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In the Matter of Niya X.

December 2, 2010

IN THE MATTER OF NIYA X., SCHENECTADY COUNTY DEPARTMENT OF SOCIAL SERVICES, RESPONDENT; MARTHA Y., APPELLANT.


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 Social Services Law § 384-b, to adjudicate respondent's child to be the child of a mentally ill parent, and terminated respondent's parental rights.

The opinion of the court was delivered by: McCarthy, J.

Third Judicial Department

Decided and Entered: December 2, 2010 508864

Alleged to be the Child of a Mentally Ill and/or Mentally Retarded Parent.

MEMORANDUM AND ORDER

Calendar Date: October 15, 2010

Before: Cardona, P.J., Rose, Lahtinen, Malone Jr. and

McCarthy, JJ.

Marcel J. Lajoy, Albany, for appellant.

Christopher H. Gardner, County Attorney, Schenectady (Ursula E. Hall of counsel), for respondent.

Patricia L.R. Rodriguez, Schenectady, attorney for the child.

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 hour per 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 upon mental illness and mental retardation. Family Court found no proof that respondent was mentally retarded, but found that she was mentally ill and terminated her parental rights on that basis. Respondent appeals.

Petitioner met its burden of proving that respondent is mentally ill and that her parental rights should be terminated due to the related limitations on her parenting abilities. A court may terminate parental rights if a petitioner establishes by clear and convincing evidence that a respondent is "presently and for the foreseeable future unable, by reason of mental illness . . ., to provide proper and adequate care for a child" who has been in the petitioner's care for the preceding year (Social Services Law § 384-b [4] [c]; see Social Services Law § 384-b [3] [g]; Matter of Casey L. [Joseph L.], 68 AD3d 1497, 1498-1499 [2009]). The parties do not dispute that the child has been in petitioner's care for her entire life, well beyond the required one year. It is also undisputed that respondent suffers from a mental illness, namely bipolar disorder with psychotic features. The only issue that was litigated was whether this mental illness prevented respondent from being able to provide proper and adequate care for the child at the time of the hearing and into the foreseeable future.

Petitioner submitted the testimony of and two written reports from Jacqueline Bashkoff, a psychologist who reviewed respondent's records, talked to numerous collateral contacts, observed a home visitation between respondent and the child, interviewed respondent and conducted testing. Bashkoff noted examples of respondent's difficulties which demonstrated her lack of judgment, poor decision-making skills, limited functioning and lethargy. Although respondent had not been hospitalized for several years and was generally compliant with her medication regimen, she acknowledged that she sometimes missed her medication, and the medications produced side effects that could adversely affect her ability to care for a child. Ultimately, Bashkoff opined that based upon her mental illness and the side effects from her necessary medications, respondent was not capable of full-time custodial parenting presently or in the foreseeable future. Petitioner also submitted the written report of another psychologist, David Horenstein, who had interviewed and tested respondent, reviewed her records and talked to collateral ...


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