Opinion
850 CAF 22-01107
11-17-2023
In the MATTER OF LIL’ BRIAN J.Z. Orleans County Department of Social Services, Petitioner-Respondent; v. Jessica J., Respondent-Appellant.
LAW OFFICE OF VERONICA REED, SCHENECTADY (VERONICA REED OF COUNSEL), FOR RESPONDENT-APPELLANT. DANA A. GRABER, ALBION, FOR PETITIONER-RESPONDENT. CHARLES PLOVANICH, ROCHESTER, ATTORNEY FOR THE CHILD.
LAW OFFICE OF VERONICA REED, SCHENECTADY (VERONICA REED OF COUNSEL), FOR RESPONDENT-APPELLANT.
DANA A. GRABER, ALBION, FOR PETITIONER-RESPONDENT.
CHARLES PLOVANICH, ROCHESTER, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., LINDLEY, MONTOUR, GREENWOOD, AND NOWAK, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: In this proceeding pursuant to Social Services Law § 384-b, respondent mother appeals from an order that, inter alia, terminated her parental rights with respect to the subject child on the ground of mental illness. We affirm.
We note at the outset that the mother contends that Family Court erred in relying on the testimony of the forensic psychologist who conducted virtual examinations of her because his opinion "was conclusory and lacked necessary information." The mother failed to object to the testimony of the psychologist on that ground, however, and thus failed to preserve her contention for our review (see Matter of Amyn C. [Chelsea K.] , 159 A.D.3d 1421, 1421, 70 N.Y.S.3d 148 [4th Dept. 2018], lv denied 31 N.Y.3d 911, 2018 WL 3117893 [2018] ; Matter of Jamiah Sharang C. [Kamila N.] , 85 A.D.3d 453, 453, 924 N.Y.S.2d 267 [1st Dept. 2011], lv denied 17 N.Y.3d 709, 2011 WL 4089764 [2011] ; see also Matter of Nadya S. [Brauna S.] , 133 A.D.3d 1243, 1244, 20 N.Y.S.3d 271 [4th Dept. 2015], lv denied 26 N.Y.3d 919, 2016 WL 699690 [2016] ).
Contrary to the mother's further contention, we conclude that petitioner established " ‘by clear and convincing evidence that [the mother], by reason of mental illness, is presently and for the foreseeable future unable to provide proper and adequate care for [the] child[ ]’ " ( Matter of Jason B. [Phyllis B.] , 160 A.D.3d 1433, 1434, 72 N.Y.S.3d 868 [4th Dept. 2018], lv denied 32 N.Y.3d 902, 84 N.Y.S.3d 855, 856, 109 N.E.3d 1155, 1156 [2018]; see Matter of Jason B. [Gerald B.] , 155 A.D.3d 1575, 1575, 63 N.Y.S.3d 630 [4th Dept. 2017], lv denied 31 N.Y.3d 901, 2018 WL 1414507 [2018] ). Testimony from the forensic psychologist established that the child "would be in danger of being neglected if [he] were returned to [the mother's] care at the present time or in the foreseeable future" ( Jason B. , 160 A.D.3d at 1434, 72 N.Y.S.3d 868 ).
Finally, with respect to the mother's contention that the court should have granted her a suspended judgment, we note that " ‘[t]here is no statutory provision providing for a suspended judgment when parental rights are terminated based on mental illness’ " ( Matter of Matilda B. [Gerald B.] , 187 A.D.3d 1677, 1679, 132 N.Y.S.3d 227 [4th Dept. 2020], lv denied 36 N.Y.3d 905, 2021 WL 504696 [2021] ; see Matter of Jackalyne WW. [Kevin VV.] , 195 A.D.3d 1092, 1096, 149 N.Y.S.3d 652 [3d Dept. 2021] ; Matter of Ernesto Thomas A. , 5 A.D.3d 380, 381, 772 N.Y.S.2d 708 [2d Dept. 2004] ).