In re Melody Xena A.

Appellate Division of the Supreme Court of New York

In re Melody Xena A.

297 A.D.2d 613, 747 N.Y.2d 481, 747 N.Y.S.2d 481, 2002 N.Y. App. Div. LEXIS 8805

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

DecidedSeptember 26, 2002

StatusPublished

Cited by1 cases

This text of 297 A.D.2d 613 (In re Melody Xena A.) 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.

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In re Melody Xena A., 297 A.D.2d 613, 747 N.Y.2d 481, 747 N.Y.S.2d 481, 2002 N.Y. App. Div. LEXIS 8805 (N.Y. Ct. App. 2002).

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Opinion

There was clear and convincing evidence that respondent is, by reason of her mental retardation, unable presently and for the foreseeable future to provide proper and adequate care for the subject children (see Social Services Law § 384-b [4] [c]). [614]*614Respondent does not dispute that she is presently incapacitated, but contends that her capacity to care for her children in the foreseeable future may not be predicated on her present incapacity alone. However, Family Court’s finding of future incapacity was not based solely on respondent’s present incapacity; rather, it was based on “a combination of factors, including an extensive prior history of incapacity; the severity of [her] present incapacity; and the failure of remedial efforts to make any difference in [her] adaptive functioning” (Matter of L. Children, 131 Misc 2d 81, 92). As in Matter of Jose Antonio G. (248 AD2d 278, 278), there was “ample evidence” that respondent “could not perform elementary tasks required for independent living.” Despite respondent’s contention, the record also contains ample evidence of her maladaptive parenting before the subject children were removed from her care. Finally, we note that, although petitioner provided respondent with referrals to numerous remedial services, there was no indication of any consequent improvement in her adaptive functioning. Concur — Nardelli, J.P., Saxe, Ellerin, Rubin and Friedman, JJ.

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There was clear and convincing evidence that respondent is, by reason of her mental retardation, unable presently and for the foreseeable future to provide proper and adequate care for the subject children (see Social Services Law § 384-b [4] [c]). [614]*614Respondent does not dispute that she is presently incapacitated, but contends that her capacity to care for her children in the foreseeable future may not be predicated on her present incapacity alone. However, Family Court’s finding of future incapacity was not based solely on respondent’s present incapacity; rather, it was based on “a combination of factors, including an extensive prior history of incapacity; the severity of [her] present incapacity; and the failure of remedial efforts to make any difference in [her] adaptive functioning” (Matter of L. Children, 131 Misc 2d 81, 92). As in Matter of Jose Antonio G. (248 AD2d 278, 278), there was “ample evidence” that respondent “could not perform elementary tasks required for independent living.” Despite respondent’s contention, the record also contains ample evidence of her maladaptive parenting before the subject children were removed from her care. Finally, we note that, although petitioner provided respondent with referrals to numerous remedial services, there was no indication of any consequent improvement in her adaptive functioning. Concur — Nardelli, J.P., Saxe, Ellerin, Rubin and Friedman, JJ.

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297 A.D.2d 613, 747 N.Y.2d 481, 747 N.Y.S.2d 481, 2002 N.Y. App. Div. LEXIS 8805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-melody-xena-a-nyappdiv-2002.

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