In re Erica D. (II)
Matter of Erica D. v Maria D.
2011
NY Slip Op 00008
Decided
on January 4, 2011
Appellate
Division, First Department
Published
by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This
opinion is uncorrected and subject to revision before publication in the
Official Reports.
Decided
on January 4, 2011
Mazzarelli, J.P., Sweeny, Catterson,
Renwick, DeGrasse, JJ.
3969
[*1]In
re Erica D., A Dependent Child Under the Age of Eighteen Years, etc.,
and
Maria
D., Respondent-Appellant, New Alternatives For
Children, Inc., Petitioner-Respondent.
George E. Reed, Jr.,
Law
Offices of James M. Abramson, PLLC,
M. Abramson of counsel), for respondent.
Tamara
A. Steckler, The Legal Aid
Society,
Hausknecht
of counsel), attorney for the child.
Order
of disposition, Family Court, Bronx County (Sidney Gribetz,
J.), entered or on about January 5, 2010, which, upon a finding of mental
retardation, terminated the respondent mother's parental rights to the child,
and committed custody and guardianship of the subject child jointly to
petitioner and the Administration for Children's Services, unanimously
affirmed, without costs.
Clear
and convincing evidence demonstrates that respondent is presently and for the
foreseeable future unable, by reason of mental retardation, to provide proper
and adequate care for the subject child, who was diagnosed with Down's Syndrome. Testing by a senior psychologist employed by the
Family Court, indicated that respondent's full scale IQ was 48, which the
expert characterized as "extremely low." The director of the Family
Court Mental Health Services opined, after interviewing respondent and
reviewing her records, that she was of "subaverage intellectual functioning with impairment in
adaptive behavior." He stated that if the child were returned to her care,
the child would be in danger of becoming a neglected child, now and for the
foreseeable future. This evidence was sufficient to satisfy the statutory
standard (see Social Services Law § 384-b [4][c];
Matter of Joyce T., 65 NY2d 39, 50 [1985]).
The
mother contends that her due process rights were violated by limitations the
court placed on the testimony of lay witnesses concerning her ability to care
for her other child and on broad based generalized anecdotal evidence. However,
this claim is raised for the first time on appeal, and is unpreserved (see
Matter of Kimberly Carolyn J., 37 AD3d 174, 175 [2007], lv
dismissed 8 NY3d 968 [2007]).
On
the merits, the court properly excluded irrelevant testimony and evidence.
THIS
CONSTITUTES THE DECISION AND ORDER [*2]
OF
THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:
JANUARY 4, 2011
CLERK