ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES PETITIONER RESPONDENT v. <<

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

ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER–RESPONDENT;

CAF 10–00596

Decided: April 29, 2011

PRESENT:  SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ. CHARLES J. GREENBERG, BUFFALO, FOR RESPONDENT–APPELLANT. JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER–RESPONDENT.

MEMORANDUM AND ORDER

DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR WILLIAM C.B.

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

Memorandum:  In appeal No. 1, respondent mother appeals from an order terminating her parental rights with respect to her son on the ground of mental illness.   Contrary to the mother's contention, we conclude that petitioner met its burden of demonstrating by clear and convincing evidence that she is “presently and for the foreseeable future unable, by reason of mental illness ․, to provide proper and adequate care for [the] child” (Social Services Law § 384–b [4][c];  see Matter of Anthony C., 280 A.D.2d 1000).   The mother's further contention in appeal No. 1 that Family Court erred in failing to conduct a separate dispositional hearing is unpreserved for our review and, in any event, that contention lacks merit (see Matter of Keyarei M., 71 AD3d 1510, lv denied 14 NY3d 712).

In appeal No. 2, the mother appeals from an order denying her pro se motion seeking to vacate the order in appeal No. 1. To the extent that the motion was based upon newly discovered evidence, the mother failed to show that such evidence could not have been discovered previously by the exercise of due diligence, or that it would have altered the outcome of the proceeding (see Matter of Catapano, 17 AD3d 673, 674).   Nor did the mother demonstrate that she was deprived of effective assistance of counsel, the alternative ground alleged by the mother for vacatur (see generally Matter of Leo UU., 288 A.D.2d 711, 713, lv denied 97 N.Y.2d 609).

Patricia L. Morgan

Clerk of the Court