Opinion
1049.1 CAF 16–01625
10-05-2018
In the MATTER OF MICHAEL S., Jr., and Ava W. Erie County Department of Social Services, Petitioner–Respondent; Rebecca S., Respondent–Appellant.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT–APPELLANT. ROSEMARY L. BAPST, BUFFALO, FOR PETITIONER–RESPONDENT. CHERYL A. ALOI, BUFFALO, ATTORNEY FOR THE CHILDREN.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT–APPELLANT.
ROSEMARY L. BAPST, BUFFALO, FOR PETITIONER–RESPONDENT.
CHERYL A. ALOI, BUFFALO, ATTORNEY FOR THE CHILDREN.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: In appeal Nos. 2 and 3, respondent mother appeals from orders that, inter alia, terminated her parental rights with respect to the subject children on the ground of mental illness. We affirm.
Contrary to the mother's contention, we conclude that petitioner "met its burden of demonstrating by clear and convincing evidence that the mother is presently and for the foreseeable future unable, by reason of mental illness ..., to provide proper and adequate care for [the] child[ren]" ( Matter of Vincent E.D.G. [Rozzie M.G.], 81 A.D.3d 1285, 1285, 916 N.Y.S.2d 421 [4th Dept. 2011], lv denied 17 N.Y.3d 703, 2011 WL 2314383 [2011] [internal quotation marks omitted]; see generally Social Services Law § 384–b [4 ][c]; Matter of Joyce T. , 65 N.Y.2d 39, 48, 489 N.Y.S.2d 705, 478 N.E.2d 1306 [1985] ). Indeed, at trial, petitioner presented evidence establishing that the mother suffers from antisocial personality disorder, which is characterized by a lack of empathy, the failure to adhere to social norms, aggression, impulsiveness, and a failure to plan (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, 2018 WL 2123215 [2018] ; Matter of Ayden W. [John W.], 156 A.D.3d 1389, 1389, 66 N.Y.S.3d 143 [4th Dept. 2017], lv. denied 31 N.Y.3d 904, 2018 WL 1957573 [2018] ; Matter of Summer SS. [Thomas SS.] , 139 A.D.3d 1118, 1120–1121, 29 N.Y.S.3d 706 [3d Dept. 2016] ), and that "the children would be in danger of being neglected if they were returned to her care at the present time or in the foreseeable future" ( 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, 109 N.E.3d 1155 [Sept. 6, 2018] ).
We also reject the mother's contention that Family Court abused its discretion by failing to hold a dispositional hearing. As the mother correctly concedes, "a separate dispositional hearing is not required following the determination that [a parent] is unable to care for [a] child because of mental illness" ( Matter of Jason B. [Gerald B.], 155 A.D.3d 1575, 1576, 63 N.Y.S.3d 630 [4th Dept. 2017], lv denied 31 N.Y.3d 901, 2018 WL 1414507 [2018] [internal quotation marks omitted]; see generally Joyce T. , 65 N.Y.2d at 49–50, 489 N.Y.S.2d 705, 478 N.E.2d 1306 ). Instead, the decision whether to conduct a dispositional hearing is left to the sound discretion of the court (see generally Joyce T. , 65 N.Y.2d at 46, 489 N.Y.S.2d 705, 478 N.E.2d 1306 ; Matter of Jimmy Jeremie R. , 29 A.D.3d 913, 914, 814 N.Y.S.2d 546 [2d Dept. 2006] ). The court's failure to conduct a separate dispositional hearing was not an abuse of discretion inasmuch as the evidence at trial established that, under the circumstances of this case, termination of the mother's parental rights and freeing the children for adoption was in the best interests of the children (see generally Joyce T , 65 N.Y.2d at 46, 49–50, 489 N.Y.S.2d 705, 478 N.E.2d 1306 ; Matter of Henry W. , 31 A.D.3d 940, 943, 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], lv denied 8 N.Y.3d 816, 839 N.Y.S.2d 455, 870 N.E.2d 696 [2007] ).
Finally, we note that the mother does not raise any issues with respect to the court's order in appeal No. 1, and the mother has therefore abandoned any contentions with respect thereto (see Matter of Jones v. Jamieson , 162 A.D.3d 1720, 1721, 80 N.Y.S.3d 773 [4th Dept. 2018] ; Ciesinski v. Town of Aurora , 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ). We therefore dismiss the appeal from the order in appeal No. 1 (see Matter of Trombley v. Payne [Appeal No. 2], 144 A.D.3d 1551, 1552, 40 N.Y.S.3d 844 [4th Dept. 2016] ; Abasciano v. Dandrea , 83 A.D.3d 1542, 1545, 924 N.Y.S.2d 696 [4th Dept. 2011].