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In re Duane

Supreme Court of New York, Third Department

June 1, 2017

In the Matter of DUANE II., Alleged to be the Child of a Mentally Ill. Parent. CLINTON COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; ANDREW II., Appellant. (Proceeding No. 1.) In the Matter of JUSTYCE HH., Alleged to be the Child of a Mentally Ill. Parent. CLINTON COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; ANDREW II., Appellant. (Proceeding No. 2.)

          Calendar Date: March 28, 2017

          Michelle I. Rosien, Philmont, for appellant.

          Ethan D. Bonner, Clinton County Department of Social Services, Plattsburgh, for respondent.

          Omshanti Parnes, Plattsburgh, attorney for the child.

          Kathleen R. Insley, Plattsburgh, attorney for the child.

          Before: Garry, J.P., Lynch, Rose, Clark and Aarons, JJ.

          MEMORANDUM AND ORDER

          LYNCH, J.

         Appeal from an order of the Family Court of Clinton County (Lawliss, J.), entered November 20, 2015, which granted petitioner's applications, in two proceedings pursuant to Social Services Law § 384-b, to adjudicate the subject children to be the children of a mentally ill parent, and terminated respondent's parental rights.

         Respondent is the father of two children (born in 2009 and 2014). In October 2013, respondent was arrested for attempted criminal possession of a controlled substance in the third degree with intent to sell. At the time of the arrest, the older child was present with respondent in their home. Petitioner temporarily removed the older child and filed a neglect petition against respondent. Petitioner assumed custody of the younger child shortly after his birth because his mother was incarcerated. At the time, respondent had not yet been adjudicated to be that child's father. In February 2015, petitioner filed a neglect petition against the father concerning the younger child.

         In May 2015, petitioner commenced a proceeding to terminate respondent's parental rights with respect to the younger child. In June 2015, petitioner sought similar relief with regard to the older child. In both petitions, petitioner alleged that respondent was mentally ill and that his mental illness prevented him from adequately caring for the children presently and for the foreseeable future. Respondent consented to a mental health evaluation, and a fact-finding hearing was held in September 2015. At the conclusion of the hearing, Family Court granted petitioner's applications and terminated respondent's parental rights. At the hearing and on appeal, the attorneys for the children both vehemently argue in support of petitioner's position for termination of respondent's parental rights. Respondent now appeals.

         "In order to terminate parental rights due to the mental illness of a parent, it must be shown by clear and convincing proof that the parent is presently and for the foreseeable future unable, by reason of that mental illness[, ] to provide proper and adequate care for the child" (Matter of Angel SS. [Caroline SS.], 129 A.D.3d 1119, 1119-1120 [2015] [internal quotation marks, brackets, ellipsis and citations omitted]; see Matter of Summer SS. [Thomas SS.], 139 A.D.3d 1118, 1119 [2016]). "In order to meet its burden, the petitioner is required not only to provide proof of the parent's underlying condition, but must also elicit testimony from appropriate medical witnesses particularizing how the parent's mental illness affects his or her present and future ability to care for the child" (Matter of Logan Q. [Michael R.], 119 A.D.3d 1010, 1010-1011 [2014] [internal quotation marks and citations omitted]). The clear and convincing evidence standard means that petitioner must establish "that the evidence makes it highly probable that what [it] claims" is accurate (Prince, Richardson on Evidence § 3-205 [11th ed]; see NY PJI 1:64; Currie v McTague, 83 A.D.3d 1184, 1185 [2011]). "Clear and convincing evidence is a higher, more demanding standard than the preponderance standard and it is evidence that is neither equivocal nor open to opposing presumptions" (Matter of Darius B. [Theresa B.], 90 A.D.3d 1510');">90 A.D.3d 1510 [2011] [internal quotation marks, ellipsis and citation omitted]). Family Court must strictly adhere to this standard (see Matter of Arielle Y., 61 A.D.3d 1061, 1062 [2009]).

         Here, petitioner presented the report and testimony of Richard Liotta, a psychologist who, among other things, reviewed petitioner's records and respondent's treatment records, interviewed respondent and administered psychological testing. The materials reviewed included records generated when respondent was a child and adolescent, when he was referred for a sexual abuse evaluation and treated for behavioral issues. Liotta also reviewed a lengthy autobiography that respondent wrote for the caseworker that petitioner had assigned to him. Notably, although respondent describes a difficult childhood in his autobiography, during his interview with Liotta, he denied that he was sexually abused and explains that his stepmother told him to make the false claims. The historical treatment records conclude that both he and his half sibling were sexually abused by their paternal relatives. In Liotta's view, respondent suffered a "significantly dysfunctional childhood and adolescence" and exhibited "behavioral and psychiatric problems in childhood and adolescence."

         As a result of his evaluation, Liotta opined that respondent suffered multiple conditions, including mixed personality disorder with antisocial borderline and narcissistic features, unspecified depressive disorder, unspecified anxiety disorder, alcohol use disorder, cannabis use disorder, opioid use disorder and cocaine use disorder. Further, Liotta explained that respondent's primary mental illness diagnosis was the personality disorder and that his "psychiatric issues have substantially contributed to [respondent's] substance use, " and his "substance use exacerbates his psychological issues." Liotta testified unequivocally that, due to his mental health issues, respondent was presently unable to care for the children. With regard to respondent's ability to care for the children for the foreseeable future, Liotta characterized his conclusion as "a close call" in light of "both positive and negative indicators." During his testimony, Liotta confirmed that he was "[s]omething less than a hundred percent sure" that respondent would be unable to provide adequate care for the foreseeable future. He later clarified that he was 90% sure that it was unlikely that respondent would be able to provide adequate care for the foreseeable future - which Liotta defined as the next "two to three to four years."

         In our view, Liotta's comprehensive report and testimony was sufficient to establish that respondent is presently, and for the foreseeable future will remain, unable to provide proper and adequate care for the two children due to his mental illness (see Social Services Law § 384-b [4] [c]; Matter of Burton C. [Marcy C.], 91 A.D.3d 1038, 1040 [2012]). As Liotta explained, respondent's continuing lack of insight with regard to his mental illness, established during his interview and evident in the results of the psychological testing, was a concern and surprising in light of his treatment history, and that his "denial, compartmentalization, and rationalization interfere" with his capacity to gain insight in the future. Liotta attributed these characteristics to respondent's personality disorder and, after identifying and detailing the positive factors and "glimmers of hope" that suggested that respondent might be able to provide adequate care in the future, concluded that, based on respondent's history, he did not believe that treatment would be successful. Although respondent testified during the fact-finding hearing that he was amenable to seeking treatment, Liotta testified that he was not convinced that respondent was sincere. Further, "the mere possibility that respondent's condition, with proper treatment, could improve in the future is insufficient to vitiate Family Court's conclusion" (Matter of Burton C. [Marcy C.], 91 A.D.3d at ...


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