| Matter of Anthony WW. (Michael WW.) |
| 2011 NY Slip Op 05822 [86 AD3d 654] |
| July 7, 2011 |
| Appellate Division, Third Department |
| In the Matter of Anthony WW. and Others, Alleged to be theChildren of a Mentally Ill Parent. St. Lawrence County Department of Social Services,Respondent; Michael WW., Appellant. (And Another RelatedProceeding.) |
—[*1] David D. Willer, St. Lawrence County Department of Social Services, Canton, forrespondent. Omshanti Parnes, Plattsburgh, attorney for the children.
Kavanagh, J. Appeal from an order of the Family Court of St. Lawrence County (Potter, J.),entered January 12, 2010, which, among other things, granted petitioner's application, in aproceeding pursuant to Social Services Law § 384-b, to adjudicate respondent's children tobe the children of a mentally ill parent, and terminated respondent's parental rights.
Respondent and Karen WW. (hereinafter the mother) are married and have three children,Anthony WW., Mary WW. and Madison WW. (born in 1999, 2001 and 2003, respectively). In2002, Family Court found that the mother had neglected two of the children and an order ofsupervision was entered against both her and respondent. In 2003, all three children were placedwith petitioner after Anthony was found wandering in a nearby park and the mother admitted thatshe had left the boy alone outside the house unsupervised. The children remained in petitioner'scare for almost two years before they were returned to respondent and the mother. [*2]In October 2005, Anthony again wandered away from homeunsupervised, and was on his own for several hours without either respondent or the motherreporting that he was missing. Once again, the children were removed from the home and bothparents were found to have violated the order of supervision. After respondent and the motherapparently admitted that they had permanently neglected the children, a finding of permanentneglect was entered against them and a judgment to that effect was entered but suspended for oneyear.
In January 2008, during the period of suspension, petitioner commenced this proceedingseeking to terminate respondent's parental rights, not because he had violated any of the terms ofthe suspension, but because he allegedly suffers from a mental illness that prevents him fromproviding proper care for the children.[FN1]One month later, while the termination proceeding was pending, petitioner filed a petitionseeking an extension of the suspended judgment. A trial was subsequently conducted and FamilyCourt ultimately terminated respondent's parental rights on the ground that he suffered from amental illness that prevented him from providing proper care for his children (see SocialServices Law § 384-b).[FN2]Respondent now appeals.
"Parental rights may be terminated if it is established by clear and convincing evidence that[the] respondent is 'presently and for the foreseeable future unable, by reason of mental illness. . . to provide proper and adequate care for a child who has been in the care of anauthorized agency for the period of one year immediately prior to the date on which the petitionis filed in the court' " (Matter of EvelynB., 37 AD3d 991, 992 [2007], quoting Social Services Law § 384-b [4] [c]; accord Matter of Karen GG. [MarlineHH.], 72 AD3d 1156, 1157-1158 [2010], lv denied 14 NY3d 713 [2010]; Matter of Casey L. [Joseph L.], 68AD3d 1497, 1498-1499 [2009]).[FN3]"Termination of parental rights on this basis requires proof not only of the parent's underlyingcondition, but must include 'testimony from appropriate medical witnesses particularizing howthe parent's mental illness affects his or her present and future ability to care for the child' " (Matter of Arielle Y., 61 AD3d1061, 1062 [2009], quoting Matter of Robert XX., 290 AD2d 753, 754 [2002];see Matter of Karen GG. [Marline HH.], 72 AD3d at 1158).
To that end, petitioner presented the testimony and reports of Richard Liotta and DonaldDanser, both of whom are licensed psychologists who examined respondent—Liotta by[*3]order of Family Court and Danser per petitioner's request.Respondent contends that both psychologists relied on inadmissible hearsay in preparing theirreports and in arriving at their final opinions, and that since Family Court's decision terminatinghis parental rights was based in large measure on their reports and trial testimony, it must bereversed.
Specifically, respondent argues that both psychologists, in their reports and in their trialtestimony, made reference to statements about respondent attributed to other witnesses who didnot testify at trial, none of which was admitted into evidence or was otherwise qualified foradmission pursuant to a recognized exception to the rule against hearsay. To the contrary,petitioner contends that both opinions were properly admitted and were either "based on facts inthe record or personally known to the witness" (Hambsch v New York City Tr. Auth., 63NY2d 723, 725 [1984] [internal quotation marks and citation omitted]) or qualified as material "'of a kind accepted in the profession as reliable in forming a professional opinion' " (id. at726, quoting People v Sugden, 35 NY2d 453, 460 [1974]; accord Matter of Murphy v Woods, 63AD3d 1526, 1526 [2009]), and, as such, were properly admitted at trial.
