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In the Matter of Anthony Ww. and Others

State of New York Supreme Court, Appellate Division Third Judicial Department


July 7, 2011

IN THE MATTER OF ANTHONY WW. AND OTHERS, ALLEGED TO BE THE CHILDREN OF A MENTALLY ILL PARENT. ST. LAWRENCE COUNTY DEPARTMENT OF SOCIAL SERVICES, RESPONDENT; KAREN WW., APPELLANT.

Appeal from an order of the Family Court of St. Lawrence County (Potter, J.), entered June 3, 2010, which, among other things, granted petitioner's application, in a proceeding pursuant to Social Services Law § 384-b, to adjudicate respondent's children to be the children of a mentally ill parent, and terminated respondent's parental rights.

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

MEMORANDUM AND ORDER

(And Another Related Proceeding.)

Calendar Date: May 24, 2011

Before: Spain, J.P., Kavanagh, Stein, Garry and Egan Jr., JJ.

Respondent and Michael WW. (hereinafter the father) are married and have three children, and the procedural history and legal arguments in this matter are nearly identical to those in Matter of Anthony WW. [Michael WW.] (___ AD3d ___ [decided herewith]), involving the father. While factual distinctions between the two matters do exist, the reports and related testimony of the two psychologists who evaluated respondent suffer from the same deficiencies as those encountered in the proceeding brought against the father and, as presented, should not have been admitted into evidence at trial. Since Family Court's decision to terminate respondent's parental rights was based in large measure on this evidence, it must be reversed (see Matter of Murphy v Woods, 63 AD3d 1526, 1526 [2009]; cf. People v Stone, 35 NY2d 69, 76 [1974]; Matter of Mohammad v Mohammad, 23 AD3d 476, 476-477 [2005]).

Finally, for reasons set forth in Matter of Anthony WW. [Michael WW.] (supra), we harbor similar reservations about the timing of this application considering that, when this proceeding was commenced, a suspended judgment was in place against respondent and no evidence has been presented that she had violated any of the terms of that judgment, or engaged in any conduct that would justify the commencement of this proceeding. Respondent's remaining contentions have been considered and are either academic or without merit.

Spain, J.P., Stein, Garry and Egan Jr., JJ., concur.

ORDERED that the order is reversed, on the law, without costs, termination petition dismissed, and matter remitted to the Family Court of St. Lawrence County for further proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger Clerk of the Court

20110707

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