Nancy N. and Michael F., Respondents-Appellants. v. << (2005)

 Contrary to the contention of respondents, Family Court properly terminated their parental rights with respect to their child on the ground that they are “presently and for the foreseeable future unable, by reason of ․ mental retardation, to provide proper and adequate care” for their child (Social Services Law § 384-b [4][c] ).  Petitioner established by clear and convincing evidence that both respondents suffer from “subaverage intellectual functioning which originate[d] during the developmental period and is associated with impairment in adaptive behavior to such an extent that if [their] child were placed in ․ the custody of [respondents], the child would be in danger of becoming a neglected child” (§ 384-b [6][b];  see § 384-b [3] [g];  Matter of Daniel C.S., 4 A.D.3d 854, 855, 771 N.Y.S.2d 410, lv. denied 2 N.Y.3d 704, 778 N.Y.S.2d 774, 811 N.E.2d 36 2 N.Y.3d 706, 781 N.Y.S.2d 287, 814 N.E.2d 459.)   Contrary to the contention of respondent father, petitioner was not required to establish that it made diligent efforts to strengthen and encourage his relationship with his child inasmuch as the termination of parental rights was sought based on mental retardation (see Matter of Michael D., 306 A.D.2d 938, 761 N.Y.S.2d 914;  Matter of Harry K., 270 A.D.2d 928, 706 N.Y.S.2d 657).   Contrary to the contention of respondent mother, she was not denied effective assistance of counsel when her attorney declined the court's offer to dismiss the petition upon petitioner's request for an adjournment.   Dismissal of the petition necessarily would have been without prejudice and thus merely would have delayed resolution of the child's status.  “[A] dismissal with prejudice in a termination proceeding would ․ have the clearly undesirable effect of forcing children to remain in foster care until they reach the age of majority, since the petitioner would be precluded from refiling a termination petition” (Matter of Marilyn S., 233 A.D.2d 155, 156-157, 649 N.Y.S.2d 671).   Under the circumstances of this case, we conclude that respondent mother received meaningful representation (see Matter of Tylena S., 4 A.D.3d 568, 570, 771 N.Y.S.2d 592, lv. dismissed 2 N.Y.3d 759, 778 N.Y.S.2d 776, 811 N.E.2d 38;  Matter of Amanda L., 302 A.D.2d 1004, 754 N.Y.S.2d 494;  see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: