Opinion
714 CAF 16–01131
07-06-2018
In the MATTER OF LYNDON S. Erie County Department of Social Services, Petitioner–Respondent; v. Hillary S., Respondent–Appellant.
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT–APPELLANT. JAMES E. BROWN, BUFFALO, FOR PETITIONER–RESPONDENT. DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL, Buffalo), ATTORNEY FOR THE CHILD.
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT–APPELLANT.
JAMES E. BROWN, BUFFALO, FOR PETITIONER–RESPONDENT.
DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL, Buffalo), ATTORNEY FOR THE CHILD.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order that, inter alia, adjudged that she neglected the subject child. We reject the mother's contention that Family Court erred in granting petitioner access to her mental health records. It is well settled that "a party's mental health records are subject to discovery where that party has placed his or her mental health at issue" ( Matter of Richard SS., 29 A.D.3d 1118, 1124, 815 N.Y.S.2d 282 [3d Dept. 2006] ; see Matter of Joseph M., Jr. [Joseph M., Sr.] , 150 A.D.3d 1647, 1649, 52 N.Y.S.3d 602 [4th Dept. 2017], lv denied 29 N.Y.3d 917, 2017 WL 3878204 [2017] ; see generally Ace v. State of New York , 207 A.D.2d 813, 814, 616 N.Y.S.2d 640 [2d Dept. 1994], affd 87 N.Y.2d 993, 642 N.Y.S.2d 855, 665 N.E.2d 656 [1996] ). The evidence in the record establishes that the mother had refused to authorize disclosure of the mental health records, which made it impossible to assess whether she was compliant with her prescribed mental health treatment. Indeed, the paramount issue in this case was the mother's mental health and its alleged impact upon the subject child which required an assessment of the mother's mental health. Thus, we conclude that the court properly disclosed the records (see Joseph M., Jr. , 150 A.D.3d at 1649, 52 N.Y.S.3d 602).
We agree with the mother that records from Erie County Medical Center and Horizon Health Services, Inc. were improperly admitted in evidence inasmuch as the respective records were certified by "someone other than the head of the hospital or agency" and were not "accompanied by a photocopy of a signed delegation of authority signed by both the head of the hospital or agency and by such other employee" ( Family Ct. Act § 1046[a][iv] ). We conclude that the error is harmless, however, because, even if those records are excluded from consideration, the finding of neglect is nonetheless supported by a preponderance of the credible evidence (see generally Matter of Kadyn J. [Kelly M.H.], 109 A.D.3d 1158, 1159, 972 N.Y.S.2d 752 [4th Dept. 2013] ; Matter of John QQ., 19 A.D.3d 754, 755–756, 796 N.Y.S.2d 432 [3d Dept. 2005] ).
" ‘A respondent's mental condition may form the basis of a finding of neglect if it is shown by a preponderance of the evidence that his or her condition resulted in imminent danger to the child[ ]’ " ( Matter of Jayvien E. [Marisol T.], 70 A.D.3d 430, 435–436, 894 N.Y.S.2d 52 [1st Dept. 2010] ; see Matter of Jesse DD., 223 A.D.2d 929, 930–931, 636 N.Y.S.2d 925 [3d Dept. 1996], lv denied 88 N.Y.2d 803, 645 N.Y.S.2d 445, 668 N.E.2d 416 [1996] ). An "imminent danger" to the child may result from a respondent's "long-standing history of mental illness and noncompliance with treatment" ( Matter of Alexis H. [Jennifer T.], 90 A.D.3d 1679, 1680, 936 N.Y.S.2d 823 [4th Dept. 2011], lv denied 18 N.Y.3d 810, 2012 WL 1085530 [2012] ; see Jesse DD., 223 A.D.2d at 931–932, 636 N.Y.S.2d 925 ). " ‘[P]roof of mental illness alone will not support a finding of neglect ... The evidence must establish a causal connection between the parent's condition, and actual or potential harm to the child[ ]’ " ( Matter of Jesus M. [Jamie M.], 118 A.D.3d 1436, 1437, 988 N.Y.S.2d 778 [4th Dept. 2014], lv denied 24 N.Y.3d 904, 2014 WL 4637190 [2014] ; see Matter of Sean P. [Brandy P.], 156 A.D.3d 1339, 1340, 65 N.Y.S.3d 902 [4th Dept. 2017], lv denied 31 N.Y.3d 903, 2018 WL 1528127 [2018] ). The court, "which saw and heard the witnesses, is in the best position to assess credibility," and thus its determinations with respect thereto should not be disturbed if they are supported by the record ( Matter of Kai B., 38 A.D.3d 882, 883, 834 N.Y.S.2d 216 [2d Dept. 2007] ).
Here, multiple witnesses testified that the mother had not been taking her medications as prescribed, and the mother testified that she had experienced at least two nervous breakdowns and contracted "brain fever" from the spread of a sexually transmitted disease, which resulted in epilepsy-type symptoms. The mother further testified that, at different times, she had been prescribed Risperdal, Limbitrol, Xanax, and Klonopin, some of which she declined to take upon self-determining that she no longer needed them, and that she had not seen any of her mental health providers in more than six months. The court also heard testimony about the mother's troubling behaviors, including her tendency to disassociate and become non-communicative for days at a time and her habit of staring off into space for significant periods of time. The incident that gave rise to the investigation, which involved the mother pounding on the floors of her apartment with a hammer because she thought that the child could hear the downstairs neighbors saying inappropriate things, scared the child to such a degree that he hid inside a cat crate with a blanket over it so that he could not be seen. We conclude that the evidence is sufficient to establish a causal connection between the mother's failure to treat her mental illness and actual or potential harm to the child (see Jesus M., 118 A.D.3d at 1437, 988 N.Y.S.2d 778 ).
We have considered the mother's remaining contentions and conclude that they are without merit.