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

472
CAF 11-02448
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF JOSEPH A.T.P.
---------------------------------------------
NIAGARA COUNTY DEPARTMENT OF SOCIAL SERVICES,     MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

JULIA P., RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


DEBRA D. WILSON, LOCKPORT, FOR RESPONDENT-APPELLANT.

SUSAN M. SUSSMAN, NIAGARA FALLS, FOR PETITIONER-RESPONDENT.

THOMAS J. CASERTA, JR., ATTORNEY FOR THE CHILD, NIAGARA FALLS.


     Appeal from an order of the Family Court, Niagara County (David
E. Seaman, J.), entered November 23, 2011 in a proceeding pursuant to
Social Services Law § 384-b. The order, among other things,
transferred the 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: In these consolidated appeals, respondent mother
appeals from orders that terminated her parental rights with respect
to three of her children. Following an evidentiary hearing, Family
Court determined that the mother is presently and for the foreseeable
future unable to provide proper and adequate care for her children by
reason of her mental retardation (see Social Services Law § 384-b [4]
[c]; [6] [b]; Matter of Michael F., 16 AD3d 1116, 1116). We reject
the mother’s contention that petitioner failed to meet its burden of
proof at the fact-finding hearing. At the hearing, petitioner relied
largely upon the testimony of a psychologist who conducted a court-
ordered evaluation of the mother. The psychologist testified that the
mother functioned at a very low level and that her IQ score of 63
placed her in the first percentile. The psychologist further
testified that the mother’s low IQ had remained unchanged over time,
and he explained that it is highly unusual for an IQ score to change
dramatically absent some type of trauma. According to the
psychologist, the mother had a “documented history of mental
retardation dating back to her early childhood.” With regard to the
effect of the mother’s diminished capacity on the children, the
psychologist concluded from his evaluation that the mother lacked a
“basic intellectual understanding of the needs of a child” and that
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                                                         CAF 11-02448

she is unable to “recognize and identify fundamental tasks of
parenting.” He further testified that, despite the services made
available to the mother, she demonstrated “very little improvement in
her functioning effectively as a parent.” Although the mother
testified that she appropriately cared for the children and presented
the testimony of family members to that effect, she “failed to present
any contradictory expert evidence” with respect to her intellectual
capacity (Matter of Darius B. [Theresa B.], 90 AD3d 1510, 1511). We
thus conclude that petitioner established by clear and convincing
evidence that the mother is mentally retarded and that, as a result
thereof, she is unable to provide proper and adequate care for her
children now and in the foreseeable future (§ 384-b [4] [c]).

     We reject the mother’s further contention that the court erred in
denying her request for posttermination visitation with the subject
children, inasmuch as the courts are without authority to direct
continuing contact between parents and children once parental rights
have been terminated pursuant to Social Services Law § 384-b (see
Matter of Hailey ZZ. [Ricky ZZ.], 19 NY3d 422, 437-438; Matter of Elsa
R. [Gloria R.], 101 AD3d 1688, 1688, lv denied 20 NY3d 862).




Entered:   June 14, 2013                        Frances E. Cafarell
                                                Clerk of the Court
