Opinion
2022–00529 Docket Nos. B–592–21, B–593–21
03-22-2023
In the MATTER OF SEBASTIAN Y. (Anonymous). Orange County Department of Social Services, respondent; v. Alice Y. (Anonymous), etc., appellant. (Proceeding No. 1) In the Matter of Johnathan S. (Anonymous). Orange County Department of Social Services, respondent; v. Alice Y. (Anonymous), etc., appellant. (Proceeding No. 2)
Kiel Van Horn, Port Jervis, NY, for appellant. Richard B. Golden, County Attorney, Goshen, NY (Peter R. Schwarz of counsel), for respondent. Keith Geoffrey Ingber, Thompson Ridge, NY, attorney for the children.
Kiel Van Horn, Port Jervis, NY, for appellant.
Richard B. Golden, County Attorney, Goshen, NY (Peter R. Schwarz of counsel), for respondent.
Keith Geoffrey Ingber, Thompson Ridge, NY, attorney for the children.
COLLEEN D. DUFFY, J.P., FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.
DECISION & ORDER In related proceedings pursuant to Social Services Law § 384–b, the mother appeals from an order of fact-finding and disposition of the Family Court, Orange County (Christine P. Krahulik, J.), dated January 6, 2022. The order of fact-finding and disposition, after a hearing, found that the mother was presently and for the foreseeable future unable, by reason of mental illness and intellectual disability, to provide proper and adequate care for the subject children, terminated her parental rights to the subject children, and transferred guardianship and custody of the subject children to the petitioner for the purpose of adoption. ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.
In February 2021, the petitioner commenced these proceedings pursuant to Social Services Law § 384–b to terminate the mother's parental rights to the subject children on the grounds of mental illness and intellectual disability. Following a hearing, the Family Court found that the mother was presently and for the foreseeable future unable, by reason of mental illness and intellectual disability, to provide proper and adequate care for the children, terminated the mother's parental rights to the children, and transferred guardianship and custody of the children to the petitioner for the purpose of adoption. The mother appeals.
An agency seeking termination of parental rights on the ground of mental illness or intellectual disability must demonstrate by clear and convincing evidence that the parent is "presently and for the foreseeable future unable, by reason of mental illness or intellectual disability, to provide proper and adequate care for [the subject] child who has been in the care of [the] agency for the period of one year immediately prior to the date on which the petition is filed" ( id. § 384–b[4][c] ; see Matter of Marthina S.J.Z.H.-B.R. [Calvin R.], 198 A.D.3d 655, 658, 156 N.Y.S.3d 50 ; Matter of Korah Z.G. [Sandra W.], 189 A.D.3d 1587, 1587–1588, 135 N.Y.S.3d 281 ).
Here, the petitioner presented the testimony of an expert forensic psychiatrist who opined that the mother suffered from developmental intellectual disorder and attention deficit hyperactivity disorder, which impaired her parental functioning. The expert testified, among other things, that the mother failed to seek treatment for her attention deficit hyperactivity disorder and exhibited impulsive behavior, which caused her to have an unstable living situation and poor relationships with individuals who could otherwise provide support. The expert also testified that the mother required assistance to keep the children safe during visits. The expert opined that if the children were returned to the mother, they would be at risk of being neglected as a result of the mother's mental conditions. Contrary to the mother's contention, the evidence presented at the hearing established, by clear and convincing evidence, that the mother was presently and for the foreseeable future unable, by reason of mental illness and intellectual disability, to provide proper and adequate care for the children, and supported the Family Court's determination to terminate the mother's parental rights to the children (see Social Services Law § 384–b[4][c] ; Matter of Bethany R. [Bethmarie R.], 213 A.D.3d 676, 182 N.Y.S.3d 287, 2023 N.Y. Slip Op. 00427, *1–2 [2d Dept.] ; Matter of Christopher T.L. [Sayid L.], 179 A.D.3d 685, 686, 116 N.Y.S.3d 326 ).
The mother's contention that the petitioner failed to lay a proper foundation for the testimony of its expert witness is unpreserved for appellate review, as the mother did not object to the admission of the expert's testimony on this ground (see Matter of Norah T. [Norman T.], 165 A.D.3d 1644, 1645, 85 N.Y.S.3d 326 ).
Contrary to the mother's further contention, she was not deprived of the effective assistance of counsel. "A respondent in a proceeding pursuant to Social Services Law § 384–b has the right to the assistance of counsel (see Family Ct Act § 262[a][iv] ), which encompasses the right to the effective assistance of counsel" ( Matter of Deanna E.R. [Latisha M.], 169 A.D.3d 691, 692, 93 N.Y.S.3d 375 ; see Matter of Adam M.M. [Sophia M.], 179 A.D.3d 801, 802, 117 N.Y.S.3d 100 ). "An attorney representing a client is entitled to make strategic and tactical decisions concerning the conduct of trials" ( Matter of Deanna E.R. [Latisha M.], 169 A.D.3d at 692, 93 N.Y.S.3d 375 [internal quotation marks omitted]; see Matter of Fatoumata A.C. [Amadou C.], 206 A.D.3d 991, 992, 168 N.Y.S.3d 864 ). Here, the record does not show that counsel lacked a legitimate, strategic reason for the decisions made as to the conduct of the hearing (see Matter of Fatoumata A.C. [Amadou C.], 206 A.D.3d at 992, 168 N.Y.S.3d 864 ; Matter of Grace G. [Gloria G.], 194 A.D.3d 712, 714–715, 147 N.Y.S.3d 125 ). Viewed in totality, the record reflects that the mother received meaningful representation (see Matter of Fatoumata A.C. [Amadou C.], 206 A.D.3d at 992, 168 N.Y.S.3d 864 ; Matter of Deanna E.R. [Latisha M.], 169 A.D.3d at 692, 93 N.Y.S.3d 375 ).
DUFFY, J.P., CONNOLLY, CHRISTOPHER and WARHIT, JJ., concur.