Erie Cnty. Dep't of Soc. Servs. v. John W. (In re Ayden W.), 1279

• Decision Date: 22 December 2017
• Docket Number: 1279,CAF 16–00343
• Parties: In the MATTER OF AYDEN W. and Malakai W. Erie County Department of Social Services, Petitioner–Respondent; v. John W., Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 1389
66 N.Y.S.3d 143 (Mem)

In the MATTER OF AYDEN W. and Malakai W.

Erie County Department of Social Services, Petitioner–Respondent;
v.
John W., Respondent–Appellant.

1279
CAF 16–00343

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

Entered: December 22, 2017

WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT–APPELLANT.

ELISABETH M. COLUCCI, BUFFALO, FOR PETITIONER–RESPONDENT.

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

PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND CURRAN, JJ.

MEMORANDUM AND ORDER

Memorandum:

156 A.D.3d 1389

Respondent father appeals from an order that terminated his parental rights with respect to the subject children on the grounds of mental illness and intellectual disability. Contrary to the father's contention, petitioner met its burden of establishing by clear and convincing evidence that he is "presently and for the foreseeable future unable, by reason of mental illness or intellectual disability, to provide proper and adequate care for [the] child[ren]" ( Social Services Law § 384–b [4 ][c]; see Matter of Henry W., 31 A.D.3d 940, 941, 818 N.Y.S.2d 348 [3d Dept. 2006], lv denied 7 N.Y.3d 711, 823 N.Y.S.2d 771, 857 N.E.2d 66 [2006] ). The testimony and report of petitioner's expert psychologist

66 N.Y.S.3d 144

established that the father's capacity to care for the children was substantially impaired as the result of both his limited intellectual functioning (see Matter of Destiny V. [Lynette V.], 106 A.D.3d 1495, 1495–1496, 966 N.Y.S.2d 306 [4th Dept. 2013]; Matter of Cayden L.R. [Jayme R.], 83 A.D.3d 1550, 1550, 921 N.Y.S.2d 605 [4th Dept. 2011] ), and his antisocial personality disorder (see Matter of Christopher B., Jr.[Christopher B., Sr.], 104 A.D.3d 1188, 1188, 960 N.Y.S.2d 787 [4th Dept. 2013] ; Matter of Kaylene S. [Brauna S.], 101 A.D.3d 1648, 1648–1649, 956 N.Y.S.2d 738 [4th Dept. 2012], lv denied 21 N.Y.3d 852, 965 N.Y.S.2d 790, 988 N.E.2d 528 [2013] ). Petitioner's expert further concluded that the father's conditions were not amenable to

156 A.D.3d 1390 ...