Matter of Nassau County Dept. of Social Servs. (B.M.) v D.M.

[*1] Matter of Nassau County Dept. of Social Servs. (B.M.) v D.M. 2011 NY Slip Op 50551(U) Decided on April 5, 2011 Family Court, Nassau County Dane, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 5, 2011
Family Court, Nassau County

In the Matter of the Commitment of Guardianship and Custody Pursuant to § 384-b of the Social Services Law, Nassau County Department of Social Services o/b/o B.M. (d.o.b. XX/XX/2006), Petitioner,

against

D.M., M.K., Respondents.



B-XXXXX-XX

 

Atty for Petitioner D.C.A. - Kimberly Snow, Esq. (516) 571-9649

Atty for Respondent-father is William A. Scheekutz, Esq. (516) 513-1016

Atty for Respondent-mother is Legal Aid, Connie Gonzalez, Esq. (516) 560-6400

Attorney for the child is Ann Cheris, Esq. (516) 484-2701

Edmund M. Dane, J.

On or about October 7, 2008, petitioner Department of Social Services (DSS) filed petitions against the respondent parents seeking to terminate their parental rights. Each petition alleges that the parents have permanently neglected the subject child, B. M. (d.o.b. xx/xx/2006) pursuant to Social Service Law (SSL) § 384-b (7) (a). The petitioner further alleges that the respondent parents, D. M. (hereinafter mother) and M. K. (hereinafter father) each suffer from a mental illness, within the meaning of SSL § 384-b (6), and are presently, and for the foreseeable future unable, by reason of said mental illness, to provide proper and adequate care for the subject child.

The petitioner asserts that the mother has been diagnosed with schizophrenia and bipolar disorder which has manifested in a disturbance in her behavior, thinking, feeling, and judgment [*2]to the extent that it would place the subject child in danger of becoming a neglected child, as defined by Family Court Act (FCA) § 1012, if returned to the care of the mother.

Petitioner alleges that the father suffers from a chronic mental illness which has not substantially improved during the child's placement in foster care. Further, petitioner asserts that return of the child to the father's care would likely subject the child to becoming a neglected child as defined in FCA § 1012.

In support of its position, DSS states that the child has been in their care and custody since Xxxx xx, 2006 (when the child was only 8 days old) and since that time, the respondents have failed to take the necessary steps to provide an adequate, stable home and parental care for the child.

Petitioner alleges that the mother has a history of inconsistent visits with the child, and exhibited an inability to execute basic childcare duties, such as changing the child's diaper or dressing her, without assistance from the caseworker.

Petitioner further alleges that the father has also been inconsistent in visiting with the child, and refused to change his daughter's diaper or assist the mother in changing their daughter for the first year and a half of the child's life.

Subsequent to the filing of the Termination of Parental Rights (TPR) petitions, the Court ordered a forensics evaluation which was conducted by Dr. Scroppo. After multiple adjournments, an extensive fact-finding hearing was conducted on the instant petitions commencing on February 3, 2010 and concluding on December 20, 2010, at which time, this Court gave all parties an opportunity to submit post-fact-finding motion papers on or before February 10, 2011. No papers were submitted, in support of their position, by any party. The Court reserved its decision to April 5, 2011.

TRIAL TESTIMONYThe first witness for DSS was Dr. Joe Scroppo, stipulated to as an expert in forensic psychology. Pursuant to court orders, this witness had undertaken two examinations and psychological evaluations of both respondents culminating in two reports. The first report, dated July 30, 2007, pertained to the disposition of the underlying neglect petitions (petitioner's exhibit 3). The second report, dated October 25, 2009, was ordered for the current TPR proceedings (petitioner's exhibit 2).

Both sets of examinations and evaluations included inter alia, family history, interviews of the respondents, obtaining collateral information (including interviews of relevant people involved in the lives of the respondents), a review of psychiatric history and DSS records, the administration of psychological testing, and observation of the interaction between respondents and the subject child.

Dr. Scroppo initially addressed his testimony to the examinations and evaluations of the respondent mother. Dr. Scroppo testified that his October 25, 2009 report reflects that the mother had difficulty providing an organized and coherent account of her early family history. Respondent mother reported that shortly after her birth, her own mother suffered a mental breakdown and was psychiatrically hospitalized for about one year. Upon her mother's return to the home, respondent [*3]mother was raised by her parents until she was 17 years old, at which time she was placed into a group home where she remained until age 22. Respondent mother did report that her mother suffered from Bipolar Disorder and was psychiatrically hospitalized three or four times.

Other relevant history for respondent mother dates to 1984. The Nassau University Medical Center ( NUMC) pediatric records reflected that this respondent was diagnosed with Partial Complex Seizures and Behavior Problems.

Additional NUMC records reviewed by this witness included notes from 1990 that respondent mother had been psychiatrically hospitalized in 1988 and continued on Lithium until the date of this note. In 1996, the NUMC notes reflect that respondent mother had "multiple psychiatric admissions for Bipolar Disorder."

On Xxxx xx, 2001 respondent mother was psychiatrically hospitalized, and presented as anxious, paranoid and agitated. Upon admission, mother was described as "actually psychotic." At discharge on Xxxx xx, 2001, she was diagnosed with Schizophrenia, Paranoid Type.

