| Matter of Shawndalaya II. |
| 2007 NY Slip Op 10004 [46 AD3d 1172] |
| December 20, 2007 |
| Appellate Division, Third Department |
| In the Matter of Shawndalaya II., Alleged to be the Child of aMentally Ill Parent. Clinton County Department of Social Services, Respondent; Jamella II.,Appellant. |
—[*1] Christine G. Berry, Clinton County Department of Social Services, Plattsburgh, forrespondent. Joseph A. Nalli, Law Guardian, Fort Plain.
Spain, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.), enteredMay 2, 2007, which granted petitioner's application, in a proceeding pursuant to Social ServicesLaw § 384-b, to adjudicate respondent's child to be the child of a mentally ill parent, andterminated respondent's parental rights.
Respondent's daughter, Shawndalaya II. (born in 1992), was removed from respondent'scustody and placed in foster care in 2004 because, among other things, she was not attendingschool. Following the child's removal from respondent's home, she was adjudicated as neglectedby respondent in a Family Court order which was affirmed by this Court (Matter of Shawndalaya II., 31 AD3d823 [2006], lv denied 7 NY3d 714 [2006]). Thereafter, petitioner commenced thisproceeding pursuant to Social Services Law § 384-b to terminate respondent's parentalrights [*2]based on her mental illness.
At the fact-finding hearing, a licensed clinical psychologist testified as to respondent'scondition. Additionally, in a lengthy and detailed report prepared by the psychologist andreceived in evidence without objection, he opined, within a reasonable degree of professionalcertainty, that respondent suffers from, among other things, schizoaffective disorder. As a resultof the disorder, she is unable, presently and for the foreseeable future, to provide proper andadequate care for her daughter. Testimony was also heard from the Clinton County foster carecaseworker assigned to the case and from respondent herself.
Respondent testified that she left Clinton County after her daughter was removed from hercare and settled in Youngstown, Ohio—where she was living by herself at the time of thehearing—to be near her mother. She described the conditions of her residence andintroduced photographs of her home into evidence. She stated that she had a job but—atthe time of the hearing—was unemployed, and that she receives counseling and therapy forbipolar disorder, has attended parenting classes, and speaks with her daughter once or twice permonth. Further, she testified that she would be willing to undergo daily outpatient treatment forher mental illness and would take her medication as necessary if Family Court so directed her. Atthe end of her testimony, respondent was permitted, without objection, to read a statement intothe record, which—essentially—expressed to the court that her situation hadimproved and urged the court to return the child to her custody.
At the conclusion of the hearing, Family Court credited the testimony of the psychologist andthe caseworker and found respondent to be mentally ill. More specifically, Family Court foundthat respondent suffers from schizoaffective disorder, bipolar disorder and a personality disordernot otherwise specified with histrionic, paranoid and narcissistic features, and that this mentalillness prevented respondent from being able to provide proper care for her daughter presentlyand for the foreseeable future. The court made an order terminating respondent's parental rightson the ground of mental illness and transferred the daughter's custody to petitioner to be freed foradoption. Respondent now appeals.
We affirm. Petitioner was required to prove by clear and convincing evidence that, by reasonof her mental illness, respondent is presently and for the foreseeable future unable to provideproper and adequate care for her daughter (see Social Services Law § 384-b [4] [c];see also Matter of Alexis X., 23AD3d 945, 946 [2005], lv denied 6 NY3d 710 [2006]; Matter of Robert XX.,290 AD2d 753, 754-755 [2002]). Here, the psychologist's lengthy report, testimony and opinionswere based on his two-hour, in-person interview of respondent, an MMPI-2 personality test thathe administered to her, contact with the foster care caseworker, and brief contact withrespondent's 2006 treating psychiatrist. They were also based upon an extensive review ofrespondent's mental health records, including her previous hospitalizations, past court findings,social services reports, and letters that respondent had written to her daughter.
Respondent's contention that petitioner did not meet its burden is without merit. While, oncross-examination, the psychologist responded, "yes," to counsel's question, "you'rejust—you're making your best guess. Isn't that fair to say?" regarding his opinion as torespondent's ability to care for her daughter in the foreseeable future, the psychologistspecifically testified that respondent is not capable of improving her condition because she"jumps around to different providers" and because "there are barriers in my estimation to thelikelihood that she would [*3]follow through with the level oftreatment that she would need even if it were offered." More specifically, regarding the likelystatus of respondent's condition for the foreseeable future, the psychologist opined that: "the typeof condition that [respondent] has, schizoaffective disorder, is a chronic condition which needs tobe managed on a quite regular basis . . . The likelihood of . . . relapseor reoccurrence of severe psychiatric symptoms is more likely in her case given her limitedinsight into her condition, her not fully following through with treatment, and her avoidinghigher levels of treatment which would be of a benefit to her." Moreover, in the conclusionsection of his lengthy and detailed report, the psychologist opined that it is unlikely thatrespondent would be able to successfully participate in long-term intensive treatment, which isnecessary for her improvement, stating: "It is my impression that she would resist [treatment]quite strongly. She has a difficult time even staying put in one place. Her participation inoutpatient treatment has not been sufficient[,] [t]ypically receiving medication from a psychiatristand not participating in therapy. She has lapses in her medication compliance. She is not alwaysforthcoming with providers . . . [and] her behavior does not suggest that she canmobilize herself on a consistent basis." The psychologist further concluded "that now and for theforeseeable future [respondent] will be unable to care for her daughter . . .adequately due to her mental illness." Moreover, he testified that his opinions were made withina reasonable degree of professional certainty. Therefore, based on the complete record before us,the psychologist's minimal concession on cross-examination did not undermine his otherwiseconsistent opinion that respondent is "unable, by reason of mental illness . . . toprovide proper and adequate care for [her daughter]" in the "foreseeable future" (Social ServicesLaw § 384-b [4] [c]).
Accordingly, given the testimony of the caseworker and the testimony and report of thepsychologist which was based upon his extensive review of all the information available to himalong with his first-hand evaluation, and according due deference to Family Court as the trier offact, clear and convincing evidence supports the court's findings and conclusions in this case (see Matter of Evelyn B., 37 AD3d991, 992-993 [2007]; Matter ofMichael WW., 29 AD3d 1105, 1106 [2006]; Matter of Chelsea KK., 28 AD3d 849, 850-852 [2006], lvdenied 7 NY3d 704 [2006]; Matter of Alexis X., 23 AD3d at 947; Matter of Ashley L., 22 AD3d915, 916 [2005]).
Crew III, J.P., Peters, Carpinello and Mugglin, JJ., concur. Ordered that the order is affirmed,without costs.