| Matter of Karen GG. (Marline HH.) |
| 2010 NY Slip Op 02699 [72 AD3d 1156] |
| April 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Karen GG. and Another, Alleged to be the Children of a Mentally Ill and/or Mentally Retarded Parent and/or to be Permanently Neglected.Clinton County Department of Social Services, Respondent; Marline HH.,Appellant. |
—[*1] Michael J. Hartnett, Clinton County Department of Social Services, Plattsburgh, forrespondent. Marsha K. Purdue, Law Guardian, Glens Falls.
Cardona, P.J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.),entered March 27, 2009, which granted petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate respondents' children to be the children of amentally ill parent, and terminated respondent's parental rights.
Respondent is the mother of two young children, Karen GG. (born in 2003) and MichaelGG. (born in 2006), both of whom have special needs. In September 2006, a petition was filedalleging that respondent neglected the children and, in a November 2006 order, Family Court(McGill, J.) adjudicated the children to be neglected. At that time, the children were continued in[*2]respondent's custody and preventative services were providedto her. An order of protection was also entered providing that respondent comply with certainconditions such as, among other things, cooperating with the services, meeting the physicalneeds of her children and ensuring that the children's father, a registered sex offender, not beallowed within 1,000 feet of the children. Subsequently, in July 2007, a petition seekingmodification of the November 2006 order and order of protection was filed alleging thatrespondent had not complied with the terms of those orders by, among other things, allowing thechildren to be in their father's presence. Thereafter, in an order entered July 24, 2007, thechildren were removed from her custody and placed in foster care.
In September 2008, petitioner commenced this proceeding seeking to terminate respondent'sparental rights as to these children based upon her alleged mental illness.[FN1]As a result, Family Court (Lawliss, J.) ordered that respondent submit to a mental healthevaluation by Richard Liotta, a licensed clinical psychologist. Following a hearing, the courtdetermined that respondent was mentally ill and that condition rendered her unable, presentlyand for the foreseeable future, to provide adequate and proper care for the children. The courtgranted the petition and terminated respondent's parental rights.
Respondent maintains that petitioner's proof was insufficient to terminate her parental rightson the basis of mental illness.[FN2]Significantly, "[p]arental rights may be terminated if it is established by clear and convincingevidence that [the] respondent is presently and for the foreseeable future unable, by reason ofmental illness . . . to provide proper and adequate care for a child who has been inthe care of an authorized agency for the period of one year immediately prior to the date onwhich the petition is filed in the court" (Matter of Casey L. [Joseph L.], 68 AD3d 1497, 1498-1499 [2009][internal quotation marks and citation omitted]; see Social Services Law § 384-b[4] [c]; Matter of Joyce T., 65 NY2d 39, 44-45 [1985]). This ground requires proof notonly "of the underlying condition afflicting the parent, but also that such condition creates acurrent and future danger of the child not receiving proper and adequate care" (Matter ofHenry W., 31 AD3d at 941; seeMatter of Shawndalaya II., 46 AD3d 1172, 1174 [2007], lv denied 10 NY3d703 [2008]). The court must be presented with "testimony from appropriate medical witnessesparticularizing how the parent's mental illness affects his or her present and future ability to carefor the child" (Matter of Robert XX., 290 AD2d 753, 754 [2002]; see Matter of JoyceT., 65 NY2d at 46; Matter ofArielle Y., 61 AD3d 1061, 1062 [2009]; see also Social Services Law §384-b [6] [e]).[*3]
Here, Liotta's detailed report was admitted into evidencewithout objection, and Family Court took judicial notice of prior orders of fact-finding anddisposition concerning the neglect allegations. Furthermore, Liotta testified that, after reviewinginformation provided by petitioner—including background information, court orders,petitions, notes and mental health records—as well as examining respondent and speakingwith social workers, caseworkers and homemakers, respondent suffered from a mental illness asdefined by Social Services Law § 384-b (6) (a). Specifically, Liotta diagnosed respondentwith "[a] personality disorder not otherwise specified with dependant antisocial features and alsoborderline intellectual functioning." He also opined that she suffered from dysthymic disorder,i.e., "a longstanding chronic course of low to moderate level depression." Liotta opined that,while standing alone, dysthymic disorder might not preclude respondent from being able toadequately provide care, her personality disorder and its features, exacerbated by her borderlineintellectual functioning, negatively impacted her ability to problem solve, parent her children forthe immediate future or provide them with proper medical care given their significant specialneeds.
Moreover, Liotta testified that respondent's mental condition led to problems withinterpersonal functioning exemplified by, among other things, her decision to engage inrelationships with various sex offenders, thus exposing her children to risk. Liotta also noted thatrespondent made insufficient progress in improving her parenting skills and internalizing theinformation necessary to, for example, feed her son with the strict attention required due to hisswallowing disorder. He noted that respondent's cognitive distortions caused her to "dismissinformation that she should take as important." He was also concerned by the proof thatrespondent refused to discipline her daughter because of her fear of being rejected by her (see Matter of Roseanna X., 22 AD3d993, 995 [2005]). This and other proof showed, by clear and convincing evidence, howrespondent's mental illness endangered the children's welfare and precluded her from caring forthem for the immediate future (cf. Matter of Arielle Y., 61 AD3d at 1063). Whilerespondent points out that Liotta's findings as to her mental health differ to some extent fromprior examinations, Liotta explained that the other evaluations were made in different contexts,while his findings were the result of a more comprehensive examination. In sum, givingdeference to Family Court's credibility and factual determinations (see Matter ofShawndalaya II., 46 AD3d at 1175; Matter of Alexis X., 23 AD3d 945, 947 [2005], lv denied 6NY3d 710 [2006]), we conclude that petitioner met its burden and no basis for reversal has beendemonstrated (see Matter of ChelseaKK., 28 AD3d 849, 851 [2006], lv denied 7 NY3d 704 [2006]; Matter ofAlexis X., 23 AD3d at 947; Matterof Ashley L., 22 AD3d 915, 916 [2005]).
Respondent's remaining arguments have been examined and found to be unpersuasive.
Lahtinen, Malone Jr., Stein and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Although the petition originallyalso contained causes of action sounding in mental retardation and permanent neglect, theseclaims were later withdrawn by petitioner.
Footnote 2: 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 Henry W., 31 AD3d 940, 941 [2006], lvsdenied 7 NY3d 711 [2006], 8 NY3d 816 [2007]).