Opinion
505 CAF 18-02365
06-12-2020
In the MATTER OF BRYSON M. Oswego County Department of Social Services, Petitioner-Respondent; v. Victoria M., Respondent-Appellant.
ROBERT GALLAMORE, OSWEGO, FOR RESPONDENT-APPELLANT. JEFFERY G. TOMPKINS, CAMDEN, FOR PETITIONER-RESPONDENT. COURTNEY S. RADICK, OSWEGO, ATTORNEY FOR THE CHILD.
ROBERT GALLAMORE, OSWEGO, FOR RESPONDENT-APPELLANT.
JEFFERY G. TOMPKINS, CAMDEN, FOR PETITIONER-RESPONDENT.
COURTNEY S. RADICK, OSWEGO, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order that terminated her parental rights with respect to the subject child on the basis of her intellectual disability (see Social Services Law § 384-b [4] [c] ). Contrary to the mother's contention, petitioner established by clear and convincing evidence that she was "presently and for the foreseeable future unable, by reason of ... intellectual disability, to provide proper and adequate care for [the] child" (id. ; see generally Matter of Joseph A.T.P. [Julia P.] , 107 A.D.3d 1534, 1535, 968 N.Y.S.2d 286 [4th Dept. 2013] ). Specifically, petitioner presented, inter alia, evidence of the mother's IQ score of 57, which had remained substantially constant and rendered her meaningfully unable to understand the child's significant medical needs and to effectively parent him, and the opinion of a psychologist that the mother was unable to safely care for the child both presently and for the foreseeable future (see Joseph A.T.P. , 107 A.D.3d at 1535, 968 N.Y.S.2d 286 ).
We reject the mother's further contention that Family Court erred in giving any weight to the testimony of the psychologist. The psychologist interviewed and examined the mother. He also reviewed his earlier psychological evaluation of her, documents from the child's foster parent and the mother's parent educators, and a prior psychological evaluation report of the mother compiled by another professional. Contrary to the mother's contention, the fact that the psychologist did not review certain of the mother's mental health records "is not, by itself, reason for discrediting his testimony" ( Matter of Tyesha W. , 259 A.D.2d 349, 349, 687 N.Y.S.2d 16 [1st Dept. 1999] ), and the court was entitled to rely upon the opinion of the psychologist, especially in the absence of contradictory expert testimony regarding the mother's intellectual capacity (see generally Joseph A.T.P. , 107 A.D.3d at 1535, 968 N.Y.S.2d 286 ; Matter of Allen DD. , 17 A.D.3d 740, 743, 793 N.Y.S.2d 220 [3d Dept. 2005], lv denied 5 N.Y.3d 704, 801 N.Y.S.2d 1, 834 N.E.2d 780 [2005] ).
Assuming, arguendo, that the court erred in allowing various lay witnesses to testify regarding the child's medical condition, we conclude that, contrary to the mother's contention, " ‘[a]ny error in the admission of [that testimony] is harmless because the result reached herein would have been the same even had such [testimony] been excluded’ " ( 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, 2015 WL 3605100 [2015] ; see generally Matter of Ayden W. [John W.] , 156 A.D.3d 1389, 1390, 66 N.Y.S.3d 143 [4th Dept. 2017], lv denied 31 N.Y.3d 904, 2018 WL 1957573 [2018] ). Here, it was undisputed that the child suffered from certain medical conditions, and testimony regarding the nature of those conditions was properly elicited through the testimony of the child's pediatrician, the admission of which the mother does not dispute on appeal.
The mother failed to preserve for our review her further contention that the court erred in terminating her parental rights absent a finding that petitioner had made "reasonable accommodations" for her pursuant to the Americans with Disabilities Act (see Matter of Cerenithy B. [Ecksthine B.] , 149 A.D.3d 637, 638, 51 N.Y.S.3d 89 [1st Dept. 2017], lv denied 29 N.Y.3d 1106, 61 N.Y.S.3d 195, 83 N.E.3d 203 [2017] ; see generally Matter of Emerald L.C. [David C.] , 101 A.D.3d 1679, 1680, 958 N.Y.S.2d 242 [4th Dept. 2012] ). The mother likewise failed to preserve her contention that the court erred in failing to adjourn the termination proceedings (see generally Matter of Jaydalee P. [Codilee R.] , 156 A.D.3d 1477, 1477, 67 N.Y.S.3d 371 [4th Dept. 2017], lv denied 31 N.Y.3d 904, 2018 WL 1957464 [2018] ).