        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1058
CAF 13-01888
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


IN THE MATTER OF JOSEPH E.K.
---------------------------------------------
NIAGARA COUNTY DEPARTMENT OF SOCIAL SERVICES,    MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

LITHIA K., RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (MARY-JEAN BOWMAN OF
COUNSEL), FOR RESPONDENT-APPELLANT.

ABRAHAM J. PLATT, LOCKPORT, FOR PETITIONER-RESPONDENT.

MARY ANNE CONNELL, ATTORNEY FOR THE CHILD, BUFFALO.


     Appeal from an order of the Family Court, Niagara County (John F.
Batt, J.), entered September 30, 2013 in a proceeding pursuant to
Social Services Law § 384-b. The order terminated the parental rights
of respondent on the ground of mental illness.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In these proceedings pursuant to Social Services Law
§ 384-b, respondent mother appeals from separate orders terminating
her parental rights to the subject child on grounds of mental illness
(appeal No. 1) and permanent neglect (appeal No. 2). With respect to
appeal No. 1, we reject the mother’s contention that Family Court
erred in determining that petitioner established 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” (§ 384-b [4] [c]; see Matter of
Christopher B., Jr. [Christopher B., Sr.], 104 AD3d 1188, 1188; Matter
of Alberto C. [Tibet H.], 96 AD3d 1487, 1488, lv denied 19 NY3d 813).
The court-appointed psychologist who conducted a mental health
evaluation of the mother testified that she suffers from paranoid
schizophrenia, which causes her to have delusions and “grossly
erroneous beliefs.” According to the psychologist, the mother, due to
her mental condition, is unable to care for the child and, based on
his special needs, the child would be in even greater danger if placed
with the mother. Although the mother’s condition was treatable, she
refused to take prescribed medication. We note that one of the
mother’s witnesses was a psychologist who met with her once before
trial. Although the psychologist testified that she saw no evidence
                                 -2-                          1058
                                                         CAF 13-01888

that the mother suffered from a major psychiatric illness, the
psychologist added that she was “certainly not advocating that [the
mother] be given custody of her child back today. There are issues.
There are things that need to be dealt with.” It is well settled that
“[t]he mere possibility that [the mother’s] condition, with proper
treatment, may improve in the future is insufficient to vitiate [the
court’s determination]” (Matter of Steven M., 37 AD3d 1072, 1072
[internal quotation marks omitted]; see Matter of Trebor UU., 295 AD2d
648, 650). We therefore conclude that the court properly granted the
petition seeking to terminate the mother’s parental rights based on
mental illness.

     With respect to appeal No. 2, the mother contends that the
court’s finding of permanent neglect must be vacated because it did
not conduct separate dispositional hearings on the two petitions.
Although the court conducted a dispositional hearing on the permanent
neglect petition, it properly concluded that no dispositional hearing
was required on the mental illness petition, inasmuch as “ ‘a separate
dispositional hearing is not required following the determination that
[a parent] is unable to care for [a] child because of mental
illness’ ” (Matter of Vincent E.D.G. [Rozzie M.G.], 81 AD3d 1285,
1286, lv denied 17 NY3d 703). Nevertheless, we conclude that, given
the court’s finding that the mother was incapable of caring for the
child based on her mental illness, the court erred in terminating her
parental rights on the additional ground of permanent neglect. The
mother “could not be found to be mentally ill to a degree warranting
termination of [her] parental rights and at the same time be found to
have failed to plan for the future of the child[ ] although physically
and financially able to do so” (Matter of Kyle K., 49 AD3d 1333, 1334,
lv denied 10 NY3d 715). We therefore reverse the order in appeal No.
2 and dismiss the petition therein.




Entered:   November 21, 2014                   Frances E. Cafarell
                                               Clerk of the Court
