In re James J.

Appellate Division of the Supreme Court of New York

In re James J.

207 A.D.2d 960, 616 N.Y.S.2d 827, 1994 N.Y. App. Div. LEXIS 10126

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 30, 1994

StatusPublished

Cited by2 cases

This text of 207 A.D.2d 960 (In re James J.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re James J., 207 A.D.2d 960, 616 N.Y.S.2d 827, 1994 N.Y. App. Div. LEXIS 10126 (N.Y. Ct. App. 1994).

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Opinion

—Order unanimously affirmed with[961]*961out costs. Memorandum: Initially, we note that respondent’s notice of appeal is premature because it was filed before the entry of the order from which the appeal is taken (see, Spano v County of Onondaga, 170 AD2d 974, lv denied 77 NY2d 809, lv dismissed 77 NY2d 989; Matter of Wayne M. v Francis N., 154 AD2d 837, 839). Nevertheless, in the exercise of our discretion and in the interest of judicial economy, we address the merits of the appeal (see, CPLR 5520 [c]; Spano v County of Onondaga, supra).

Family Court properly concluded that petitioner met its burden of proving by clear and convincing evidence that respondent, by reason of mental illness, is presently and for the foreseeable future unable to provide proper and adequate care for her child and that it is likely that the child would be in danger of becoming a neglected child if he were placed in respondent’s care and custody (see, Social Services Law § 384-b [4] [c]; [6] [a]; Matter of Joseph R., 191 AD2d 1034; Matter of Bryant S., 188 AD2d 1078; Matter of Stephen B., 176 AD2d 1204, lv denied 79 NY2d 752, appeal dismissed 79 NY2d 914). The examining psychiatrist gave uncontradicted testimony that respondent has suffered from paranoid schizophrenia for at least 20 years and that she fails to understand her mental illness or her need for medication. Additionally, he testified that respondent’s prognosis for a long-term stable level of rational performance is poor. Respondent failed to proffer any evidence to the contrary. (Appeal from Order of Erie County Family Court, Dillon, J.—Termination of Parental Rights.) Present—Pine, J. P., Balio, Fallon, Callahan and Davis, JJ.

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—Order unanimously affirmed with[961]*961out costs. Memorandum: Initially, we note that respondent’s notice of appeal is premature because it was filed before the entry of the order from which the appeal is taken (see, Spano v County of Onondaga, 170 AD2d 974, lv denied 77 NY2d 809, lv dismissed 77 NY2d 989; Matter of Wayne M. v Francis N., 154 AD2d 837, 839). Nevertheless, in the exercise of our discretion and in the interest of judicial economy, we address the merits of the appeal (see, CPLR 5520 [c]; Spano v County of Onondaga, supra).

Family Court properly concluded that petitioner met its burden of proving by clear and convincing evidence that respondent, by reason of mental illness, is presently and for the foreseeable future unable to provide proper and adequate care for her child and that it is likely that the child would be in danger of becoming a neglected child if he were placed in respondent’s care and custody (see, Social Services Law § 384-b [4] [c]; [6] [a]; Matter of Joseph R., 191 AD2d 1034; Matter of Bryant S., 188 AD2d 1078; Matter of Stephen B., 176 AD2d 1204, lv denied 79 NY2d 752, appeal dismissed 79 NY2d 914). The examining psychiatrist gave uncontradicted testimony that respondent has suffered from paranoid schizophrenia for at least 20 years and that she fails to understand her mental illness or her need for medication. Additionally, he testified that respondent’s prognosis for a long-term stable level of rational performance is poor. Respondent failed to proffer any evidence to the contrary. (Appeal from Order of Erie County Family Court, Dillon, J.—Termination of Parental Rights.) Present—Pine, J. P., Balio, Fallon, Callahan and Davis, JJ.

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Bluebook (online)

207 A.D.2d 960, 616 N.Y.S.2d 827, 1994 N.Y. App. Div. LEXIS 10126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-james-j-nyappdiv-1994.

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