Opinion
2012-12-21
In the Matter of KAYLENE S. and Nadia M.-S. Erie County Department of Social Services, Petitioner–Respondent; Brauna S., Respondent–Appellant.
William D. Broderick, Jr., Elma, for Respondent–Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.
William D. Broderick, Jr., Elma, for Respondent–Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.
David C. Schopp, Attorney for the Children, The Legal Aid Bureau of Buffalo, Inc. (Charles D. Halvorsen of Counsel), for Kaylene S. and Nadia M.-S.
PRESENT: SCUDDER, P.J., CENTRA, VALENTINO, WHALEN, AND MARTOCHE, JJ.
MEMORANDUM:
Respondent mother appeals from an order terminating her parental rights on the ground of mental illness with respect to one of her older children and entering a finding of derivative neglect with respect to her youngest child. The mother contends that petitioner failed to lay a proper foundation for the testimony of its expert witnesses. That contention is unpreserved for our review ( see generally Matter of Brayanna G., 66 A.D.3d 1375, 1375, 891 N.Y.S.2d 565,lv. denied13 N.Y.3d 714, 2010 WL 92458; Wall v. Shepard, 53 A.D.3d 1050, 1050, 860 N.Y.S.2d 375). In any event, it lacks merit inasmuch as an adequate foundation was laid for the testimony ( see generally Matter of Devonte M.T. [ Leroy T.], 79 A.D.3d 1818, 1818, 913 N.Y.S.2d 457). We agree with Family Court that petitioner met its burden of demonstrating by clear and convincing evidence that the mother is presently and for the foreseeable future unable to provide proper and adequate care for the older child at issue by reason of mental illness ( seeSocial Services Law § 384–b [4][c]; [6][a]; see e.g. Matter of Demariah A. [ Rebecca B.], 71 A.D.3d 1469, 1469, 896 N.Y.S.2d 762,lv. denied15 N.Y.3d 701, 2010 WL 2521087). Contrary to the mother's contention, the court did not err in allowing a psychologist to testify based on an evaluation that he conducted several years earlier in connection with a matter involving one of the mother's other children ( see Matter of Aubrey A. [ Rebecca B.], 96 A.D.3d 1459, 1459, 945 N.Y.S.2d 909;Matter of Robert K., 56 A.D.3d 353, 353, 869 N.Y.S.2d 14,lv. denied12 N.Y.3d 704, 876 N.Y.S.2d 705, 904 N.E.2d 842;see generally Matter of Dominique M., 62 A.D.3d 503, 503, 879 N.Y.S.2d 409).The psychologist's testimony was detailed and supported his opinion that it was unlikely that the mother's condition would improve over time. That testimony was substantiated by the testimony of a second expert who had interviewed the mother in connection with the instant petitions and opined that, due to her mental illness, she was unable to parent the child for the present and foreseeable future. Contrary to the mother's further contention, the court was free to accept the testimony of petitioner's experts over that of her expert ( see generally Matter of Kimberly J., 216 A.D.2d 940, 941, 629 N.Y.S.2d 142,lv. denied87 N.Y.2d 801, 637 N.Y.S.2d 688, 661 N.E.2d 160).
The court did not err in entering a finding of derivative neglect with respect to the mother's youngest child. The credible evidence supports a finding that the mother's untreated and ongoing mental illness resulted in an inability to care for her youngest child in the foreseeable future ( see Matter of Henry W., 30 A.D.3d 695, 696, 815 N.Y.S.2d 797;see also Matter of Sophia M.G.-K. [ Tracy G.-K.], 84 A.D.3d 1746, 1746–1747, 922 N.Y.S.2d 907). Indeed, the record reflects that the mother “demonstrated a fundamental defect in [her] understanding of the duties and obligations of parenthood and created an atmosphere detrimental to the physical, mental and emotional well-being of [that child]” (Matter of Derrick C., 52 A.D.3d 1325, 1326, 859 N.Y.S.2d 855,lv. denied11 N.Y.3d 705, 866 N.Y.S.2d 609, 896 N.E.2d 95 [internal quotation marks omitted]; see Matter of Cory S. [ Terry W.], 70 A.D.3d 1321, 1322, 897 N.Y.S.2d 322).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.