Opinion
06-09-2017
In the Matter of AKAYLA M. Onondaga County Department of Children and Family Services, Petitioner–Respondent; Marie M., now known as Marie Z., Respondent–Appellant. (Appeal No. 1.).
D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth Dev. Moeller of Counsel), for Respondent–Appellant. Robert A. Durr, County Attorney, Syracuse (Catherine Z. Gilmore of Counsel), for Petitioner–Respondent. Susan B. Marris, Attorney for the Child, Manlius.
D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth Dev. Moeller of Counsel), for Respondent–Appellant.
Robert A. Durr, County Attorney, Syracuse (Catherine Z. Gilmore of Counsel), for Petitioner–Respondent.
Susan B. Marris, Attorney for the Child, Manlius.
PRESENT: SMITH, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM:
In these consolidated appeals, respondent mother appeals from two orders that, inter alia, terminated her parental rights with respect to four of her children based upon her inability, by reason of her intellectual disability, to provide adequate and proper care for the subject children (see Social Services Law § 384–b [4 ][c]; [6][b]; Matter of Joyce T., 65 N.Y.2d 39, 48–49, 489 N.Y.S.2d 705, 478 N.E.2d 1306 ).
We conclude in both appeals that petitioner established by clear and convincing evidence that the mother is intellectually disabled and that by reason of such disability, she is unable to provide proper and adequate care for her children presently and for the foreseeable future (see Social Services Law § 384–b [4 ][c]; Matter of Cayden L.R. [Jayme R.], 83 A.D.3d 1550, 1550, 921 N.Y.S.2d 605 ). Petitioner presented the testimony of two psychologists who examined the mother and concluded that she has below average intelligence and that, if the children were placed in her care, the children would be at significant risk of neglect for the foreseeable future. Further, petitioner presented evidence that the mother has been unable to improve her parenting skills and would not benefit from any additional support services.
We reject the mother's contention in both appeals that the determination to terminate her parental rights is not supported by the record and that a suspended judgment would be in the best interests of the children. While a separate dispositional hearing is not statutorily required where, as here, parental rights are terminated based upon intellectual disability (see Joyce T., 65 N.Y.2d at 49, 489 N.Y.S.2d 705, 478 N.E.2d 1306 ), Family Court held such hearing. Under the circumstances of this case, including the fact that the foster parents planned to adopt three of the children, termination of the mother's parental rights was in the children's best interests (see Matter of Donovan W., 56 A.D.3d 1279, 1279–1280, 868 N.Y.S.2d 451, lv. denied 11 N.Y.3d 716, 874 N.Y.S.2d 5, 902 N.E.2d 439 ; Matter of Dessa F., 35 A.D.3d 1096, 1098, 826 N.Y.S.2d 502 ). Moreover, there is no statutory authority for a suspended judgment when parental rights are terminated by reason of intellectual disability (see generally Matter of Charles FF., 44 A.D.3d 1137, 1138, 844 N.Y.S.2d 455, lv. denied 9 N.Y.3d 817, 851 N.Y.S.2d 126, 881 N.E.2d 222 ).
We agree with the mother in both appeals that a report from a psychologist who examined the mother on behalf of petitioner was improperly admitted in evidence at the fact-finding hearing. The report did not qualify for the business records exception to the hearsay rule because it was prepared for the purpose of litigation, rather than in the ordinary course of business (see Wilson v. Bodian, 130 A.D.2d 221, 229–230, 519 N.Y.S.2d 126 ). We conclude, however, that the error is harmless inasmuch as " ‘the result[s] reached herein would have been the same even had [the report] been excluded’ " (Matter of Alyshia M.R., 53 A.D.3d 1060, 1061, 861 N.Y.S.2d 551, lv. denied 11 N.Y.3d 707, 868 N.Y.S.2d 599, 897 N.E.2d 1083 ; see Matter of Kyla E. [Stephanie F.], 126 A.D.3d 1385, 1386, 5 N.Y.S.3d 660, lv. denied 25 N.Y.3d 910, 2015 WL 3605100 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.