Opinion
2013-02-14
In re NICHOLAS B., A Dependent Child Under Eighteen Years of Age, etc., Michelle B., Respondent–Appellant, v. St. Dominic's Home, Petitioner–Respondent.
Neal D. Futerfas, White Plains, for appellant. Warren & Warren, P.C., Brooklyn (Ira L. Eras of counsel), for respondent.
Neal D. Futerfas, White Plains, for appellant. Warren & Warren, P.C., Brooklyn (Ira L. Eras of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the child.
MAZZARELLI, J.P., FRIEDMAN, MANZANET–DANIELS, ROMÁN, CLARK, JJ.
Order, Family Court, New York County (Douglas E. Hoffman, J.), entered on or about April 23, 2012, which, upon a fact-finding determination that respondent-appellant mother suffers from a mental illness, terminated her parental rights to the subject child and committed custody and guardianship of the child to petitioner agency and the Commissioner of the Administration for Children's Services for the purpose of adoption, unanimously reversed, on the law, without costs, the finding of mental illness and the order of disposition vacated, and the petition dismissed.
Petitioner did not meet its burden of proving by clear and convincing evidence that the mother is mentally ill within the meaning of Social Services Law § 384–b(4)(c) and 6(a) ( see Matter of Dochingozi B., 57 N.Y.2d 641, 642–643, 454 N.Y.S.2d 63, 439 N.E.2d 872 [1982];Matter of Tatesha M.G. [Sonia E.], 4 A.D.3d 429, 771 N.Y.S.2d 399 [2d Dept. 2004] ). Although the evidence shows that the mother may have used some poor judgment in the past, this does not establish by clear and convincing evidence that she is presently and for the foreseeable future unable, by reason of mental illness, to provide proper and adequate care for the child ( id.). Petitioner's own records contradict petitioner's expert testimony that the mother was noncompliant with mental health treatment. Indeed, petitioner's records show that, after the mother was fully compliant with the mental health therapy provided by petitioner, she was evaluated and found not to be in need of any further counseling or psychotropic medications. Additionally, the expert's opinion that the mother would unlikely be able to care for her son in the foreseeable future is contradicted by evidence of the mother's efforts to secure placement for her son in an appropriate school environment, her participation in parenting classes, and her research on her son's ADHD diagnosis.