Respondent mother was again hospitalized for approximately two weeks in 2006 due to non-compliance with medication and actively hallucinating. Mother presented as exhibiting very violent and threatening behavior requiring emergency medications and physical restraint. Upon discharge, respondent mother's diagnosis was Bipolar Disorder, Manic Recurrent with Psychotic Features.

Outpatient psychiatric treatment was tendered to the respondent mother from August xx, 2006 until July xx, 2007 at NUMC. Notably, these records reflect that respondent mother possessed poor insight into her illness, and delayed receipt of services for three months after the initial intake appointment on Xxxx xx, 2006. Further, after an anti-depressant medication was added to her medication regimen in Xxxx 2007, the notes reflect that respondent mother's insight and judgment was limited when under stress.

Finally, psychiatric consultation notes dated Xxxxxx xx, 2006 from Xxxxxxx, where mother gave birth to the subject child, revealed that respondent mother was not taking any psychiatric medications upon admission, and admitted to a history of non-compliance with these medications.

Dr. Scroppo interviewed the mother and brother of the respondent mother. Both of these individuals were supportive of the respondent mother, believing that she needs to be given a chance to take care of the subject child. In contrast, the sister of the respondent mother expressed doubt about whether the respondent mother had the capacity to manage a child without assistance. Respondent mother was described by her sister as someone lacking the reflexes necessary to attend to a child, incapable of knowing what to do if the child developed a fever, and having reactive tendencies when very upset and emotional. Further, the sister stated that respondent mother has never worked or lived by herself, and feared that if respondent mother were left alone for an extended period of time, she would go into a state of panic. Dr. Scroppo credited the sister's statements as objectively reflective of the interaction between the child and respondent mother.

Dr. Scroppo's first forensic report (petitioner's exhibit 3) reflected the administering of eight psychological tests. The salient results of this testing indicated a common theme of defensiveness, wherein mother sought to minimize any negative aspects of her history and tried to present herself in an unrealistically favorable light. Also evident from the results, were mother's impulsive, resentful, rebellious features, and her difficulties with interpersonal relationships. [*4]

The results from the Parenting Awareness Skills Survey (PASS) test suggested that respondent mother was very tentative, hesitant, and rather child-like in her approach to parenting. She appeared to have little knowledge of how children behave at different ages. Mother was unsure for example, whether an 11 year-old child would understand an instruction to not steal things. Similarly, she was unsure whether a 6 year-old child would still be wearing diapers.

After administering testing, reviewing NUMC and DSS interview's, speaking with a DSS caseworker and respondent mother's family, Dr. Scroppo's diagnostic impression was Schizophrenia, Undifferentiated Type (by history) and Depressive Disorder NOS (by history).

Dr. Scroppo administered and reviewed five psychological tests, the results of which are reflected in his report, dated October 25, 2009 (petitioner's exhibit 2). Testing revealed continued defensiveness and the likelihood that respondent mother would experience significant problems, especially with health, safety and money management issues, if she were to attempt to live independently, or even semi-independently.

Many of the respondent mother's answers to the PASS test suggested, according to this witness, an absence of basic knowledge of children and child-rearing in addition to a lack of adequate parenting skills.

Dr. Scroppo observed respondent mother interact with the child in July 2009 for 45 minutes. During this session, mother was observed having difficulty setting limits for the child, appearing confused, unsure of herself and frozen, requiring the assistance of a caseworker who was present. Respondent mother's markedly passive approach to interacting with her child evidenced the absence of a sense of control or direction over the interaction. Further, the interaction observed between the mother and child clearly pushed the mother "to her maximum capacity," as she was very stressed and strained by the experience.

Similar passivity by respondent mother was noted by Dr. Scroppo during his July 2007 observation of the interaction between mother and child. Respondent mother was described as very anxious about lifting up, putting down and otherwise handling the child. Further, that mother was tentative, nervous and failed to wipe the child after a diaper change. Prominent anxiety and the strain of demand upon the mother were the same in both observations.

Dr. Scroppo also received progress notes from DSS for the period March 1, 2007 through July 20, 2009. These notes reflect that respondent mother had significant difficulty learning to diaper her child, indicative of the delay in obtaining and maintaining basic child care skills. Periodic outbursts were also noted, indicating respondent mother's inability to cope with her frustrations and emotions, both being potentially harmful to the child. Bad moods and emotional upset caused respondent mother to miss a significant number of visits with her chid.

The conclusions reached by this witness, were that respondent mother continues to maintain serious and significant deficits in child care knowledge and life skills; is emotionally fragile and prone to becoming upset and overwhelmed; and lacks the capacity to take care of a child. Further, Dr. Scroppo stated, with a reasonable degree of professional certainty, that based on the respondent mother's history of mental illness, she is now and for the foreseeable future, unable to adequately care for the subject child.

Dr. Scroppo's testimony was next directed to his examinations and evaluations of respondent [*5]father. The inquiry of Dr. Scroppo was primarily directed to his forensic reports dated July 31, 2007 (petitioner's exhibit 3) and October 25, 2009 (petitioner's exhibit 2).

The witness reported that respondent father appeared relatively open and forthright during the interview portion of his assessment, but exhibited remarkably little insight or awareness of himself. Overall respondent father's account of himself "was adequate, but of limited reliability" (petitioners exhibit 3 p.20).

