Opinion
1279 CAF 16–00343
12-22-2017
In the MATTER OF AYDEN W. and Malakai W. Erie County Department of Social Services, Petitioner–Respondent; v. John W., Respondent–Appellant.
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT–APPELLANT. ELISABETH M. COLUCCI, BUFFALO, FOR PETITIONER–RESPONDENT. DAVID C. SCHOPP, ATTORNEY FOR THE CHILDREN, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL).
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT–APPELLANT.
ELISABETH M. COLUCCI, BUFFALO, FOR PETITIONER–RESPONDENT.
DAVID C. SCHOPP, ATTORNEY FOR THE CHILDREN, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL).
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Respondent father appeals from an order that terminated his parental rights with respect to the subject children on the grounds of mental illness and intellectual disability. Contrary to the father's contention, petitioner met its burden of establishing by clear and convincing evidence that he is "presently and for the foreseeable future unable, by reason of mental illness or intellectual disability, to provide proper and adequate care for [the] child[ren]" ( Social Services Law § 384–b [4 ][c]; see Matter of Henry W., 31 A.D.3d 940, 941, 818 N.Y.S.2d 348 [3d Dept. 2006], lv denied 7 N.Y.3d 711, 823 N.Y.S.2d 771, 857 N.E.2d 66 [2006] ). The testimony and report of petitioner's expert psychologist established that the father's capacity to care for the children was substantially impaired as the result of both his limited intellectual functioning (see Matter of Destiny V. [Lynette V.], 106 A.D.3d 1495, 1495–1496, 966 N.Y.S.2d 306 [4th Dept. 2013]; Matter of Cayden L.R. [Jayme R.], 83 A.D.3d 1550, 1550, 921 N.Y.S.2d 605 [4th Dept. 2011] ), and his antisocial personality disorder (see Matter of Christopher B., Jr.[Christopher B., Sr.], 104 A.D.3d 1188, 1188, 960 N.Y.S.2d 787 [4th Dept. 2013] ; Matter of Kaylene S. [Brauna S.], 101 A.D.3d 1648, 1648–1649, 956 N.Y.S.2d 738 [4th Dept. 2012], lv denied 21 N.Y.3d 852, 965 N.Y.S.2d 790, 988 N.E.2d 528 [2013] ). Petitioner's expert further concluded that the father's conditions were not amenable to treatment, and thus the father's inability to care for the children extended into the foreseeable future (see Destiny V., 106 A.D.3d at 1496, 966 N.Y.S.2d 306 ; Kaylene S., 101 A.D.3d at 1649, 956 N.Y.S.2d 738 ).
The father did not object to the testimony or report of the expert psychologist on the ground that his methods should have been subjected to a Frye hearing, and thus the father failed to preserve that contention for our review (see 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, 26 N.Y.S.3d 765, 47 N.E.3d 95 [2016] ; Matter of York v. Zullich, 89 A.D.3d 1447, 1448, 932 N.Y.S.2d 637 [4th Dept. 2011] ). The father also failed to preserve for our review his challenge to the admission in evidence of several exhibits consisting of case notes and progress notes, inasmuch as he did not object to those exhibits on the ground presently raised on appeal, i.e., that petitioner failed to establish a proper foundation for their admission (see Matter of Samantha M. [Allison Y.], 112 A.D.3d 421, 422, 976 N.Y.S.2d 456 [1st Dept. 2013] ; Matter of Cassie L.K., 225 A.D.2d 550, 550, 639 N.Y.S.2d 719 [2d Dept. 1996] ). In any event, any error in admitting those exhibits was harmless (see Matter of Skye N. [Carl N.], 148 A.D.3d 1542, 1544, 49 N.Y.S.3d 211 [4th Dept. 2017] ; Matter of Kyla E. [Stephanie F.], 126 A.D.3d 1385, 1386, 5 N.Y.S.3d 660 [4th Dept. 2015], lv denied 25 N.Y.3d 910, 12 N.Y.S.3d 618, 34 N.E.3d 369 [2015] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.