Matter of A.D.

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[*1] Matter of A.D. 2010 NY Slip Op 50967(U) [27 Misc 3d 1229(A)] Decided on May 24, 2010 Family Court, St. Lawrence County Potter, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 24, 2010
Family Court, St. Lawrence County

In the Matter of a Commitment of Guardianship and Custody pursuant to §384-b of the Social Services Law of A.D. M.D. M.D. Children under the Age of Eighteen Years, Alleged to be the Child of a Mentally Ill Parent Karen D., Respondent



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Counsel who appeared for Petitioner the St. Lawrence County Department of Social Services is David Willer, Esq., 315-379-2103, for RespondentChristopher Curley, Esq. of the St. Lawrence County Public Defender's Office, 315-379-2393 and the children's attorney, Michael Levato, Esq., 315-379-4305.

Barbara R. Potter, J.



A Petition under Article 6, Part 1 of the Family Court Act and Section 384-b of the Social Services Law was filed January 8, 2008, alleging that the above-named children are permanently-neglected children; and summonses were issued and duly served upon and notice was duly given to all proper parties hereto, and

Respondent, Karen D., appeared with counsel, Christopher Curley, Esq.; and

Respondent Karen D. denied the allegations of the petition and the matter duly came on for a fact-finding hearing before this Court; [*2]

And the children were represented by Michael Levato, Esq., the law guardian.

The legal status of the other parent, Michael Denoncourt, is as follows: his parental rights are terminated.

The matter came on for a fact-finding hearing and pursuant to the Court's Order dated December 23, 2009, came on for additional fact-finding. The Court, after hearing the proofs and testimony offered in relation to the case finds the allegations that Respondent, Karen D., has permanently neglected the children, A.D. (born January 22, 1999), M.D. (born January 28, 2001), and M.D. (born February 25, 2003), and the allegations of mental illness are supported by clear and convincing proof, and makes the following findings of fact by clear and convincing evidence and comes to the following conclusions of law:

FINDINGS OF FACT

Respondent Karen D. (hereinafter the "mother") is charged with being mentally ill as defined in Social Services Law § 384-b. It is alleged the children would be in danger of becoming neglected if returned to her care.

On February 7, 2008, the St. Lawrence County of Department of Social Services (hereinafter "SLCDSS") filed a petition to extend the mother's suspended judgment granted May 11, 2007, after the mother admitted she had permanently neglected the children and received a suspended judgment. Interestingly, at the same time, SLCDSS also filed a termination petition on the basis of mental illness.

SLCDSS could have chosen, but did not, to file a petition to revoke the mother's suspended judgment since it is alleged in the extension petition that the mother "is not equipped at this time or will she be in the foreseeable future to have the children returned home to her, because [she] lacks the intellectual functioning, emotional control, and problem-solving skills to properly parent the subject children." A suspended judgment can be revoked even where a " parent's attempt to comply with the literal provisions of the suspended judgment is not enough'" (Matter of Darren V., 61 AD3d 986, 987 [2d Dep't 2009] quoting Matter of Jennifer VV., 241 AD2d 622 [3d Dep't 1997]). On a petition to revoke a suspended judgment the burden is on the parent to establish that "progress has been made to overcome the specific problems which led to the removal of the child" (Matter of Jennifer VV., 241 AD2d at 623). The Court finds the issue to be moot because the Court could have only granted the extension for one (1) year and such year would have since expired. For reasons unknown to the Court, SLCDSS chose instead to move to terminate Respondent's parental rights on the basis of mental illness.

