Opinion
Argued September 16, 1981
Decided September 24, 1981
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Bruce M. Kaplan, J.
A. Isadore Eibel for appellant.
Helen L. Buttenwieser for respondent.
Janet R. Fink and Carol Sherman for Law Guardian.
MEMORANDUM.
The order of the Appellate Division should be reversed, without costs, and the case remitted to that court for further proceedings in conformity with this memorandum.
The Appellate Division, in reaching the conclusion that it is necessary to terminate the mother's parental rights to Suzanne, specifically relied on its decision in Matter of Hime Y. ( 73 A.D.2d 154). There, upon review of evidence which did not differ materially from that in the record before us now, that court was of the opinion that there was clear and convincing proof that Hime would be in danger of becoming a "neglected child" if she were returned to her mother because of the mother's "mental illness". However, on our own review of the record in Hime ( 52 N.Y.2d 242), we were compelled to conclude that the inferences on which that determination rested did not meet the "clear and convincing" standard by which it must be established that a parent suffering mental illness will be unable to care for a child "presently and for the foreseeable future" before termination of a parental relationship may be justified (see Social Services Law, § 384-b, subd 4, par [c]). It is for the same reason that we reverse the order appealed from in the present case and remit the case for the Appellate Division to consider, inter alia, whether the evidence of record is sufficient to sustain the alternative contention that Suzanne is a "permanently neglected child" (Social Services Law, § 384-b, subd 4, par [d]).
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order reversed, without costs, and matter remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.