Opinion
No. 534 CAF 21-01148
06-09-2023
IN THE MATTER OF EVALYNN R.B. NIAGARA COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; KELLI B., RESPONDENT-APPELLANT.
NICHOLAS B. ROBINSON, PUBLIC DEFENDER, LOCKPORT (KEVIN D. CANALI OF COUNSEL), FOR RESPONDENT-APPELLANT. NICHOLAS J. NARCHUS, LOCKPORT, FOR PETITIONER-RESPONDENT. MARY ANNE CONNELL, BUFFALO, ATTORNEY FOR THE CHILD.
NICHOLAS B. ROBINSON, PUBLIC DEFENDER, LOCKPORT (KEVIN D. CANALI OF COUNSEL), FOR RESPONDENT-APPELLANT.
NICHOLAS J. NARCHUS, LOCKPORT, FOR PETITIONER-RESPONDENT.
MARY ANNE CONNELL, BUFFALO, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, BANNISTER, AND OGDEN, JJ.
Appeal from an order of the Family Court, Niagara County (Kathleen Wojtaszek-Gariano, J.), entered July 21, 2021, in a proceeding pursuant to Social Services Law § 384-b. The order, inter alia, terminated the parental rights of respondent with respect to the subject child.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order terminating her parental rights with respect to the subject child on the ground of mental illness. Contrary to the mother's contention, petitioner established by clear and convincing evidence 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" (Social Services Law § 384-b [4] [c]; see Matter of Deon M. [Vernon B.], 155 A.D.3d 1586, 1586 [4th Dept 2017], lv denied 30 N.Y.3d 910 [2018]). Petitioner presented the testimony of an expert psychologist who opined that the mother suffered from mental illness and as a result, the child" 'would be in danger of being neglected if [she] returned to [the mother's] care at the present time or in the foreseeable future'" (Matter of Matilda B. [Gerald B.], 187 A.D.3d 1677, 1678 [4th Dept 2020], lv denied 36 N.Y.3d 905 [2021]; see Matter of Norah T. [Norman T.], 165 A.D.3d 1644, 1644-1645 [4th Dept 2018], lv denied 32 N.Y.3d 915 [2019]).
The mother's contention that Family Court erred in failing to qualify her mental health counselor as an expert is unpreserved for our review, inasmuch as the mother never asked the court to qualify the mental health counselor as an expert (see Matter of Kaitlyn R., 267 A.D.2d 894, 896 [3d Dept 1999]; see generally Norah T., 165 A.D.3d at 1645).