To understand this case's history it is important to review the parties' history. The father's parental rights were terminated December 23, 2009, on the basis of his mental illness. The Court is taking judicial notice of its prior proceedings involving the father and the mother and these children (see Matter of Anjoulic J., 18 AD3d 984 [3d Dep't 2005]). The children have been in [*3]SLCDSS's continuous custody since October 13, 2005. Prior to 2005, the parents were charged in 2002 with the neglect of their two (2) older children (the youngest was not yet born) because of injuries another child sustained while in the mother's care. In 2002, the mother's nephew suffered bruises on both sides of his face and on the back of his head. On August 20, 2002, the mother admitted that her nephew sustained injuries while in her care "of such a nature that would ordinarily not be sustained except by reason of [the mother's] acts" (Order of Fact-Finding dated August 20, 2002). As a result of her actions, the mother's children were put at risk of similar neglect. For disposition, the mother was placed under an Order of Supervision dated September 30, 2002. On June 25, 2003, the mother was charged with violating her Order of Supervision. It was alleged that she had put A.D. on the porch alone to eat his dinner. He was thereafter found shoeless in the playground, and after fifteen (15) minutes she went looking for him. After she found A.D., she yelled at him and blamed him for her problems. In the order directing the children's temporary removal from the home, the Court determined removal was necessary to avoid imminent danger to the children's lives based upon the domestic violence the father perpetrated in the presence of the children and the lack of appropriate supervision by either parent in the home. The children's removal was continued when the mother admitted to violating the Order of Supervision when she left A.D. alone outside unattended and the police had to return him home (see Order dated December 12, 2003). The children were returned to the parents' care June 23, 2005, and the parents continued to be placed under an Order of Supervision. On September 22, 2005, SLCDSS filed a violation petition seeking the removal of A.D. based upon the parents' alleged failure to supervise him properly. A.D. was again permitted to leave the house unattended, he wandered off, was gone for hours, and the police returned him home. Neither the father nor the mother continued searching for A.D. and neither called the police. An amended violation petition was later filed that expanded the allegations to include the father's striking A.D. with an open hand in the groin. There also was an allegation that the mother was holding M.D. at the Massena Police Department where the mother became agitated, started yelling, and kicked a door open. M.D. began screaming; a police officer asked the mother to put the child down and go with him. She refused and the police officer asked her again. She again refused. The father then had to wrestle M.D. out of the mother's arms (see Amended Violation Petition filed October 4, 2005). It was only after the law guardian filed a motion seeking all three (3) children's removal that they were removed on October 13, 2005. The Court determined removal was necessary because of the domestic violence in the home and the ineffectiveness of past preventative services. Ultimately, the mother admitted violating the Order of Disposition when she allowed A.D. to leave the home again without supervision, and she did not go looking for him or call the police even after he had been missing for hours. She also admitted to the incident with M.D. at the Massena Police Station (see Order dated December 7, 2005). The Permanency Hearing held on June 2, 2006, established the children's permanency goal as "return to parent" with a concurrent plan of "placement for adoption." Thereafter, a petition for permanent neglect was filed December 12, 2006. It alleged the mother had failed to plan for the children's future although physically and financially able to do so. The mother admitted to permanently neglecting her children May 11, 2007. The mother consented, and the parties agreed, to the mother's receiving a suspended judgment on the permanent neglect petition. Another violation petition of an order of disposition was filed December 14, 2006; it was amended December 18, 2006. It alleged the mother allowed the father to spank M.D. on the buttocks. The violation petition was dismissed May 11, 2007, as part of the [*4]settlement on the permanent neglect petition. At the next Permanency Hearing, the children's permanency goal was determined to be placement for adoption, and it continues to be their permanency goal (see Permanency Hearing dated November 19, 2007, and May 5, 2009).

The trial on the termination of parental rights on the basis of mental illness began December 11, 2008, and continued January 15, March 5, May 15, May 21, June 3, and June 9, 2009. Closing arguments were received from SLCDSS July 17, 2009, from the mother's counsel July 31, 2009, and from the law guardian October 27, 2009. Pursuant to the Court's Order dated December 23, 2009, Dr. Liotta performed an updated psychological evaluation on the mother. The matter came on for additional fact-finding March 4, and March 31, 2010. Supplemental closings were received from the mother's counsel Arpil 9, 2010, and from SLCDSS's counsel April 13, 2010. The law guardian chose not to submit a supplemental closing. The Court heard testimony in this matter from: Dr. Donald Danser, SLCDSS's expert; Dr. Richard Liotta, the court-appointed psychologist; Holly Blauvelt, a child protective services caseworker from SLCDSS; Stacy Van Brocklin, a caseworker from SLCDSS; the mother; Betsy Mott, a case manager from BOCES; Patricia Mueller, the mother's licensed mental health counselor; and Mary VanBuskirk, the mother's psychiatric social worker. The father, a co-respondent, testified and his mother, Mary Ellen Denoncourt also testified on his behalf. During the additional fact-finding Dr. Liotta and the mother testified. The Court also considered all of the exhibits received into evidence.

