Opinion
1187 CAF 16-00949.
11-09-2017
In the Matter of JASON B., Laura B., Sara B., and Miranda B. Yates County Department of Social Services, Petitioner–Respondent; Gerald B., Respondent–Appellant, and Phyllis B., Respondent.
Cara A. Waldman, Fairport, for Respondent–Appellant. Alexandra Burkett, Canandaigua, for Petitioner–Respondent. Joseph S. Dressner, Attorney for the Children, Canandaigua. Marybeth D. Barnet, Attorney for the Child, Canandaigua.
Cara A. Waldman, Fairport, for Respondent–Appellant.
Alexandra Burkett, Canandaigua, for Petitioner–Respondent.
Joseph S. Dressner, Attorney for the Children, Canandaigua.
Marybeth D. Barnet, Attorney for the Child, Canandaigua.
PRESENT: SMITH, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM:Petitioner commenced this proceeding to terminate the parental rights of, inter alia, respondent father with respect to his four children on the grounds of mental illness and permanent neglect. After a fact-finding hearing, Family Court terminated the father's parental rights on the ground of mental illness, and declined to rule on whether the father had permanently neglected the children. We affirm.
As an initial matter, the father's contention that the children should have been returned to his care a month after their initial removal from the home is not preserved for our review because he never raised that contention at the hearing to terminate his parental rights (see generally Matter of Omia M. [Tykia B.], 144 A.D.3d 1637, 1637, 41 N.Y.S.3d 852 [4th Dept.2016] ). In any event, we conclude that the contention is without merit.
Contrary to the father's further contention, we conclude that petitioner established "by clear and convincing evidence that [the father], by reason of mental illness, is presently and for the foreseeable future unable to provide proper and adequate care for [his] children" ( Matter of Jarred R., 236 A.D.2d 888, 888, 654 N.Y.S.2d 64 [4th Dept.1997] ; see Social Services Law § 384–b [3 ][g][i]; [4][c] ). The psychologist who examined the father on petitioner's behalf testified that the father suffered from delusional disorder, paranoid type and persecutory type. The psychologist further testified that, as a result of the disorder, the father was unable to parent the children effectively, and that the children would be in danger of being harmed or neglected if they were returned to his care at the present time or in the foreseeable future (see Matter of Logan Q. [Michael R.], 119 A.D.3d 1010, 1011, 988 N.Y.S.2d 301 [3d Dept.2014] ). Reviewing the psychologist's testimony as a whole, we reject the father's contention that the testimony was equivocal with respect to his inability to parent the children (see Matter of Darius B. [Theresa B.], 90 A.D.3d 1510, 1510, 935 N.Y.S.2d 754 [4th Dept.2011] ). In addition, inasmuch as the psychologist had performed a recent and extensive examination of the father, the fact that some of the records upon which the psychologist relied to form his opinion were older than other records "does not render the evidence insufficient to meet petitioner's burden" ( Matter of Deondre M. [Crystal T.], 77 A.D.3d 1362, 1363, 908 N.Y.S.2d 504 [4th Dept.2010] ).
The father's contention that the court erred in failing to conduct a separate dispositional hearing is not preserved for our review (see Matter of Damion S., 300 A.D.2d 1039, 1040, 752 N.Y.S.2d 476 [4th Dept.2002] ). In any event, "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 Joseph E.K. [Lithia K.], 122 A.D.3d 1373, 1374, 995 N.Y.S.2d 656 [4th Dept.2014] [internal quotation marks omitted] ). In view of our determination that the court properly terminated the father's parental rights based on mental illness, we do not address his contention that petitioner failed to establish permanent neglect.
Lastly, we reject the father's contention that he was denied effective assistance of counsel "inasmuch as he did not demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings" (Matter of Brown v. Gandy, 125 A.D.3d 1389, 1390, 3 N.Y.S.3d 486 [4th Dept.2015] [internal quotation marks omitted] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.