Opinion
2013-09-24
In re JEREMIAH M., A Dependent Child Under the Age of Eighteen Years, etc., Sabrina Ann M., etc., Respondent–Appellant, SCO Family of Services, Petitioner–Respondent.
Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for appellant. Carrieri & Carrieri, P.C., Mineola (Ralph R. Carrieri of counsel), for respondent.
Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for appellant. Carrieri & Carrieri, P.C., Mineola (Ralph R. Carrieri of counsel), for respondent.
George E. Reed, Jr., White Plains, attorney for the child.
FRIEDMAN, J.P., FREEDMAN, RICHTER, FEINMAN, GISCHE, JJ.
Order, Family Court, Bronx County (Anne–Marie Jolly, J.), entered on or about December 7, 2011, which, upon a fact-finding determination that respondent-appellant mother suffers from a mental illness, terminated her parental rights to the subject child, and committed custody and guardianship of the child to petitioner agency and the Commissioner of Social Services for the purpose of adoption, unanimously affirmed, without costs.
Petitioner met its burden of proving by clear and convincing evidence that respondent is mentally ill within the meaning of Social Services Law § 384–b(4)(c) and (6)(a) ( see Matter of Joyce T., 65 N.Y.2d 39, 46, 489 N.Y.S.2d 705, 478 N.E.2d 1306 [1985];Matter of Genesis S. [Irene Elizabeth S.], 70 A.D.3d 570, 895 N.Y.S.2d 85 [1st Dept. 2010] ). The report and testimony from a psychologist who reviewed respondent's medical records and conducted a clinical interview, finding that respondent suffers from schizophrenia and her prognosis is very poor, supports the determination that she is incapable of caring for the child presently and for the foreseeable future ( see Matter of Justin Javonte R. [Leticia W.], 103 A.D.3d 524, 960 N.Y.S.2d 86 [1st Dept. 2013];Matter of Marlyn J'ace A. [Lynora A.], 101 A.D.3d 646, 955 N.Y.S.2d 872 [1st Dept. 2012], lv. denied21 N.Y.3d 851, 2013 WL 1297778 [2013];Matter of Sharon Crystal F. [Nicole Valerie D.], 89 A.D.3d 639, 934 N.Y.S.2d 377 [1st Dept. 2011], lv. denied18 N.Y.3d 808, 2012 WL 539356 [2012] ). The court was permitted to draw a negative inference from the fact that the mother, while present at the hearing, did not testify ( see Matter of Alford Isaiah B. [Alford B.], 107 A.D.3d 562, 968 N.Y.S.2d 36 [1st Dept. 2013] ).
Respondent's argument that the court erred in failing to hold a separate dispositional hearing is not preserved for appellate review, and we decline to review it in the interest of justice ( see id.). Alternatively, we reject it on the merits, as a separate dispositional hearing was not required since this is a case of termination for mental illness ( see Matter of Joyce T., 65 N.Y.2d at 46–50, 489 N.Y.S.2d 705, 478 N.E.2d 1306;Matter of Faith D.A. [Natasha A.], 99 A.D.3d 641, 952 N.Y.S.2d 884 [1st Dept. 2012];Matter of Ashanti A., 56 A.D.3d 373, 373–374, 869 N.Y.S.2d 20 [1st Dept. 2008] ).