The Presentment Agency moves, pursuant to a motion for summary judgment, for an order adjudging an after-born child to be permanently neglected, upon the ground that the parents of the two older siblings of the after-born child have previously been adjudicated unable to provide proper and adequate care for them.
The facts of the case is as follows: On March 27, 1998, the two older children of the parties, SH and MH, ages four years and two years respectively, were removed by Nassau County DSS and an application for return pursuant to FCA §1028 was filed by the parents. The Court tried that matter from April 24, 1998 through May 8, 1998, resulting in a denial of the application to return.
Thereafter, the fact finding hearing concerning the two older children was commenced on August 31, 1998 and did not conclude until May 7, 2001. The reason for the lengthy hearing was that counsel for one of the parties had an extended illness, that the Mother had been committed to Pilgrim State Hospital for a long period of time and that the Father had been a voluntary resident at various times at the Northport VA Hospital, psychiatric unit.
During that time, a TPR petition regarding the two older children was filed by the Department. The Court suspended the fact finding neglect trial and proceeded directly to the TPR matter. By order dated January 23, 2002, this Court directed that Dr. WK, MD, submit to this Court his forensic evaluations as to each of the two parents in accordance with Social Services Law §384-b. This Court also allowed intervenor status to the foster parents. After various delays, due to among other things the fact that the Mother did not appear in Court after service, causing this Court to issue a warrant for her arrest, this Court commenced its TPR fact finding hearing pertaining to SH and MH on April 23, 2002. The Court rendered its decision from the bench on August 14, 2002, finding that each of the two older children were permanently neglected by each of the two respondent parents, due to the mental illness of each parent. The main witness for the Presentment Agency was Dr. WK, the forensic psychiatrist who testified over a period of four days.
This Court allowed Dr. WK to testify in accordance with Social Services Law §384-b 6(e), which states that if a parent refuses to submit to the court-ordered examination, the psychiatrist, upon the basis of other available information, including but not limited to agency, hospital or clinic records, may testify without an examination of such patient, provided that such other information affords a reasonable basis for his opinion.
From a review of her records it is Dr. WK’s belief that she has a chronic and severe form of schizophrenia; she is not “in good touch with reality;” she “cannot rear children;” her various treatments have not been successful because she has been non-compliant with medication; she is suspicious of those who help her and has classic paranoid thinking. Her psychiatric treatment started at age 14, and she is now 41 years of age. She has had “a lifelong history of instability” and her progress is “very poor.” Dr. WK concluded that she is “chronically impaired” and “cannot function on her own for any period of time.” She cannot be responsible for the care of children as she would put them in imminent danger.
Dr. WK concluded as to each parent that, with a reasonable degree of psychiatric certainty, each of the two children, SH and MH, would be at risk of permanent neglect if returned to the parents, and that each parent, presently and for the foresee-able future, would be unable, by reason of mental illness, to provide proper and adequate care for each of the children.
At the conclusion of that TPR hearing, the Court found by clear and convincing evidence that each of the children, SH and MH, were permanently neglected by reason of mental illness of each of the two parents.
The third child, PG, was born to the parties on January 21, 2003, and a new neglect petition was immediately filed by the Presentment Agency. This child has been in foster care his entire life. At the time of the new neglect proceedings the Mother was a resident of Pilgrim State Psychiatric Center; a series of conferences were then held as to this third child. This Court’s decision of November 13, 2003 continued that the Court found that diligent efforts were not required with respect to the child PG born thereafter, and that PG could not be returned safely to his home because of the mental illness of the parents as such return would immediately expose that child to neglect or worse. This Court further found that there is no statutory requirement that the Presentment Agency exercise any type of diligent effort in a case predicated upon mental illness.
As argued by the Respondent Mother, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue of fact or where the factual issue is arguable or debatable. The burden in a motion for summary judgment is upon the movant who is required to set forth a prima facie showing of its entitlement to summary judgment regardless of the sufficiency of the opposing papers. If the movant fails to meet its burden, then the motion for summary judgment must be denied. The affidavits submitted either in support or in opposition to the motion for summary judgment must be upon personal knowledge by a person having knowledge of the facts.
