In re Isaac YY.

2021 NY Slip Op 07586

In the Matter of Isaac YY., a Neglected Child. Saratoga County Department of Social Services, Respondent; Arielle YY., Appellant. (Proceeding No. 1.) In the Matter of Isaac YY., Alleged to be the Child of a Mentally Ill. Parent. Saratoga County Department of Social Services, Respondent; Arielle YY., Appellant. (Proceeding No. 2.)

No. 528662, 528963, 530577, 530685

Supreme Court of New York, Third Department

December 30, 2021

Calendar Date: November 17, 2021

Adam W. Toraya, Albany, for appellant.

Hugh G. Burke, Acting County Attorney, Ballston Spa (Michael J Hartnett of counsel), for respondent.

Karen R. Crandall, Schenectady, attorney for the child.

Before: Egan Jr., J.P., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ.

REYNOLDS FITZGERALD, J.

Appeals (1) from three orders of the Family Court of Saratoga County (Pelagalli, J.), entered November 28, 2018, March 27, 2019 and October 25, 2019, which, in proceeding No. 1 pursuant to Family Ct Act articles 10 and 10-A, among other things continued the permanency plan for the subject child, and (2) from an order of said court, entered November 4, 2019, which granted petitioner's application, in proceeding No. 2 pursuant to Social Services Law § 384-b, to adjudicate the subject child to be the child of a mentally ill parent, and terminated respondent's parental rights.

Respondent is the mother of a child (born in 2015). In February 2016, the child was temporarily removed from respondent's home and placed in foster care. Shortly thereafter, petitioner filed a neglect petition pursuant to Family Ct Act articles 10 and 10-A (proceeding No. 1). Family Court ultimately determined that respondent neglected the child and issued a permanency order continuing placement with petitioner, with the permanency goal of returning the child to respondent. Following a permanency hearing, Family Court issued an order in November 2018 changing the permanency goal to adoption, which was subsequently continued by way of permanency orders entered in March 2019 and October 2019. The child has been in petitioner's continuous custody since February 2016. Meanwhile, in September 2018, petitioner commenced proceeding No. 2 seeking to terminate respondent's parental rights on the ground of her mental illness. A fact-finding hearing was held over eight days between June and October 2019, at the conclusion of which the court granted the petition in proceeding No. 2 and terminated respondent's parental rights. Respondent appeals from the three permanency orders and the order terminating her parental rights. ^[1]

"To terminate parental rights upon the ground of mental illness, the petitioning agency must demonstrate, by clear and convincing evidence, that the parent is - and for the foreseeable future will continue to be - unable to provide proper and adequate care for his or her child by reason of that parent's mental illness. Such a showing, in turn, 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 Kaitlyn X. [Arthur X.], 122 A.D.3d 1170, 1171 [2014] [internal quotation marks, brackets and citations omitted]; see Matter of Summer SS. [Thomas SS.], 139 A.D.3d 1118, 1119 [2016]). "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 Duane II. [Andrew II.], 151 A.D.3d 1129, 1131 [2017] [internal quotation marks and citations omitted], lv denied 29 N.Y.3d 918 [2017]). Respondent contends that petitioner failed to satisfy this burden of proof.

Petitioner presented the report and testimony of Richard Liotta, a licensed psychologist who performed a court-ordered evaluation of respondent. He opined that respondent suffered from mental illnesses that rendered her unable to provide proper and adequate care for the child, either now or in the foreseeable future. Respondent concedes that she is presently unable to care for the child yet asserts that Family Court erred in finding that she is unable to care for the child in the foreseeable future, as Liotta testified that several of her mental illnesses are amenable to treatment or are not so severe as to impact her ability to properly care for the child in the future.

Liotta diagnosed respondent as suffering from the following: unspecified bipolar and related disorder; other specified anxiety disorder with generalized anxiety disorder features; other specified trauma and stressor related disorder - primarily in response to ongoing stressors and perceived traumatization by circumstances; delusional disorder, persecutory type; other specified disruptive impulse control and conduct disorder; attention deficit hyperactivity disorder combined presentation, moderate to severe; other specified personality disorder with borderline narcissistic and paranoid features; and substance use disorder - unspecified current severity with history of opioid use and alcohol use disorder. Liotta opined that respondent's mental health disorders act in concert, sometimes exacerbating or amplifying one another, and that "personality disorders are typically very hard to treat because often the person doesn't see themselves as having a problem." He further opined that these mental illnesses affected respondent's judgment, decision-making and ability to parent "a great deal" and that they were "enduring," "long-standing," "severe" and unlikely to improve in the foreseeable future based on her history of noncompliance with treatment.

According deference to Family Court's factual findings and credibility determinations, and in light of the absence of any contradictory expert evidence, we find that clear and convincing evidence supports Family Court's determination (see Matter of Duane II. [Andrew II.], 151 A.D.3d at 1132; Matter of Kaitlyn X. [Arthur X.], 122 A.D.3d at 1172). "To the extent that [the expert] suggested that certain aspects of [respondent's] mental illness[es] were...