IN RE: KYLE K. and Kara K. (2008)

 Petitioner commenced this proceeding to terminate the parental rights of respondent father with respect to his two children.   Petitioner initially filed a petition seeking termination of the father's parental rights on the ground of mental illness and subsequently filed a second petition seeking termination on the ground of permanent neglect.   Following a single fact-finding hearing, Family Court granted both petitions, terminated the father's parental rights, and committed the guardianship and custody of the children to petitioner.   We note at the outset that it was logically inconsistent for the court to grant both petitions.   With respect to the petition alleging mental illness, petitioner was required to present clear and convincing evidence that the father is “presently and for the forseeable future unable, by reason of mental illness ․, to provide proper and adequate care” for the children (Social Services Law § 384-b[4][c] ) while, with respect to the petition alleging permanent neglect, petitioner was required to present, inter alia, evidence that the father failed for the statutory period “substantially and continuously or repeatedly to maintain contact with or plan for the future of the child[ren], although physically and financially able to do so” (§ 384-b[7][a] ). The father could not be found to be mentally ill to a degree warranting termination of his parental rights and at the same time be found to have failed to plan for the future of the children although physically and financially able to do so (see generally Matter of Olivia L., 43 A.D.3d 1339, 1340, 842 N.Y.S.2d 821).

 Addressing first the petition seeking termination of the father's parental rights based on mental illness, we conclude that petitioner failed to establish “by clear and convincing evidence that [the father], by reason of mental illness, is presently and for the foreseeable future unable to provide proper and adequate care for [his] children” (Matter of Jarred R., 236 A.D.2d 888, 889, 654 N.Y.S.2d 64;  see Social Services Law § 384-b [3] [g];  [4][c] ), and we therefore modify the order accordingly.   The psychologist who examined the father on petitioner's behalf testified that the psychological tests administered to him were inconclusive and that, during interviews, the father displayed no symptoms of mental illness.   The psychologist's conclusion that the father suffered from paranoid schizophrenia was based on the children's statements to the psychologist that the father had stated that other people sent “impulses” to him and that the children would be “switched” and replaced with evil people if they went outside, as well as statements from unnamed individuals that the father covered the lights on his microwave oven with a towel and altered the grades on the children's report cards.   No witnesses testified that they observed the father engaging in strange behavior, and there was no testimony concerning the frequency of strange behavior or testimony connecting such behavior with the circumstances that led to the removal of the children from the father's home.   Thus, although the father's reported behavior was indeed strange, petitioner failed to establish by clear and convincing evidence that the father suffered from a mental illness that rendered him presently and for the foreseeable future unable to provide proper and adequate care for the children (cf. Matter of August ZZ., 42 A.D.3d 745, 748, 840 N.Y.S.2d 184;  Matter of Charity A., 38 A.D.3d 1276, 832 N.Y.S.2d 736;  Matter of Harris AA., 285 A.D.2d 755, 727 N.Y.S.2d 769).

 We conclude, however, that the court properly granted the petition seeking termination of the father's parental rights on the ground of permanent neglect.   Contrary to the father's contention, petitioner met its burden of establishing “by clear and convincing evidence that it has fulfilled its statutory duty to exercise diligent efforts to strengthen the parent-child relationship and to reunite the family” (Matter of Sheila G., 61 N.Y.2d 368, 373, 474 N.Y.S.2d 421, 462 N.E.2d 1139;  see Social Services Law § 384-b[7] [f];  Matter of Gregory B., 74 N.Y.2d 77, 86, 544 N.Y.S.2d 535, 542 N.E.2d 1052).   Contrary to the further contention of the father, petitioner established that he failed to plan for the future of the children based on his failure to complete a required program of mental health counseling (see Matter of Jose R., 32 A.D.3d 1284, 821 N.Y.S.2d 719, lv. denied 7 N.Y.3d 718, 827 N.Y.S.2d 689, 860 N.E.2d 991;  Matter of Krystal J., 267 A.D.2d 1097, 700 N.Y.S.2d 340), as well as his failure to acknowledge the children's educational problems, both of which indicated that he was unwilling “to correct the conditions that led to the placement of the children in the custody of petitioner” (Matter of James H., 281 A.D.2d 920, 920, 721 N.Y.S.2d 849, appeal dismissed 96 N.Y.2d 896, 730 N.Y.S.2d 792, 756 N.E.2d 80, cert. denied sub nom. Brenda H. v. Erie County Dept. of Social Servs., 534 U.S. 1090, 122 S.Ct. 832, 151 L.Ed.2d 713;  see Matter of Nathaniel T., 67 N.Y.2d 838, 842, 501 N.Y.S.2d 647, 492 N.E.2d 775).

 Finally, although not raised by the father, we conclude that a dispositional hearing is required based on the termination of his parental rights on the ground of permanent neglect, and “Family Court's failure to hold one requires a remittal for that purpose” (Matter of Brian W., 199 A.D.2d 1021, 1021-1022, 606 N.Y.S.2d 105, appeal dismissed 83 N.Y.2d 952, 615 N.Y.S.2d 877, 639 N.E.2d 418, 85 N.Y.2d 923, 627 N.Y.S.2d 324, 650 N.E.2d 1326, lv. denied 86 N.Y.2d 711, 635 N.Y.S.2d 948, 659 N.E.2d 771;  see Family Ct. Act §§ 623, 625[a];  § 631;  Matter of Orange County Dept. of Social Servs. [Edward L.], 250 A.D.2d 853, 673 N.Y.S.2d 205;  Matter of Casondra W., 184 A.D.2d 1070, 1071, 585 N.Y.S.2d 270).

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by dismissing the petition filed February 14, 2006 and as modified the order is affirmed without costs, and the matter is remitted to Family Court, Erie County, for a dispositional hearing on the petition filed March 14, 2006.

MEMORANDUM: