Brian D. Perskin & Associates

Evidence is Everything in Mental Illness Case

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] quotingMatter 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).

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