Opinion
05-30-2017
In re ARIELLA D., and Another, Dependent Children Under the Age of Eighteen Years, etc., Sharon D., Respondent–Appellant, The Children's Aid Society, Petitioner–Respondent.
Bruce A Young, New York, for appellant. Douglas H. Reiniger, New York, for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
Bruce A Young, New York, for appellant.
Douglas H. Reiniger, New York, for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
ACOSTA, P.J., FRIEDMAN, ANDRIAS, WEBBER, GESMER, JJ.
Orders, Family Court, New York County (Susan Knipps, J.), entered on or about December 1, 2015, which, upon a fact-finding determination that respondent mother suffers from a mental illness as defined by Social Services Law § 384–b(6), terminated the mother's parental rights and transferred custody of the subject children to petitioner agency and the Commissioner of the Administration for Children's Services for purposes of adoption, unanimously affirmed, without costs.
The agency met its burden of establishing by "clear and convincing proof" that the mother is "presently and for the foreseeable future unable, by reason of mental illness ..., to provide proper and adequate care" for the subject children (Social Services Law § 384–b[3][g][i] ; [4][c]; accord Matter of Hime Y., 52 N.Y.2d 242, 247, 437 N.Y.S.2d 286, 418 N.E.2d 1305 [1981] ). The evidence included a report and testimony from a court-appointed psychiatrist who, after examining the mother and reviewing medical and other records, opined that the mother suffers from bipolar disorder and alcohol use disorder and that, as a result, if the children were returned to her care, they now and in the foreseeable future, would be at risk of becoming neglected (see Social Services Law § 384–b[6][e] ; see also Matter of Savannah Love Joy F. [Andrea D.], 110 A.D.3d 529, 529, 973 N.Y.S.2d 165 [1st Dept.2013], lv. denied 22 N.Y.3d 858, 2014 WL 112433 [2014] ). Under the circumstances here, where the expert's opinion was based on the mother's long history of mental illness, her non-compliance with substance abuse and psychiatric treatment, and the pervasive nature of her deficits, it was not necessary for the psychiatrist to observe interactions between the mother and children before reaching his conclusion (see Matter of Brianna Monique F. [Monique F.], 129 A.D.3d 638, 639, 13 N.Y.S.3d 33 [1st Dept.2015] ). In addition, there was other evidence before the Family Court which supports the psychiatrist's opinion, including agency and medical records, a prior court-ordered psychological evaluation, and the testimony of two agency caseworkers and the mother's therapist (see Social Services Law § 384–b[6][e] ; Hime Y., 52 N.Y.2d at 248, 437 N.Y.S.2d 286, 418 N.E.2d 1305 ; Matter of Roberto A. [Altagracia A.], 73 A.D.3d 501, 501, 899 N.Y.S.2d 839 [1st Dept.2010], lv. denied 15 N.Y.3d 703, 906 N.Y.S.2d 817, 933 N.E.2d 216 [2010] ). The mother failed to call any witnesses or offer any rebuttal evidence, and the court properly drew a negative inference from her failure to testify (see Matter of Starlayjha S. [Kumica F.], 132 A.D.3d 571, 571, 17 N.Y.S.3d 874 [1st Dept.2015] ). Given the finding that the mother suffers from mental illness, which causes her "to be unable, at present and for the foreseeable future, to provide proper and adequate care for the children," a dispositional hearing was not required (Matter of Laura F., 18 A.D.3d 362, 795 N.Y.S.2d 538 [1st Dept.2005] ; Matter of Thaddeus Jacob C., 104 A.D.3d 558, 962 N.Y.S.2d 106 [1st Dept.2013] ; Matter of Antonio V., 268 A.D.2d 341, 701 N.Y.S.2d 417 [2000], lv. denied 95 N.Y.2d 751, 711 N.Y.S.2d 153, 733 N.E.2d 225 [2000] ).
We have considered the mother's remaining arguments and find them unavailing.