C., ALBERTO, MTR. OF ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
758
CAF 11-00433
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.
IN THE MATTER OF ALBERTO C., JR.
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ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;
TIBET H., RESPONDENT-APPELLANT.
CHARLES J. GREENBERG, BUFFALO, FOR RESPONDENT-APPELLANT.
JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR ALBERTO
C., JR.
Appeal from an order of the Family Court, Erie County (Margaret
O. Szczur, J.), entered February 22, 2011 in a proceeding pursuant to
Social Services Law § 384-b. The order terminated the parental rights
of respondent.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Respondent contends on appeal that Family Court
erred in granting the petition to terminate her parental rights based
on mental illness (see Social Services Law § 384-b [4] [c]). We agree
with the court that petitioner established by clear and convincing
evidence that respondent could not adequately care for her child by
presenting the testimony of a psychiatrist regarding respondent’s
mental illness (see Social Services Law § 384-b [6] [c], [e]). The
expert testified that respondent was presently and for the foreseeable
future unable, by reason of her mental illness, to provide proper and
adequate care for the child (see Matter of Vincent E.D.G., 81 AD3d
1285, 1285, lv denied 17 NY3d 703). We further conclude that the
court did not err in refusing to hold a dispositional hearing. There
is no requirement that a separate dispositional hearing be held
following a determination that a parent is incapable of caring for his
or her child based on mental illness (see id. at 1286).
Entered: June 8, 2012 Frances E. Cafarell
Clerk of the Court