| Matter of Corey UU. (Donna UU.) |
| 2011 NY Slip Op 04570 [85 AD3d 1255] |
| June 2, 2011 |
| Appellate Division, Third Department |
| In the Matter of Corey UU., Alleged to be the Child of a MentallyIll Parent. Fulton County Department of Social Services, Respondent; Donna UU.,Appellant. |
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Garry, J. Appeal from an order of the Family Court of Fulton County (Skoda, J.), enteredAugust 25, 2010, 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 is the mother of a child (born in 1993) who was removed from her care andcustody by petitioner in October 2008. In January 2009, respondent consented to a finding ofneglect and, in November 2009, petitioner commenced this proceeding to terminate her parentalrights based upon her mental illness. When respondent failed to appear for a scheduled hearing inMay 2010, Family Court found her in default. Following a subsequent inquest at whichrespondent did not appear but was represented by counsel, the court terminated her parentalrights based on its determination that she was unable to provide proper care for the child by [*2]reason of mental illness as defined in Social Services Law §384-b (6) (a). Respondent appeals.[FN1]
Respondent contends that the proof was inadequate to terminate her parental rights. "Parentalrights may be terminated if it is established by clear and convincing evidence that respondent is'presently and for the foreseeable future unable, by reason of mental illness . . . toprovide proper and adequate care for a child who has been in the care of an authorized agency forthe period of one year immediately prior to the date on which the petition is filed in the court' "(Matter of Evelyn B., 37 AD3d991, 992 [2007], quoting Social Services Law § 384-b [4] [c]). The determinationmust be based on " 'testimony from appropriate medical witnesses particularizing how theparent's mental illness affects his or her present and future ability to care for the child' " (Matter of Karen GG. [Marline HH.],72 AD3d 1156, 1158 [2010], lv denied 14 NY3d 713 [2010], quoting Matter ofRobert XX., 290 AD2d 753, 754 [2002]; accord Matter of Alexis X., 23 AD3d 945, 946 [2005], lvdenied 6 NY3d 710 [2006]).
Here, a licensed psychologist who conducted a court-ordered psychological evaluationtestified that she interviewed respondent, reviewed collateral source material from social serviceand mental health providers, and diagnosed her as suffering from schizophrenia, paranoid type.The psychologist testified that respondent had suffered from active psychotic symptoms,including delusions and hallucinations, for at least three years, and that her inability to sustainstable relationships and employment were secondary symptoms consistent with her diagnosis.Although the psychologist's diagnosis differed from those respondent had received from othermental health providers, she testified that the previous diagnoses were made under differentcircumstances and respondent's behaviors as described by the previous providers were consistentwith the diagnosis of paranoid schizophrenia (see Matter of Karen GG. [Marline HH.],72 AD3d at 1159).[FN2]
The psychologist testified that respondent's disorganized thought patterns prevented her fromanswering simple questions, making it impossible for her to provide the psychologist withcomplete family, medical, psychiatric and developmental histories. With regard to the ability to[*3]parent, the psychologist testified that respondent was focusedon gratifying her own needs and was unable to engage in cause-and-effect reasoning, understandthe needs of another individual, or plan to meet such needs. The psychologist opined thatrespondent posed a risk of violence to her child as well as a risk of neglect, and she was unable tokeep herself safe and stable and could not provide for a child's physical needs, such as food,medical care and shelter, or for the developmental needs of a teenager. As for respondent'sprognosis, the psychologist recommended antipsychotic medication and long-term counseling.However, she opined that it was unlikely that respondent would successfully complete such aregimen, given her history of failing to comply with treatment, and further, that it was uncertainwhether she could ever become capable of parenting the child even with treatment. Withouttreatment, the psychologist opined that there was a high probability that respondent's mentalillness would worsen and her functional capabilities would erode.
Petitioner's caseworker testified, among other things, that respondent had told him severaltimes that she took her psychiatric medications only when she felt like doing so. He furtherdescribed numerous occasions when respondent had failed to comply with petitioner's efforts toassist her and with the requirements of various programs. He described respondent's difficult andsometimes aggressive behavior during supervised visits with the child, such as accusing the childof lying, blaming the child for his placement in foster care, and shouting at him, requiring somevisits to be terminated early. Respondent presented no countervailing testimony.
Granting the proper deference to Family Court's factual findings and credibilitydeterminations, we find clear and convincing evidence in this record that, because of respondent'smental illness, she is presently unable to provide proper care for the child, and will be unable todo so for the foreseeable future (seeMatter of Niya X. [Martha Y.], 79 AD3d 1196, 1198 [2010], lv denied 16 NY3d705 [2011]; Matter of Casey L. [JosephL.], 68 AD3d 1497, 1498-1499 [2009]). Although respondent now contends that sheshould have been given a suspended judgment to allow additional time to obtain treatment for thenew diagnosis of paranoid schizophrenia, no such request was made at the time of the hearing,and nothing in the record indicates that respondent wished to obtain such treatment. Finally, thechild was residing in a preadoptive foster home at the time of the hearing, and expressed hisdesire to be adopted. "[T]he slight hope of improvement upon which respondent relies is patentlyinsufficient to justify long-term foster care" (Matter of Naticia Q., 226 AD2d 755, 757[1996] [internal quotation marks omitted]). Accordingly, respondent's parental rights wereproperly terminated.
Mercure, J.P., Spain, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: We note that respondent'sappeal is not precluded by her failure to move to vacate the default order entered against her inFamily Court (see CPLR 5511). Respondent's counsel appeared at the fact-findinghearing, explained respondent's absence, and objected to the finding of default. At the subsequentinquest, counsel again appeared and participated by cross-examining witnesses and makingopening and closing arguments (compare Matter of Naomi KK. v Natasha LL., 80 AD3d 834, 835[2011], lv denied 16 NY3d 711 [2011]; Matter of Carolyn Z., 53 AD3d 875, 876-877 [2008], lvdismissed 11 NY3d 807 [2008]; Matter of Semonae YY., 239 AD2d 716, 716[1997]).
Footnote 2: The record indicates that, amongother things, respondent has a history of traumatic brain injury, underwent psychiatrichospitalizations in 2007 and 2008, and was diagnosed at one time with adjustment disorder withmixed emotional features and intermittent explosive disorder and, at another time, with mooddisorder and alcohol abuse.