Opinion
285 CAF 16–02327
06-08-2018
In the MATTER OF YESHUA G. Erie County Department of Social Services, Petitioner–Respondent; v. Anthony G., Respondent–Appellant.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT–APPELLANT. JAMES E. BROWN, BUFFALO, FOR PETITIONER–RESPONDENT. DOMINIC PAUL CANDINO, WEST SENECA, ATTORNEY FOR THE CHILD.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT–APPELLANT.
JAMES E. BROWN, BUFFALO, FOR PETITIONER–RESPONDENT.
DOMINIC PAUL CANDINO, WEST SENECA, ATTORNEY FOR THE CHILD.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Appeal from an order of the Family Court, Erie County (Sharon M. LoVallo, J.), entered December 7, 2016 in a proceeding pursuant to Social Services Law § 384–b. The order, among other things, terminated respondent's parental rights to the subject child on the grounds of mental illness.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this proceeding to terminate respondent father's parental rights with respect to the subject child on the ground of mental illness (see generally Social Services Law § 384–b [4 ][c] ). Family Court granted petitioner's motion for summary judgment on the petition. We now affirm.Contrary to the father's contention, the court properly granted petitioner's motion based on collateral estoppel (see Matter of Suffolk County Dept. of Social Servs. v. James M., 83 N.Y.2d 178, 182–183, 608 N.Y.S.2d 940, 630 N.E.2d 636 [1994] ; Matter of Desiree C., 7 A.D.3d 522, 524, 776 N.Y.S.2d 320 [2d Dept. 2004] ). The relevant issue in this proceeding is whether the father is "presently and for the foreseeable future unable, by reason of mental illness ..., to provide proper and adequate care for a child" ( Social Services Law § 384–b [4 ][c] ), and the court resolved that exact issue against him in a prior termination proceeding concerning his other children ( Matter of Neveah G. [Anthony G.], 156 A.D.3d 1342, 1342 [4th Dept. 2017], lv denied 31 N.Y.3d 907, 79 N.Y.S.3d 97, 103 N.E.3d 1244, 2018 N.Y. Slip Op. 71835, 2018 WL 2123213 [2018] ; see Matter of Neveah G. [Jahkeya A.], 156 A.D.3d 1340, 1341, 65 N.Y.S.3d 851 [4th Dept. 2017], lv denied 31 N.Y.3d 907, 79 N.Y.S.3d 97, 103 N.E.3d 1244, 2018 N.Y. Slip Op. 71836, 2018 WL 2123215 [2018] ). The father does not dispute that he was afforded a full and fair opportunity to litigate that issue in the prior proceeding (see James M., 83 N.Y.2d at 182–183, 608 N.Y.S.2d 940, 630 N.E.2d 636 ; Matter of Sarah L., 207 A.D.2d 1016, 1017, 617 N.Y.S.2d 71 [4th Dept. 1994] ). Thus, "[a]ll the requirements were satisfied for applying collateral estoppel to sustain the [instant termination] petition" ( Sarah L., 207 A.D.2d at 1017, 617 N.Y.S.2d 71 ; see Matter of Jasmine R., 8 Misc.3d 904, 908–912, 800 N.Y.S.2d 307 [Fam. Ct. Queens County 2005] ). We reject the father's contention that petitioner was obligated to submit the expert report upon which the court's prior determination was based inasmuch as that determination was itself sufficient, standing alone, to establish petitioner's initial burden on summary judgment.
In opposition to petitioner's motion, the father failed to raise a triable issue of fact concerning the applicability of collateral estoppel. We therefore conclude that the court properly granted petitioner's motion and terminated the father's parental rights with respect to the subject child (see Matter of Majerae T. [Crystal T.], 74 A.D.3d 1784, 1784–1786, 902 N.Y.S.2d 758 [4th Dept. 2010] ; cf. Matter of Terrence G. [Terrence M.M.—Yvonne C.G.], 98 A.D.3d 1294, 1295–1296, 951 N.Y.S.2d 309 [4th Dept. 2012] ).