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In re Nazeral C. S. (Anonymous)

Supreme Court of New York, Second Department

November 15, 2017

In the Matter of Nazeral C. S. (Anonymous). New York Foundling Hospital, petitioner-respondent; Christina S. (Anonymous), appellant, et al., respondent. Docket No. B-520-15

          Submitted - October 24, 2017

         D53869 G/hu

          Warren S. Hecht, Forest Hills, NY, for appellant.

          Daniel Gartenstein, Long Island City, NY, for petitioner-respondent.

          Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Patricia Colella of counsel), attorney for the child.

          RUTH C. BALKIN, J.P. LEONARD B. AUSTIN SANDRA L. SGROI VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         Appeal by the mother from an order of fact-finding and disposition of the Family Court, Kings County (Ilana Grubel, J.), dated June 14, 2016. The order, after fact-finding and dispositional hearings, found that the mother was presently, and for the foreseeable future, unable by reason of mental illness to provide proper and adequate care for the subject child and that the mother permanently neglected the child, terminated her parental rights, and, in effect, transferred custody and guardianship of the child to the Commissioner of the Administration for Children's Services of the City of New York and New York Foundling Hospital for the purpose of adoption.

         ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.

         The petitioner commenced this proceeding to terminate the mother's parental rights to the subject child. After a fact-finding hearing, the Family Court determined that the mother was presently, and for the foreseeable future, unable by reason of mental illness to provide proper and adequate care for the child, and, additionally, that the mother permanently neglected the child. On those bases, after a dispositional hearing, the court terminated the mother's parental rights, and, in effect, transferred custody and guardianship of the child to the petitioner and the Commissioner of the Administration for Children's Services of the City of New York for the purpose of adoption. The mother appeals.

         Contrary to the mother's contention, the petitioner demonstrated, 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 (see Social Services Law § 384-b[4][c]; see Matter of Divinity I.H. [George T.J.], 133 A.D.3d 601, 601-602; Matter of Tyler M.J. [Adrianna J.], 104 A.D.3d 768, 768-769;Matter of B. Mc. [DawnMc.], 99 A.D.3d 713, 713-714). The record reveals a long history of symptomatic mental illness and recurrent hospitalizations. The court-appointed psychologist testified that the mother suffers from schizo affective disorder, bipolar type, and opined that if the child were returned to the mother, he would be at risk of being neglected in the present and in the foreseeable future. This conclusion was based upon disturbances in the mother's thinking, feeling, behavior, and judgment due to her mental illness, her inability over a protracted period to consistently comply with treatment, her inability to "function independently in terms of self-care, " such as by maintaining housing or an income, and her inability to provide stability and safety to the child.

         The petitioner further demonstrated, by clear and convincing evidence, that the mother permanently neglected the child. "To establish that a parent has permanently neglected a child, an agency must establish by clear and convincing evidence that, for a period of one year following the child's placement with the agency, the parent failed to maintain contact with the child or, alternatively, failed to plan for the future of the child, although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parent-child relationship" (Matter of Karina J.M. [Carmen Enid G.], 145 A.D.3d 893, 894; see Social Services Law § 384-b[4], [7][a]; Matter of Lierre J.M. [Melissa L.D.], 150 A.D.3d 1009, 1010). Contrary to the mother's contention, the petitioner made diligent efforts to assist the mother in maintaining contact with the child and planning for the child's future, including by facilitating visitation, repeatedly providing the mother with referrals for drug treatment programs and mental health evaluations, and advising the mother of her need to attend and complete such programs and of the consequences of her failure to do so (see Matter of Lierre J.M. [Melissa L.D.], 150 A.D.3d at 1010; Matter of Destiny A.K. [Barbara M.], 147 A.D.3d 758, 759; Matter of Elijah M.A. [Mohammed A.], 135 A.D.3d 744, 746). Despite the petitioner's diligent efforts, the mother failed to adequately plan for the child's future, by, most significantly, failing to address her mental health and substance abuse issues (see e.g. Matter of Vaughn M.S. [Patricia C.S.], 144 A.D.3d 811, 812; Matter of Mercedes R.B. [Heather C.], 130 A.D.3d 1022, 1023; Matter of Nicholas A.N. [Youvonne N.], 124A.D.3d896, 898).

         The mother's remaining contentions are without merit.

          BALKIN, J.P., AUSTIN, SGROI and BRATHWAITE ...


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