         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1288
CAF 11-01338
PRESENT: SCUDDER, P.J., CENTRA, VALENTINO, WHALEN, AND MARTOCHE, JJ.


IN THE MATTER OF KAYLENE S. AND NADIA M.-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 CHILDREN, THE LEGAL AID BUREAU OF
BUFFALO, INC. (CHARLES D. HALVORSEN OF COUNSEL), FOR KAYLENE S. AND
NADIA M.-S.


     Appeal from an order of the Family Court, Erie County (Margaret
O. Szczur, J.), entered May 16, 2011 in proceedings pursuant to Social
Services Law § 384-b and Family Court Act article 10. The order,
among other things, terminated respondent’s parental rights over
Kaylene S. on the ground of mental illness, and adjudged that
respondent had derivatively neglected Nadia M.-S.

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

     Memorandum: Respondent mother appeals from an order terminating
her parental rights on the ground of mental illness with respect to
one of her older children and entering a finding of derivative neglect
with respect to her youngest child. The mother contends that
petitioner failed to lay a proper foundation for the testimony of its
expert witnesses. That contention is unpreserved for our review (see
generally Matter of Brayanna G., 66 AD3d 1375, 1375, lv denied 13 NY3d
714; Wall v Shepard, 53 AD3d 1050, 1050). In any event, it lacks
merit inasmuch as an adequate foundation was laid for the testimony
(see generally Matter of Devonte M.T. [Leroy T.], 79 AD3d 1818, 1818).
We agree with Family Court that petitioner met its burden of
demonstrating by clear and convincing evidence that the mother is
presently and for the foreseeable future unable to provide proper and
adequate care for the older child at issue by reason of mental illness
(see Social Services Law § 384-b [4] [c]; [6] [a]; see e.g. Matter of
Demariah A. [Rebecca B.], 71 AD3d 1469, 1469, lv denied 15 NY3d 701).
Contrary to the mother’s contention, the court did not err in allowing
a psychologist to testify based on an evaluation that he conducted
several years earlier in connection with a matter involving one of the
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                                                         CAF 11-01338

mother’s other children (see Matter of Aubrey A. [Rebecca B.], 96 AD3d
1459, 1459; Matter of Robert K., 56 AD3d 353, 353, lv denied 12 NY3d
704; see generally Matter of Dominique M., 62 AD3d 503, 503). The
psychologist’s testimony was detailed and supported his opinion that
it was unlikely that the mother’s condition would improve over time.
That testimony was substantiated by the testimony of a second expert
who had interviewed the mother in connection with the instant
petitions and opined that, due to her mental illness, she was unable
to parent the child for the present and foreseeable future. Contrary
to the mother’s further contention, the court was free to accept the
testimony of petitioner’s experts over that of her expert (see
generally Matter of Kimberly J., 216 AD2d 940, 941, lv denied 87 NY2d
801).

     The court did not err in entering a finding of derivative neglect
with respect to the mother’s youngest child. The credible evidence
supports a finding that the mother’s untreated and ongoing mental
illness resulted in an inability to care for her youngest child in the
foreseeable future (see Matter of Henry W., 30 AD3d 695, 696; see also
Matter of Sophia M.G.-K. [Tracy G.-K.], 84 AD3d 1746, 1746-1747).
Indeed, the record reflects that the mother “demonstrated a
fundamental defect in [her] understanding of the duties and
obligations of parenthood and created an atmosphere detrimental to the
physical, mental and emotional well-being of [that child]” (Matter of
Derrick C., 52 AD3d 1325, 1326, lv denied 11 NY3d 705 [internal
quotation marks omitted]; see Matter of Cory S. [Terry W.], 70 AD3d
1321, 1322).




Entered:   December 21, 2012                   Frances E. Cafarell
                                               Clerk of the Court