Preliminarily, the Court must address the mother's pending motions regarding Dr. Danser's report and each report from Dr. Liotta. The Court received each report into evidence subject to cross-examination and subject to counsel's right to have it stricken. No decision was made regarding these motions at the end of fact-finding. The mother's counsel argues each report must be stricken. For his report, Dr. Danser relied on (1) selected notes ranging from 2002—2007 from supervised visitations, Family Assessment and Service Plan Reviews, and Family Service progress notes; (2) the mother's mental health recordsfrom 2002 until 2007; and (3) some Family Court orders including the Permanency Hearing Order dated June 21, 2007, the Order of Fact-Finding and Order of Protection dated May 18, 2007, and the Termination of Parental Rights Fact-Finding dated May 11, 2007. To conduct the evaluation, Dr. Danser performed a clinical interview of the parents together, the mother alone, and performed a series of psychological tests including the Wechsler Abbreviated Scale of Intelligence (WASI), the Back Depression Inventory—2 (BDI—2), Wide Range Achievement Test Third Edition (Reading Subtest), Minnesota Multiphasic Personality Inventory—2 (MMPI—2), Millon clinical Multiaxial Inventory—3 (MCMI—3). This same report was received into evidence in a prior proceeding involving the parties. It was considered during a Permanency Hearing conducted November 19, 2007.

The mother's attorney, Christopher Curley, Esq., argues Dr. Danser's report should be stricken because it relies on inadmissible evidence, facts not in evidence and its remoteness in time. In fact, Dr. Danser relied upon SLCDSS's records from 2003—2005 that were not admitted into evidence, and he relied upon the agency's unredacted record from 2005—2007. (Only SLCDSS's redacted record was admitted into evidence (see Petitioner's Exhibit No. 9)). In support of his argument, Mr. Curley cites Matter of Loren B. v Sharow ZZ., 13 AD3d 998 [3d Dep't 2004]) for his proposition. [*5]In Matter of Loren B., the Appellate Division, Third Department, determined a psychologists's report was inadmissible because it included polygraph results and such results were not admissible because the scientific community does not deem them reliable. Furthermore, in Loren B. two (2) psychologists prepared the report and only one (1) testified. The one who testified was not the psychologist who had interviewed collateral sources. Further, the report relied on hearsay statements from people who had no business duty to report.

The Court of Appeals has visited this area in the past and determined: " It is settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witness.'" In People v Sugden (35 NY2d 453), we recognized two limited exceptions to this rule and held that an expert may rely on out-of-court material if it is of a kind accepted in the profession as reliable in forming a professional opinion "or if it"comes from a witness subject to full cross-examination on the trial'" (Hambsch New York City Transit Authority, 63 NY2d 723, 725-726 [1984]) (quotations omitted).

Here, Dr. Danser did not interview any collateral sources who did not testify at trial. The only collateral source he interviewed was the father who did testify during the parents' joint trial. Furthermore, even though there was no testimony regarding whether the information Dr. Danser relied on was of a kind generally accepted in the profession, the Court finds the latter portions of the same records were admitted into evidence rendering such information reliable.[FN1] The Court finds, however, that a certain portion of Dr. Danser's report should be stricken. The Court strikes the portion of his report labeled "Review of Records" (page 5—6). The remainder is admitted into evidence because Dr. Danser relied upon the mother's mental health records which were admitted into evidence, the Court's prior Orders, the father's interview since he testified and was cross-examined; and the report was based upon his interview of the mother and diagnostic tests he performed. This case also is distinguishable from Aaron D., (49 NY2d 788 (1980)) cited by Mr. Curley. Here, Dr. Danser did not equivocate in his opinion, and he gave his professional opinion regarding the mother's present and future condition.

Next, the Court must determine the admissibility of Dr. Liotta's first report. Pursuant to Social Services Law § 384-b (6) (e) the Court appointed Dr. Liotta to perform a psychological evaluation of the mother. Pursuant to the statute, Dr. Liotta could rely upon "other psychiatric, psychological or medical evidence" submitted by either SLCDSS or the parent (Social Services Law § 384-b [6] [e]). For his report Dr. Liotta relied on an interview he conducted with the mother, an interview he conducted with both parents, testing he performed on the mother, the mother's mental health record as well as a consultation with Mary VanBuskirk, the mother's psychiatric social worker, A.D.'s mental health records, Dr. Danser's report, as well as the agency's redacted records, and various Court findings and orders. [*6]

