Matter of Summer SS. , 29 N.Y.S.3d 706 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: May 5, 2016 518499
519397
_________________________________
In the Matter of SUMMER SS.,
Alleged to be the Child
of a Mentally Ill Parent.
CLINTON COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Respondent;
THOMAS SS.,
Appellant.
(And Another Related Proceeding.)
_________________________________ MEMORANDUM AND ORDER
In the Matter of SUMMER SS.,
Alleged to be the Child of
a Mentally Ill Parent.
CLINTON COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Respondent;
CAROLINE SS.,
Appellant.
(And Another Related Proceeding.)
_________________________________
Calendar Date: March 21, 2016
Before: Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.
__________
Jessica C. Eggleston, Johnson City, for Thomas SS.,
appellant.
Cheryl Maxwell, Plattsburgh, for Caroline SS., appellant.
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Thomas H. Webb III, Clinton County Department of Social
Services, Plattsburgh, for respondent.
Kathleen R. Insley, Plattsburgh, attorney for the child.
__________
Lynch, J.
Appeals (1) from an order of the Family Court of Clinton
County (Lawliss, J.), entered January 22, 2014, which, in two
proceedings pursuant to Family Ct Act articles 10 and 10-a,
changed the permanency goal for the subject child to placement
for adoption, and (2) from two orders of said court, entered July
2, 2014, which granted petitioner's applications, in two
proceedings pursuant to Social Services Law § 384-b, to
adjudicate Summer SS. to be the child of mentally ill parents,
and terminated respondents' parental rights.
Respondent Thomas SS. (hereinafter the father) and
respondent Caroline SS. (hereinafter the mother) are the parents
of a child born in March 2013. Within days following the child's
birth, petitioner filed two neglect petitions pursuant to Family
Ct Act article 10 on the ground that the parents' histories of
mental illness and behavior issues put the child in imminent risk
of harm. Consequently, the child has been in petitioner's
continuous custody since March 8, 2013. Following a permanency
hearing, Family Court issued an order in January 2014 determining
that the permanency goal should be changed to adoption in both
article 10 proceedings and denying both parents visitation. In
March 2014, petitioner commenced termination proceedings.
Following a hearing on the petitions, Family Court granted both
applications and terminated the parents' parental rights. The
parents now appeal from the January 2014 permanency order and the
orders terminating their parental rights.
"To support a termination of parental rights on the
ground[] of mental illness . . ., the petitioning agency must
show, by clear and convincing evidence, that the parent is
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presently, and will continue for the foreseeable future to be,
unable to provide proper and adequate care of the child by reason
of the parent's mental illness" (Matter of Logan Q. [Michael R.],
119 AD3d 1010, 1010 [2014] [internal quotation marks, brackets
and citations omitted]; see Social Services Law § 384-b [3] [g]
[i] [4] [c]; Matter of Burton C. [Marcy C.], 91 AD3d 1038, 1039
[2012]). In order to meet this burden, the petitioner's proof
must include "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 AD3d at 1010-1011 [internal quotation
marks and citations omitted]). "Under the professional
reliability exception to the hearsay rule, an expert may 'provide
opinion evidence based on otherwise inadmissable hearsay,
provided it is demonstrated to be the type of material commonly
relied on in the profession'" (Matter of Kaitlyn X. [Arthur X.],
122 AD3d 1170, 1171 [2014], quoting Hinlicky v Dreyfuss, 6 NY3d
636, 648 [2006]; see Matter of Anthony WW. [Michael WW.], 86 AD3d
654, 657 [2011], lv denied 17 NY3d 897 [2011]).
Here, petitioner presented the report and testimony of
Richard Liotta, a licensed psychologist. Liotta testified,
without contradiction, that both the mother and the father failed
to attend the scheduled court-ordered evaluation. Accordingly,
he explained that he was able to form his opinions based not only
on the evaluations he completed in 2013 during a proceeding
involving the mother and father's older child (see Matter of
Angel SS. [Caroline SS.], 129 AD3d 1119, 1120-1121 [2015]), but
also upon consideration of records generated by collateral
sources, such as prior mental health providers and caseworkers.
Liotta testified that the father suffers from antisocial
personality disorder, intermittent explosive disorder,
unspecified bipolar and related disorder, attention
deficit/hyperactivity disorder, substance abuse disorder and
borderline intellectual functioning. As for the mother, Liotta
opined that she suffered from borderline personality disorder
with dependent features, unspecified bipolar and related
disorder, unspecified anxiety disorder, and unspecified
disruptive impulse control and conduct disorder, and she had
specific learning disabilities in reading and written expression.
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When asked about the father's ability to parent, Liotta
testified that he was most concerned about his antisocial
personality disorder because of its effect on his "judgement,
lack of morality, impulse control . . . and anger issues."
Further, Liotta characterized the disorder as "longstanding . . .
and part of someone's fundamental personality [that] tends to be
extremely resistant to treatment." As for the mother, Liotta
testified that her borderline personality disorder affects her
judgment and ability to be consistent and that it caused her to
be impulsive and to prioritize her own needs above the child's.
According to Liotta, it is possible to treat this condition and
medication can be helpful, but the mother had not followed
through with either treatment or medication. Liotta testified
that, based on his review of the records and notwithstanding
their intervening marriage, neither parent had shown any real
improvement or change since he evaluated them in 2013. He cited
as one example their decision to leave shortly after the birth of
the child to work in a traveling carnival for two months. In
sum, Liotta testified, with specific reference to the materials
provided and his own observations and conclusions drawn in 2013,
that both the mother and the father were afflicted with a mental
illness or condition that rendered them unable to provide proper
and adequate care of the child for the foreseeable future.
We reject the arguments that Liotta's opinion was unfair
and that it should have been based on a more current evaluation.
Once the parents chose not to attend the evaluation, Liotta was
entitled to rely on the available records to reach his conclusion
(see Social Services Law § 384-b [6] [e]; Matter of Majerae T.
[Crystal T.], 74 AD3d 1784, 1786 [2010]; Matter of Jeran PP., 6
AD3d 994, 996 [2004]). Further, Liotta's testimony as to the
longstanding nature of the father's condition, as well the
parents' refusal to seek and complete treatment, was not
contradicted by any expert testimony. We thus discern no basis
to conclude that Liotta's 2013 evaluation was unreliable (see
Matter of Jeran PP., 6 AD3d at 996). According deference to
Family Court's factual findings and credibility determinations,
and with the absence of any contrary expert evidence, we find
clear and convincing evidence in this record that, because of
their mental illness, neither the mother nor the father is able
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to provide proper care for the child now or in the foreseeable
future (see Matter of Joyce T., 65 NY2d 39, 46 [1985]; Matter of
Kaitlyn X. [Arthur X.], 122 AD3d at 1171; Matter of Corey UU.
[Donna UU.], 85 AD3d 1255, 1258 [2011], lv denied 17 NY3d 708
[2011]; Matter of Donald W., 17 AD3d 728, 729 [2005], lv denied 5
NY3d 705 [2005]; Matter of Jeran PP., 6 AD3d at 996).
Finally, because the parents' parental rights have been
terminated, the appeal from the permanency order is moot (see
Matter of Kaitlyn X. [Arthur X.], 122 AD3d 1170, 1171 n 2 [2014];
Matter of Jacelyn TT. [Carlton TT.], 91 AD3d 1059, 1061 [2012]).
Garry, J.P., Egan Jr., Devine and Clark, JJ., concur.
ORDERED that the appeal from the order entered January 22,
2014 is dismissed, as moot, without costs.
ORDERED that the orders entered July 2, 2014 are affirmed,
without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court