Opinion
914 CAF 22-01377
12-22-2023
In the MATTER OF LANDIN F. Erie County Department of Social Services, Petitioner-Respondent; v. Jodi G., Respondent-Appellant.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT. MELISSA A. CAVAGNARO, BUFFALO, ATTORNEY FOR THE CHILD.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT.
MELISSA A. CAVAGNARO, BUFFALO, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., CURRAN, OGDEN, GREENWOOD, AND NOWAK, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order that, inter alia, terminated her parental rights with respect to the subject child on the ground of mental illness. We affirm. Contrary to the mother's contention, we conclude that petitioner met its burden of demonstrating by clear and convincing evidence that the mother is "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 Zachary R. [Duane R.] , 118 A.D.3d 1479, 1480, 988 N.Y.S.2d 810 [4th Dept. 2014] ; Matter of Vincent E.D.G. [Rozzie M.G.] , 81 A.D.3d 1285, 1285, 916 N.Y.S.2d 421 [4th Dept. 2011], lv denied 17 N.Y.3d 703, 2011 WL 2314383 [2011] ; see generally Matter of Joyce T. , 65 N.Y.2d 39, 48, 489 N.Y.S.2d 705, 478 N.E.2d 1306 [1985] ). The testimony of petitioner's expert psychologist established that the mother suffers from delusional disorder and that "the child[ ] would be in danger of being neglected if [he was] returned to her care at the present time or in the foreseeable future" ( Matter of Jason B. [PhyllisB.] , 160 A.D.3d 1433, 1434, 72 N.Y.S.3d 868 [4th Dept. 2018], lv denied 32 N.Y.3d 902, 84 N.Y.S.3d 856, 109 N.E.3d 1156 [2018] ; see Zachary R. , 118 A.D.3d at 1480, 988 N.Y.S.2d 810 ).
The mother further contends that she was denied meaningful representation by, inter alia, her attorney's failure to retain and call an expert psychologist to rebut the evidence of petitioner's expert psychologist. We reject that contention. The mother failed to demonstrate that there were relevant experts who would have been willing to testify in a manner helpful and favorable to her case, and her speculation that her attorney could have found an expert with a contrary medical opinion is insufficient to establish deficient representation (see Matter of Michael S. [Brittany R.] , 159 A.D.3d 1502, 1504, 72 N.Y.S.3d 315 [4th Dept. 2018], lv denied 31 N.Y.3d 909, 2018 WL 2922240 [2018] ). Further, the record establishes that, " ‘viewed in the totality of the proceedings, [the mother] received meaningful representation’ " ( Matter of Bentleigh O. [Jacqueline O.] , 125 A.D.3d 1402, 1404, 3 N.Y.S.3d 247 [4th Dept. 2015], lv denied 25 N.Y.3d 907, 2015 WL 2237488 [2015] ; see Matter of Demariah A. [Rebecca B.] , 71 A.D.3d 1469, 1470, 896 N.Y.S.2d 762 [4th Dept. 2010], lv denied 15 N.Y.3d 701, 2010 WL 2521087 [2010] ).
Finally, we reject the mother's contention that Family Court abused its discretion in declining to hold a dispositional hearing (see Matter of Michael S. [Rebecca S.] , 165 A.D.3d 1633, 1633-1634, 82 N.Y.S.3d 916 [4th Dept. 2018], lv denied 32 N.Y.3d 915, 2019 WL 637852 [2019] ; Matter of Alberto C. [Tibet H.] , 96 A.D.3d 1487, 1488, 946 N.Y.S.2d 517 [4th Dept. 2012], lv denied 19 N.Y.3d 813, 2012 WL 4936378 [2012] ; see generally Joyce T. , 65 N.Y.2d at 49-50, 489 N.Y.S.2d 705, 478 N.E.2d 1306 ).