| Matter of Darren HH. (Amber HH.) |
| 2010 NY Slip Op 02695 [72 AD3d 1147] |
| April 1, 2010 |
| Appellate Division, Third Department |
In the Matter of Darren HH., aNeglected Child. Clinton County Department of Social Services, Respondent; Amber HH. et al.,Appellants. (Proceeding No. 1.) In the Matter of Dakota II. and Others, Alleged to be theChildren of a Mentally Ill Parent. Clinton County Department of Social Services, Respondent;Amber HH., Appellant. (Proceeding No. 2.) In the Matter of Destiny HH. and Others, Alleged tobe the Children of a Mentally Ill Parent. Clinton County Department of Social Services,Respondent; Rolland HH., Appellant. (Proceeding No. 3.)—[*1] Paul J. Connolly, Delmar, for Rolland HH., appellant. Van Crockett, Clinton County Department of Social Services, Plattsburgh, for respondent. Natalie B. Miner, Law Guardian, Homer.
Stein, J. Appeals (1) from three orders of the Family Court of Clinton County (Lawliss, J.),entered March 27, 2009, which, among other things, granted petitioner's application, inproceeding No. 1 pursuant to Family Ct Act article 10-A, to approve petitioner's permanencyplan, and (2) from two orders of said court, entered March 30, 2009, which, among other things,granted petitioner's applications, in proceedings Nos. 2 and 3 pursuant to Social Services Law§ 384-b, to adjudicate the subject children to be the children of mentally ill parents, andterminated respondents' parental rights.
Respondent Amber HH. (hereinafter the mother) is the mother of five children (born in 1999,2001, 2003, 2006 and 2008). Her husband, respondent Rolland HH. (hereinafter the father), isthe father of the four youngest children. In 2004, the father pleaded guilty to one count ofendangering the welfare of a child in satisfaction of criminal charges alleging, among otherthings, that he engaged in sexual intercourse with the mother's then 14-year-old sister. Due, inpart, to such conduct and to the mother's refusal to acknowledge the father's behavior or itspotentially injurious effect on her children, the four oldest children were removed from theirhome in June 2007. Following fact-finding and dispositional hearings held later that year, thechildren were found to be neglected. The children have remained in petitioner's custody sincetheir initial removal from the home. Likewise, the mother's youngest child was placed in fostercare immediately after his birth and was later found to be neglected (see Matter of Darren HH. [AmberHH.], 68 AD3d 1197 [2009], lv denied 14 NY3d 703 [2010]).[FN*] In August 2008, the father was found guilty of two counts of forcible touching and endangeringthe welfare of a child. Those charges related to an incident in 2005 wherein he placed his handsdown the pants of his then three-year-old daughter and of the mother's then 11-year-old sister.
After directing that the mother and father undergo mental health evaluations and [*2]conducting a joint hearing, Family Court determined, in proceedingNos. 2 and 3, that both parents were incapable, by reason of mental illness, of providingadequate care for their respective children and terminated their parental rights. The mother andfather separately appeal. Contrary to their contentions, we are satisfied that petitioner met itsburden of proving by clear and convincing evidence that they are unable, now and for theforeseeable future, to provide proper and adequate care for their children by reason of mentalillness (see Social Services Law § 384-b [4] [c]; Matter of Arielle Y., 61 AD3d1061, 1062 [2009]) and we, therefore, affirm.
The only testimony presented at the hearing was that of Richard Liotta, a licensedpsychologist, who interviewed both the mother and the father and administered psychologicaltests to them (see Social Services Law § 384-b [6] [c]). Liotta's opinion that boththe mother and the father were mentally ill and that such mental illness affected their ability toparent now and in the foreseeable future was based on his interviews and review of testingresults, as well as relevant documents, including previous mental health evaluations, courtfindings, a school psycho-educational report from the mother's childhood and various recordsprovided by petitioner.
With respect to the mother, Liotta testified that she suffered from a personality disorder nototherwise specified with dependent, antisocial narcissistic features, as well as an anxiety disordernot otherwise specified with a history of posttraumatic stress disorder symptoms, borderlineintellectual functioning and a learning disorder not otherwise specified. Notably, Liotta opinedthat the mother's mental illness diminished her ability to parent by, among other things,interfering with her capacity to be empathetic towards her children and to make good decisionsand appropriate judgments due to her tendency to minimize, deny or distort information (see Matter of Casey L. [Joseph L.], 68AD3d 1497, 1498-1499 [2009]; Matter of Jenna KK., 50 AD3d 1216, 1217 [2008], lvdenied 11 NY3d 703 [2008]; Matter of Ashley L., 22 AD3d 915, 916 [2005]). For example,despite the father's signed confession in 2004 regarding his sexual relationship with her sisterand his 2008 convictions, the mother continued to deny that he was a threat to her children andmaintained a relationship with him. Although Liotta acknowledged that the mother's insight hadshown some recent improvement, he questioned the sincerity and lasting effect of suchimprovement and maintained that she had made no progress with regard to other deficiencies,such as her ability to multitask, show empathy for her children, follow petitioner'srecommendations or adhere to court directives. He also opined that it would be very difficult forher to change those characteristics. Contrary to the mother's contention, Family Court wasentitled to rely on Liotta's testimony and to draw an adverse inference from the mother's failureto testify on her own behalf (see Matter of Jenna KK., 50 AD3d at 1217; Matter of Allen DD., 17 AD3d740, 743 [2005], lv denied 5 NY3d 704 [2005]; Matter of Shawna U., 277AD2d 731, 733 [2000]). To the extent that Liotta relied on information provided by petitioner,such reliance merely affected the weight to be accorded his opinion (see Matter of Donald W., 17 AD3d728, 729 [2005], lv denied 5 NY3d 705 [2005]).
As to the father, Liotta diagnosed him with pedophilia non-exclusive type, personalitydisorder not otherwise specified with antisocial features and borderline intellectual functioning.Liotta testified that the father's personality disorder is characterized by impulsivity, a tendency toplace his own needs above those of others and the failure to consider the welfare of others, adisregard for consequences and an overall lack of conscience. He further opined that thosequalities were exacerbated by the father's pedophilia and that there was a diminished likelihoodof improvement based on the manner in which the two disorders work in conjunction with oneanother. Significantly, Liotta emphasized that the father's adamant denial of any wrongdoing orconcerns about his behavior makes it virtually impossible to treat his disorders.
Giving due deference to Family Court's factual determinations, and in view of the [*3]absence of any contradictory expert evidence, we find thatpetitioner's proof was sufficient to sustain Family Court's determination to terminate the parentalrights of the mother and the father on the basis that their mental illness renders them unable toprovide adequate care for their children now and for the foreseeable future (see Matter of Michael WW., 29 AD3d1105, 1106 [2006]; Matter ofAlexis X., 23 AD3d 945 [2005], lv denied 6 NY3d 710 [2006]; Matter ofDonald W., 17 AD3d at 729).
The remaining contentions of the parties have been considered and found to be withoutmerit.
Mercure, J.P., Spain, Rose and Lahtinen, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote *: In proceeding No. 1, FamilyCourt approved petitioner's permanency plan for this child and issued orders of protectionagainst the mother and father on behalf of the child. Inasmuch as neither parent's brief raises anyissues with regard to such permanency plan or orders of protection, their appeals therefrom aredeemed abandoned (see Matter of Genasia C., 267 AD2d 893, 894 [1999]; Matter ofRandy K. v Evelyn ZZ., 263 AD2d 624, 624 n 2 [1999]).