IN RE: CHRISTINA L.N. (Anonymous).

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IN RE: CHRISTINA L.N. (Anonymous). Mercyfirst, petitioner-respondent; Louica J. (Anonymous), appellant, et al., respondent.

Decided: January 22, 2014

THOMAS A. DICKERSON, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and ROBERT J. MILLER, JJ. Helene Bernstein, Brooklyn, N.Y., for appellant. Warren & Warren, Brooklyn, N.Y. (Ira L. Eras of counsel), for petitioner-respondent. Brian Zimmerman, Brooklyn, N.Y., attorney for the child.

In a proceeding pursuant to Social Services Law § 384–b to terminate parental rights based on mental illness, the mother appeals (1), as limited by her brief, from so much of an order of fact-finding and disposition of the Family Court, Kings County (Danoff, J.), dated December 18, 2012, as, after a fact-finding hearing, and upon the denial of her motion for a dispositional hearing, found that she is presently and for the foreseeable future unable, by reason of mental illness, to provide proper and adequate care for the subject child, terminated her parental rights, and transferred guardianship and custody of the child to Mercyfirst and the Commissioner of the Administration for Children's Services of the City of New York for the purpose of adoption, and (2) from an order of the same court, also dated December 18, 2012, which, in effect, denied her motion for leave to reargue the denial of her motion for a dispositional hearing.

ORDERED that the appeal from the order denying the mother's motion for leave to reargue is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order of fact-finding and disposition is modified, on the facts and in the exercise of discretion, by deleting the provisions thereof terminating the mother's parental rights and transferring guardianship and custody of the child to Mercyfirst and the Commissioner of the Administration for Children's Services of the City of New York for the purpose of adoption; as so modified, the order of fact-finding and disposition is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for a dispositional hearing and a new disposition thereafter.

Contrary to the mother's contention, the Family Court properly found that there was 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 subject child (see Social Services Law § 384–b[4] [c] ). The court-appointed psychologist, who interviewed the mother and reviewed her medical records, testified that the mother had a major depressive disorder, which was recurrent, chronic, and had psychotic features, and that her condition would likely persist into the foreseeable future. The psychologist opined that if the subject child were returned to the mother, she would be at risk of being neglected due to the nature of the mother's illness (see Matter of B. Mc. [Dawn Mc.], 99 AD3d 713, 714; Matter of Hope K.W. [Aminta I.], 96 AD3d 864, 865; Matter of Dominique Larissa Blue M. [Yasmin M.], 84 AD3d 962, 963).

However, the Family Court improvidently exercised its discretion when it denied the mother's motion for a separate dispositional hearing. Although, in the context of a proceeding pursuant to Social Services Law § 384–b to terminate parental rights based on mental illness, a separate dispositional hearing is not necessarily required in every case (see e.g. Matter of Joseph Lawrence S., 56 AD3d 785, 786), the circumstances of a particular case may warrant a dispositional hearing such that a court's determination to forgo such a hearing constitutes an improvident exercise of discretion (see Matter of Joyce T., 65 N.Y.2d 39, 46). Here, the evidence adduced at the fact-finding hearing indicated that the mother consistently continued her treatment, successfully completed parenting classes, and regularly visited the subject child. Furthermore, the record indicated that the subject child, who is now 13 years old, has long opposed adoption and has expressed a desire to maintain a close relationship with her mother. Under these circumstances, the court should have granted the mother's motion for a dispositional hearing so that the parties could introduce evidence as to which of the dispositional alternatives would be in the best interests of the child (compare Matter of Hope K.W. [Aminta I.], 96 AD3d at 865; Matter of Selena C. [Thelma C.], 77 AD3d 659, 659; Matter of Ernesto Thomas A., 5 AD3d 380, 381).

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