A mother who had been charged with being mentally ill (as defined in Social Services Law §384-b) has, through her counsel, argued that an expert medical report made by a physician from the opposition should be stricken, as it relies on inadmissible evidence. It has been alleged the children would be in danger of becoming neglected if returned to the mother’s care. In 2008, St. Lawrence County of Department of Social Services (SLCDSS) filed a petition to extend the mother's suspended judgment granted May 11, 2007, after the mother admitted she had permanently neglected the children and received a suspended judgment. Interestingly, at the same time, SLCDSS also filed a termination petition on the basis of mental illness.
SLCDSS could have chosen, but did not, to file a petition to revoke the mother's suspended judgment since it is alleged in the extension petition that the mother "is not equipped at this time or will she be in the foreseeable future to have the children returned home to her, because [she] lacks the intellectual functioning, emotional control, and problem-solving skills to properly parent the subject children." A suspended judgment can be revoked even where a "'parent's attempt to comply with the literal provisions of the suspended judgment is not enough'" (Matter of Darren V., 61 AD3d 986, 987 [2d Dep't 2009] quoting Matter of Jennifer VV., 241 AD2d 622 [3d Dep't 1997]). On a petition to revoke a suspended judgment the burden is on the parent to establish that "progress has been made to overcome the specific problems which led to the removal of the child" (Matter of Jennifer VV., 241 AD2d at 623). The Court finds the issue to be moot because the Court could have only granted the extension for one (1) year and such year would have since expired. For reasons unknown to the Court, SLCDSS chose instead to move to terminate Respondent's parental rights on the basis of mental illness.
The father's parental rights were terminated December 23, 2009, on the basis of his mental illness. The Court is taking judicial notice of its prior proceedings involving the father and the mother and these children (see Matter of Anjoulic J., 18 Ad3d 984 [3d Dep't 2005]). The children have been in SLCDSS's continuous custody since October 13, 2005. Prior to 2005, the parents were charged in 2002 with the neglect of their two (2) older children (the youngest was not yet born) because of injuries another child sustained while in the mother's care. In 2002, the mother's nephew suffered bruises on both sides of his face and on the back of his head. On August 20, 2002, the mother admitted that her nephew sustained injuries while in her care "of such a nature that would ordinarily not be sustained except by reason of [the mother's] acts" (Order of Fact-Finding dated August 20, 2002). As a result of her actions, the mother's children were put at risk of similar neglect.
The mother's attorney, Christopher Curley, Esq., argues Dr. Danser's report should be stricken because it relies on inadmissible evidence, facts not in evidence and its remoteness in time. In fact, Dr. Danser relied upon SLCDSS's records from 2003 — 2005 that were not admitted into evidence, and he relied upon the agency's unredacted record from 2005 — 2007. (Only SLCDSS's redacted record was admitted into evidence).
Conclusions of Law
In a termination of parental rights on the basis of mental illness, the petitioning agency must establish through clear and convincing evidence that the respondent suffers from mental illness, and that by reason of that mental illness, she "'is presently, and will continue for the foreseeable future to be, unable to provide proper and adequate care for the children'" (Matter of Michael WW., 29 AD3d 1105, 1106 [3d Dep't 2006]) (citations omitted). The agency must also show that the children have been in foster care for a period of one year prior to the filing of the termination petition (see Matter of Jenna KK., 50 AD3d 1216 [3d Dep't 2008]) (citations omitted). The proof must include testimony from an expert "particularizing how the parent's mental illness affects his or her present and future ability to care for the child[ren]" (Id at 1216) (quotation omitted). A mental illness is defined as "an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that if such child were placed in or returned to the custody of the parent, the child would be in danger of becoming a neglected child as defined in the family court act" (Social Services Law §384-b [6] [a]).
In this case, two expert witnesses testified that the Respondent/mother suffered from Depressive Disorder not otherwise specified and a personality disorder and with Borderline Intellectual Functioning. Dr. Danser indicated the mother suffered from Depressive Disorder, Borderline Intellectual Functioning, and Dependent Personality Disorder; Dr. Liotta diagnosed the mother with a Depressive Disorder and a Personality Disorder not otherwise specified with dependent and borderline features. Her therapist, Ms. VanBuskirk, contended the mother's diagnosis was Adjustment Disorder with mixed anxiety and depressed mood. Based upon the length of the mother's treatment and her ongoing problems, Dr. Liotta believed his diagnosis was the better one. Both experts stated that further treatment would not improve the mother's situation. Both also stated that the mother would not be able to parent her children now or for the foreseeable future.
In his first report, Dr. Liotta qualified his opinion to state it was based upon the mother's current situation of being involved with the father. In concluding his report, Dr. Liotta stated "if [the mother] can mobilize herself to make different choices…the prognosis for the foreseeable future could change substantially. If she does make different choices than how she does could be assessed after a reasonable period of time" (Petitioner's Exhibit # 17). At the time the mother testified, however, she claimed she had made different choices—she was living separate and apart from the father prompting this Court to order an updated evaluation.