Attorney Curley argues Dr. Liotta's first report should be stricken because he relied upon Dr. Danser's report. The Court has already determined Dr. Danser's report is admissible. Therefore, Dr. Liotta's reliance upon Dr. Danser's report does not preclude the admission of Dr. Liotta's report. Furthermore, the collateral sources Dr. Liotta interviewed and relied on for his first report were called as witnesses subject to cross-examination. Therefore, the Court finds Dr. Liotta's report will not be struck upon this basis. Dr. Liotta disclosed he spoke with a caseworker regarding this case. It is unclear from the report which caseworker Dr. Liotta interviewed, but he stated he disregarded any information he gleaned from the conversation. Therefore, the Court finds his report is admissible. Although not directly asked, throughout his testimony Dr. Liotta kept referring to information he typically receives and reviews for a psychologist appointed in a similar case, which includes, but is not limited to, a complete record of a local department of social services' records, an interview with the respondent's treating therapist, and the respondent's mental health records. In this case, Dr. Liotta reviewed a redacted copy of SLCDSS's records to 2007, and the mother's mental health treatment records to 2007. The records he reviewed ended in 2007 because the SLCDSS used the same records it had admitted into evidence during the mother's admission to permanent neglect. For reasons again unknown to the Court, SLCDSS chose to not subpoena the mother's mental health records from 2007 to the present time of trial thereby impeding Dr. Liotta's opinion and report. The Court finds that Dr. Liotta's report and opinion is admissible because it is based upon his interviews, his psychological testing, and his review of the records admitted into evidence (see Lubit v Lubit, 2009 NY Slip Op LEXIS 6460 [2d Dep't 2009]) (citation omitted). Dr. Liotta also explained in his report that regardless of the limitations placed on him for this evaluation, it was his opinion that he had enough information provided to him to provide the Court with opinions "within a reasonable degree of certainty" (Petitioner's Exhibit # 16).

As stated in the Court's Order dated December 23, 2009, Dr. Liotta testified that the mother "given the current circumstances of her situation and in the current context [(living with her husband—the father) she] could not now or in the foreseeable future care for her children on the basis of her mental illness" (December 23, 2009, Order page 2). When the mother testified, however, she had separated from her husband rendering that part of Dr. Liotta's opinion unclear because her situation had changed. Dr. Liotta was unable to take this fact into consideration because it occurred after his evaluation and his testimony. The Court decided based on the Appellate Division Third Department's in Matter of Arielle Y., (61 AD3d 1061 (2009)) to order the mother to undergo further psychological testing. The trial court in Matter of Arielle Y. was criticized and reversed for not taking a parent's recent abstinence from drugs into consideration when reaching its decision. Here, the mother's counsel, Mr. Curley argues it was error to reopen the matter because SLCDSS failed to prove its case. To the contrary, the Court finds the matter was reopened not because of any failure on the part of SLCDSS, but rather because his client's circumstance had changed. The mother, sometime after Dr. Liotta's testimony, left her husband for a short while. The Court, while mindful of the mother's fundamental right as a parent, decided to order further testing to protect her rights (see Matter of Guardianship of Daniel Aaron D., 49 NY2d 788 [1980]). The change in her situation could have impacted Dr. Liotta's opinion. In the end, it did not change his opinion regarding the mother's ability to care for her children now or in the foreseeable future. [*7]

Mr. Curley also argues that a psychiatrist's report which is from ten (10) months prior to a hearing is insufficient to meet SLCDSS's burden of clear of convincing evidence. Here, the most recent report from Dr. Liotta was submitted to the Court March 2, 2010. Moreover, SLCDSS should not be deemed not to have met its burden of proof when his client's circumstance changed and the Court's scheduling does not enable it to have a more timely report. Dr. Liotta's first report was submittedApril 14, 2009, and his opinion did not differ greatly from Dr. Danser's report. His second report also reached the same conclusion as the first report. His testimony upon further hearing was for reasons explained by him stronger and less equivocal than his previous testimony.

Mr. Curley argues Dr. Liotta's second report should be stricken because he relied on evidence not in evidence. As previously stated, an expert's opinion is admissible if the opinion is of the kind generally accepted in the profession as reliable. Here, Dr. Liotta testified that his method of forming his opinion was of the kind generally accepted in his profession. The Court finds, however, that parts of the report must be stricken because he contacted collateral witnesses who previously testified but were not recalled as witnesses. Therefore, the portions of his report dealing with his conversations with MaryAnn VanBuskirk, Stacy Van Brocklin, Tricia Snyder, Vicki Bennet, Kimberly LePage, and Alberta Hyde must be stricken. The Court finds the remainder of the second report is admissible.

