Matter of Nicholas B. (Michelle B.)

Matter of Nicholas B. (Michelle B.) 2013 NY Slip Op 01003 Decided on February 14, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 14, 2013
Mazzarelli, J.P., Friedman, Manzanet-Daniels, Román, Clark, JJ.


[*1]9249 In re Nicholas B., A Dependent Child Under Eighteen Years of Age, etc.,

and

Michelle B., Respondent-Appellant, St. Dominic's Home, Petitioner-Respondent.




Neal D. Futerfas, White Plains, for appellant.
Warren & Warren, P.C., Brooklyn (Ira L. Eras of counsel), for
respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Diane
Pazar of counsel), attorney for the child.

Order, Family Court, New York County (Douglas E. Hoffman, J.), entered on or about April 23, 2012, 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 the Administration for Children's Services for the purpose of adoption, unanimously reversed, on the law, without costs, the finding of mental illness and the order of disposition vacated, and the petition dismissed.

Petitioner did not meet its burden of proving by clear and convincing evidence that the mother is mentally ill within the meaning of Social Services Law § 384-b(4)(c) and 6(a) (see Matter of Dochingozi B., 57 NY2d 641, 642-643 [1982]; Matter of Tatesha M.G. [Sonia E.], 4 AD3d 429 [2d Dept 2004]). Although the evidence shows that the mother may have used some poor judgment in the past, this does not establish 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 (id.). Petitioner's own records contradict petitioner's expert testimony that the mother was noncompliant with mental health treatment. Indeed, petitioner's records show that, after the mother was fully compliant with the mental health therapy provided by petitioner, she was evaluated and found not to be in need of any further counseling or psychotropic medications. Additionally, the expert's opinion that the mother would unlikely be [*2]able to care for her son in the foreseeable future is contradicted by evidence of the mother's efforts to secure placement for her son in an appropriate school environment, her participation in parenting classes, and her research on her son's ADHD diagnosis.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 14, 2013

CLERK