Dr. Scroppo did find respondent father 's report that he did not, and does not have much to do with his parents or siblings to be reliable. Respondent father is a loner and does not like interacting with people, preferring to be self-reliant. Though respondent father's brother works at the same physical location where father is employed, there is little contact between them, notwithstanding the absence of any disagreement or conflict.

Respondent father reported to Dr. Scroppo that he was transferred to a special education school in the eighth grade. Respondent father described his schooling experience as one where he was taught "useless stuff" and largely a waste of time; respondent father viewed school negatively and felt it to be a coercive environment. Ultimately, respondent father was expelled from school, the explanation for which was described as convoluted and confusing by this witness. Though a good reader, respondent father took a GED examination, but failed because he refused to write the required essay.

Respondent father also reported to Dr. Scroppo that he is employed as a full time stocker on the night shift of a supermarket. Six days per week, respondent father leaves his residence for work at 10:30 p.m. and returns at 8:00 a.m.

With regard to medical and psychiatric history, respondent father reported that he has not seen a doctor for the past 20 years and has never engaged in psycho therapy. This was noteworthy to this witness, who reported that respondent father has paranoia and a distorted view of the world, perceiving others as conspiring against him and the respondent mother. One such illustration, was the respondent father's repeated refusal, for several months, to sign an authorization form permitting his daughter to receive physical therapy because he stated "I don't trust (DSS). I may be signing away my rights." This, despite the fact that he was previously informed that his daughter had one leg that was shorter than the other causing the child to fall down frequently (petitioners exhibit 2 at p. 27). Additionally, respondent father acknowledged to Dr. Scroppo his belief that the child needed speech services, however, father refused to sign the requisite authorizations, expressing concerns about signing away his parental rights.

The doctor's observations of interaction between respondent father and child contained positive aspects, including some physical closeness, paying attention to the child and doing some things together. Negative aspects of the observed interaction included respondent father 's passive low key approach, at times, and lack of recognition that the child was seeking some type of engagement and further interaction with the respondent father.

As with the respondent mother, Dr. Scroppo administered psychological testing of the respondent father on two occasions. The results of the series of testing are contained in the reports.

The respondent father presented himself in an unrealistically virtuous light during the first evaluation, minimizing the existence of common everyday flaws. Although respondent father [*6]provided adequate responses to some parenting dilemmas, other responses suggested that he had gross deficits in his parenting skills. Most strikingly, however, was respondent father 's detachment from other people, requiring individual psychotherapy and a referral to an expert in psycho pharmacology. The diagnostic impression assigned to respondent father as Schizoid Personality Disorder (provisional).

The more recent report (petitioner's exhibit 2) reflected respondent father 's defensiveness and a protocol consistent with the presence of a potential reckless lack of caution. Respondent father's protocol was also "consistent with that of persons who have little capacity to recognize their personal limitations and who over estimate their abilities. Respondent- father's profile indicates that he is quick to feel that he is being treated unfairly and rapidly concludes that others are working in a concerted way against him. Such persons are typically pessimistic about relationships and tend to be very skeptical and wary of establishing relationships" (petitioner's exhibit 2 at pg 31).

Also of significance in this report was Dr. Scroppo's conclusion that respondent father has significant deficits in his parenting knowledge and skills. Respondent father 's answers to the PASS test "typically did not address important aspects of the parenting situation and did not reflect much understanding or insight" (petitioner's exhibit 2 at pg 33). The respondent father was assigned a diagnostic impression of Personality Disorder, NOS with schizoid and paranoid features. Features of the multiple disorders present are social detachment evidenced by a skeptical, pessimistic approach of relationships and a distrust and suspiciousness of others.

This witness testified that respondent father 's personality disorder has an adverse impact on his parenting for several reasons. First, that respondent father lacks social support and cannot identify any person who could help him if he had an issue with his child. Second, that respondent father is committed to his night job and sleeps during the day; blaming his work schedule for only exercising two hours of visitation when he has been accorded four hours. Respondent father's refusal to change his work schedule evidences his inability to make himself fully available to his child. Third, that respondent father overvalues his own perceptions and is close-minded to input from others. Finally, that he lacks insight into himself, failing to recognize his own mistakes or shortcomings.

In conclusion, Dr. Scroppo surmised that respondent father's mental illness and personality deficits seriously interfere with his parenting. Though respondent father cares for and has positive feelings towards the child, the witness testified to a reasonable degree of psychiatric certainty that respondent father lacks adequate skills and capacity to parent the subject child now and in the foreseeable future.

The second witness for the presentment agency was Shade Banji. Ms. Banji was the DSS caseworker assigned to these respondents for over three years. Her assignment commenced on Xxxx xx, 2006, when the subject child was removed from the care of respondents after a finding of neglect, and placed into the custody of DSS.

A Service Plan Review (SPR) was held within thirty days of the child's removal and a reunification plan was established. From the date of the removal through October 7, 2008, the date the instant TPR petition was filed, DSS undertook four SPR's.

The initial SPR provided addressed recommendations for parenting classes, visitation and [*7]possible resources for the child, if the child was not to be returned to her parents. DSS maintained concerns about the parent's housing, mental capacities and their inabilities to care for or meet the child's needs.

