SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1058 

CAF 13-01888 

PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.

 

 

IN THE MATTER OF JOSEPH E.K. 

--------------------------------------------- 

NIAGARA COUNTY DEPARTMENT OF SOCIAL SERVICES, MEMORANDUM AND ORDER

PETITIONER-RESPONDENT; 

 

LITHIA K., RESPONDENT-APPELLANT. 

(APPEAL NO. 1.) 

DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (MARY-JEAN BOWMAN OF

COUNSEL), FOR RESPONDENT-APPELLANT. 

ABRAHAM J. PLATT, LOCKPORT, FOR PETITIONER-RESPONDENT. 

MARY ANNE CONNELL, ATTORNEY FOR THE CHILD, BUFFALO. 

 

Appeal from an order of the Family Court, Niagara County (John F.

Batt, J.), entered September 30, 2013 in a proceeding pursuant to

Social Services Law § 384-b. The order terminated the parental rights

of respondent on the ground of mental illness. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In these proceedings pursuant to Social Services Law

§ 384-b, respondent mother appeals from separate orders terminating

her parental rights to the subject child on grounds of mental illness

(appeal No. 1) and permanent neglect (appeal No. 2). With respect to

appeal No. 1, we reject the mother’s contention that Family Court

erred in determining that petitioner established by clear and

convincing evidence that she is “presently and for the foreseeable

future unable, by reason of mental illness . . . , to provide proper

and adequate care for [the] child” (§ 384-b [4] [c]; see Matter of

Christopher B., Jr. [Christopher B., Sr.], 104 AD3d 1188, 1188; Matter

of Alberto C. [Tibet H.], 96 AD3d 1487, 1488, lv denied 19 NY3d 813). 

The court-appointed psychologist who conducted a mental health

evaluation of the mother testified that she suffers from paranoid

schizophrenia, which causes her to have delusions and “grossly

erroneous beliefs.” According to the psychologist, the mother, due to

her mental condition, is unable to care for the child and, based on

his special needs, the child would be in even greater danger if placed

with the mother. Although the mother’s condition was treatable, she

refused to take prescribed medication. We note that one of the

mother’s witnesses was a psychologist who met with her once before

trial. Although the psychologist testified that she saw no evidence
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CAF 13-01888 

that the mother suffered from a major psychiatric illness, the

psychologist added that she was “certainly not advocating that [the

mother] be given custody of her child back today. There are issues. 

There are things that need to be dealt with.” It is well settled that

“[t]he mere possibility that [the mother’s] condition, with proper

treatment, may improve in the future is insufficient to vitiate [the

court’s determination]” (Matter of Steven M., 37 AD3d 1072, 1072

[internal quotation marks omitted]; see Matter of Trebor UU., 295 AD2d

648, 650). We therefore conclude that the court properly granted the

petition seeking to terminate the mother’s parental rights based on

mental illness. 

With respect to appeal No. 2, the mother contends that the

court’s finding of permanent neglect must be vacated because it did

not conduct separate dispositional hearings on the two petitions. 

Although the court conducted a dispositional hearing on the permanent

neglect petition, it properly concluded that no dispositional hearing

was required on the mental illness petition, inasmuch as “ ‘a separate

dispositional hearing is not required following the determination that

[a parent] is unable to care for [a] child because of mental 

illness’ ” (Matter of Vincent E.D.G. [Rozzie M.G.], 81 AD3d 1285,

1286, lv denied 17 NY3d 703). Nevertheless, we conclude that, given

the court’s finding that the mother was incapable of caring for the

child based on her mental illness, the court erred in terminating her

parental rights on the additional ground of permanent neglect. The

mother “could not be found to be mentally ill to a degree warranting

termination of [her] parental rights and at the same time be found to

have failed to plan for the future of the child[ ] although physically

and financially able to do so” (Matter of Kyle K., 49 AD3d 1333, 1334,

lv denied 10 NY3d 715). We therefore reverse the order in appeal No.

2 and dismiss the petition therein. 

Entered: November 21, 2014 Frances E. Cafarell

Clerk of the Court