| Matter of Burton C. (Marcy C.) |
| 2012 NY Slip Op 00140 [91 AD3d 1038] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Burton C. and Another, Alleged to be PermanentlyNeglected Children and/or the Children of a Mentally Ill and/or Mentally Retarded Parent. EssexCounty Department of Social Services, Respondent; Marcy C.,Appellant. |
—[*1] Daniel T. Manning III, County Attorney, Elizabethtown (Michael J. Gallant of counsel), forrespondent. Lynne E. Ackner, Glens Falls, attorney for the children.
Peters, J. Appeal from an order of the Family Court of Essex County (Lawliss, J.), enteredJune 3, 2010, which granted petitioner's application, in a proceeding pursuant to Social ServicesLaw § 384-b, to adjudicate respondent's children to be the children of a mentally ill parent,and terminated respondent's parental rights.
Respondent is the mother of Burton C. (born in 2000) and Michael C. (born in 1998). InApril 2007, the children were found to be neglected by respondent and placed in petitioner'scustody, where they have since remained. In January 2010, petitioner commenced this proceedingseeking to terminate respondent's parental rights upon the ground of mental illness and/or mentalretardation and permanent neglect. Following a fact-finding hearing, Family Court [*2]determined that respondent suffers from a mental illness and thather condition rendered her unable, presently and for the foreseeable future, to provide adequateand proper care for the children, and terminated her parental rights.[FN*]Respondent appeals.
"To terminate parental rights on the grounds of mental illness, petitioner must show, 'by clearand convincing evidence, that the parent is presently, and will continue for the foreseeable futureto be, unable to provide proper and adequate care for the children by reason of the parent's mentalillness' " (Matter of Alexis X., 23AD3d 945, 946 [2005], lv denied 6 NY3d 710 [2006], quoting Matter of Donald W., 17 AD3d728, 729 [2005], lv denied 5 NY3d 705 [2005]; see Social Services Law§ 384-b [4] [c]; Matter of CoreyUU. [Donna UU.], 85 AD3d 1255, 1256 [2011], lv denied 17 NY3d 708[2011]). Such proof must include "testimony from appropriate medical witnesses particularizinghow the parent's mental illness affects his or her present and future ability to care for thechild[ren]" (Matter of Robert XX., 290 AD2d 753, 754 [2002]; accord Matter ofCorey UU. [Donna UU.], 85 AD3d at 1256; Matter of Karen GG. [Marline HH.], 72 AD3d 1156, 1158 [2010],lv denied 14 NY3d 713 [2010]).
Here, Family Court was presented with the detailed reports and testimony of RaymondHavlicek and Richard Liotta, two psychologists who performed court-ordered evaluations ofrespondent. Based upon, among other things, results of psychological tests, their review ofrelevant documents from various sources and interviews with respondent and collateral sources,including social workers, caseworkers and mental health providers, both concluded thatrespondent suffers from a mental illness that rendered her unable, presently and for theforeseeable future, to care for her children by reason of mental illness. Specifically, Havlicektestified that respondent suffers from borderline intellectual functioning and severe borderlinepersonality disorder, and that the aggregate affect of these limitations significantly interferes withher ability to care for the children, especially in light of their developmental disabilities andsignificant special needs. He explained that respondent's personality disorder is characterized byanxiety, extreme feelings of abandonment and a dependency upon relationships with men, all ofwhich diminish her capacity to make good decisions and appropriate judgments. Havlicek notedthat respondent's fear of abandonment is so strong that she places her own needs ahead of theinterests and safety of the children, as exemplified by, among other things, her decision to engagein relationships with and expose the children to known sex offenders. He further opined thatrespondent's mental condition would persist for the foreseeable future and that there was littlelikelihood that the use of medication or provision of additional services would improverespondent's abilities in this regard.
