         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1116
CAF 10-01972
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND LINDLEY, JJ.


IN THE MATTER OF ROYFIK B.
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WAYNE COUNTY DEPARTMENT OF SOCIAL SERVICES,      MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

SAMARIAN B., RESPONDENT-APPELLANT.


TYSON BLUE, MACEDON, FOR RESPONDENT-APPELLANT.

GARY LEE BENNETT, LYONS, FOR PETITIONER-RESPONDENT.

TRACEY L. FOX, ATTORNEY FOR THE CHILD, SODUS, FOR ROYFIK B.


     Appeal from an order of the Family Court, Wayne County (John B.
Nesbitt, J.), entered August 20, 2010 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 terminating
her parental rights with respect to her son based on mental illness.
Contrary to the mother’s contention, we conclude that petitioner met
its burden of establishing by clear and convincing evidence that she
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 Matter of Sean S., 79
AD3d 1760, lv denied 16 NY3d 709). Indeed, the testimony and reports
of petitioner’s experts, as well as the testimony of a caseworker who
supervised the mother’s visitation with the child, established that
the mother is presently suffering from a mental illness that “is
manifested by a disorder or disturbance in behavior, thinking or
judgment 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” (§ 384-b [6] [a]; see Matter of Kahlil S., 35 AD3d
1164, 1165, lv dismissed 8 NY3d 977). Although a social worker who
provided day treatment for the mother testified that the mother had
made progress in treatment, she expressed no opinion with respect to
the mother’s ability to parent.

     Finally, the mother’s contention that petitioner failed to
establish that termination of her parental rights was warranted on the
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                                                         CAF 10-01972

ground of mental retardation is not properly before us inasmuch as the
order on appeal was based only on mental illness, not mental
retardation (see generally Matter of Genesis S., 70 AD3d 570).




Entered:   November 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
