| Matter of Jenna KK. |
| 2008 NY Slip Op 02931 [50 AD3d 1216] |
| April 3, 2008 |
| Appellate Division, Third Department |
| In the Matter of Jenna KK. and Others, Alleged to be the Childrenof a Mentally Ill Parent. Clinton County Department of Social Services, Respondent; Mark KK.,Appellant. |
—[*1] Christine G. Berry, Clinton County Department of Social Services, Plattsburgh, forrespondent. Marsha K. Purdue, Law Guardian, Glens Falls.
Stein, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.), enteredJanuary 17, 2007, which granted petitioner's application, in a proceeding pursuant to SocialServices Law § 384-b, to adjudicate respondent's children to be the children of a mentallyill parent, and terminated respondent's parental rights.
Respondent is the father of Jenna KK. (born in 2002), Logan KK. (born in 2003) and LibertyKK. (born in 2005). The children have continuously been in foster care since their removal fromtheir mother's care on July 5, 2005. At the time of the children's removal, respondent wasincarcerated in Connecticut for a parole violation (based on an underlying sex offenseconviction). Petitioner commenced this proceeding in July 2006 to terminate [*2]respondent's parental rights based upon respondent's mentalillness.[FN*] The petition alleged that respondent was mentally ill and that such condition rendered himunable, presently and for the foreseeable future, to provide proper and adequate care for hischildren. Following a hearing, Family Court sustained the petition and terminated respondent'sparental rights. Respondent appeals. We affirm.
To support a termination of parental rights on the ground of mental illness, the petitioningagency must demonstrate by clear and convincing evidence that the parent is "presently and forthe foreseeable future unable, by reason of mental illness . . . to provide proper andadequate care for [his or her] child[ren] who [have] been in the care of an authorized agency forthe period of one year immediately prior to the date on which the petition is filed in the court"(Social Services Law § 384-b [4] [c]; see Matter of Ashley L., 22 AD3d 915 [2005]). The proof mustinclude "testimony from appropriate medical witnesses particularizing how the parent's mentalillness affects his or her present and future ability to care for the child" (Matter of RobertXX., 290 AD2d 753, 754 [2002]).
Here, the testimony of Richard Liotta, a licensed psychologist, established that he met withand evaluated respondent, administered two diagnostic tests, reviewed files and documents fromvarious sources, and spoke with caseworkers, a probation officer and the psychologist atrespondent's sex offender treatment program. He then diagnosed respondent with the following:delusional disorder, persecutory type; pedophilia, nonexclusive type; and personality disorder,not otherwise specified, with prominent antisocial characteristics and paranoid and narcissisticfeatures. He opined that respondent's mental illness has affected his present and future ability toprovide proper and adequate care for the children. Specifically, Liotta testified that respondent'sdelusional disorder could affect his judgment in caring for the children in that he might makeunwarranted assumptions regarding their motivation for behavior, hold grudges and act in acontrolling manner. Liotta further testified that respondent's antisocial personality disorder causesrespondent to disregard the safety and welfare of others, citing as examples respondent's priorconvictions for sex offenses and domestic violence. He also noted that respondent failed toacknowledge wrongdoing for the prior acts for which he was convicted.
Family Court was entitled to rely on petitioner's expert and to draw an adverse inferencefrom respondent's failure to testify on his own behalf (see Matter of Allen DD., 17 AD3d 740, 743 [2005], lvdenied 5 NY3d 704 [2005]). Giving due deference to Family Court's factual determinations,and in view of the absence of any contradictory expert evidence, petitioner's proof was sufficientto sustain the finding made by Family Court (see Matter of Michael WW., 29 AD3d 1105, 1106 [2006]; Matter of Alexis X., 23 AD3d 945[2005], lv denied 6 NY3d 710 [2006]).
We have considered respondent's claims of ineffective assistance of counsel and denial ofdue process and find them to be without merit (see People v Henry, 95 NY2d 563 [2000];[*3]People v Baldi, 54 NY2d 137 [1981]; Matter of Gregory AA., 20 AD3d726 [2005]; Matter of Jonathan LL., 294 AD2d 752 [2002]; People v Deets,188 AD2d 889 [1992]). Accordingly, the order of Family Court is affirmed.
Peters, J.P., Carpinello, Kane and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: At the time the petition wasfiled, respondent was incarcerated in Clinton County, awaiting sentencing on criminal charges ofunlawful imprisonment and endangering the welfare of a child, which stemmed from an incidentof domestic violence against the children's mother.