| Matter of Majerae T. (Crystal T.) |
| 2010 NY Slip Op 05087 [74 AD3d 1784] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Majerae T. Erie County Department of SocialServices, Respondent; Crystal T., Appellant. |
—[*1] Joseph T. Jarzembek, Buffalo, for petitioner-respondent. David C. Schopp, Attorney for the Child, the Legal Aid Bureau of Buffalo, Inc., Buffalo(Charles D. Halvorsen of counsel), for Majerae T.
Appeal from an order of the Family Court, Erie County (Patricia A. Maxwell, J.), enteredMay 13, 2009 in a proceeding pursuant to Family Court Act article 10. The order, inter alia,granted the motion of petitioner for summary judgment and adjudged that the subject child is aneglected child.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Following the termination of the parental rights of respondent mother withrespect to her older child on the ground of mental illness, petitioner moved for summaryjudgment on its neglect petition with respect to the mother's younger child pursuant to FamilyCourt Act § 1012 (f) (i). Petitioner contended that the reasoning for terminating themother's parental rights with respect to the older child applied equally to the neglect petitionconcerning the younger child. Family Court granted the motion and placed the child in the careand custody of petitioner for a period of one year.
The mother contends on appeal that there are issues of fact concerning whether her youngerchild was neglected by virtue of the mother's mental condition and thus that summary judgmenton the neglect petition was inappropriate. We reject that contention. At the hearing conducted onthe issue whether to terminate the mother's parental rights with respect to the older child,petitioner presented evidence establishing that the mother previously was diagnosed as havingbipolar disorder, attention deficit disorder, posttraumatic stress disorder, reactive attachmentdisorder and psychotic disorder "not otherwise specified." Petitioner further established that themother suffers from a thyroid condition and lead poisoning, that she possibly suffers from a formof autism, and that she is presently dependent on marihuana. In addition, petitioner establishedthat the mother does not follow medical advice, does not take the medication that is prescribedfor her, and has not completed the various mental health, substance abuse and anger managementtreatment programs that petitioner arranged for her to attend. [*2]She is also aggressive and has threatened to "blow up" Child andFamily Services. In the opinion of the court-appointed psychologist assigned to evaluate themental health of the mother and her ability to parent, the mother is unable to care for her ownneeds and is unable to meet the needs of any child placed in her care. The court was entitled tocredit that opinion (see Matter ofShahida M., 59 AD3d 976 [2009], lv denied 12 NY3d 708 [2009]). Weconclude that the evidence before the court with respect to the older child "demonstrates such animpaired level of parental judgment as to create a substantial risk of harm for any child in [her]care" (Matter of Daniella HH., 236 AD2d 715, 716 [1997]; see Matter of Jovon J., 51 AD3d1395, 1396 [2008]; Matter of Hannah UU., 300 AD2d 942, 944 [2002], lvdenied 99 NY2d 509 [2003]). Thus, the court properly determined that petitioner wasentitled to summary judgment on the neglect petition concerning the younger child.
We reject the mother's contention that the record contains triable issues of fact that precludesummary judgment. Specifically, the mother contends that the court erred in relying on thecourt-ordered psychological evaluation and in failing to take into consideration her statement toa social worker that she was seeing a mental health provider. We reject that contention. In viewof the failure of the mother to meet with the psychologist in order to be evaluated, thepsychologist was entitled to rely on her medical, psychological, educational and agency recordsin determining whether she was able to parent her children (see Social Services Law§ 384-b [6] [e]). Although some of those records were prepared six years prior to the dateon which the hearing was conducted, the date on which those records were prepared does notcreate an issue of fact with respect to the mother's mental condition at the time of the hearinginasmuch as the psychologist based his report on all of the mother's records, which includedmore recent psychological records, records from petitioner, and records from the aforementionedtreatment programs that the mother failed to complete. In addition, the mother's condition islongstanding and developmental in nature, and there is no evidence in the record that themother's condition has ever changed. Finally, the statement by the mother to a social workerduring the initial investigation of the neglect petition concerning the younger child that themother was seeing a mental health provider is unsubstantiated, and thus is insufficient to raise atriable issue of fact to defeat petitioner's motion (see Matter of Scott JJ., 280 AD2d 4,6-7 [2001]; Matter of Baby Girl F., 277 AD2d 235, 236 [2000]; Matter of JimmyA., 218 AD2d 734 [1995]). Present—Scudder, P.J., Peradotto, Lindley, Green andGorski, JJ.