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

398
CAF 12-01044
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND WHALEN, JJ.


IN THE MATTER OF DESTINY V.
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ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,       MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

LYNETTE V., RESPONDENT-APPELLANT.


KATHRYN FRIEDMAN, BUFFALO, FOR RESPONDENT-APPELLANT.

JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.

DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR DESTINY
V.


     Appeal from an order of the Family Court, Erie County (Margaret
O. Szczur, J.), entered May 21, 2012 in a proceeding pursuant to
Social Services Law § 384-b. The order, among other things,
terminated respondent’s parental rights with respect to the subject
child.

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

     Memorandum: Respondent mother appeals from an order, inter alia,
terminating her parental rights with respect to the subject child on
the ground of mental illness. The mother was pregnant with the
subject child when her vehicle was struck by a pickup truck. As a
result of the accident, the mother sustained a traumatic brain injury,
which caused her to have diminished cognitive abilities. She
subsequently gave birth to the child, who was placed in foster care
with the child’s maternal grandparents almost immediately after birth.
Contrary to the mother’s contention, we conclude that petitioner met
its burden of establishing by clear and convincing evidence that the
mother is “presently and for the foreseeable future unable, by reason
of mental illness . . . , to provide proper and adequate care for
[the] child” (Social Services Law § 384-b [4][c]; see § 384-b [6] [a];
Matter of Darius B. [Theresa B.], 90 AD3d 1510, 1510; Matter of
Vincent E.D.G. [Rozzie M.G.], 81 AD3d 1285, 1285, lv denied 17 NY3d
703; Matter of Chance Jahmel B., 187 Misc 2d 626, 629-631). Indeed,
petitioner presented clear and convincing evidence establishing that
the mother is presently suffering from a mental illness, which is
defined as a mental disease or mental condition that “is manifested by
a disorder or disturbance in behavior, feeling, thinking or judgment
                                 -2-                           398
                                                         CAF 12-01044

to such an extent that if such child were placed in . . . the custody
of [the mother], the child would be in danger of becoming a neglected
child” (Social Services Law § 384-b [6] [a]). Petitioner submitted
unrefuted expert testimony that, as a result of her injuries, the
mother suffers from a mental condition that renders her unable to care
for the child because the mother is functioning at the level of an
eight year old. Petitioner’s expert also testified that respondent’s
thinking, decision making, problem solving, judgment and emotional
process will not improve due to her injuries.




Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
