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Court Review Social Service Law



This termination of parental rights (TPR) proceeding was brought pursuant to Social Service Law (SSL) section 384–b by Petitioner against respondent in connection to her child, age four. The petition, filed August 24, 2009, seeks to terminate the parental rights of RM on the grounds of mental illness.1 The Court held a fact finding hearing on September 22, 2010, October 18, 2010, December 21, 2010, January 18, 2011, January 20, 2011, January 21, 2011, February 4, 2011, March 4, 2011 and April 26, 2011. On June 27, 2011, counsel delivered oral summations with supplemental written summations submitted to the Court on July 8, 2011.

The petitioner presented the testimony of one (1) witness: a qualified expert in the field of clinical psychology. Respondent presented the testimony of two (2) witnesses: a qualified expert in the field of forensic psychology, and RM who testified on her own behalf. Petitioner also submitted for judicial notice the following court orders, decisions and documents/photographs, in connection with the underlying child protective proceeding and prior termination of parental rights proceeding brought against RM as to her child, who was freed for adoption by order dated June 24, 2008.

The underlying child protective proceeding in this case involves the brutal murder of the child, by RM’s ex-paramour, on November 21, 2001. A severe & repeated abuse petition, brought on behalf of the deceased child’s surviving half-sibling was filed against RM and her ex-paramour, pursuant to Article Ten of the Family Court Act. Thereafter, a finding of severe & repeated abuse by clear and convincing evidence was entered against them both on June 10, 2003.

Subsequently, a termination of parental rights proceeding was brought against RM as to her surviving child, on the grounds of repeated & severe abuse and permanent neglect. In two (2) separate decisions, dated December 26, 2006 and June 24, 2008 respectively, findings were entered against RM on each ground and the child was freed for adoption.

On February 20, 2007, third child, who is the subject of this proceeding, was born and placed directly from the hospital into foster care. A finding of derivative abuse was entered against RM as to the child December 8, 2008.The instant petition seeking to terminate RM’s parental rights on the grounds of mental illness was filed eight (8) months later on August 24, 2009.

It is settled law that in a proceeding to terminate parental rights on the grounds of mental illness, the petitioner bears the burden of demonstrating by clear and convincing evidence, that the parent is presently, and for the foreseeable future, unable by reason of mental illness, to provide adequate care for a child. The statute explicitly prescribes certain procedural requirements to assist the court in determining whether a mental illness condition exists. Specifically, the court is required to order the parent to submit to an examination by a qualified psychiatrist or psychologist as well as take the testimony of the qualified medical examiner at trial on the question of not only whether the parent suffers from a “mental illness” but also whether such mental illness impairs the parent’s present and future ability to care for his/her child.

The clear and convincing standard of proof in a TPR proceeding is applicable as to each of the elements present in a case involving allegations of mental illness. Petitioner must first establish that the parent suffers from a mental illness as that term is defined in the statute. SSL § 384–b (6)(a). Next, petitioner must establish that the mental illness impairs the parent’s ability to provide appropriate care to his/her child. Lastly, there must be sufficient proof presented to establish that the impairment caused by the diagnosed mental illness not only affects the parent’s present ability to properly care for his/her child but that the nature and severity of the illness is to such a degree that it renders the parent unable to adequately care for their child for the foreseeable future. As such, petitioner must present proof not only of the parent’s underlying condition the medical testimony must particularize how the parent’s mental illness affects her present and future ability to care for her child.

With the exception of the APA guidelines pertaining to child protective matters, including TPR proceedings, and in contrast to the practice in child child custody litigation, this court was unable to identify the use of any established or suggested published practice guidelines and parameters for conducting court-ordered examinations of parents named as respondents in TPR proceedings brought on mental health grounds. Even though there are published APA guidelines for performing forensic evaluations in TPR proceedings, this Court found few reported cases where a court specifically ordered a forensic evaluation in a TPR case brought on the grounds of mental illness that complied with the guidelines published by the APA.

More commonly, pursuant to Social Services Law section 384–b(6)(e), courts appoint a qualified psychiatrist or psychologist to conduct a court-ordered examination of a parent and direct the respondent parent to submit to the examination. Thereafter, the court receives the opinion testimony of the court appointed expert as to their findings at the TPR proceeding. Often, court-ordered examinations may consist of a one-time interview of the parent and a review of the parent’s prior medical, psychiatric, and/or other relevant records, if such materials are of the kind accepted in the profession as being reliable in forming an opinion. Should a parent refuse to submit to such a court-ordered examination or fails to make him or herself available, the court appointed expert is permitted to render an opinion solely on the basis of a review of the parent’s available and relevant records. SSL § 384–b(e). The court must, however, first issue an order directing the parent to submit to an examination before it is permitted to enter a finding against the parent on the basis of expert medical testimony based solely on a review of relevant records.

Recognizing there are significantly different considerations, statutory requirements, and case law governing contested child custody cases from TPR proceedings, in this Court’s view there should be equally comprehensive court-ordered examinations and reports presented to the court in both types of cases. In both kinds of cases the ultimate question before the court is what is in the “child’s best interest.” Both kinds of cases involve fundamental parental rights in relation to their child. In a contested child custody case, the right at stake is the right to physical child custody and final decision-making as to one’s child. It is a right that, even if denied in a particular litigation, can be modified if there is a showing of change of circumstances in the future. The standard of proof at trial in that instance is a preponderance of the evidence. In contrast, the right at stake in a TPR case is profoundly different from the loss of custodial rights. It involves the complete and final severance of all parental ties to one’s child. There is also a higher standard of proof of clear and convincing evidence. Therefore, compelling reasons exist for requiring a thorough and comprehensive court-ordered examination and report in a TPR case.

