Opinion
2011-10-7
In the Matter of TIFFANY M. and Tonika M.Erie County Department of Social Services, Petitioner–Respondent;Jolanda M., Respondent–Appellant.
Alan Birnholz, East Amherst, for Respondent–Appellant.Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.David C. Schopp, Attorney for the Children, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel), for Tiffany M. and Tonika M.
Alan Birnholz, East Amherst, for Respondent–Appellant.Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.David C. Schopp, Attorney for the Children, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel), for Tiffany M. and Tonika M.
MEMORANDUM:
Respondent mother appeals from an order terminating her parental rights with respect to the two children who are the subject of this proceeding. The testimony of petitioner's expert psychologist at the hearing established by clear and convincing evidence that, based on the mother's mental illness and mental retardation, she is unable presently and for the foreseeable future to provide proper and adequate care for the children ( see Matter of Mathew Z., 279 A.D.2d 904, 906, 720 N.Y.S.2d 566; see also Matter of Cayden L.R., 83 A.D.3d 1550, 921 N.Y.S.2d 605; Matter of William C.B., 83 A.D.3d 1583, 921 N.Y.S.2d 588, lv. dismissed in part and denied in part 17 N.Y.3d 790, 929 N.Y.S.2d 89, 952 N.E.2d 1085). Although the petition did not allege mental illness as a ground for termination of the mother's parental rights, the mother did not object to the evidence relating to that ground. In addition, although Family Court did not specifically refer in its decision to the mother's mental retardation, the court determined that the mother lacked the mental capacity to care for the children properly, and there was ample evidence of the mother's mental retardation. We therefore conclude that the court properly terminated the mother's parental rights.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.