In re Olivia L.

Sep 28, 2007
Versions:43 A.D.3d 1339
842 N.Y.S.2d 821

Appeal from an order of the Family Court, Cayuga County (Peter E. Corning, J.), entered March 7, 2006 in a proceeding pursuant to Social Services Law § 384-b. The order, insofar as appealed from, adjudged that the child is permanently neglected, terminated the parental rights of respondent Michael L. and transferred guardianship and custody of the child to petitioner.

It is hereby ordered that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs and the petition against respondent Michael L. is dismissed.

Memorandum: Petitioner commenced these proceedings to terminate respondents’ parental rights on the ground of permanent neglect. Following a fact-finding hearing on the petitions, Family Court found that respondents had permanently neglected their child, terminated their parental rights and transferred guardianship and custody of the child to petitioner. Respondent father appeals.

We agree with the father that petitioner failed to establish that he failed to plan for the child‘s future although physically and financially able to do so (see Social Services Law § 384-b [7] [a]). Inasmuch as petitioner established that the father was unable, by reason of his personality disorders and mental health problems, to plan for the child‘s future, we conclude that petitioner failed to establish that he permanently neglected the child (see Matter of Olivia L., 41 AD3d 1226 [2007]; Matter of Michael E., 241 AD2d 635, 637 [1997]). Under the circumstances of this case, a petition for termination of parental rights on the ground of mental illness may be appropriate (see Social Services Law § 384-b [3] [g]; [4] [c]; Matter of Stephen B., 176 AD2d 1204 [1991], lv denied 79 NY2d 752 [1991], appeal dismissed 79 NY2d 914 [1992]). In view of our determination, we see no need to address the father‘s remaining contentions. Present—Gorski, J.P., Smith, Centra, Fahey and Pine, JJ.