The petitioning agency's first witness was Dr. Donald Danser, a state-certified psychologist (see Petitioner's Exhibit # 3). In preparing the report, Dr. Danser interviewed the mother alone and with the father; he conducted a Wechsler Abbreviated Scale of Intelligence (WASI), a Beck Depression Inventory—2 (BDI—2), a Wide Range Achievement Test—3d Edition, a Minnesota Multiphasic Personality Inventory—II (MMPI—2), and a Millon Multiaxial Clinical Inventory—3 (MCMI—III); and he reviewed SLCDSS's records provided to him. Based upon the WASI test, the mother's IQ score was seventy (70) putting her at the second percentile in comparison to her peers. Based upon her test scores, Dr. Danser believes the mother is in the lower level of Borderline Intellectual Functioning. In Dr. Danser's opinion, the mother suffers on Axis I from Depressive Disorder not otherwise specified and on Axis II from Dependent Personality Disorder with Borderline Intellectual Functioning. Dr. Danser believes the mother's Depressive Disorder is ongoing and it impairs her functioning. He believes the mother had some insight into her problems "but a chronic history of depressive mood functioning and a dependent personality style which contributes to a melancholy mood, insecurity and emotional irritability" (Petitioner's Exhibit # 5) impairs that insight. Based upon the administered tests, Dr. Danser found the mother had a mistrust of others, lacked impulse control, and believed people did not understand her. He also believed she exhibited some characteristics of avoidant personality traits. It was Dr. Danser's opinion that the mother's Dependent Personality Disorder makes her vulnerable when separated from her partner's functioning. Plus, she has difficulty separating both her emotional and personality functioning from the father's. He believes the mother's combination of disorders would impair her ability to provide appropriate structure for her children, and she would be unable to properly supervise them. He believed further medication or individual treatment would not improve her functioning because therapy will not change the mother's personality structure or her interpersonal style. [*8]

In Dr. Danser's opinion, the mother does not make independent decisions from the father due to her need for her relationship with him and her reliance on him. For example, on April 2, 2007, the mother's caseworker, Holly Blauvelt, spoke to the mother's therapist, Mary VanBuskirk. Ms. Blauvelt informed Ms. VanBuskirk that the children could be returned to the mother's care if she left the father. Ms. VanBuskirk said she would speak to the mother about this issue (see Petitioner's Exhibit # 5). Then, on May 4, 2007, the mother advised Ms. Blauvelt that the father was willing "to walk away, so she could have the kids come home" (Id). On May 7, 2007, the mother told Ms. Blauvelt of her decision to separate from the father to receive a suspended judgment on the Termination of Parental Rights Petition. The mother had already contacted HUD about obtaining her own housing with the children. Both parents made admissions of permanent neglect on May 11, 2007, and received a suspended judgment. It is unclear from the record at what point the parents decided not to separate. Instead of separating, the parents chose to relocate from Massena to Ogdensburg, New York. It is also unclear why SLCDSS chose to agree to a suspended judgment for each parent if they were to remain together. Even after the suspended judgment was entered and the parents remained together, SLCDSS still hoped the mother would separate from the father. In a December 27, 2007, note it indicates the Deputy Commissioner of SLCDSS, Diane Wilby, informed the mother she would have a better chance of having the children returned to her care if she left the father. The conversation upset the mother, and she stated that she and the father had discussed this issue previously and changed their minds about separating because there was still a chance the children would not be returned to her (see id).

The mother's mental health record is replete with examples of her inability to recognize the true state of her relationship with the father and its impact upon her and the children. In June 2002, the mother reported the father was verbally abusive to her (see Petitioner's Exhibit # 11). She described the father's punching a hole in a wall, thereby intimidating her (see id). The mother also was discouraged about the state of her marriage because she stated the father would flirt with other women. As far back as April 2003, the mother was encouraged to take care of herself emotionally instead of hoping her husband would change. At one point, the mother was upset because the father considered relocating to Florida where he had an internet girlfriend. She also reported the father's losing different jobs because of his inappropriateness with female co-workers. In 2003, Ms. VanBuskirk remarked in the mother's mental health record that she remained "rather emotionally dependent on her husband who from her reports of events is emotionally abusive at times." Ms. VanBuskirk later stated that she wondered whether the mother was aware of the father's untoward behavior and that her "optimism in terms of her husband and his recent behaviors is unfounded" (Id). In February 2004, the mother was supposed to start focusing on her needs instead of what the father had to do to change. She also stated her children were her first priority, and she would what she had to do for them (see id). At some point, the parents were encouraged to receive marital counseling. Based upon the above, the Court finds the mother had ample opportunities to remove herself from her marriage. Prior to this trial's commencement, despite many people intervening, the mother (except for a few non-consecutive months) has always chosen to remain with the father.