In that regard, Danser testified that, in forming his opinion, he relied on his interview withrespondent, as well as the results of various psychological tests that he performed on him. Danseralso reviewed records that petitioner had on file regarding respondent, including case, progressand supervision notes, all of which were compiled during a four-year period beginning in2003,[FN4]as well as documents describing mental health treatment that respondent received during thistime period.
While Danser did not testify that this evidence was commonly relied upon in his professionto perform such an evaluation, Family Court determined that it was proper for him to refer to it,because some of this evidence was contained in the trial testimony given by other witnesses or inrecords that had been properly admitted into evidence at trial. However, the court didacknowledge that some of the references in Danser's report should not have been admitted and,for that reason, directed that a section of his report, entitled "Review of Records," be strickenbecause it referred to evidence that had not been admitted at trial. Significantly, Danser wasnever asked what impact this redacted evidence had on his evaluation of respondent and whateffect, if any, it had on his opinion regarding respondent's mental condition.[FN5]
Similar issues exist with Liotta's report and testimony, both of which were admitted intoevidence at trial. When he was first retained to perform his evaluation, Liotta was provided withpetitioner's complete file on respondent. Later, he was asked to return the file and then, [*4]pursuant to a court order, was provided with a limited record toreview. Liotta was also directed to limit his review to the records provided and not base hisevaluation on respondent's fitness as a parent on statements made by the mother about respondentor on any collateral interviews that he may have conducted with other individuals regardingrespondent. However, it is clear from the content of his report, as well as his testimony at trial,that Liotta, in forming his final opinion regarding respondent's fitness as a parent, relied onobservations of respondent made by his eldest son's mental health provider as well as onstatements made by the mother about respondent. In addition, Liotta's interviews withrespondent's caseworker and his current mental heath therapist are referenced in his report andobviously played a role in the opinion that he ultimately offered regarding respondent's mentalillness and its impact on his ability to be a parent. Like Danser, Liotta was never asked if thisevidence was normally relied on within his profession as appropriate for the performance of suchan evaluation and, while some of it was redacted, including any reference to his interview withthe mental health therapist, Liotta was never asked what impact this evidence had in formulatinghis final opinion as to respondent's fitness as a parent. As a result, a proper foundation was notlaid for the admission of the testimony of either psychologist or their reports (see generallyMatter of Leon RR, 48 NY2d 117, 122 [1979]; see also Matter of Murphy v Woods,63 AD3d at 1526; cf. People v Stone, 35 NY2d 69, 76 [1974]; Matter of Mohammad v Mohammad,23 AD3d 476, 476-477 [2005]). Without this evidence, Family Court's determination thatrespondent suffers from a mental illness that affected his ability to provide for his children wasnot supported by clear and convincing evidence and must be reversed.
Finally, we share Family Court's concern regarding petitioner's decision to seek terminationof respondent's parental rights based on the existence of a mental illness while the suspendedjudgment was still in full force and effect. What is particularly troubling about the process thatpetitioner employed is that it has made no claim that respondent did anything during the period ofsuspension that would warrant vacating it or, for that matter, justify the commencement of thisproceeding. To the contrary, it appears that respondent and the mother have made progress inplanning for their children's future and facilitating their return to the family home. With that inmind, we remind the parties that, by reversing Family Court's order in this proceeding, thepetition to extend the suspended judgment is no longer moot and is still pending.
Spain, J.P., Stein, Garry and Egan Jr., JJ., concur. Ordered that the order is reversed, on thelaw, without costs, termination petition dismissed, and matter remitted to the Family Court of St.Lawrence County for further proceedings not inconsistent with this Court's decision.
Footnote 1: Petitioner also commenced atermination proceeding against the mother on the same grounds (Matter of Anthony WW.[Karen WW.], 86 AD3d 662 [2011] [decided herewith]).
Footnote 2: When it rendered this finding,Family Court dismissed, as moot, the petition seeking an extension of the suspended judgment.
Footnote 3: Mental illness is defined as "anaffliction with a mental disease or mental condition which is manifested by a disorder ordisturbance in behavior, feeling, thinking or judgment to such an extent that if such child wereplaced in or returned to the custody of the parent, the child would be in danger of becoming aneglected child" (Social Services Law § 384-b [6] [a]; see Matter of Karen GG.[Marline HH.], 72 AD3d at 1157 n 2).
Footnote 4: A redacted version ofrespondent's records from 2005 through 2007 was admitted into evidence at the trial.
Footnote 5: We also note that Danser'sevaluation focused on respondent's ability to function and contained recommendations fortreatment. It was not performed for the specific purpose of determining whether respondent hadthe ability to provide an acceptable level of care for his children and, for that reason alone,should not have been admitted into evidence (see Social Services Law § 384-b).