Opinion
5341
01-02-2018
IN RE Chad NASIR S., and Another, Dependent Children Under the Age of Eighteen Years, etc., Charity Simone S., Respondent–Appellant, v. Abbott House, Petitioner–Respondent.
Neal D. Futerfas, White Plains, for appellant. John R. Eyerman, New York, for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Raymond E. Rogers of counsel), attorney for the children.
Neal D. Futerfas, White Plains, for appellant.
John R. Eyerman, New York, for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Raymond E. Rogers of counsel), attorney for the children.
Richter, J.P., Tom, Kapnick, Kern, Moulton, JJ.
Orders, Family Court, New York County (Susan Knipps, J.), entered on or about July 26, 2016, which, to the extent appealed from as limited by the briefs, found that respondent mother is mentally ill within the meaning of Social Services Law § 384–b, unanimously affirmed, without costs.
Although this nondispositional order is not appealable as of right (see Family Ct Act § 1112[a] ), the finding that the mother is mentally ill within the meaning of Social Services Law § 384–b constitutes a permanent and significant stigma that might impact her status in future proceedings (see Matter of Nekia C., 155 A.D.3d 431, 63 N.Y.S.3d 234 [1st Dept. 2017] ). Accordingly, the Court, on its own motion, deems the notice of appeal to be a request for leave to appeal, and hereby grants leave to appeal ( id. ).
Clear and convincing evidence supports the finding that the mother suffers from a mental illness as defined by Social Services Law § 384–b(4)(c) and (6)(a). The court-appointed psychologist who examined the mother for several hours and reviewed her extensive medical history opined that she is presently and for the foreseeable future unable to provide adequate care for the children due to mental illness (see Social Services Law § 384–b[4][c] ; [6][a]; see Matter of Jeremiah M. [Sabrina Ann M.], 109 A.D.3d 736, 971 N.Y.S.2d 524 [1st Dept. 2013], lv denied 22 N.Y.3d 856, 2013 WL 6097219 [2013] ). His uncontroverted testimony established that the mother's prognosis was "quite poor" because she lacks insight into her mental illness, refuses counseling and psychotropic medication, and did not continue her therapy once her therapist stopped working at the facility she was attending. The psychologist also noted that there was a possibility that the mother would require future hospitalizations, which could leave the children without someone to care for them (see Matter of Sharon Crystal F. [Nicole Valerie D.], 89 A.D.3d 639, 640, 934 N.Y.S.2d 377 [1st Dept. 2011], lv denied 18 N.Y.3d 808, 2012 WL 539356 [2012] ; Matter of Susan F., 106 A.D.2d 282, 283, 482 N.Y.S.2d 489 [1st Dept. 1984] ).
Although the mother is correct that hearsay statements made by the father in the expert's report were inadmissible and should have been stricken, any error was harmless. The admissible evidence in the record, including the portions of the expert's report that did not include hearsay, was sufficient to support the finding that the mother is mentally ill within the meaning of Social Services Law § 384–b (see generally Lubit v. Lubit, 65 A.D.3d 954, 956, 885 N.Y.S.2d 492 [1st Dept. 2009], lv denied 13 N.Y.3d 716, 2010 WL 118203 [2010], cert denied 560 U.S. 940, 130 S.Ct. 3362, 176 L.Ed.2d 1247 [2010] ; Matter of Benjamin L., 9 A.D.3d 153, 158–159, 780 N.Y.S.2d 8 [1st Dept. 2004] ).
Family Court properly drew a negative inference from the fact that the mother, while present at the hearing, did not testify (see Matter of Alford Isaiah B. [Alford B.], 107 A.D.3d 562, 968 N.Y.S.2d 36 [1st Dept. 2013] ).