| Matter of Brayanna G. |
| 2009 NY Slip Op 06934 [66 AD3d 1375] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Brayanna G. and Another, Infants. WyomingCounty Department of Social Services, Respondent; Crystal G. et al.,Appellants. |
—[*1] William D. Broderick, Jr., Elma, for respondent-appellant Anthony J.G. Michael Steinberg, Rochester, for respondent-appellant William S. Eric T. Dadd, County Attorney, Warsaw (Jamie B. Welch of counsel), forpetitioner-respondent. Emily A. Vella, Law Guardian, Springville, for Brayanna G. Steven J. Lord, Law Guardian, Arcade, for Mariah S.
Appeals from an order of the Family Court, Wyoming County (Mark H. Dadd, J.), enteredMarch 24, 2008 in a proceeding pursuant to Social Services Law § 384-b. The orderterminated the parental rights of respondents.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent parents, the mother and respective fathers of the two children atissue, appeal from an order terminating their parental rights pursuant to Social Services Law§ 384-b (4) (c) on the ground of mental retardation. We conclude that petitionerestablished by clear and convincing evidence, including the testimony of a psychologist, that themother is "presently and for the foreseeable future unable, by reason of . . . mentalretardation, to provide proper and adequate care for [her] child" (id.; see §384-b [6] [b]; Matter of Josh M., 61AD3d 1366 [2009]), and that each father, for the same reason, is also unable to provide therequisite care for his child.
Respondent father Anthony J.G. contends that the psychologist's testimony lacked a properfoundation because it was based on evaluations conducted prior to the filing of the petitionagainst him. Anthony J.G. failed to preserve that contention for our review inasmuch as he failedto object to the testimony on that ground (see generally Wall v Shepard, 53 AD3d 1050 [2008]). In anyevent, that contention is without merit. In view of the life-long nature of Anthony J.G.'sdisabilities, we conclude that Family Court properly admitted the testimony of the psychologistconcerning an evaluation conducted prior to the filing of the petition. We note in any event thatthe court ordered [*2]further psychological evaluations of allthree respondents at their request, and that the testimony of the psychologist who performedthose evaluations, which was presented by respondents, in fact substantiated the testimony ofpetitioner's psychologist.
Finally, respondents waived their contention that the petitions were improperly filed beforethe children had been in the care of an authorized agency for the period of one year (seeSocial Services Law § 384-b [4] [c]), inasmuch as they failed to raise that contention inFamily Court and it does not implicate the court's subject matter jurisdiction (see generally Matter of Renee XX. v JohnZZ., 51 AD3d 1090 [2008]). Present—Martoche, J.P., Smith, Peradotto, Carniand Green, JJ.