Liotta reached a similar conclusion, opining that respondent's borderline personality disorderand its features, exacerbated by her other psychological issues such as depressive disorder,generalized anxiety disorder and low intellectual functioning, negatively affect her ability toparent the children now and in the foreseeable future. He explained that respondent's mentalcondition led to pervasive problems with impulse control, affectivity, self image, appropriatejudgment and decision-making and interpersonal functioning. He testified further that, as a resultof respondent's cognitive distortions, respondent is resistant to change, took little responsibilityfor her actions and minimized her behavior. Liotta noted that, although respondent [*3]is motivated to change her behaviors, she is unable to do so infundamental areas that affect her ability to care for the children.
The testimony of these psychologists, coupled with their respective written reports that wereadmitted into evidence at the hearing, amply demonstrate that respondent is presently, and for theforeseeable future will remain, unable to provide proper and adequate care for her children byreason of mental illness (see Social Services Law § 384-b [4] [c]). Althoughrespondent presented testimony regarding her efforts to improve her parenting abilities, includingattending substance abuse programs and therapy, " '[t]he mere possibility that respondent'scondition, with proper treatment, could improve in the future is insufficient to vitiate FamilyCourt's conclusion' " (Matter of Joseph T., 220 AD2d 893, 895 [1995], quotingMatter of Vaketa Y., 141 AD2d 892, 893 [1988]; accord Matter of Melissa LL., 30 AD3d 705, 707 [2006], lvsdenied 7 NY3d 710 [2006]; Matter of Harris AA., 285 AD2d 755, 757 [2001]).Indeed, while noting that respondent had shown some recent improvements in her behavior, bothHavlicek and Liotta were of the opinion that her mental condition was such that she would stillbe incapable of adequately caring for the children. Giving due deference to Family Court's factualdeterminations, and in the absence of any contradictory expert evidence, we find that clear andconvincing evidence supports the determination rendered (see Matter of Darren HH. [Amber HH.], 72 AD3d 1147, 1150[2010], lv denied 15 NY3d 703 [2010]; Matter of Michael WW., 29 AD3d 1105, 1106 [2006]; Matterof Alexis X., 23 AD3d at 947; Matter of Donald W., 17 AD3d at 729).
We have considered respondent's remaining contentions and, to the extent that they arepreserved, find them to be without merit. Petitioner is not required to prove that it made diligentefforts to strengthen and encourage the parental relationship when the ground for terminatingparental rights is mental illness (see Matter of Anonymous, 40 NY2d 96, 102-103 [1976];Matter of Harris AA., 285 AD2d at 756; Matter of Donald LL., 188 AD2d 899,902 [1992]). Nor does the absence of such a requirement to prove diligent efforts violate rights ofdue process or equal protection (see generally Matter of Joyce T., 65 NY2d 39, 50[1985]; Matter of Nereida S., 57 NY2d 636, 640 [1982]). Finally, Family Court did noterr in terminating respondent's parental rights without conducting a dispositional hearing.Although one may be appropriate in certain cases (see Matter of Joyce T., 65 NY2d at 46,49), a separate dispositional hearing is not required after a finding of mental illness (seeSocial Services Law § 384-b [4] [c]; Matter of Joyce T., 65 NY2d at 49; Matterof Robert XX., 290 AD2d at 755). As the extensive record amply demonstrates, and asFamily Court found in its well-reasoned decision, respondent's mental illness continues to impairher ability to care for her children and attend to their special needs, her mental health is unlikelyto substantially improve in the future, and the children have benefitted emotionally, socially andeducationally since their removal from respondent. Under the circumstances, a dispositionalhearing was unnecessary and termination of respondent's parental rights was in the children's bestinterests (see Matter of Joyce T., 65 NY2d at 46; Matter of Andrew U., 22 AD3d 926, 927-928 [2005]; Matter ofDavid T., 268 AD2d 309 [2000]; Matter of Elizabeth Q., 126 AD2d 905, 906[1987]).
Mercure, A.P.J., Rose, Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The children's father executed ajudicial surrender of his parental rights in August 2010.