After issuing his report, Dr. Danser met with the parents again because each parent thought there were factual errors in the initial report. As a result, Dr. Danser issued an addendum to his [*9]report (see Respondent's # M—B). In Dr. Danser's report he relayed the parents' viewpoint regarding why their children were in foster care. He stated each parent reported A.D. caused the foster care placement of all three (3) children. The mother also stated the parents' ongoing problems with the SLCDSS were due to the father's "outbursts" (see Petitioner's Exhibit # 5). In the addendum, however, each parent told Dr. Danser the children's placement was not due to their son, but due to their own inability to supervise the

children. During his testimony, however, Dr. Danser explained the addendum had no effect on his evaluation.

Dr. Richard Liotta, the court-appointed expert testified twice (see Social Services Law § 384-b [6] [e]). He is a licensed psychologist (see Petitioner's Exhibit # 15). For each evaluation, Dr. Liotta was asked to determine whether (1) the mother is afflicted currently with a mental illness or condition that renders her unable to provide proper and adequate care for the children and (2) if yes, will the mental illness or condition that afflicts the mother render her unable presently and for the foreseeable future to properly and adequately care for the children. To perform the first evaluation Dr. Liotta reviewed (1) certain court documents including, but not limited to, the Termination of Parental Rights Petition Based upon Mental Illness, Order of Fact Finding and Disposition for Permanently Neglected Children, and various orders of protection; (2) the SLCDSS's redacted records (Petitioner's Exhibit # 7); (3) notes from the parents' supervised visits (Petitioner's Exhibit # 8); (4) Family Services Progress Notes from 2005—2007 (Petitioner's Exhibit # 9); (5) A.D.'s mental health records from 2005—2007; (6) the mother's mental health records from 2000, 2002—2007 (Petitioner's Exhibit # 11); and (7) Dr. Danser's evaluation (Petitioner's Exhibit # 5). He also interviewed the father and mother together, then interviewed each separately and conducted psychological testing to include a Personal Assessment Inventory (PAI). He thought it would be helpful to administer a different psychological test from what Dr. Danser had used. Dr. Liotta based his first evaluation upon his interview of the mother, the interview with both parents, testing, review of materials, and contact with Ms. VanBuskirk. During his testimony, Dr. Liotta explained that psychological testing is one aspect of judging behavior because it examines how a person functions, but not how a person behaves in the world or how he or she interacts with the world. He believed the interview of a subject gives more data based on how a subject answers questions or based upon a subject's reaction to questions. He stated the interview was an important part of the overall evaluation.

For Dr. Liotta's second report, his access to the mother's records was less hampered than for his first report. He was able to review (1) court orders and petitions dating from 2002 to 2009; (2) SLCDSS's unredacted case notes, visitation notes and service plan updates from where all of these left off in 2007 through January 2010; (3) her mental health records from 2007 to 2009 (although he reviewed the previous records received to form his opinion); (4) founded and unfounded Child Protective Services reports; (5) Dr. Danser's report from 2007; (6) notes from Renewal House from 2004; and (7) his own report from 2009. Dr. Liotta testified that the strongest data he reviewed was the Court's findings of fact because it is most likely to be an indicator of behaviors. He also interviewed the mother for an hour and a half (1 1/2) and tested her again for two and a half (2 1/2) hours . He administered the WAIS-IV for intellectual functioning and the MMPI-2 test for [*10]personality functioning.

For Dr. Liotta's first report, during the parents' joint interview, they again failed to take responsibility for their children's being in care. Regarding A.D.'s disappearance in 2005 from their home for five (5) hours, the mother stated he was held against his will and SLCDSS failed to recognize this fact (see Petitioner's Exhibit # 17). The mother then stated "that every parent has neglected people sometime'" and that everyone makes mistakes (Id). The parents both believed they needed more time with their children to prove their ability to parent. Throughout the interview, there was a recurring theme of SLCDSS and the justice system's failing the parents (see id). In her first interview with Dr. Liotta the mother, like the father, failed to take responsibility for her children's languishing in foster care. Based upon the PAI test, Dr. Liotta found that the mother was more straightforward than the father in answering test questions, although she was not forthright in all areas. Dr. Liotta believed the mother in her first testing and interview was trying to counter certain points made about her, especially the diagnosis of being dependent on the father (see id). For example, she described herself as being dominant and assertive, but he believed her presentation revealed her to have dependency issues (see id).