The respondent mother was directed to continue mental health counseling with her psychiatrist and take any prescribed medications. Respondent father was required, pursuant to the final order of disposition on the underlying neglect finding, to attend counseling and anger management classes.

Both respondents were referred to parenting classes at Parent and Child Together ( PACT). Respondent mother attended the weekly class for nearly one year from December 2006 to October 2007 and received a certificate of completion. Though this PACT did not maintain a one-to-one program, which mother needed, it nevertheless taught parents how to attend to a newborn child, including feeding and diaper changing.

Respondent father did not attend the PACT program, which included an anger management component, and refused counseling services. However, both respondents did attend the Babies Care Basic two and one-half hour class designed to teach parents how to care for their baby on a one-to-one basis. Both respondents received certificates of completion from this program.

Even after successfully completing this program, Ms. Banji testified that respondent mother had to be re-taught to burp, feed and change a diaper repeatedly. When the child attained the age of two-and-one-half years, respondent mother still remained incapable of changing the diaper.

The parents were also referred to Children and Parents Together (CAPT), a program designed to train parents on taking care of and meeting the needs of a child, for both individual counseling and parental skills training. The respondent mother completed this program. However, only the parental skills training portion of the program was attended by respondent father .

Additional parenting classes were deemed necessary by DSS because neither parent was yet deemed capable of caring for their child. Observations of this incapability, by this witness, included the respondent father's detachment from the child and respondent mother's extreme nervousness while holding the baby, and her inability to feed, burp, or change the diaper of the baby.

This witness supervised nearly all of the visitation between the child and parents during her three year tenure as the assigned caseworker. The visitation was generally twice per week, two hours per visit.

In describing her observations during visitation the witness testified that respondent father did not initially kiss, feed, hold, burp or feed his daughter. Respondent father simply observed and complained about anything and everything, including the reasons why the child was removed from parental care. However, during the first six moths of 2007, he did "okay" when he fed the baby twice and burped her four times. At no time during this period did respondent father change the child's diaper, but he held his child more regularly than the respondent mother.

With regard to the respondent mother, this witness testified that during the first six months of 2007 she repeatedly instructed the mother as to holding, feeding, burping and changing the child's diapers and clothing. The respondent mother was either unable, inadequate or incomplete when performing these tasks. [*8]

In the second half of 2007 diaper changing remained a struggle for the respondent mother, who could still not change a dirty diaper. Respondent father, still refused to change the child's diaper, whether it was wet or dry. At this point, the child could burp herself and required less assistance from the mother during a feeding. The baby was able to hold her own bottle. Respondent father's interaction with the child included talking, playing Japanese music on his cell phone, and playing with toys.

Both parents had their visitation at DSS until the end of 2007. In October 2007, respondent father was reported to have threatened to burn down DSS. His visitation was then moved off site.

Respondent mother's visits off site commenced in November 2007, in order to enable her to have more quality time with her child. These visits, regularly attended by the respondent father, also included this witness and the maternal aunt, Debbie Scozzari.

In early 2008, supervised visitation took place wherever the parents wanted it to be; generally, however, visitation occurred at DSS and the Children's Museum one time per week. The child enjoyed the museum and was under the careful watch of both parents. The respondent father was more instructive, frequently directing his child by stating "don't go there," and "don't do that." It was the respondent father who gave the child the lunch provided by the foster parent.

Though the child enjoyed the museum, the respondent father found visitation there to be too tiring. The mother believed there were too many other children and that the site was unsafe for her daughter.

Ms. Banji also testified that DSS has not offered unsupervised visitation of the child to either respondent. The reason proffered was that respondents did not want their visitation unsupervised and that the respondent father was always tired after work and would often lie down during visitation. Further, that respondent mother had shown insufficient improvement in child care skills.

Aside from the visitations, the witness testified to several regular meetings with respondents to discuss reunification plans, goals and planning for the child.

As stated above, the maternal aunt, D. S., attended several supervised visitations and was initially willing to be a resource for the child. However, for unspecified reasons, Ms. S. is no longer a resource for this child. The paternal grandparents were proposed as resources, but were deemed not to be viable by DSS.

Ms. Banji also testified that pursuant to DSS recommendations, respondent mother did attend NUMC individual counseling for mental illness and medication management. The frequency of the counseling was initially one time per week and later dependent upon respondent mother's needs.

On cross examination, Ms. Banji testified to often not entering required information into the Uniform Case Record. The witness acknowledged her repeated failures to include her observation, improvements in parenting skills, several recommendations for proffered services, notes about a conversation with a doctor regarding respondent mother's hospitalization at NUMC in 2007, multiple conversations with the mother's psychiatrist and her mental health evaluations, in addition to other omissions. Further, that some information in the SPR's and Permanency Planning Reports were inaccurate, not updated and/or incomplete due to the inability of the computer and "glitches." This necessary information often included observations, the parents compliance with proffered services, [*9]and respondent father 's attempts to introduce his child to other children during his off-site visitation.

Though initially unsure as to why she referred respondent mother to anger management classes, Ms. Banji later testified that it was due to the respondent mother being upset over having the child removed from her care. Not aware of the components of this required program, the witness believed it would address the mother's needs.

