Opinion
1045 CAF 19-01325
11-13-2020
In the MATTER OF KENDALL N. Herkimer County Department of Social Services, Petitioner-Respondent; v. Angela M., Respondent-Appellant.
TRACY L. PUGLIESE, CLINTON, FOR RESPONDENT-APPELLANT. MICHELLE K. FASSETT, HERKIMER, FOR PETITIONER-RESPONDENT. ROBERT C. BALDWIN, BARNEVELD, ATTORNEY FOR THE CHILD.
TRACY L. PUGLIESE, CLINTON, FOR RESPONDENT-APPELLANT.
MICHELLE K. FASSETT, HERKIMER, FOR PETITIONER-RESPONDENT.
ROBERT C. BALDWIN, BARNEVELD, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CURRAN, TROUTMAN, AND DeJOSEPH, JJ.
MEMORANDUM AND ORDER Appeal from an order of the Family Court, Herkimer County ( John J. Brennan, J.), dated May 29, 2019 in a proceeding pursuant to Family Court Act article 10. The order, inter alia, determined that respondent had neglected the subject child.
It is hereby ORDERED that said appeal from the order insofar as it concerns the disposition is unanimously dismissed and the order is affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 10, respondent mother appeals from an order that, inter alia, adjudged that she neglected the subject child. As an initial matter, we dismiss the appeal from the order insofar as it concerns the disposition inasmuch as that part of the order was entered on the mother's consent, and thus no appeal lies therefrom (see CPLR 5511 ; Matter of Thomas C. [Jennifer C.] , 81 A.D.3d 1301, 1302, 916 N.Y.S.2d 380 [4th Dept. 2011], lv denied 16 N.Y.3d 712, 2011 WL 1643298 [2011] ).
Contrary to the mother's contention, petitioner established by a preponderance of the evidence that the child was neglected as a result of the mother's mental illness (see Matter of Zackery S. [Stephanie S.] , 170 A.D.3d 1594, 1595, 96 N.Y.S.3d 438 [4th Dept. 2019] ; Matter of Lyndon S. [Hillary S.] , 163 A.D.3d 1432, 1433, 80 N.Y.S.3d 821 [4th Dept. 2018] ). It is well established that "a finding of neglect based on mental illness need not be supported by a particular diagnosis or by medical evidence" ( Matter of Thomas B. [Calla B.] , 139 A.D.3d 1402, 1404, 31 N.Y.S.3d 381 [4th Dept. 2016] ; cf. Social Services Law § 384-b [4] [c] ; [6] [c] ). The evidence at the hearing, including the testimony of three caseworkers, a substance abuse counselor, and a psychiatric nurse practitioner, established that the mother engaged in " ‘bizarre and paranoid behavior’ " placing the child's physical, mental, or emotional condition in imminent danger of becoming impaired ( Matter of Christy S. v. Phonesavanh S. , 108 A.D.3d 1207, 1208, 970 N.Y.S.2d 340 [4th Dept. 2013] ; see Zackery S. , 170 A.D.3d at 1595, 96 N.Y.S.3d 438 ; Thomas B. , 139 A.D.3d at 1403, 31 N.Y.S.3d 381 ).