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In re Roman E.A. Erie County Department of Social Services

Supreme Court of New York, Fourth Department

June 7, 2013

IN THE MATTER OF ROMAN E.A. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; and DANIELLE M., RESPONDENT-APPELLANT. (APPEAL NO. 2.)

Appeal from an order of the Family Court, Erie County (Margaret O. Szczur, J.), entered January 10, 2012 in a proceeding pursuant to Social Services Law § 384-b. The order, among other things, transferred guardianship and custody of the subject child to petitioner.

EVELYNE A. O'SULLIVAN, EAST AMHERST, FOR RESPONDENT-APPELLANT.

JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.

DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL).

PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.

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 of fact-finding determining that the child who is the subject of this proceeding pursuant to Social Services Law § 384-b is the child of a mentally ill parent. That order is not appealable as of right (see Family Ct Act § 1112 [a]), and the mother has not sought permission to appeal therefrom. We therefore dismiss the appeal from the order in appeal No. 1 (see Matter of Roy D., 207 A.D.2d 958, 958-959). We note, however, that the mother's appeal from the dispositional order in appeal No. 2 brings up for review the propriety of the fact-finding order in appeal No. 1 (see Matter of Atreyu G. [Jana M.], 91 A.D.3d 1342, 1342, lv denied 19 N.Y.3d 801).

In appeal No. 2, the mother appeals from an order transferring her guardianship and custody rights to petitioner. Contrary to the mother's contention, we conclude that "petitioner met its burden of proving by clear and convincing evidence that [the mother], by reason of mental illness, is presently and for the foreseeable future unable to provide proper and adequate care for her child[ ]" (Matter of Jessica N., 265 A.D.2d 800, 800, lv denied 94 N.Y.2d 758; see Social Services Law § 384-b [4] [c]; [6] [a]; Matter of Charity A., 38 A.D.3d 1276, 1276). The psychologist appointed by Family Court testified that the mother has schizophrenia, paranoid type. He characterized her prognosis as "bleak" based upon her lack of insight into her illness (see Matter of Victoria Lauren W., 15 A.D.3d 165, 165) or her need for treatment (see Jessica N., 265 A.D.2d at 801), and her refusal to take prescribed medication (see Matter of Vincent E.D.G. [Rozzie M.G.], 81 A.D.3d 1285, 1285, lv denied 17 N.Y.3d 703). The psychologist further concluded that if the child were returned to the mother he would be at imminent risk of harm (see Matter of Corey UU., 85 A.D.3d 1255, 1257, lv denied 17 N.Y.3d 708; Jessica N., 265 A.D.2d at 801). The court therefore properly granted the petition and terminated the mother's parental rights.


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