Ms. Banji additionally testified that only with around the clock supervision and assistance could the child be returned home to both parents. However, Ms. Banji said there was no available resource to provide the necessary supervision and assistance. Ms. Banji testified that she never contacted the Visiting Nurse Service which may have provided this service. This caseworker also failed to contact the NYS Office of Mental Health to locate additional possible resources for the parents.

The respondent mother did not testify and rested her case without calling a witness.

Respondent father testified, initially as to twelve (12) photographs he had taken (respondent father's exhibits B-M), depicting a situation wherein he and the respondent mother were actually involved with the child, and also, reflecting inattentiveness by a presentment agency caseworker during visitation. Father further testified that he has multiple friends and family members, and generally "hangs out" with his neighbor, "J." Though father testified he would see J. he also stated that it was hard for him to socialize with anyone due to his work hours, and that he did not spend his holidays with family on a regular basis. Respondent father asserted that Dr. Scroppo did ask him if he had friends, but never to provide their names.

Respondent father acknowledged that DSS made referrals to Baby Care Basic, a Safety Seminar, and Anger Management, but he stated that he was given an incorrect time to attend the seminar. Respondent never rescheduled (see also Order of Disposition issued by Judge Foskey, dated July 31, 2007). Anger management classes were not undertaken due to father's work schedule, which he unsuccessfully attempted to change. Respondent father testified that he did attend parenting classes recommended to him by a nun from Our Lady of Mercy (one time per week over a period of two years) but did not attend PACT because he felt discriminated against as men and women were separated. Anger management was not a component of these parenting classes.

Regarding his alleged threat to burn down DSS, respondent father testified that he was very frustrated and merely expressed his desire to sue DSS and "take the building."

FINDINGS OF FACT & CONCLUSIONS OF LAW

Mental Illness

In a proceeding to terminate parental rights on the grounds of mental illness, the petitioner bears the burden of demonstrating by clear and convincing evidence, that the parent is presently, and will continue for the foreseeable future to be unable, by reason of mental illness, to provide proper and adequate care for a child who has been in the care of an authorized agency for a period of one year prior to the filing of the petition (see SSL § 384-b; Matter of Alexis X., 23 AD3d 945 [3rd Dept 2005]). Prior to such termination, the parent must be examined by a qualified psychiatrist or psychologist and the Court must elicit testimony from the mental health professional particularizing [*10]how the parent's mental illness affects their present and future ability to properly and adequately care for their child (see SSL § 384-b (6) (c); Matter of Robert M.P.-D. Jr., 31 AD3d 560 [2nd Dept 2006]).

In this case, both respondents were evaluated twice ( first in 2007 for the underlying neglect proceeding and again in 2009 for the current TPR proceeding) by Dr. Joe Scroppo, stipulated to as a qualified psychologist. Subsequently, he testified with particularity regarding the mental status of each respondent and how that status would affect their ability to properly care for the subject child.

Respondent Mother

The respondent mother has a documented history of mental illness which dates to the age of fourteen. Respondent mother has been diagnosed with Bipolar Disorder and Schizophrenia and has been prescribed psycho tropic medications for many years. Despite the long history of mental illness, and multiple hospitalizations, the respondent mother did not know what schizophrenia was or how the disease manifests itself in her (see petitioner's exhibit 2). In fact, respondent mother minimized the extent of her mental illness in stating that she cannot have bipolar disorder. Additionally, she stated that her illness is "very mild" because she is neither dangerous nor violent. This is in direct contravention to hospital records which indicate the mother exhibited very violent and threatening behavior requiring medication and physical restraint. Additionally, despite being confronted by medical records which document a history of non-compliance with medications, respondent mother insists she has been compliant and contends that her most recent hospitalization was the result of a reaction to a new medication given to her during her pregnancy (when in fact hospital records reflect that respondent stopped taking all medications during her pregnancy).

The court has found that where an individual fails to acknowledge their mental illness or lacks insight as to its severity and fails to undertake the treatment required, that alone, is sufficient to support a finding of permanent neglect (see Matter of Maleeka Abdullah M., 65 AD3d [2nd Dept 2009]); Matter of Robert XX, 290 AD2d 753 [3rd Dept 2002]). Further, it is well settled that courts have found sufficient basis to terminate the rights of a parent where the psychologist opined that the child would be at risk of neglect, now and in the foreseeable future, based on the nature of the parent's mental illness, lack of insight into their illness, and their inability to act in accordance with the needs of the child, if the child were returned to the care and custody of the parent (see Matter of Tyler Shannara S., 38 AD3d 560 [2nd Dept 2007]).

After review of the respondent mother's medical records, DSS case notes, psychological testing, collateral interviews, and observations of respondent with the subject child, Dr. Scroppo opined that respondent mother's significant deficits in child care knowledge, life skills, and her emotional fragility, result in respondent mother's lack of capacity to take care of a child both now and in the foreseeable future. Respondent mother did not offer her own mental health expert witness to rebut the testimony of Dr. Scroppo. Consequently, it is reasonable for this Court to rely on the expert testimony of petitioner's witness in making its determination(see Matter of Alexis X., 23 AD3d 945 [3rd Dept 2005]; Jenna KK, 50 AD3d 1216 [3rd Dept 2008]). Moreover, the mother's failure to testify on her own behalf leaves the court to draw an adverse inference from respondent (see Jenna KK, 50 AD3d 1216, supra).

