| Matter of Arielle Y. |
| 2009 NY Slip Op 02507 [61 AD3d 1061] |
| April 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of Arielle Y. and Another, Alleged to be the Childrenof a Mentally Ill Parent. Clinton County Department of Social Services, Respondent; Kara Y.,Appellant. (Proceeding No. 1.) In the Matter of Arielle Y. and Another, Alleged to be theChildren of a Mentally Ill Parent. Clinton County Department of Social Services, Respondent;Richard Y., Appellant. (Proceeding No. 2.) |
—[*1] Michelle I. Rosien, Albany, for Richard Y., appellant. John Dee, Clinton County Department of Social Services, Plattsburgh, for respondent. Francisco Berry, Law Guardian, Ithaca.
Rose, J. Appeals from two orders of the Family Court of Clinton County (Lawliss, J.),entered June 17, 2008, which granted petitioner's applications, in two proceedings pursuant toSocial Services Law § 384-b, to adjudicate respondents' children to be the children ofmentally ill parents, and terminated respondents' parental rights.
Respondents are the married, but separated, parents of two children (born in 2003 and 2005).Due to the parents' substance abuse and entry into inpatient treatment programs, they madearrangements for the children to be cared for by their relatives. In September 2006, when therelatives were no longer able to care for the children, petitioner took custody of them and filedneglect petitions alleging primarily that the parents had abused drugs while the children were intheir care. After the parents consented to a finding of neglect without admitting any specificwrongdoing, Family Court entered dispositional orders and orders of protection that, amongother things, directed the parents to address their substance abuse and other issues throughcompliance with treatment programs and petitioner's services and recommendations. Bothparents violated the provisions regarding substance abuse and, as a result, spent considerabletime in jail during 2007. Neither parent received treatment for substance abuse—or anyother condition—while they were incarcerated. Just before the expiration of one year afterpetitioner took the children into its custody, Family Court changed their permanency plan toplacement for adoption and directed petitioner to commence proceedings within 45 days againstthe parents to terminate their parental rights. Within that time, petitioner filed such petitionsalleging only that the parents suffer from a mental illness, and Family Court then ordered theirexamination by Richard Liotta, a licensed psychologist. Following a joint fact-finding hearing atwhich Liotta testified that both parents had personality disorders, Family Court concluded that,due to mental illness, their children would be in danger of becoming neglected if they were everreturned to the parents' custody, and granted the petitions. The parents now appeal, and we agreewith their contention that petitioner failed to establish by clear and convincing proof that, due tomental illness, they are unable to provide proper care for their children.
Parental rights can be terminated and a child freed for adoption if "[t]he parent. . . [is] presently and for the foreseeable future unable, by reason of mental illnessor mental retardation, to provide proper and adequate care for a child" (Social Services Law§ 384-b [4] [c]; see Matter of Joyce T., 65 NY2d 39, 48 [1985]). Termination ofparental rights on this basis requires proof not only of the parent's underlying condition, but 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]; see Matter of Jenna KK., 50 AD3d 1216, 1217 [2008], lvdenied 11 NY3d 703 [2008]; Matter of Ashley L., 22 AD3d 915, 916 [2005]). The petitionerbears the burden of establishing each of these facts in issue by clear and convincing proof(see Family Ct Act § 622; Social Services Law § 384-b [3] [g] [i]; Matter of Natasha RR., 42 AD3d769, 771 [2007], lv denied 9 NY3d 812 [2007]), and "[t]here must be strictadherence to [this] statutory mandate" (Matter of Daniel Aaron D., 49 NY2d 788, 790[1980]). Because Liotta's testimony does not adequately particularize the harm that would befallthe children due to the parents' mental condition, as distinguished from the substance abuse thatcaused the original removal of the children, this rigorous standard has not been met here.
Liotta testified that he had interviewed each parent separately, administered diagnostic [*2]personality tests and reviewed records from various sources. Inaddition to describing their substance dependency and abuse, he diagnosed each as having apersonality disorder, not otherwise specified, with various borderline features. However, Liottadid not adequately specify how the mental illness of either parent, as opposed to their substanceabuse, would endanger the children's welfare. This deficiency was compounded by his failure totake into consideration the parents' recent abstinence. Further, Liotta conceded oncross-examination that the parents could benefit from treatment if they acknowledged theirproblems, and he did not opine that their mental illnesses would preclude them from being ableto care for the children in the foreseeable future (see Matter of Lina Catalina R., 21 AD3d 563, 564 [2005]). This isimportant here because, prior to Liotta's evaluation, neither parent had been diagnosed with amental illness by a psychologist or psychiatrist, recommended for psychiatric treatment orreceived any mental health treatment (compare Matter of Shane PP., 283 AD2d 725,727-728 [2001], lv denied 96 NY2d 720 [2001]).
Since termination of parental rights in proceedings such as these must be soundly based onthe mental illness of the parent, and here the evidence that mental illness alone would cause theparents to neglect their children was not clear and convincing, Family Court's determinationmust be set aside. This determination renders it unnecessary to consider the parents' remainingcontentions.
Cardona, P.J., Kane, Kavanagh and Stein, JJ., concur. Ordered that the orders are reversed,on the law and the facts, without costs, and matters remitted to the Family Court of ClintonCounty for further proceedings not inconsistent with this Court's decision.