditionalsurrender of his parental rights. The court then ordered that the father's parental rights wereterminated without itself determining whether post-termination contact was in the child's bestinterests. We conclude that the court erred in conditioning post-termination contact on theparties' ability to reach an agreement with respect to the terms of that contact and on theagreement of the father to a conditional surrender of his parental rights. Instead, the court itselfshould have determined whether post-termination contact was in the child's best interests. Wetherefore modify the order by remitting the matter to Family Court to determine that issue,following a further hearing if necessary (see generally Matter of Kahlil S., 35 AD3d 1164 [2006], lvdismissed 8 NY3d 977 [2007];Matter of Thomas B., 35 AD3d 1289 [2006], lv dismissed 8 NY3d 936 [2007]).Present—Scudder, P.J., Smith, Centra, Fahey and Pine, JJ.