Accordingly, the Court finds that the petitioner has met its burden, by a showing of clear and [*11]convincing evidence, that the respondent mother is presently, and for the foreseeable future, unable, by reason of mental illness, to care for the subject child, B. M..

Respondent Father

Unlike the respondent mother, the respondent father does not have a documented history of mental illness. This may be due, at least in part, to the fact that the respondent father has admitted that he has not sought the counsel of a medical professional in more than twenty years. Notwithstanding the respondent father's undocumented history, the Court may make a determination to terminate his parental rights on the basis of mental illness, upon the evaluation and testimony of a psychiatrist or psychologist, if such testimony evinces an inability, on the part of the father, to care for the child now and for the foreseeable future (see Jenna KK, 50 AD3d 1216, supra).

Dr. Scroppo conducted two forensic evaluations; one in 2007 and another in 2009 which included psychological testing, interviews and observations of interactions between the respondent father and the subject child. Noticeably absent, are collateral contacts (with the exception of the DSS caseworker) on behalf of the respondent father. His current roommate refused to participate and respondent father maintains minimal contact with his family of origin. At the conclusion of the first forensic evaluation, Dr. Scroppo diagnosed the respondent father with an Axis II diagnosis of Schizoid Personality Disorder (Provisional). Respondent's admissions that he is "not a people person" (petitioner's exhibit 3); that he has not been out socially with friends in nine years; that he maintained a fifteen year relationship with a girlfriend that he saw only once; that he has no significant relationship with his five siblings or no knowledge of where some of them reside; and that he has worked in the same location with his younger brother, for more than a decade, yet maintains no relationship with him in the absence of conflict between them, all offer support for Dr. Scroppo's diagnosis. More disturbing, is respondent's admission that he did not notice the changes in the respondent mother's behavior when she had stopped taking her medication and was experiencing a psychotic break. In fact, the respondent father reported, that despite being in an intimate relationship with the respondent mother, and residing with her, the neighbors noticed the respondent mother's psychotic behavior before him.

Following extensive psychological testing, interviews, and observations of respondent father with the subject child in 2009, Dr. Scroppo diagnosed the respondent father with Personality Disorder NOS with Schizoid and Paranoid features. Respondent father's paranoia was evinced in his assertion that his former landlord and sister (a nurse at the hospital where respondent mother gave birth) conspired to make a false CPS report because the landlord's wife was jealous and the landlord did not want the child living in the home. Respondent father further contends that the landlord's family attempted to kill the subject child, in-utero, by throwing a football, which struck the respondent mother in the stomach. More distressful, is that the respondent father delayed treatment for the subject child in refusing to sign authorizations for physical and speech therapy, because the respondent father reported being distrustful of DSS tricking him into signing away his parental rights.

Pursuant to SSL § 384-b (6) (e), the respondent parent shall have the right to submit other psychiatric, psychological, or medical evidence. Notwithstanding that right, respondent father failed to offer the testimony of a mental health expert to rebut the opinions and observations of Dr Scroppo. Respondent father did, however, take the stand in his own defense. [*12]

To refute Dr. Scroppo's observations, respondent stated that he did, in fact, have friends but did not offer the testimony of any friends to support his assertion that he has established emotional relationships. Respondent father also offered into evidence twelve pictures (respondent's exhibit 2), which he states depict him and the respondent mother interacting with the child, while the caseworker was being inattentive to them.

Dr. Scroppo's observations of respondent father with the subject child attest to some glimpses of positive interactions with the subject child. However, based on the entire evaluation, Dr. Scroppo is of the opinion that respondent father exhibits a marked and persistent social detachment, pattern of distrust, and suspiciousness. Consequently, the respondent father has a limited capacity to recognize his personal limitations, is quick to feel that he is being treated unfairly, and is skeptical, wary, and uninterested in establishing relationships. The impact on the respondent father's ability to effectively parent is that he has a limited support system, a lack of emotional attunement to the child, and an lack of appreciation of the child's social needs. The fact that the respondent father refused to believe the child needed physical therapy, and that he was not in tune to the mental health needs of the respondent mother, coupled with respondent father's refusal to seek medical treatment (no physical exam in over 25 years, and no follow through on referral for psychotherapy) calls into question whether the respondent father would be able to recognize the medical needs of the child as they arise, and if so, whether he would follow through by seeking appropriate care. Although a parent with a mental illness could care for their child if they were actively involved in meaningful treatment that results in stabilization of the disorder, that is not the case here as respondent is not engaged in mental health treatment. Courts have held that where the possibility exists that a parent may, in the future, be capable of providing adequate care to their child, it is not sufficient to warrant a denial of the petition for termination (see Matter of Alexander James R., 48 AD3d 820 [2nd Dept 2008]); Matter of Dominique R., 38 AD3d 211 [1st Dept 2007]).

Accordingly, this Court finds that the petitioner has made a showing, by clear and convincing evidence, that the respondent father, is presently, and for the foreseeable future, unable to provide proper and adequate care for the subject child, due to mental illness.

