| Matter of Casey L. (Joseph L.) |
| 2009 NY Slip Op 09579 [68 AD3d 1497] |
| December 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Casey L., Alleged to be the Child of a Mentally IllParent. Clinton County Department of Social Services, Respondent; Joseph L.,Appellant. |
—[*1] Christine G. Peters, Clinton County Department of Social Services, Plattsburgh, forrespondent. Steven J. Getman, Law Guardian, Ovid.
Lahtinen, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.),entered April 21, 2009, which granted petitioner's application, in a proceeding pursuant to SocialServices Law § 384-b, to adjudicate respondent's child to be the child of a mentally illparent, and terminated respondent's parental rights.
Respondent, the father of a son born in 2003, has been prevented by orders of protectionfrom contact with the child since very shortly after his birth. During much of that period,respondent has been in jail as a result of his conviction of possessing an obscene sexualperformance by a child. Respondent's child has been in foster care for all but about a month sinceOctober 2006 and, in June 2008, the mother signed a judicial surrender of her parental rights.Thereafter, petitioner commenced this proceeding seeking to terminate respondent's parentalrights upon the ground of mental illness. Following a hearing, Family Court granted the petitionand terminated respondent's parental rights, freeing the child for adoption. Respondent appeals.[*2]
Initially, respondent contends that he was deprived of hisdue process right to be heard, and he cites in support of this contention the well-settled law that aparent generally has a right to be present at every stage of a proceeding implicating thetermination of parental rights (see e.g. Matter of Patricia C., 63 AD3d 1710, 1711[2009]; Matter of Juleeana ZZ., 37 AD3d 995, 996 [2007], lv denied 8 NY3d814 [2007]; Matter of Elizabeth T., 3 AD3d 751, 753 [2004]). Here, respondent waspresent at the hearing, his counsel had a full opportunity to cross-examine petitioner's witnessesand to present favorable proof and, in fact, respondent elected to testify. Nevertheless,respondent asserts that the manner in which his court-ordered psychological evaluation wasperformed by Richard Liotta, a licensed psychologist, violated due process. Liotta conducted aface-to-face interview with respondent in June 2008 and a follow-up telephonic interview inJanuary 2009. Liotta reviewed a host of potentially pertinent documents regarding respondent'smental health. Liotta's lengthy report was received into evidence at the hearing withoutobjection. Liotta was present at the hearing, he testified, and he was cross-examined byrespondent's counsel, who had a full opportunity to explore the alleged deficiencies in the report.Moreover, respondent's own testimony established that the manner in which the interviews wereconducted did not, as now claimed on appeal, deprive him of a fair opportunity to be heard.Respondent's due process argument is unpersuasive.
Next, respondent argues that the proof was inadequate to terminate his parental rights."Parental rights may be terminated if it is established by clear and convincing evidence thatrespondent 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 Evelyn B., 37 AD3d 991, 992 [2007], quoting SocialServices Law § 384-b [4] [c]). The element of the child being in the care of an authorizedagency for requisite time is not challenged. As for respondent's mental infirmity, Liotta testifiedto a reasonable degree of professional certainty that respondent is afflicted with a mental illnessthat renders him now, and for the foreseeable future, unable to care for his child. He had, amongother things, interviewed respondent twice, administered a personality assessment inventory test,and reviewed a variety of mental health information pertaining to respondent, dating back to theearly 1980s. He considered an earlier forensic evaluation from 2004 and information from thesex offender program with which respondent was treated. Prior criminal and family courtproceedings involving respondent were reviewed, as well as letters he had written to theDepartment of Social Services while in jail.
Respondent's history included grooming and sodomizing a 12-year-old boy, andmasturbating while watching pornography in the presence of a four year old. His most recentincarceration resulted from possessing a film where a male child was performing a sex act on thechild's parent. Liotta's diagnosis of respondent included, among other things, pedophilia andantisocial personality disorder. Liotta stated that respondent took little responsibility for hisactions, blamed others and minimized his behavior. He opined that respondent is a high risk forfuture sex offenses. According deference to Family Court's assessment of credibility, includingits finding that Liotta's testimony was credible, we find that the record contains ample evidenceto support Family Court's determination (see Matter of Michael WW., 29 AD3d 1105,1106 [2006]).
Cardona, P.J., Mercure, Spain and Kane, JJ., concur. Ordered that the order is affirmed,without costs.