| Matter of Niya X. (Martha Y.) |
| 2010 NY Slip Op 08825 [79 AD3d 1196] |
| December 2, 2010 |
| Appellate Division, Third Department |
| In the Matter of Niya X., Alleged to be the Child of a Mentally Ill and/orMentally Retarded Parent. Schenectady County Department of Social Services, Respondent; MarthaY., Appellant. |
—[*1] Christopher H. Gardner, County Attorney, Schenectady (Ursula E. Hall of counsel), forrespondent. Patricia L.R. Rodriguez, Schenectady, attorney for the child.
McCarthy, J. Appeal from an order of the Family Court of Schenectady County (Assini, J.),entered December 4, 2009, which granted petitioner's application, in a proceeding pursuant to SocialServices Law § 384-b, to adjudicate respondent's child to be the child of a mentally ill parent,and terminated respondent's parental rights.
Respondent's daughter (hereinafter the child) has been in foster care since her birth in 2005.Respondent has regularly exercised visitation, which has ranged in duration from one supervised hourper week, to three consecutive unsupervised overnights, and back to two supervised hours per week.Petitioner commenced this proceeding seeking to terminate respondent's parental rights based uponmental illness and mental retardation. Family Court found no proof that respondent was mentallyretarded, but found that she was mentally ill and terminated her parental rights on that basis.Respondent appeals.[*2]
Petitioner met its burden of proving that respondent is mentallyill and that her parental rights should be terminated due to the related limitations on her parentingabilities. A court may terminate parental rights if a petitioner establishes by clear and convincingevidence that a respondent is "presently and for the foreseeable future unable, by reason of mentalillness . . . , to provide proper and adequate care for a child" who has been in thepetitioner's care for the preceding year (Social Services Law § 384-b [4] [c]; see SocialServices Law § 384-b [3] [g]; Matterof Casey L. [Joseph L.], 68 AD3d 1497, 1498-1499 [2009]). The parties do not dispute thatthe child has been in petitioner's care for her entire life, well beyond the required one year. It is alsoundisputed that respondent suffers from a mental illness, namely bipolar disorder with psychoticfeatures. The only issue that was litigated was whether this mental illness prevented respondent frombeing able to provide proper and adequate care for the child at the time of the hearing and into theforeseeable future.
Petitioner submitted the testimony of and two written reports from Jacqueline Bashkoff, apsychologist who reviewed respondent's records, talked to numerous collateral contacts, observed ahome visitation between respondent and the child, interviewed respondent and conducted testing.Bashkoff noted examples of respondent's difficulties which demonstrated her lack of judgment, poordecision-making skills, limited functioning and lethargy. Although respondent had not been hospitalizedfor several years and was generally compliant with her medication regimen, she acknowledged that shesometimes missed her medication, and the medications produced side effects that could adversely affecther ability to care for a child. Ultimately, Bashkoff opined that based upon her mental illness and theside effects from her necessary medications, respondent was not capable of full-time custodial parentingpresently or in the foreseeable future. Petitioner also submitted the written report of anotherpsychologist, David Horenstein, who had interviewed and tested respondent, reviewed her records andtalked to collateral contacts. Horenstein reached an opinion similar to Bashkoff's. Petitioner'scaseworker and the child's foster mother testified regarding visitation and contact with respondent,providing factual situations outlining respondent's difficulties in dealing with or caring for the child.
Respondent offered the opinion of psychologist Aaron Hoorwitz, who reviewed the reports ofpetitioner's two experts, observed a visit at petitioner's facility and interviewed respondent. Hoorwitzopined that although respondent is mentally ill, he saw no evidence that her illness rendered herincapable of parenting. Respondent also testified on her own behalf, stating that she was mentally stableand indicating that she could care for the child.
Family Court was presented with conflicting testimony and expert opinions, but found Bashkoff'sopinion more credible. Accepting that credibility determination and giving deference to the court'sfactual findings, the record contains clear and convincing evidence that, despite her desire and attemptsto regain custody, respondent is presently, and will be for the foreseeable future, unable to provideproper and adequate care for the child (seeMatter of Michael WW., 29 AD3d 1105, 1106 [2006]; Matter of Cheryl YY., 302AD2d 632, 634 [2003]). Hence, the court did not err in terminating respondent's parental rights.
Cardona, P.J., Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.