Opinion
774 CAF 22-00599
11-17-2023
In the MATTER OF STEVEN M. Oswego County Department of Social Services, Petitioner-Respondent; v. Scott M., Respondent-Appellant.
ROBERT J. GALLAMORE, ST. GEORGE, UTAH, FOR RESPONDENT-APPELLANT. CATHERINE M. SULLIVAN, OSWEGO, ATTORNEY FOR THE CHILD.
ROBERT J. GALLAMORE, ST. GEORGE, UTAH, FOR RESPONDENT-APPELLANT.
CATHERINE M. SULLIVAN, OSWEGO, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., LINDLEY, MONTOUR, GREENWOOD, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent appeals from an order terminating his parental rights pursuant to Social Services Law § 384-b (4) (c) on the ground of mental illness. We affirm. We conclude that petitioner established by clear and convincing evidence that respondent is "presently and for the foreseeable future unable, by reason of mental illness ..., to provide proper and adequate care for [his] child" (id. ; see Matter of Michael S. [Rebecca S.] , 165 A.D.3d 1633, 1633, 82 N.Y.S.3d 916 [4th Dept. 2018], lv denied 32 N.Y.3d 915, 2019 WL 637852 [2019] ). Petitioner presented the testimony of a licensed psychologist, several caseworkers assigned to respondent, mental health staff who interacted with respondent, and two former foster parents of the child, along with the psychologist's written report and respondent's records from mental health and substance abuse providers. The evidence established that respondent suffers from antisocial personality disorder, "which is characterized by a lack of empathy, the failure to adhere to social norms, aggression, impulsiveness, and a failure to plan" ( Michael S. , 165 A.D.3d at 1633, 82 N.Y.S.3d 916 ; see Matter of Neveah G. [Jahkeya A.] , 156 A.D.3d 1340, 1341, 65 N.Y.S.3d 851 [4th Dept. 2017], lv denied 31 N.Y.3d 907, 2018 WL 2123215 [2018] ), and that the child "would be in danger of being neglected if [he was] returned to [respondent's] care at the present time or in the foreseeable future" ( Matter of Jason B. [Phyllis B.] , 160 A.D.3d 1433, 1434, 72 N.Y.S.3d 868 [4th Dept. 2018], lv denied 32 N.Y.3d 902, 2018 WL 4233318 [2018] ; see Michael S. , 165 A.D.3d at 1633, 82 N.Y.S.3d 916 ).
We also reject respondent's related contention that Family Court's determination did not have a sound and substantial basis in the record inasmuch as it was not supported by sufficient admissible evidence. The psychologist who testified that, as a result of respondent's antisocial personality disorder, the child would be placed in immediate jeopardy of neglect or harm if he was returned to respondent's care, was qualified as an expert in the field of psychology, including the administration of psychiatric assessments, without objection. The fact that the court later noted that the psychologist was not qualified as "a psychiatrist or a mental health expert" is irrelevant because the statute expressly provides that a determination to terminate parental rights may be based upon the testimony of either a psychiatrist or psychologist (see Social Services Law § 384-b [6] [c] ; see e.g. Matter of Jason B. [Gerald B.] , 155 A.D.3d 1575, 1575, 63 N.Y.S.3d 630 [4th Dept. 2017], lv denied 31 N.Y.3d 901, 2018 WL 1414507 [2018] ). Likewise, the fact that the psychologist diagnosed respondent with a personality disorder, and not a mental illness, is irrelevant inasmuch as personality disorders, such as antisocial personality disorder, are "mental condition[s]" as that term is used in the definition of "mental illness" in Social Services Law § 384-b (6) (a) and may provide a sound and substantial basis to support a determination terminating parental rights (see e.g. Michael S. , 165 A.D.3d at 1633, 82 N.Y.S.3d 916 ; Neveah G. , 156 A.D.3d at 1341, 65 N.Y.S.3d 851 ). Additionally, respondent's counsel stipulated to the admission of respondent's medical records, without objection. Thus, to the extent respondent challenges the court's reliance on those records in reaching its determination, his challenge is waived (see Matter of Byler v. Byler , 207 A.D.3d 1072, 1073, 170 N.Y.S.3d 459 [4th Dept. 2022], lv denied 39 N.Y.3d 901, 2022 WL 11448472 [2022] ; Lahren v. Boehmer Transp. Corp. , 49 A.D.3d 1186, 1187, 856 N.Y.S.2d 363 [4th Dept. 2008] ). Respondent's contention that the court erred in failing to order an independent psychiatric or psychological examination of him pursuant to Social Services Law § 384-b (6) (e) is not preserved for our review (see Matter of Jasmine F. , 298 A.D.2d 997, 997, 748 N.Y.S.2d 308 [4th Dept. 2002], lv denied 99 N.Y.2d 506, 755 N.Y.S.2d 712, 785 N.E.2d 734 [2003] ; cf. Matter of Rahsaan I. [Simone J.] , 180 A.D.3d 1162, 1164, 119 N.Y.S.3d 609 [3d Dept. 2020] ).
We reject respondent's contention that the court abused its discretion in denying his request for an adjournment. "The grant or denial of a motion for an adjournment for any purpose is a matter resting within the sound discretion of the trial court" ( Matter of Dixon v. Crow , 192 A.D.3d 1467, 1467, 144 N.Y.S.3d 766 [4th Dept. 2021], lv denied 37 N.Y.3d 904, 2021 WL 3925959 [2021] [internal quotation marks omitted]; see Matter of Nathan N. [Christopher R.N.] , 203 A.D.3d 1667, 1669, 165 N.Y.S.3d 212 [4th Dept. 2022], lv denied 38 N.Y.3d 909, 2022 WL 2127495 [2022] ), and we conclude that the court did not abuse its discretion.
Finally, we have reviewed respondent's remaining contention and conclude that it does not warrant modification or reversal of the order.