Permanent Neglect

Pursuant to SSL § 384-b (7) (a) a permanently neglected child is defined as a child who is in the care of an authorized agency and whose parent or custodian has failed for a period of: 1) at least one year or 2) fifteen out of the most recent twenty-two months following the date the child came into the care of the authorized agency to: a) substantially and continuously or repeatedly maintain contact with or b) plan for the future of the child, although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship. The existence of mental illness does not relieve a parent of their duty to confront and overcome the obstacles to reunification with their child (see Matter of Robert XX, 290 AD2d 753 [3rd Dept 2002]). The parent's contact with the child, and planning for the child's future are alternative elements, requiring the petitioner to prove only that the respondent parent was deficient in one of the areas (see Matter of Elijah N.N., 20 AD3d 728 [3rd Dept 2005]).

Planning for the future of the child contemplates that the parent shall take such steps, as are necessary, to provide an adequate, stable home and parental care for the child, within the financial constraints of the parent and within a reasonable period of time (see SSL § 384-b (7) (c); see also, [*13]Matter of George M., 48 AD3d 926 [3rd Dept 2008]; Matter of Elijah NN., 20 AD3d 728 [3rd Dept 2005]). Good faith alone is insufficient; the plan must be realistic and feasible. Id. In determining whether a parent has adequately planned for the future of their child, the court may consider the parent's failure to utilize medical, psychiatric, psychological and other social and rehabilitative services made available to the parent. SSL § 384-b (7) ( c); Matter of George M, 48 AD3d 926 [3rd Dept 2008]; Administration for Children's Services v Sonia R and Larry W., 30 Misc 3d 1211A [Bronx Co Fam Ct 2010]).

The threshold question is whether petitioner has made diligent efforts to strengthen the parental relationship (see Matter of George M, 48 AD3d 926 [3rd Dept 2008]; Matter of Alexander J.Z., 237 NYLJ 72 [Nassau Co Fam Ct 2007]). Pursuant to SSL § 384-b (7) (f) diligent efforts is defined as "reasonable attempts by an authorized agency to assist, develop, and encourage a meaningful relationship between the parent and child." Such efforts may include counseling, providing for visitation, keeping the parents advised of the child's progress and development, and providing assistance in resolving the problems which prevent the return of the child (see Matter of George M., 38 AD3d 926, supra).

Although this Court has found the testimony of the caseworker, Shade Banji, to be less than reliable, it is uncontroverted, that petitioner provided opportunities for the respondent parents to visit with the subject child. Both respondents were inconsistent in visiting with the subject child, though not to the extent that they have failed to substantially and continuously or repeatedly maintain contact with their daughter. Even when the respondent father threatened to burn down petitioner's building, petitioner made a referral for visitation at an alternative facility. Despite respondent father's threat, petitioner continued to provide respondent with weekly supervised visits with the subject child. In fact, respondent father states that petitioner would like him to have his full four hours of visitation per week (petitioner's exhibit 2), but is prevented from exercising such visitation because of his work schedule.

When the respondents' ended their relationship, DSS responded by providing them with separate visitation periods. Ms. Banji's testimony and respondents' admissions confirm, that both parents were referred for parenting classes and mental health services. Respondent mother was directed to continue with her psychiatrist and medication regimen, and respondent father was directed to enroll in therapy and anger management classes. During each visit, the caseworker modeled basic child care tasks for the respondent parents. Further, the parents were advised of the child's progress, development, and need for physical therapy and speech services. Consequently, the Court finds that the threshold inquiry regarding diligent efforts made by petitioner to strengthen and encourage the parent child relationship has been satisfied. The only remaining question is whether the respondent parents have failed to plan for the future of the subject child.

Respondent Mother

The respondent mother was referred to Parents and Children Together (PACT) for parenting classes, which she attended on a weekly basis for ten months from December 2006 to October 2007. Further, she was referred to, and participated in Children and Parents Together (CAPT), where she received counseling and parenting skills. In addition, respondent mother received individual coaching on basic parenting skills (i.e. diapering and feeding) from the caseworker during her visitations with the child. Notwithstanding all the training and assistance, observations by Dr. [*14]Scroppo and Ms. Banji demonstrate an inability to retain information and to properly execute the necessary skills. During a visit with respondent mother and child, it was observed by Dr. Scroppo, that the respondent changed the child's diaper, but failed to wipe the child clean. Respondent mother has indicated she learned nothing from attending parenting classes (petitioner's exhibit 3). Respondent mother's performance on the Parenting Awareness Skills Survey (PASS) in 2007 and 2009 indicate that respondent has little awareness of child development. A parent's obligation extends beyond attending classes, to include benefitting from the services offered and utilizing the tools acquired in those classes in order to successfully plan for the child's future (see Matter of Elijah N.N., 20 AD3d 728 [3rd Dept 2005]; Matter of Megan V., 7 AD3d 721 [2nd Dept 2004]).

Respondent mother lacks a clear plan for the care of the subject child. On one occasion, respondent stated her intention to have the subject child reside with her in her mother's home. Respondent mother states the child will have her own room, and she will rely on family members to financially assist her in caring for her child (petitioner's exhibit 2). Alternatively, respondent has stated that she is hopeful that she will obtain housing at a facility for the mentally ill which also permits children (petitioner's exhibit 2).