In the mother's second interview she was more forthright regarding her role in some of her past difficulties with her anger. The mother acknowledged slapping her nephew in 2002 which led to her children's initial removal from her care. This time she did not offer any rationalizations or excuses for her behavior. He acknowledged that she took responsibility for her actions (see Petitioner's Exhibit # 18). Dr. Liotta, however, was concerned because the mother could not recall the incident in 2003 with A.D. in the playground with the police officer. She further admitted to being angry while at the police station in 2005 with M.D. in her arms where she refused to put her down. She failed to recognize, however, that her child was ever at risk because of her actions during the incident.

In Dr. Liotta's opinion, on Axis I the mother suffers from a 311 Depressive Disorder not otherwise specified. This portion of his opinion remains unchanged. The mother's mental health records reveal she was diagnosed with an Adjustment Mood Disorder in 2000 (see Petitioner's Exhibit # 12). The mother sought out mental health treatment in 2000 because of a miscarriage. According to Ms. VanBuskirk the diagnosis of Adjustment Disorder remains for the mother. She believes the mother suffers from this disorder due to ongoing stressors (involvement with SLCDSS) in her life. Dr. Liotta explained in his first report that this type of diagnosis is normally changed to a more formal diagnosis unless it is due to ongoing stressors (see Petitioner's Exhibit # 17). He believed his diagnosis was more accurate since from 2000 until 2002 the mother was not involved with SLCDSS. It was Dr. Liotta's belief that the mother's diagnosis is Depressive Disorder because of the longstanding nature of her depression. This dichotomy was revisited in Dr. Liotta's second report and testimony. In his second report Dr. Liotta found "it is unusual that [the mother] continues to have an adjustment disorder diagnosis despite the longstanding nature of her depression and challenges" (Petitioner's Exhibit # 18). Dr. Liotta believed the mother's diagnosis remained the same because her treatment providers believed her depression was secondary to the ongoing stressors in her life. According to Dr. Liotta's review of her mental health record, however, the mother's [*11]depression was well-managed (see id). The mother's treatment providers prescribed her Prozac, Effexor, and Cymbalta over the years suggesting different ways of trying to resolve her ongoing depressive disorder. He testified Ms. VanBuskirk's diagnosis of the mother was incorrect or incomplete. Dr. Liotta also was concerned with the lack of focus on the mother's anger issue in her mental health treatment. Even though controlling her anger was listed as a treatment goal, the issue was not a focal point of her therapy (see id and Petitioner's Exhibit # 12). Dr. Liotta believed that ultimately the mother determined the focus of her sessions instead of it coming from SLCDSS.

In his second report, Dr. Liotta also diagnosed the mother with an Anxiety Disorder not otherwise specified on Axis I. He believed her anxiety disorder was secondary to the mother's personality disorder. She "reported social phobic type symptoms and low stress tolerance" on the MMPI-2 (Petitioner's Exhibit # 18). It is Dr. Liotta's belief that the mother's anxiety probably contributed to a lot of her behaviors that were detrimental to her children like slapping her nephew, causing him severe bruising, which precipitated her involvement with the court system. It is obvious to this Court that the mother has difficulty managing her anxiety and emotions. For example, this Court is aware of the mother's inappropriate behaviors during court proceedings. The mother throughout this proceeding was crying. At one point, she was scratching her face and making faces.Furthermore, SLCDSS's records are filled with examples of her inappropriate responses. In September 2007, the mother was upset with a Permanency Hearing report and her response was to cry, or in October 2005 where the mother yelled at a caseworker with the children present and court security present, and many other examples of the mother yelling in the background during the father's conversation with a caseworker (see Petitioner's Exhibit # 9) and the Court has observed the mother yelling and crying at court appearances. She has struck the courtroom door upon leaving. Yet, there were times when the caseworkers would praise the mother for her appropriate responses with her children during supervised visits (see id).

On Axis II, Dr. Liotta first diagnosed the mother as suffering from Personality Disorder not otherwise specified with dependent features. In the second report, his diagnosis shifted slightly because he added borderline features to the overall diagnosis of her Personality Disorder and he added Borderline Intellectual Functioning. It was his opinion, however, that the mother's intellectual functioning was not her primary problem in caring for her children. He believes the Axis II diagnosis is the mother's primary issue. A personality disorder is resistant to treatment because it comprises who a person is. Treatment will not change the person's underlying thought process. Dr. Liotta first observed that the mother—despite her ability to sometimes think independently—has chosen to align herself with her husband. This observation is borne out in the mother's mental health records and SLCDSS's records. The mother, despite repeated interventions, has failed to separate herself from the father. Dr. Liotta believed that her failure was "in part, an aspect of her personality issues" and not solely as a result of her cognitive limitations (Id). This part of his opinion remained the same in his second report.

