In re Michael E.
Aрpeal from an order of the Family Court of Cortland County (Frawley, J.H.O.), entered August 5, 1996, which dismissed petitioner’s application, in a proceeding pursuant to Social Serviсes Law § 384-b, to, inter alia, adjudicate respondent’s child to be permanently neglected.
The difficult issue before this Court concerns the parental relationship between respondent and her now 17-year-old son, Michael, who has been in fostеr care since March 1990. Both mother and son have been diagnosed as mentally retarded— respondent’s intellectual functioning is within a mildly retarded range and Michael’s intеllectual functioning is within a moderately retarded range. They have maintained regular contact with each other through supervised visitations and by all accounts have a loving relationship. Michael is unable to live independently and needs almost constant supervision. Although his foster parents have indicated that Michael may remain with them “as long as he behaves and as long as [their] health is intact”, they have not indicated a desire to adopt Michael. Sadly, Michael’s prospects of being adopted by anyone are bleak. Only two people have remained a constant in Michael’s life—respondent and an elderly, ailing friend who resides in a nursing home.
In Fеbruary 1996, petitioner commenced a proceeding to terminate respondent’s parental rights based upon alleged permanent neglect (see, Social Services Law § 384-b [7]) and mental retardation (see, Social Services Law § 384-b [4] [c]; [6] [b]). Following a fact-finding hearing on the petition, Family Court found respondent unable, by reason of mental retardation, to adequately care for Michаel. Regarding the allegation
Petitioner’s primary contentiоn on appeal is that, because it established by clear and convincing evidence both allegations in the petition, Family Court was required to transfer custody of Michael to it and terminate respondent’s parental rights. We disagree.
It is well settled that in order to terminate parental rights on the ground of mental retardation, the pеtitioning agency must demonstrate by clear and convincing evidence that the parent is presently and for the foreseeable future unable to provide proper and adequate care for the child (see, Social Services Law § 384-b [4] [c]; see also, Matter of Brett J.,
Judy Grimes, the court-appointed psychologist who сonducted a three-hour evaluation of respondent in May 1996, testified that respondent is mildly retarded with an IQ fluctuating between 65 and 70. Due to respondent’s low cognitive ability, immаturity and lack of common sense and good judgment, Grimes concluded that respondent lacks the capacity to parent a child. In her opinion, respondent would be “very bossy and controlling” in her relations with Michael and unable to provide him with structure or supervision. She further opined that respondent would not benefit from parenting assistance or therapy.
Although Grimes did not specifically testify that Michael would be in danger of becoming neglected if placed in respondent’s care (see, Sociаl Services Law § 384-b [6] [b]), this finding can be inferred. Her testimony, which was unrefuted, established that by reason of respondent’s mental retardation,
We are unable to conclude, however, that petitioner demonstrated by clear and convincing evidence that respondent permanently neglected Michael. Under Social Serviсes Law § 384-b (7) (a), petitioner was required to prove" that respondent failed “substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship” (emphasis supplied). In its decision, Family Court found that petitiоner “has also shown by clear and convincing evidence that [respondent] has not been able to plan for the future of [Michael], although making some attempts to do so” (emphаsis supplied). This discrepancy, while subtle, strongly suggests that Family Court, in concluding that respondent is unable to plan for Michael’s future, actually determined that the permanent neglect allegations had not been proven by petitioner. Such a finding would be consistent with this Court’s review of the record.
With respect to petitioner’s diligent efforts, it does not aрpear that petitioner, although cognizant of respondent’s mental retardation, took affirmative steps to adequately address her special needs. While there was evidence that petitioner required respondent to attend parenting classes, for example, it is unclear whether these classes targeted individuals with developmental disabilities such as respondent (compare, Matter of Christy C.,
Even assuming that diligent efforts were undertaken by petitioner to encourage and strengthen respondent’s relationship with Michael, the evidence reveals that respondent did make sincere efforts to plan for Michael’s future to the best of her ability. She obtained a suitable apartment to accommodate herself and her son, attended Michael’s six-month review sessions, completed parenting classes, maintained regular contaсt with him through visitation and displayed affection during their visits (cf., Matter of Sarah B.,
There is no requirement fоr a separate dispositional hearing after a finding of mental retardation (see, Matter of Joyce T.,
The Court of Appeals has noted that Social Services Law § 384-b “authorize [s] termination оf parental rights only when specific and definite criteria are met and when necessary in the best interest of the child” (Matter of Nereida S.,
Cardona, P. J., Mercure, White and Casey, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as may be cоnstrued as a finding that respondent permanently neglected her child, and, as so modified, affirmed.
Notes
It is also noteworthy that, despite instructions that the caseworker highlight speсific details of actions taken and examples of significant changes since the last assessment plan, the September 1995 and March 1996 assessment and service plans are virtually identical.