Neither plan appears to be realistic and feasible. Even if the respondent's family supported her and the child financially, it does not alleviate the issue of respondent's inability to care for the subject child. Respondent currently resides in her mother's home with her mother, brother, sister-in-law, and nephew. Respondent's mother is fragile both emotionally and physically, and cannot be viewed as a resource. Additionally, the maternal grandmother has an extensive history of mental illness, and is suffering from a multitude of physical ailments including stage 4 breast cancer (petitioner's exhibit 2). Respondent's brother is unavailable during daytime hours as he is employed full-time. Respondent has never been permitted to care for her young nephew for any extended period of time (generally no longer than 30 minutes). As respondent mother's sister-in-law refused to participate in the forensics because she did not view herself as a member of the family (petitioner's exhibit 2), it seems unreasonable to expect her to take an active role in caring for respondent's child.

Respondent has never lived independently. In fact, neither respondent's mother nor sister expressed confidence in respondent's ability to live independently (petitioner's exhibit 2). Additionally, the respondent mother reported that she attempted to apply for housing but her application was returned because she mailed it to the wrong address (she also reports she neglected to include her psychiatric history, which was vitally important to obtaining housing based on mental illness). Respondent mother also attempted to apply for food stamps but had difficulty completing portions of the form. It is of concern to the Court that the respondent is not able to successfully complete such tasks to ensure that the basic needs of herself and child are met.

Pursuant to case law, respondent, at a minimum, must take steps to cure the original problem which resulted in the child's removal. To date, respondent mother has failed to meet the standard. Although the respondent mother has maintained contact with the subject child and engaged in parenting classes, she has failed to plan for the future of the subject child, despite the diligent efforts of petitioner. Accordingly, based on the testimony and evidence presented, this Court determines that the respondent mother has permanently neglected the subject child.

Respondent Father[*15]

The respondent father was referred for parenting, counseling, and anger management. Respondent father refused to avail himself of any therapeutic services. Respondent lacks insight into his need for anger management. He blames his threat to blow up petitioner's building on the actions of petitioner. The Court notes that during the trial the respondent displayed a lack of self-control and the demeanor of one who possesses a shortly lit fuse.

Respondent admitted that he delayed attending parenting classes, because he was angry that he was not allowed to participate in the women's only group and stated that the alternative group interfered with his sleep schedule (petitioner's exhibit 3). Respondent finally began attending parenting classes through CAPT from December 2007 through May 2009. Despite the father's participation in parenting classes, he seems to have benefitted marginally. Prior to attending parenting classes, respondent father had suggested he would care for the subject child while at work by keeping her in an aisle while strapped in her car seat (petitioner's exhibit 3). Further, he stated that the child was ten pounds overweight and suggested he would substitute every other formula feeding with juice until the child achieved the correct weight (petitioner's exhibit 3). Respondent father was again interviewed and administered the PASS in 2009 after completing parenting classes. When asked what advice he would give his then three year old daughter, his response was "don't smoke" and "no playing ball in the house." Respondent could not fathom that the child would undergo some adjustment in leaving the only home she has known if returned to him. His statement that children her age have no fear or that she "has no special needs," indicate that despite substantial time participating in parenting classes, respondent father has failed to benefit from the services offered or utilize the tools and lessons learned in order to successfully plan for his child's future (see Elijah N.N., 20 AD3d 728, supra).

Respondent father has stated that he does not think the two hours per week that he spends with his daughter are sufficient to form a bond (petitioner's exhibit 2). However, when given the opportunity to increase his visitation time, he reports that he is unable to because of work. This begs the question that if the father cannot find the time to visit with his daughter two extra hours per week, how will he have the time to care for her on a full-time basis? When asked of his plan for the care of the subject child, respondent father was unable to provide a concrete plan which was both realistic and feasible. A good faith effort alone is not determinative. Respondent father has failed to address the issues which led to his daughter's placement in a reasonable period of time.

Accordingly, the Court finds by a showing of clear and convincing evidence, that the respondent father has failed to plan for the future of the subject child although physically and financially able to do so, and that the subject child is a permanently neglected child.

The record established by clear and convincing evidence the inability of both parents to care for the child, despite extensive help from DSS, and given the child's long absence from the home, a dispositional hearing for consideration of long term foster care would be a "redundancy" that is not mandated by statute, and that the best interest of the child are served by freeing her for the permanence and stability of adoption (see Matter of Joyce T., 65 NY2d 39 [Ct of App 1985]). Further, in the Matter of Robert X.X., (290 AD2d 753 [3rd Dept 2002]) the Court held that where termination of parental rights results from mental illness, which prohibits the parent presently and in the foreseeable future, from being able to care for the child, a separate dispositional hearing is not required. [*16]

Therefore it is,

ORDERED, that the Nassau County Department of Social Service's petitions seeking to terminate the parental rights of the respondents, D. M. and M. K., by reasons of mental illness and or permanent neglect of the child, B. M., are hereby granted in their entirety; and it is further,

ORDERED, that guardianship and custody of the child, B. M., is hereby committed to the custody of the Commissioner of the Nassau County Department of Social Services for the purpose of adoption.

THIS CONSTITUTES THE DECISION AND ORDER OF THIS COURT

ENTER

___________________________________

Hon. Edmund M. Dane, J.F.C.

Dated:April 5, 2011

Westbury, NY