Opinion
CAF 01-01907
December 30, 2002.
Appeal from an order of Family Court, Wayne County (Sirkin, J.), entered July 24, 2001, which, inter alia, terminated respondent's parental rights.
DEL ATWELL, MONTAUK, FOR RESPONDENT-APPELLANT.
DANIEL C. CONNORS, LYONS, FOR PETITIONER-RESPONDENT.
NANCY M. LORD, LAW GUARDIAN, LYONS, FOR DAMION S., TAVIA S., AND DERRICK R.
PRESENT: WISNER, J.P., HURLBUTT, SCUDDER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Family Court's determination terminating respondent's parental rights on the ground of mental illness pursuant to Social Services Law § 384-b (4)(c) is supported by clear and convincing evidence. Contrary to the contention of respondent, "[t]he mere possibility that [her] condition, with proper treatment, could improve in the future is insufficient to vitiate Family Court's conclusion" ( Matter of Vaketa Y., 141 A.D.2d 892, 893; see Matter of Trebor UU., 295 A.D.2d 648, 650; Matter of Harris AA., 285 A.D.2d 755, 756-757), particularly where, as here, a minimum of three years of counseling would be required ( see Matter of Shane PP., 283 A.D.2d 725, 727-728, lv denied 96 N.Y.2d 720). Furthermore, the efficacy of any treatment is contingent upon the cooperation of respondent, who did not testify at the hearing. Because respondent did not testify, the court properly drew the strongest inference against her "that the opposing evidence in the record would allow" ( Matter of Shawna U., 277 A.D.2d 731, 733).
Respondent further contends that the evidence is legally insufficient because two psychologists who examined her made differing diagnoses and a third psychologist opined that she is not mentally ill. We reject that contention. Two of the psychologists were in agreement that respondent is afflicted with a mental disease or condition to such an extent that, if the children were returned to her they would be in danger of becoming neglected children ( see Social Services Law § 384-b [a]), and thus it is of no moment that they disagreed regarding the exact nature of that mental disease or condition. The "testimony and the accompanying records [are] sufficient to establish the `totality' of respondent's mental illness by clear and convincing evidence" ( Shane PP., 283 A.D.2d at 727; see Matter of Dylan K., 269 A.D.2d 826, 827, lv denied 95 N.Y.2d 766; Matter of Melissa R., 209 A.D.2d 155, 155-156, lv denied 85 N.Y.2d 803). Furthermore, the opinion of the third psychologist merely raised a question of credibility for the court to determine ( see Matter of Davis v. Davis, 240 A.D.2d 928, 930; see also Matter of Karen Y., 156 A.D.2d 823, 826, lv denied 75 N.Y.2d 710).
Respondent's further contention that the court erred in failing to conduct a separate dispositional hearing is not preserved for our review and, in any event, lacks merit ( see Matter of Paul W.R.M., 291 A.D.2d 919, 920; Matter of Robert XX., 290 A.D.2d 753, 755). We also reject the contention of respondent that she was denied effective assistance of counsel ( see Matter of Claudina Paradise Damaris B., 227 A.D.2d 135).