After his second evaluation, Dr. Liotta determined the mother could not parent her children now or in the foreseeable future because her mental illness interferes with her ability to care for her children. Plus, he no longer distinguished the mother's situation. He continues to believe the mother has some strengths and loves her children. He believes, however, that the children would be at risk because the mother's "emotions can be volatile, reactive, and extreme" (Petitioner's Exhibit # 18). While it is true that the mother's anger has been somewhat controlled since the incident at the police station in 2005, the Court is mindful that the mother has only had supervised contact with her children since 2005. The record, however, is replete with examples of her inappropriate behavior (see fact-finding above).
Dr. Liotta also was able to particularize how the mother's mental illness would impact the children's care. He believed the mother's volatility was still an issue. He opined that the mother would be able to control her emotions for some time, but at some point would lash out inappropriately. The mother fails to have any insight about the inappropriateness of her outbursts with SLCDSS and of how angry she becomes. Dr. Liotta also opined that the mother would have difficulty parenting her children because she wants to be their "friend" and she shares adult concerns with her children (even though she is ordered not to discuss the children's placement with them). The mother has very little tolerance to stress and as a result could not deal with unforeseen problems.
He further observed that the mother has had other parenting problems. She was observed to have difficulty attending to all of her children during her supervised visits and A.D. manipulates her. It is of concern that if the mother cannot provide the children with structure and discipline during supervised visits that these issues would be exacerbated if the children were returned to her care which would lead to increased stress for the mother causing her to react with anger. Dr. Danser also believed the mother would be unable to provide the children with the appropriate structure if they were returned to her care.
The Court also credits Dr. Danser's testimony. He found the mother to suffer from dependency on the father. His opinion was based upon testing, an interview with the mother, one with the father and mother together, his review of the mother's mental health records and SLCDSS's records. Dr. Danser believed the mother's combination of disorders will impair her ability to provide appropriate structures for her children. She would not benefit from further treatment because it would not change her personality structure (see Fact-finding above).
The Court finds that based upon clear and convincing evidence that the petitioning agency has shown that the Respondent for now and for the foreseeable future will be unable to care for her children due to her mental illness (see Matter of Jenna KK., 50 Ad3d 1216 [3d Dep't 2008]; Matter of Alexis X., 23 AD3d 945 [3d Dep't 2005], lv denied 6 NY3d 710 [2006]). The mother testified but did not offer any expert witness in rebuttal to the experts who testified. Therefore, the Court finds SLCDSS has satisfied its burden of proof (see Matter of Alexis X., 23 AD3d 945; Matter of Jenna KK., 50 AD3d at 1216). The Court does find this case to be distinguishable from Matter of Arielle Y., 61 AD3d 1061 [3d Dep't 2009] where the family court's decision to terminate parental rights on the basis of mental illness was overturned. Here, prior to Dr. Liotta's opinion, the mother had been diagnosed with a mental illness. Furthermore, each expert did particularize how the mother's mental illness would impair her ability to care for her children. In a more recent and similar case, the Appellate Division, Third Department affirmed a family court's decision to terminate parental rights on the basis of mental illness (see Matter of Karen GG v. Clinton County Department of Social Services, NY Slip Op 507127 [2010]).
The Court further finds that these children have been in care well in excess of one (1) year prior to the petition being filed; they have been in foster care since October 2005. Respondent's counsel requested a dispositional hearing in this matter. The Court finds that a dispositional hearing in this matter is not statutorily mandated, nor is one necessary (see Social Services Law §384-b; see also Matter of Tiffany S., 302 AD2d 758 [3d Dep't 2003]; cf. Matter of Josh M., 61 Ad3d 1366 [4th Dep't 2009]).
The Court, having made examination and inquiry into the facts and circumstances of the case and into the surroundings, conditions and capacities of the persons involved in the proceeding, finds that the best interests of the children require the disposition made below.
NOW, THEREFORE, it is
ORDERED that A.D., M.D. and M.D., are children whose parent cannot provide proper care by reason of mental illness as defined in subdivision six of section 384-b of the Social Services Law; and it is further
ORDERED that Karen D.'s parental rights to A.D., M.D. and M.D. are hereby terminated; and it is further
ORDERED that a certified copy of this order shall be filed for recording at the Office of the County Clerk in accordance with the provisions of Section 384-b of the Social Services Law; and it is further
ORDERED that if the children remain in the custody and guardianship of the authorized agency or foster parent, the next permanency hearing shall be held on, June 22, 2010, at 10:00 AM; and it is further
ORDERED that Petitioner shall transmit notice of the hearing an a permanency report no later than fourteen (14) days prior to the Permanency Hearing date to all remaining parties, attorneys, law guardian and any pre-adoptive parent or relative providing care to the children and, unless dispensed with by the Court, and shall transmit notice of the hearing to a former foster parent(s) who have had care of the children in excess of 12 months.
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