Opinion
8994.
September 21, 2006.
Order of disposition, Family Court, New York County (Sara E Schecter, J.), entered on or about May 27, 2005, terminating respondent's parental rights to the subject child and committing the child's guardianship and custody to petitioner agency and the Commissioner of the Administration for Children's Services of the City of New York for the purposes of adoption, following a fact-finding determination of mental illness, unanimously affirmed, without costs.
Law Offices of Randall S. Carmel, Hastings-on-Hudson (Randall Carmel of counsel), for appellant.
Rosin Reiniger, New York (Douglas H. Reiniger of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Daniel Greenbaum of counsel), Law Guardian.
Before: Tom, J.P., Andrias, Friedman, Marlow and Gonzalez, JJ.
The finding of mental illness (Social Services Law § 384-b [c]; [6] [a]) is supported by the requisite clear and convincing evidence, namely, the psychologist's uncontroverted testimony (Social Services Law § 384-b [c]). There is no indication that the court coached petitioner to amend the petition to assert mental illness, or was otherwise biased against respondent. Concerning the amendment, the record shows only that petitioner's attorney asked if all counsel could approach the bench, and that following an off-the-record conference, the court stated that the petition would be amended to add a claim of mental ."illness. The amendment was properly allowed in the absence of prejudice and upon conditions that averted surprise. The court, in accordance with respondent's attorney's request, appointed a guardian ad litem for respondent, who had the right to attend respondent's mental health evaluation, and also granted respondent's attorney's request to retain an expert to assist in respondent's defense. Had the motion been denied, petitioner could simply have filed a new petition alleging mental illness. We have considered and rejected respondent's other arguments.