This Court is well aware that there is no rule regarding TPR matters which is similar to derivative neglect, as set forth in Family Court Act §1046(a)(ii), which provides that proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of Respondent.
However, this Court draws an analogy to that section, with respect to a TPR mental illness case, such is at bar and this Court holds that in such a case, the totality of the circumstances must be considered in order for this Court to rule as to whether an after-born child may be the subject of a TPR adjudication.
The instant Affirmation in Opposition by the Father’s attorney contains only hearsay by the attorney. Glaringly lacking is any supporting affidavit from the Father or, perhaps more importantly, from a psychiatrist. The submission of a hearsay affirmation by counsel alone does not satisfy” the requirement of opposing the motion.
As to the Father’s request for an updated forensic report, it has been held that this is within the Court’s discretion, and should not be ordered unless it is really necessary. However, in view of the above analysis, this issue becomes moot.
With respect to after-born children, derivative neglect may in fact be found, although not mandated, as to children born subsequent to the Court’s finding of neglect with respect to children previously born to the Respondents. One of the constant problems arising with cases such as this is that of remoteness or timeliness, i.e., is the adjudicated conduct sufficiently proximate in time to the conduct presently complained of. This Court’s research does not indicate any time limit, and it appears that a totality of the circumstances, on a case by case basis, is determinative. For instance, conduct more than two years old, is not, in and of itself, proof of neglect. However, Matter of Jeremy H., 193 AD2d 799 (2nd Dept. 1993) held that abuse in 1986 was sufficient to support a finding in a 1990 petition, especially where the Respondent had the burden of proving the contrary and had not done so.
In the case at bar, the after-born child was born just five months subsequent to this Court’s decision terminating the parental rights of each parent as to the child’s two siblings. In the instant matter, neither Respondent has submitted any affidavit by a person having personal or professional knowledge, putting into issue any of the salient allegations of the motion or anything else to indicate that the mental illness of either Respondent has changed since this Court’s TPR findings and orders with respect to the two prior children.
As to after-born children, a motion for summary judgment is also proper and may result in a finding based upon such a motion, without the necessity of a hearing. In the instant matter, this Court found, by Decision and Order dated August 14, 2002, after six days of trial, that each Respondent parent was unable, either at that time or in the foreseeable future, by reason of mental illness, to provide proper and adequate care and parenting of their two children, and that if those children were placed in or returned to the custody of either parent, the children would be in danger of becoming neglected as defined in the Family Court Act. Therefore, this Court granted a termination of parental rights as to each of those two children.
By decision dated November 13, 2003, upon the Presentment Agency’s motion for summary judgment, requesting a derivative finding of neglect with respect to PG., the after-born child, this Court granted summary judgment in favor of the Presentment Agency and against each Respondent, adjudicating that after-born child a neglected child with respect to each Respondent.
Upon a permanent neglect finding based upon mental illness, there is no requirement that this Court hold a dispositional hearing. A review of the opposing papers from each Respondent, indicates that they are totally without evidentiary value and, as the Court of Appeals has stated, mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.
The Court finds by clear and convincing evidence, that the Presentment Agency has sustained its burden of proof, that neither Respondent has submitted any legal defense whatsoever, in accordance with the applicable case law, to oppose the motion, and that the after-born child, PG., should be adjudicated permanently neglected in accordance with Social Services Law §384-b.
Accordingly, it is hereby ORDERED that the child, PG, is adjudicated permanently neglected as to each of the Respondent parents, a dispositional hearing is dispensed with, the parental rights of each of the Respondent parents are hereby terminated, and custody and guardianship of PG is transferred, effective immediately, to the Nassau County Department of Social Services for the purpose of adoption.
A parent has the primary responsibility of rearing a child, however, when circumstances such as in the case at bar, such parental rights must be withheld in order to properly protect the interest of a child.