Here, petitioner has failed to establish by clear and convincing evidence that RM suffers from a mental disease that renders her presently, and for the foreseeable future, unable to care for the subject child. The expert testimony provided to this Court by the court appointed psychologist and her written report in evidence fails to meet the rigorous standard which is required particularizing the harm posed to the child by the RM’s mental illness.

To begin, the Court notes that despite the fact that the RM has been having unsupervised visits with the subject child twice a week for the past two (2) years, no effort was made by the doctor to assess the parent-child relationship. No collateral contacts were made by her with agency personnel or other key collaterals who have observed the visits between RM and the child. She did not conduct any parenting skills assessment or survey. This important shortcoming reflects the doctor’s mistaken understanding that her primary task was to evaluate RM’s mental state and not her parental functioning. In addition to not performing any parenting skills testing or conducting any parenting surveys to assess RM’s parenting strengths/weaknesses, the doctor did not conduct any psychological testing of RM. Instead,

Further, as pointed out by the doctor in his testimony, his reliance on the twenty-seven (27) records referred to in her report in formulating her expert opinion in this case is also troublesome. Although court appointed medical experts are permitted to review records not in evidence in performing court-ordered examinations in TPR proceedings, such records must be of the kind accepted in the profession as reliable in forming an opinion. Here, the doctor testified she both agreed and disagreed with some of the findings and conclusions of the records she reviewed and considered in conducting her evaluation. She did not, however, indicate specifically what records she relied on and which she rejected and her basis for doing so. Nor did she state what impact these reports had on her evaluation of RM and the expert opinion she offered as to the severity and nature of RM’s mental illness and her ability to parent the subject child now and in the future.

Indeed, of the twenty-seven (27) records the doctor reviewed, many were only remotely, if at all, relevant to the issue of RM’s mental illness. More than half of the records were copies of court documents such as permanency hearing reports and court reports involving the ten (10) year period of the instant child protective proceeding. It is not clear to this Court how some of these records are of the kind accepted in the profession as a reliable source for forming an opinion as to a parent’s mental illness and the severity and impact of such mental disease on their ability to adequately parent a child.4 Indeed, many of the documents, which may have formed a basis for his expert opinion, included first and even secondhand hearsay information and opinions by lay persons not qualified to opine as to RM’s response to the many years of out-patient mental health treatment she has received. In fact, his report even included references to records she reviewed that were subpoenaed from the NYC Administration of Human Resources pertaining to “food stamp and other benefit applications, sub-lease agreements, rent bills, and other similar materials pertaining to the respondent mother.”

In addition to the questionable expert medical evidence presented, this Court is also struck by the absence of evidence in key areas of RM’s mental illness history necessary for determining the nature and severity of her mental illness and her present and future ability to adequately care for her child. For example, there was no evidence RM has ever been psychiatrically hospitalized, no evidence she suffers presently, or in the past, from any form of psychosis, and no evidence she has ever been non-compliant with mental health treatment or recalcitrant in adhering to any prescribed psychotropic medication. In fact, the doctor’s written clinical report indicates RM has been involved in out-patient mental health treatment since 2001, following the brutal death of her child Inez by her ex-paramour, and that her diagnosed Major Depressive Disorder and PTSD are in remission in response to the mental health treatment and medication she has received over the past several years.

One of petitioner’s central arguments in support of the instant petition to terminate RM’s parental rights on the grounds of mental illness is her role in failing to protect her child Inez from the brutal death she suffered at the hands of RM’s ex-paramour and her present failure to accept full responsibility for her role in the child’s murder. Petitioner maintained this is evidence of her total lack of parental understanding and empathy and confirmation of her diagnosed mental illness. In her report, the doctor concluded that RM appears to suffer from a demonstrated longstanding pattern of maladaptive personality traits, which she hypotheses, have led to significant functional impairment and contributed to the RM’s prior involvement in a profoundly abusive relationship, resulting in grave harm to her children.

This Court also agrees and acknowledges that the principles of fairness and due process embedded in our laws imposes upon the court the role of gatekeeper in assuring that expert testimony is not only relevant but reliable. In this case, the court-ordered examination of RM and the expert testimony presented fails to satisfy the necessary indicia of reliability required to establish by clear and convincing evidence that RM’s diagnosed mental illness renders her, by reason of mental illness, presently, and for the foreseeable future, unable to adequately care for her child. Further, no legal basis exists for requiring any less a comprehensive court-ordered examination in a TPR case brought on mental illness grounds than in a case involving a parent’s right to child custody of his/her child. As such, the methodology for conducting a court-ordered examination in a TPR proceeding brought on grounds on mental illness should adhere to the guidelines published by the APA to ensure the court is provided with a comprehensive report and a thorough assessment of not only the parent’s mental illness but his/her parenting and family functioning consistent with the requirements of the SSL. At a minimum, therefore, a court-ordered examination in a TPR case brought on the grounds of mental illness should involve interviews of the respondent parent, a thorough assessment of his/her parenting skills, including parent-child observations, a current psychological examination and testing, contact with collaterals and other professionals who are providing mental health treatment to the parent or who possesses first-hand information about the parent’s over-all family functioning as well as a thorough review of relevant medical/psychiatric records and court records.

Given the many advances in the area of psychopharmacology, the inherent limitations of providing a mental health diagnosis and predicting future behavior and functioning, as well as the existence of established APA guidelines for conducting a reliable and comprehensive court-ordered examination for presentation in court, more than a one-time interview of a respondent and a review of records is necessary to enable a court to find that a respondent parent not only suffers from a mental illness as defined by SSL, but that the mental illness is so severe and debilitating that the parent is presently, and for the foreseeable future, unable by reason of mental illness, to provide adequate care to their child.

For all the reasons set forth above, the instant petition to terminate RM’s parental rights on the ground of mental illness is denied in its entirety.

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