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

1163
CAF 13-01349
PRESENT: SCUDDER, P.J., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.


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

BRAUNA S., RESPONDENT-APPELLANT.


WILLIAM D. BRODERICK, JR., ELMA, 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).


     Appeal from an order of the Family Court, Erie County (Margaret
O. Szczur, J.), entered July 19, 2013 in a proceeding pursuant to
Social Services Law § 384-b. The order, among other things,
transferred guardianship and custody of the subject child to
petitioner.

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

     Memorandum: Petitioner commenced this proceeding seeking to
terminate the parental rights of respondent mother with respect to her
daughter on the grounds of, inter alia, mental illness (see Social
Services Law § 384-b [4] [c]). We note at the outset that the
mother’s contention that Family Court erred in admitting in evidence
the records of a certain agency is moot inasmuch as those records
related only to the petition alleging that the child was a permanently
neglected child (see § 384-b [4] [d]), which the court dismissed with
prejudice. To the extent that the mother contends that other records
were improperly admitted in evidence, those records are not part of
the stipulated record on appeal, and thus we have not considered that
contention (see Matter of Santoshia L., 202 AD2d 1027, 1028).

     The mother further contends that her rights were violated by the
admission of the testimony of the court-appointed psychologist because
the psychological evaluation was conducted in English and without the
benefit of a Spanish interpreter. She also contends that the
methodology utilized by the psychologist to determine that her
comprehension of the English language was sufficient to proceed with
the evaluation in English should have been subject to a Frye hearing.
The mother failed to object to the testimony of the psychologist,
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                                                         CAF 13-01349

however, and thus failed to preserve those contentions for our review
(see generally Matter of Kaylene S. [Brauna S.], 101 AD3d 1648, 1648,
lv denied 21 NY3d 852). We note with respect to the first contention
that, in any event, the record establishes that the mother advised the
psychologist that she was comfortable proceeding with the evaluation
using English when he discussed with her whether the assessments
should be conducted in English or Spanish, and that two prior
psychological evaluations had been conducted in English.

     Contrary to the contention of the mother, the court properly
determined that petitioner met its burden of demonstrating by clear
and convincing evidence that she is presently and for the foreseeable
future unable to provide proper and adequate care for the child by
reason of mental illness, particularly severe cognitive deficits and
certain personality traits, none of which is treatable (see Matter of
Zachary R. [Duane R.], 118 AD3d 1479, 1480; Kaylene S., 101 AD3d at
1648).




Entered:   November 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
