In re Michael E.

241 A.D.2d 635, 659 N.Y.S.2d 578, 1997 N.Y. App. Div. LEXIS 7325
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 10, 1997
StatusPublished
Cited by26 cases

This text of 241 A.D.2d 635 (In re Michael E.) 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 Michael E., 241 A.D.2d 635, 659 N.Y.S.2d 578, 1997 N.Y. App. Div. LEXIS 7325 (N.Y. Ct. App. 1997).

Opinion

Carpinello, J.

Appeal from an order of the Family Court of Cortland County (Frawley, J.H.O.), entered August 5, 1996, which dismissed petitioner’s application, in a proceeding pursuant to Social Services Law § 384-b, to, inter alia, adjudicate respondent’s child to be permanently neglected.

The difficult issue before this Court concerns the parental relationship between respondent and her now 17-year-old son, Michael, who has been in foster care since March 1990. Both mother and son have been diagnosed as mentally retarded— respondent’s intellectual functioning is within a mildly retarded range and Michael’s intellectual functioning is within a moderately retarded range. They have maintained regular contact with each other through supervised visitations and by all accounts have a loving relationship. Michael is unable to live independently and needs almost constant supervision. Although his foster parents have indicated that Michael may remain with them “as long as he behaves and as long as [their] health is intact”, they have not indicated a desire to adopt Michael. Sadly, Michael’s prospects of being adopted by anyone are bleak. Only two people have remained a constant in Michael’s life—respondent and an elderly, ailing friend who resides in a nursing home.

In February 1996, petitioner commenced a proceeding to terminate respondent’s parental rights based upon alleged permanent neglect (see, Social Services Law § 384-b [7]) and mental retardation (see, Social Services Law § 384-b [4] [c]; [6] [b]). Following a fact-finding hearing on the petition, Family Court found respondent unable, by reason of mental retardation, to adequately care for Michael. Regarding the allegation [636]*636of permanent neglect, the court found that respondent “has not been able to plan for the future of this child, although making some attempts to do so”. No dispositional hearing was conducted. Rather, in its decision following the fact-finding hearing, Family Court concluded, given the likelihood of Michael never being adopted and the loving relationship between him and respondent, that depriving him of contact with respondent would serve no legitimate purpose or be in his best interest. The court accordingly dismissed the petition and extended placement for an additional year. Petitioner appeals.

Petitioner’s primary contention on appeal is that, because it established by clear and convincing evidence both allegations in the petition, Family Court was required to transfer custody of Michael to it and terminate respondent’s parental rights. We disagree.

It is well settled that in order to terminate parental rights on the ground of mental retardation, the petitioning agency must demonstrate by clear and convincing evidence that the parent is presently and for the foreseeable future unable to provide proper and adequate care for the child (see, Social Services Law § 384-b [4] [c]; see also, Matter of Brett J., 206 AD2d 595, 596, lv denied 84 NY2d 807). It is equally well settled that in order to terminate parental rights on the ground of permanent neglect, the petitioning agency must prove by clear and convincing evidence that despite diligent efforts on its part to strengthen and encourage the parental relationship, a parent did not, although physically and financially able to do so, plan for the child’s future (see, Social Services Law § 384-b [7] [a]; Family Ct Act § 614 [1]; see also, Matter of Sheila G., 61 NY2d 368, 380).

Judy Grimes, the court-appointed psychologist who conducted a three-hour evaluation of respondent in May 1996, testified that respondent is mildly retarded with an IQ fluctuating between 65 and 70. Due to respondent’s low cognitive ability, immaturity and lack of common sense and good judgment, Grimes concluded that respondent lacks the capacity to parent a child. In her opinion, respondent would be “very bossy and controlling” in her relations with Michael and unable to provide him with structure or supervision. She further opined that respondent would not benefit from parenting assistance or therapy.

Although Grimes did not specifically testify that Michael would be in danger of becoming neglected if placed in respondent’s care (see, Social Services Law § 384-b [6] [b]), this finding can be inferred. Her testimony, which was unrefuted, established that by reason of respondent’s mental retardation, [637]*637she will be unable to provide proper and adequate care for her son for the foreseeable future. Accordingly, a finding under Social Services Law § 384-b (4) (c) was warranted.

We are unable to conclude, however, that petitioner demonstrated by clear and convincing evidence that respondent permanently neglected Michael. Under Social Services Law § 384-b (7) (a), petitioner was required to prove" that respondent failed “substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship” (emphasis supplied). In its decision, Family Court found that petitioner “has also shown by clear and convincing evidence that [respondent] has not been able to plan for the future of [Michael], although making some attempts to do so” (emphasis supplied). This discrepancy, while subtle, strongly suggests that Family Court, in concluding that respondent is unable to plan for Michael’s future, actually determined that the permanent neglect allegations had not been proven by petitioner. Such a finding would be consistent with this Court’s review of the record.

With respect to petitioner’s diligent efforts, it does not appear that petitioner, although cognizant of respondent’s mental retardation, took affirmative steps to adequately address her special needs. While there was evidence that petitioner required respondent to attend parenting classes, for example, it is unclear whether these classes targeted individuals with developmental disabilities such as respondent (compare, Matter of Christy C., 226 AD2d 770, lv denied 88 NY2d 808; Matter of Karen Y., 156 AD2d 823, lv denied 75 NY2d 710).

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Bluebook (online)
241 A.D.2d 635, 659 N.Y.S.2d 578, 1997 N.Y. App. Div. LEXIS 7325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-michael-e-nyappdiv-1997.