| Matter of Dakota F. (Angela F.) |
| 2013 NY Slip Op 06741 [110 AD3d 1151] |
| October 17, 2013 |
| Appellate Division, Third Department |
| In the Matter of Dakota F., Alleged to be the Child of aMentally Ill or Mentally Retarded Parent. St. Lawrence County Department of SocialServices, Respondent; Angela F., Appellant. (Proceeding No. 1.) In the Matter of DesireaF., Alleged to be the Child of a Mentally Ill or Mentally Retarded Parent. St. LawrenceCounty Department of Social Services, Respondent; Angela F., Appellant. (ProceedingNo. 2.) |
—[*1] Laurie L. Paro, St. Lawrence County Department of Social Services, Canton, forrespondent. Aaron Turetsky, Keeseville, attorney for the children.
Garry, J. Appeals from two orders of the Family Court of St. Lawrence County(Potter, J.), entered September 15, 2011, which granted petitioner's applications, in twoproceedings pursuant to Social Services Law § 384-b, to adjudicate respondent'schildren to be the children of a mentally ill parent, and terminated respondent's parentalrights.
As pertinent here, respondent is the mother of a son (born in 2003) and a daughter(born in 2005).[FN*]There is an extensive history between the parties, as the children were initiallyadjudicated to be neglected in 2004 and 2006. They were thereafter removed and placedin foster care in 2007 and were again adjudicated to be neglected in 2008. In May 2010,following a permanency hearing, Family Court directed petitioner to arrange a parentingassessment and mental health evaluation of respondent, which was thereafter performedby psychologist Richard Liotta. Petitioner commenced permanent neglect proceedingsagainst respondent and, in November 2010, a combined fact-finding hearing wascommenced in those permanent neglect proceedings and in permanent neglectproceedings against the daughter's father. After several witnesses testified, the courtrecessed the hearing to inquire as to the appropriateness of the combined hearing in viewof testimony regarding the mother's mental health. Immediately thereafter, petitionerwithdrew its permanent neglect petitions against respondent and commenced theseproceedings seeking to terminate her parental rights based on mental illness. FamilyCourt appointed psychologist Donald Danser to evaluate respondent as required bySocial Services Law § 384-b (6) (e). Following a hearing, the court terminatedrespondent's parental rights based on mental illness (see Social Services Law§ 384-b [4] [c]). Respondent appeals.
Initially, we reject respondent's claim that Family Court improperly usurpedpetitioner's authority to decide whether to seek termination of her parental rights on thebasis of mental illness (see generally Social Services Law § 384-b [3] [b]).This claim was unpreserved and, in any event, is not supported by the record. As torespondent's contention that Family Court erred in receiving Liotta's psychologicalreport, we note that petitioner had the right to submit "psychiatric, psychological ormedical evidence" (Social Service Law § 384-b [6] [e]; see Matter of Peter GG., 33AD3d 1104, 1105 [2006]), and Liotta testified that he examined respondent for[*2]the purpose of determining whether she had a mentalcondition that might impair her ability to care for her children. However, we agree withrespondent's further contention that Family Court erred in admitting Liotta's report intoevidence because it contained inadmissible hearsay.
Liotta testified that in the course of his examination, he conducted numerouspersonal interviews with caseworkers, counselors, and others. Pursuant to theprofessional reliability exception to the hearsay rule, an expert witness may rely oninformation that would otherwise constitute inadmissible hearsay "if it is of a kindaccepted in the profession as reliable in forming a professional opinion or if it comesfrom a witness subject to full cross-examination on the trial" (People v Goldstein, 6 NY3d119, 124-125 [2005], cert denied 547 US 1159 [2006] [internal quotationmarks and citation omitted]; seeMatter of Greene v Robarge, 104 AD3d 1073, 1074 [2013]; O'Brien v Mbugua, 49 AD3d937, 938 [2008]). While some of the individuals with whom Liotta spoke testifiedduring the hearing and were thus subject to cross-examination, several others did not.Liotta was not asked and offered no opinion as to whether the information he gleanedfrom the interviews with individuals who did not testify was professionally accepted asreliable in performing mental health evaluations. Respondent objected on hearsaygrounds to Liotta's testimony about these interviews and to the admission of hisreport—which contained detailed accounts of each interview—but the courtoverruled these objections. Moreover, when respondent's counsel sought to ask about theeffect of the collateral source interviews on his opinions, the court precluded him fromdoing so. As a result, no proper foundation was laid for the admission of Liotta'stestimony or his report (seeMatter of Anthony WW. [Michael WW.], 86 AD3d 654, 657 [2011], lvdenied 17 NY3d 897 [2011]; Matter of Murphy v Woods, 63 AD3d 1526, 1526-1527[2009]; compare Matter ofMohammad v Mohammad, 23 AD3d 476, 476-477 [2005]).
Parental rights may be terminated on the ground of mental illness only when it isshown "by clear and convincing evidence, that the parent is presently, and will continuefor the foreseeable future to be, unable to provide proper and adequate care for thechildren by reason of the parent's mental illness" (Matter of Burton C. [Marcy C.], 91 AD3d 1038, 1039[2012] [internal quotation marks and citation omitted]; accord Matter of Donald W.,17 AD3d 728, 729 [2005], lv denied 5 NY3d 705 [2005]). In addition toproof of the parent's underlying condition, termination of parental rights on this basisrequires " 'testimony from appropriate medical witnesses particularizing how the parent'smental illness affects his or her present and future ability to care for the child' " (Matter of Karen GG. [MarlineHH.], 72 AD3d 1156, 1158 [2010], lv denied 14 NY3d 713 [2010],quoting Matter of Robert XX., 290 AD2d 753, 754 [2002]; accord Matter of Arielle Y., 61AD3d 1061, 1062 [2009]).
Here, psychologist Donald Danser was appointed to perform the statutorily requiredmental evaluation, and he opined that respondent did not have a mental condition whichprevented her from providing her children with adequate care. Accordingly, in theabsence of Liotta's testimony and report, the record does not include clear andconvincing evidence that respondent suffers from a mental illness rendering her unable tocare for her children, and Family Court's orders must be reversed. This conclusion makesit unnecessary to address respondent's [*3]remainingcontentions.
Rose, J.P., Spain and Egan Jr., JJ., concur. Ordered that the orders are reversed, onthe law, without costs, and petitions dismissed.
Footnote *: Respondent also has anolder child who is in a relative's custody following previous neglect proceedings.