N.Y. Foundling Hosp. v. Jasmaine D. (In re Kasimir Lee D.)

198 A.D.3d 754

156 N.Y.S.3d 260

In the MATTER OF KASIMIR LEE D. (Anonymous), etc.

New York Foundling Hospital, respondent;

v.Jasmaine D. (Anonymous), appellant.

2020–07320, 2020–07321

Docket No. B–505–18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—September 13, 2021

October 13, 2021

Mark Diamond, New York, NY, for appellant.

Daniel Gartenstein, Long Island City, NY, for respondent.

Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Raymond E. Rogers of counsel), attorney for the child.

MARK C. DILLON, J.P., ANGELA G. IANNACCI, LINDA CHRISTOPHER, PAUL WOOTEN, JJ.

DECISION & ORDER

In a proceeding pursuant to Social Services Law § 384–b, the mother appeals from (1) a decision of the Family Court, Richmond County (Karen Wolff, J.), dated December 3, 2019, and (2) an order of fact-finding and disposition of the same court dated August 24, 2020. The order of fact-finding and disposition, upon the decision and after fact-finding and dispositional hearings, found that the mother is presently and for the foreseeable future unable, by reason of mental illness, to provide proper and adequate care for the subject child, terminated the mother's parental rights, and transferred guardianship and custody of the subject child to the Commissioner of the Administration for Children's Services and the petitioner for the purpose of adoption.

ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,

ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.

The subject child was born in December 2014. Soon thereafter, he was removed from the care of the mother and placed into the custody of the Commissioner of Social Services of the City of New York. In January 2018, the New York Foundling Hospital (hereinafter the agency) filed a petition seeking to terminate the mother's parental rights and to transfer guardianship and custody of the child to the agency for the purpose of adoption. Following a fact-finding hearing, the Family Court determined that the agency established by clear and convincing evidence that the mother is presently and for the foreseeable future unable, by reason of mental illness, to provide proper and adequate care for the child, who had been in the agency's care for the statutory one-year period. Following a dispositional hearing, the court transferred guardianship and custody of the child to the Commissioner of the Administration for Children's Services and the agency for the purpose of adoption. The mother appeals.

The mother's contention that the petition was jurisdictionally defective is unpreserved for appellate review (see Matter of Christopher S. [Elizabeth S.], 155 A.D.3d 630, 631, 63 N.Y.S.3d 490 ). In any event, the contention is without merit.

In a proceeding to terminate parental rights pursuant to Social Services Law § 384–b(4)(c), the agency must prove by clear and convincing evidence that the parent is "presently and for the foreseeable future unable, by reason of mental illness ... to provide proper and adequate care for a child who has been in the care of an authorized agency for the period of one year immediately prior to the date on which the petition is filed" (see Matter of William S.L. [Julio A.L.], 195 A.D.3d 839, 841, 149 N.Y.S.3d 542 ; Matter of Zahyre A. [Faye A.], 183 A.D.3d 724, 724–725, 122 N.Y.S.3d 677 ). For the purpose of Social Services Law § 384–b, " ‘mental illness’ means an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that if such child were placed in or returned to the custody of the parent, the child would be in danger of becoming a neglected child as defined in the family court act" (see Matter of William S.L. [Julio A.L.], 195 A.D.3d at 841–842, 149 N.Y.S.3d 542 ). Where the petition is premised on the parent's inability to care for the children by reason of mental illness, the mere possibility that the parent's condition may improve does not preclude termination of parental rights (see id. at 842, 149 N.Y.S.3d 542 ).

Here, a psychologist interviewed and tested the mother and concluded that she suffers from schizoaffective disorder. The psychologist opined that due to, among other things, the mother...