New York Appellate Division Reports

MATTER OF KAHLIL S. v. MAMIE W.-K., CAF 05-01467 [4th Dept
12-22-2006] 2006 NY Slip Op 09742 MATTER OF KAHLIL S. ERIE
COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT; v. MAMIE W.-K., RESPONDENT-APPELLANT.
(APPEAL NO. 1.). CAF 05-01467. Appellate Division of the
Supreme Court of New York, Fourth Department. Decided on
December 22, 2006.

Appeal from an order of the Family Court, Erie County
(Kevin M. Carter, J.), entered May 18, 2005 in a proceeding
pursuant to Social Services Law § 384-b. The order
adjudged that Kahlil S. is a child whose parent is
presently and for the foreseeable future unable, by reason
of mental illness, to provide proper and adequate care for
her child, transferred the guardianship and custody rights
of respondent to petitioner and authorized petitioner to
consent to the adoption of the child.

EVELYNE A. O’SULLIVAN, BUFFALO, FOR RESPONDENT-APPELLANT.

JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.

DAVID C. SCHOPP, LAW GUARDIAN, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL),
FOR KAHLIL S.

PRESENT: SCUDDER, J.P., KEHOE, GORSKI, SMITH, AND PINE, JJ.

It is hereby ORDERED that the order so appealed from be and
the same hereby is modified on the law by remitting the
matter to Family Court, Erie County, for a hearing in
accordance with the Memorandum and as modified the order is
affirmed without costs.

Memorandum: Respondent contends in each appeal that Family
Court erred in terminating her parental rights with respect
to her two children because petitioner failed to establish
that she is presently and for the foreseeable future
unable, by reason of mental illness, to provide proper and
adequate care for the children (see Social Services Law
§ 384-b [4] [c]). We reject that contention.
Petitioner presented the requisite clear and convincing
evidence establishing that respondent is suffering from
mental illness “to such an extent that if [the children]
were placed in or returned to the custody of [respondent],
[they] would be in danger of becoming . . . neglected
child[ren]” (§ 384-b [6] [a]; see Matter of Stephen
B., 176 AD2d 1204, 1205, lv denied 79 NY2d 752, appeal
dismissed 79 NY2d 914). Contrary to respondent’s further
contention, the court was not required to conduct a
separate dispositional hearing (see generally Matter of
Joyce T., 65 NY2d 39, 41-42).

We recognize, however, that the termination of the parental
rights of a biological parent results in an abrupt and
complete cessation of contact between a child and the
parent, and that “psychological harm . . . may possibly
result from severing the bonds between a child and his or
her biological parent, particularly where the child is older
and has strong emotional attachments to the birth family”
(Matter of Gregory B., 74 NY2d 77, 90). We conclude that,
in the event that parental rights are terminated after a
finding that the parent is unable by reason of mental
illness or mental retardation to provide proper and adequate
care for his or her child or after a finding of permanent
neglect (see Social Services Law § 384-b [4] [c],
[d]), Family Court may, in those cases in which the court
deems it appropriate, exercise its discretion in
determining whether some form of posttermination contact
with the biological parent is in the best interests of the
child (cf. Matter of Labron P., 23 AD3d 943, 945; Matter of
April S., 307 AD2d 204, 204-205, lv denied 1 NY3d 504; see
generally Family Ct Act § 634; Matter of Jessica
Marie Q., 303 AD2d 512, 514, lv denied 100 NY2d 507). To
the extent that our decisions in Matter of Kenneth D. (32
AD3d 1237) and Matter of Livingston County Dept. of Social
Servs. v Tracy T. (16 AD3d 1133) hold otherwise, they are
no longer to be followed. We therefore modify the orders by
remitting these matters to Family Court for a hearing to
determine whether posttermination contact between
respondent and her children is in the best interests of the
children (cf. Joyce T., 65 NY2d at 46 n 2; Stephen B., 176
AD2d at 1205; see generally Matter of Corinthian Marie S.,
297 AD2d 382). We note that, in determining the best
interests of the children, the court may consider, inter
alia, the ages of the children, the bond between respondent
and the children, and the likelihood that the children will
be adopted.

All concur, Kehoe, J., not participating.