Opinion
5918–5919
03-08-2018
IN RE WILLIAM MARAGH E., etc., A Child Under the Age of Eighteen Years, Shaunette W., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent, Leroy R., Respondent.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of counsel), for respondent. Larry S. Bachner, New York, attorney for the child.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of counsel), for respondent.
Larry S. Bachner, New York, attorney for the child.
Renwick, J.P., Richter, Andrias, Kapnick, Kahn, JJ.
Order, Family Court, Bronx County (Gilbert A. Taylor, J.), entered on or about May 12, 2017, which, to the extent appealed from, granted petitioner agency's motion for summary judgment on the claim of derivative neglect as against respondent Shaunette W., unanimously affirmed, without costs.
Petitioner made a prima facie showing of derivative neglect as to the subject child through prior orders, issued just three months before this neglect proceeding was commenced, terminating respondent's parental rights to her three older children upon a finding by clear and convincing evidence that she had permanently neglected them (see Family Court Act § 1046[a][i] ; Matter of Phoenix J. [Kodee J.], 129 A.D.3d 603, 604, 12 N.Y.S.3d 64 [1st Dept. 2015] ; Matter of Cruz, 121 A.D.2d 901, 503 N.Y.S.2d 798 [1st Dept. 1986] ). The orders underlying the termination of respondent's parental rights, issued in 2007 and 2011, found that respondent neglected two of the children by reason of her failure to treat her longstanding mental illness (see Social Services Law § 384–b[4][c] ). In support of its motion, petitioner also submitted a caseworker's affidavit demonstrating that respondent continued to show a lack of insight into the conditions that had led to the older children's removal and that she needed direction in handling the subject child.
In opposition, respondent failed to rebut the resulting presumption that she continues to suffer from a mental illness that renders her unable to care for a child for the foreseeable future (see Matter of Noah Jeremiah J. [Kimberly J.], 81 A.D.3d 37, 42, 914 N.Y.S.2d 105 [1st Dept. 2010] ; Matter of Phoenix J., 129 A.D.3d at 604, 12 N.Y.S.3d 64 ; Matter of Takia B. [Antoine N.], 73 A.D.3d 575, 576, 902 N.Y.S.2d 515 [1st Dept. 2010] ). Respondent relied on the testimony of a psychologist who testified at a hearing on her application for the return of the child (see Family Court Act § 1028 ) that she was currently stable, that she reported that she was attending therapy regularly, and that she handled the infant child very well during a 30–minute session. The psychologist also acknowledged respondent's long history of serious mental illness with violent outbursts and psychotic episodes and that respondent was not taking any medication and would not do so. Even if respondent's condition improved in the three months between the termination of her parental rights to the three older children and the commencement of this proceeding, the evidence of her long-term failure to comply with medical treatment for her mental illness demonstrates, as a matter of law, a " ‘fundamental defect in [her] understanding of the duties of parenthood’ " that renders her unable to care for a child for the foreseeable future (Matter of T–Shauna K., 63 A.D.3d 420, 420, 879 N.Y.S.2d 462 [1st Dept. 2009] ; see Matter of Noah Jeremiah J., 81 A.D.3d at 42, 914 N.Y.S.2d 105 ; see generally Matter of Suffolk County Dept. of Social Servs. v. James M., 83 N.Y.2d 178, 182, 608 N.Y.S.2d 940, 630 N.E.2d 636 [1994] ).