This termination of parental rights (TPR) proceeding was brought pursuant to Social Service Law against respondent mother (RM) in connection to her child, FA, four years old. The petition, filed August 24, 2009, seeks to terminate the parental rights of RM on the grounds of mental illness. A New York Family Lawyer said the Court held a fact finding hearings and on June 27, 2011, counsel delivered oral summations with supplemental written summations submitted to the Court on July 8, 2011.
Petitioner presented the testimony of doctor, qualified expert in the field of clinical psychology. Respondent presented the testimony of two (2) witnesses: a doctor, a qualified expert in the field of forensic psychology, and RM who testified on her own behalf.
A New York Custody Lawyer said the underlying child protective proceeding in this case involves the brutal murder of the child, AB, 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, JB, was filed against RM and her ex-paramour, JL, pursuant to 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.
A Bronx Family Lawyer said that subsequently, a termination of parental rights proceeding was brought against RM as to her surviving child, JB, 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 JB was freed for adoption.
On February 20, 2007, RM’s third child, FA, who is the subject of this case, was born and placed directly from the hospital into foster care. A finding of derivative abuse was entered against RM as to FA on 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.
After an interview with RM and a study of the records pertaining to the case, the clinical psychologist who testified for the petitioner, diagnosed RM as suffering from a Major Depressive Disorder in full remission, Post-Traumatic Stress Disorder (PTSD), Physical Abuse of a Child, Abuse of Adult as a Victim and a Personality Disorder, NOS (not otherwise specified). The doctor explained that the “not otherwise specified” aspect of her diagnosis derives from her finding that although RM did not meet all the criteria for any one specific or particular personality disorder she exhibited some of the criteria of several different types of personality disorders. The doctor concluded further that the personality disorder RM suffers from is likely intractable and interferes with her thinking and her ability to properly care for the child, FA.
A Bronx Custody Lawyer said the doctor also indicated that the type of personality disorder RM exhibits requires intensive, long-term, one-on-one treatment with professionals and that while RM had been engaged in therapy, the type of therapy she receives is the not appropriate type given her mental disorder and symptoms. It was also noted that during her clinical interview, RM failed to demonstrate an appropriate degree of distress when recounting what occurred to her deceased child, AB. Hence, the doctor believed that RM’s lack of empathy makes it difficult for her to recognize and respond to her child’s needs. Though RM repeatedly said that she had failed her children, RM did not sufficiently accept accountability for her role in the events involving AB’s death.
On the other hand, the doctor presented by the defendant, an expert in the field of forensic psychology, testified that the first doctor’s evaluation was not a forensic evaluation, but rather it was a clinical evaluation. Her evaluation described symptoms of behavior in a general way but did provide objective findings based upon a scientific methodology consistent with APA guidelines, which is required for it to be admissible in a court.
The forensic psychologist opined that the first doctor’s evaluation of the RM was insufficient because she made no attempt to communicate with the individuals who authored the documents pertaining to RM which she reviewed. Also, the first doctor did not use multiple sources of data to collect information; but used a single point data system, an interview with RM. A diagnosis was derived based on a single two hour and 40 minute interview of RM.
Further, it was alleged that the first doctor’s report was inadequate as she failed to interview the child, failed to evaluate the child’s relationship with the RM, and failed to observe them together. The first evaluation is flawed because the different personality characteristics the doctor found, were never operationally defined as it pertains to the nature of RM’s relationship with her child, or how these characteristics would interfere with that relationship.
Respondent mother testified that she is the biological mother of FA, age 4, JB, age12, (who was freed for adoption), and AB, now deceased.
RM resides in a Single Room Occupancy (SRO) program for the past 3 years. She lives in a three bedroom apartment and currently has only one roommate. The SRO was supposed to be a 1-year program but an apartment has not yet been located for her. She is on a waiting the list for public housing.
RM receives public assistance and is assigned to work at a nursing home two (2) days a week and attends school three (3) days out of the week. She is working on getting her GED, which she expects to complete in six (6) to twelve (12) months. RM has been on public assistance since 2007. She supplements her income by selling handmade costume jewelry. In the past, she also worked as a home health aide.
Her child FA is in foster care and placed with AL. Her child JB was placed in foster care in 2001.
In November 2001, RM went into the hospital for a high risk pregnancy and left her two children with LS, her paramour, knowing they would not be safe. RM tried to arrange for and called a couple of family members to go to her house, but none of them helped.
RM testified that during her hospitalization, LS came to visit her and told her that he had broken AB’s arm. After learning this information, RM stated that she took no action because she was afraid. When she came home from the hospital, she found AB in bed badly hurt with her face bruised. JB was in the bed with her and he had marks on his neck. For the twenty-four (24) hours that followed, LS made them all stay in bed as he watched them. If she tried to run out he would grab her and physically abuse her. After twenty-four (24) hours she was able to run out. She knocked on the door of her neighbors and cried for help but no one was home. She ran out to a pay telephone to call the police. When the ambulance and police arrived they took JB to the hospital and RM was taken to the police precinct. AB died on the way to the hospital. LS was arrested and he is now incarcerated for causing AB’s death. He received a sentence of twenty (20) years to life.
RM testified that she takes responsibility for AB’s death in that she failed to call 911 earlier, failed to remove AB immediately out of that situation, failed to obtain an order of protection, and by leaving the children in the apartment with LS. RM stated that she failed her child AB in every way a parent can fail a child.
RM testified further that she is willing to enter the long-term psychiatric treatment that the first doctor described in her report. She also indicated that if FA were returned to her care She would ensure that FA continue to receive the special needs services she currently receives and attend the pre-school where she is presently enrolled. RM stated that she would also continue to work and attend school in order to become financially stable.
The Court after several hearings, held that 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. 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.
In this case, the issue before the court is the legal sufficiency of the court-ordered mental health examination and of the medical expert testimony petitioner, LW Services, Inc., presented to establish that RM’s parental rights should be terminated on the grounds she suffers from a “mental illness” of such severity and to such a degree that if the child FA were placed in or returned to her custody, the child would be in danger of becoming a neglected child.
While this Court fully acknowledges the finding of severe and repeated abuse entered against RM in the underlying child protective proceeding as to JB and finds the brutal death of RM’s child AB in 2001 to be a tragedy and morally reprehensible, this evidence alone does not constitute a basis for terminating RM’s parental rights as to the child FA on the grounds of mental illness. RM testified that she and her two (2) children, AB and JB, were the victims of ongoing and severe domestic violence inflicted upon them by her ex-paramour and that she accepts moral responsibility for the death of her child, AB. RM also testified that as a result of her years of counseling since 2001 she has learned about abusive relationships and how to detect signs of abuse. The Court notes that while the first doctor concluded in her evaluation that RM’s dependency trait places her at risk of engaging in another abusive relationship, and places the child FA at risk of neglect if returned to the RM’s care, there is no evidence that RM has been involved in a domestic violence relationship since the death of her child ten years ago.
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 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.
The petition to terminate RM’s parental rights on the ground of mental illness was denied in its entirety by the Court.
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