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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: OLIVIA L. Cayuga County Department of Health and Human Services, Petitioner-Respondent; Michael L., Respondent-Appellant, et al., Respondent.

Decided: September 28, 2007

PRESENT:  GORSKI, J.P., SMITH, CENTRA, FAHEY, AND PINE, JJ. Bridget L. Field, Batavia, for Respondent-Appellant. Samuel P. Giacona, Auburn, for Petitioner-Respondent. Cynthia B. Brennan, Law Guardian, Auburn, for Olivia L.

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 A.D.3d 1226, 837 N.Y.S.2d 466;  Matter of Michael E., 241 A.D.2d 635, 637, 659 N.Y.S.2d 578).   Under the circumstances of this case, a petition for termination of parental rights on the ground of mental illness may be appropriate (see § 384-b[3][g];  [4][c];  Matter of Stephen B., 176 A.D.2d 1204, 576 N.Y.S.2d 701, lv. denied 79 N.Y.2d 752, 580 N.Y.S.2d 198, 588 N.E.2d 96, appeal dismissed 79 N.Y.2d 914, 581 N.Y.S.2d 666, 590 N.E.2d 251).   In view of our determination, we see no need to address the father's remaining contentions.

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.