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

1040
CAF 10-02449
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GREEN, JJ.


IN THE MATTER OF TIFFANY M. AND TONIKA M.
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ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,        MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

JOLANDA M., RESPONDENT-APPELLANT.


ALAN BIRNHOLZ, EAST AMHERST, FOR RESPONDENT-APPELLANT.

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

DAVID C. SCHOPP, ATTORNEY FOR THE CHILDREN, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR TIFFANY
M. AND TONIKA M.


     Appeal from an order of the Family Court, Erie County (Patricia
A. Maxwell, J.), entered December 1, 2010 in a proceeding pursuant to
Social Services Law § 384-b. The order terminated respondent’s
parental rights on the ground of mental illness.

     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 with respect to the two children who are the
subject of this proceeding. The testimony of petitioner’s expert
psychologist at the hearing established by clear and convincing
evidence that, based on the mother’s mental illness and mental
retardation, she is unable presently and for the foreseeable future to
provide proper and adequate care for the children (see Matter of
Mathew Z., 279 AD2d 904, 906; see also Matter of Cayden L.R., 83 AD3d
1550; Matter of William C.B., 83 AD3d 1583, lv dismissed in part and
denied in part 17 NY3d 790). Although the petition did not allege
mental illness as a ground for termination of the mother’s parental
rights, the mother did not object to the evidence relating to that
ground. In addition, although Family Court did not specifically refer
in its decision to the mother’s mental retardation, the court
determined that the mother lacked the mental capacity to care for the
children properly, and there was ample evidence of the mother’s mental
retardation. We therefore conclude that the court properly terminated
the mother’s parental rights.

Entered:    October 7, 2011                     Patricia L. Morgan
                                                Clerk of the Court
