In re the Guardianship & Custody of Dochingozi B.

Appellate Division of the Supreme Court of New York

In re the Guardianship & Custody of Dochingozi B.

85 A.D.2d 510, 444 N.Y.S.2d 633, 1981 N.Y. App. Div. LEXIS 16282

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

DecidedDecember 3, 1981

StatusPublished

This text of 85 A.D.2d 510 (In re the Guardianship & Custody of Dochingozi B.) 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 the Guardianship & Custody of Dochingozi B., 85 A.D.2d 510, 444 N.Y.S.2d 633, 1981 N.Y. App. Div. LEXIS 16282 (N.Y. Ct. App. 1981).

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Order, Family Court, New York County (Kaplan, J.), entered September 16, 1980, granting petition to terminate parental rights as to respondent mother on the ground of respondent mother’s mental illness, is affirmed, without costs. The Family Court found “by clear and convincing evidence that the respondent by reason of mental illness is unable to provide care which is proper and adequate for the child presently and for the foreseeable future.” (See Social Services Law, § 384-b, subd 4, par [c].) Both the testimony at the hearing by Dr. Brooks, the court-appointed psychiatrist, and the recommendation in his report (based on “a wealth of evidence”) were unequivocal on the point of the mother’s present and future inability to care for the child. Although respondent would not consent to the release of the records of her previous psychiatric hospitalizations, Dr. Brooks testified that those records would not have changed his opinion. He based his prognosis on respondent’s history — especially living on the streets and teaching the child to steal — and testified: “That sort of behavior does not change, that is, whatever drove the mother to that point of view would still be there.” The history of respondent’s relations to and treatment of the child and Dr. Brooks’ definitive testimony that the respondent would be unable to properly care for the child for the foreseeable future constituted the clear and convincing proof required for termination of parental rights (see Matter of Hime Y., 52 NY2d 242, 249). The unequivocal testimony of Dr. Brooks makes this case very different from Matter of Hime Y. (supra), where the court-appointed psychiatrist opined that it was “entirely possible” that the mother would be able to care for the child at some date in the future. Concur — Murphy, P. J., Markewich and Silverman, JJ.

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Order, Family Court, New York County (Kaplan, J.), entered September 16, 1980, granting petition to terminate parental rights as to respondent mother on the ground of respondent mother’s mental illness, is affirmed, without costs. The Family Court found “by clear and convincing evidence that the respondent by reason of mental illness is unable to provide care which is proper and adequate for the child presently and for the foreseeable future.” (See Social Services Law, § 384-b, subd 4, par [c].) Both the testimony at the hearing by Dr. Brooks, the court-appointed psychiatrist, and the recommendation in his report (based on “a wealth of evidence”) were unequivocal on the point of the mother’s present and future inability to care for the child. Although respondent would not consent to the release of the records of her previous psychiatric hospitalizations, Dr. Brooks testified that those records would not have changed his opinion. He based his prognosis on respondent’s history — especially living on the streets and teaching the child to steal — and testified: “That sort of behavior does not change, that is, whatever drove the mother to that point of view would still be there.” The history of respondent’s relations to and treatment of the child and Dr. Brooks’ definitive testimony that the respondent would be unable to properly care for the child for the foreseeable future constituted the clear and convincing proof required for termination of parental rights (see Matter of Hime Y., 52 NY2d 242, 249). The unequivocal testimony of Dr. Brooks makes this case very different from Matter of Hime Y. (supra), where the court-appointed psychiatrist opined that it was “entirely possible” that the mother would be able to care for the child at some date in the future. Concur — Murphy, P. J., Markewich and Silverman, JJ.

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85 A.D.2d 510, 444 N.Y.S.2d 633, 1981 N.Y. App. Div. LEXIS 16282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-guardianship-custody-of-dochingozi-b-nyappdiv-1981.

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