Matter of Devonte M.T. (Leroy T.)

2010 NY Slip Op 09821 [79 AD3d 1818]

December 30, 2010

Appellate Division, Fourth Department

As corrected through Wednesday, February 16, 2011

In the Matter of Devonte M.T., an Infant. Niagara CountyDepartment of Social Services, Respondent; Leroy T., Jr., Appellant. (Appeal No.1.)

—[*1]Debra D. Wilson, Lockport, for respondent-appellant.

Susan M. Sussman, Niagara Falls, for petitioner-respondent.

Thomas M. O'Donnell, Attorney for the Child, Niagara Falls, for Devonte M.T.

Appeal from an order of the Family Court, Niagara County (David E. Seaman, J.), enteredSeptember 16, 2009 in a proceeding pursuant to Social Services Law § 384-b. The orderterminated the parental rights of respondent.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Respondent father appeals from orders terminating his parental rights withrespect to the subject children on the ground that he suffers from a mental illness (seeSocial Services Law § 384-b [4] [c]; Matter of Deondre M. [Crystal T.], 77 AD3d 1362 [2010]).Contrary to the father's contention, there was an adequate foundation for the opinion ofpetitioner's expert that the father suffers from schizophrenia and has borderline intellectualfunctioning. That testimony, together with the testimony of caseworkers who supervised thefather's visitation with the children, provided the requisite clear and convincing evidence that thefather is "presently and for the foreseeable future unable, by reason of mental illness. . . , to provide proper and adequate care for [the] child[ren]" (§ 384-b [4][c]; see § 384-b [6] [a]; Deondre M., 77 AD3d 1362 [2010]). Thecontention of the father that he was deprived of effective assistance of counsel is impermissiblybased on speculation, i.e., that favorable evidence could and should have been offered on hisbehalf (see Matter of Brenden O.,20 AD3d 722, 723 [2005]). Viewing the representation as a whole, we conclude that thefather's attorney provided meaningful representation (see Matter of Elijah D. [Allison D.], 74 AD3d 1846 [2010]).Present—Martoche, J.P., Fahey, Carni, Lindley and Sconiers, JJ.