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In the Matter of William C.B. v. Judy B

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


April 29, 2011

IN THE MATTER OF WILLIAM C.B.
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;
v.
JUDY B.,
RESPONDENT-APPELLANT.

Appeal from an order of the Family Court, Erie County (Patricia A. Maxwell, J.), entered February 2, 2010 in a proceeding pursuant to Social Services Law § 384-b.

Matter of William C.B. v Judy B.

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 29, 2011

PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.

(APPEAL NO. 1.)

The order terminated the parental rights of respondent.

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

Memorandum: In appeal No. 1, respondent mother appeals from an order terminating her parental rights with respect to her son on the ground of mental illness. Contrary to the mother's contention, we conclude that petitioner met its burden of demonstrating by clear and convincing evidence that she is "presently and for the foreseeable future unable, by reason of mental illness . . ., to provide proper and adequate care for [the] child" (Social Services Law § 384-b [4] [c]; see Matter of Anthony C., 280 AD2d 1000). The mother's further contention in appeal No. 1 that Family Court erred in failing to conduct a separate dispositional hearing is unpreserved for our review and, in any event, that contention lacks merit (see Matter of Keyarei M., 71 AD3d 1510, lv denied 14 NY3d 712).

In appeal No. 2, the mother appeals from an order denying her pro se motion seeking to vacate the order in appeal No. 1. To the extent that the motion was based upon newly discovered evidence, the mother failed to show that such evidence could not have been discovered previously by the exercise of due diligence, or that it would have altered the outcome of the proceeding (see Matter of Catapano, 17 AD3d 673, 674). Nor did the mother demonstrate that she was deprived of effective assistance of counsel, the alternative ground alleged by the mother for vacatur (see generally Matter of Leo UU., 288 AD2d 711, 713, lv denied 97 NY2d 609).

Entered: April 29, 2011

Patricia L. Morgan Clerk of the Court

20110429

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