As previously stated, upon further evaluating the mother, Dr. Liotta determined the mother also had features of boderline personality disorder. He believes this aspect of her personality is potentially a greater risk to her children. Dr. Liotta found the mother had a history of "intense [*12]episodic dysphoria, irritability, and anxiety. She also clearly has [a] history of intense anger that she has difficulty controlling. Her tirades of insults and swearing are ongoing examples of this" (Petitioner's Exhibit # 18). He also opined that the mother often felt persecuted and more than likely felt empty. He speculated she makes decisions to avoid the emptiness such as by staying in the relationship with the father.

Dr. Liotta first diagnosed the mother with a Personality Disorder not otherwise specified because she did not meet the full criteria for Dependent Personality Disorder, although she did exhibit many of its features (see Petitioner's Exhibit # 17). Again, this portion of his opinion remained the same. This observation was based upon the mother's inability: (1) to make decisions for herself without excessive advice and reassurance from others; (2) to separate from her husband; (3) to make decisions independently; (4) to define her own reality instead of accepting it as people close to her (her husband) define it; (5) to take responsibility for her life; and (6) to do things on her own. In his first report Dr. Liotta evaluated several aspects of the mother's dependency issues. In determining this issue, he examined why the mother chose to stay with the father. He evaluated what the mother's therapist indicated and weighed that against what might happen if the mother left and the consequences of staying with the father. Dr. Liotta opined that the mother has failed to leave the father because of her dependent personality traits. He first testified "her assessment of the risk [the father] might pose to her children is, at least in part, due to cognitive distortions secondary to her dependent personality features" which prohibits her, in part, from doing what is best for her children (Id). Dr. Liotta later opined that the mother's personality disorder makes it difficult for her to make decisions without excessive reassurance from others (see Petitioner's Exhibit # 18).

When Dr. Liotta first testified, it was his opinion that the mother, although she has some positive characteristics, given the current circumstances of her situation and in the current context, could not now or in the foreseeable future care for her children on the basis of her mental illness. He believed that even though she does have some independent thoughts, it has not affected her behavior because her relationship with the father is ongoing, and there is no indication that her situation is likely to change. It is his opinion that the mother suffers from a personality disorder since she "has problems in the areas of cognition, affectivity, impulsivity and interpersonal functioning" (Id). He believed the mother's affectivity is variable. Based upon his first review of her records, there were many times where she displayed her anger and frustration, but at other times her responses were appropriate. He believed in recent years the mother's treatment did not focus upon this issue. Based upon his initial review of the mother's constricted records, it was Dr. Liotta's opinion that the mother does not respond as a normal person would respond to being in a relationship with someone like the father. It is important to note that for his first report Dr. Liotta received only redacted records from the SLCDSS; he was not given unfettered access to her records and was unable to review certain problems that arose over the years. For example, in her treatment records she discussed the original neglect petition filed against her where her nephew had bruising on both sides of his face and the back of his head. Her version of what happened changed throughout her treatment records. In 2002 she reported to Ms. VanBuskirk "that she went to spank her own child and that her nephew got in the path of her hands" (Petitioner's Exhibit # 11). As a result of the criminal prosecution, the mother received probation for this incident (see id). In 2003, she expressed [*13]shame for striking her nephew and worried about what her neighbors thought of her (see id). Therefore, Dr. Liotta was aware that she had slapped her nephew, but he was not aware of the extent of the child's injuries.

When Dr. Liotta first testified, he considered two different situations in evaluating the mother's condition. He looked at whether the mother could parent the children without the father and whether she could parent the children with the father. Dr. Liotta believed that if the mother removed herself from the father she "might" be able to parent her children with substantial support. He qualified this statement, however, because he stated there was no indication that the mother intends on leaving the father. He believed the mother's choosing to stay with the father was equated with "choosing to place the children at risk" (Id).

When Dr. Liotta later testified and had a chance to review all of the mother's records, his opinion changed. Although his opinion remained that the mother could not now or in the foreseeable care for her children, he no longer had to couch his opinion in the context of the mother's situation. He testified that even if the mother lived separate and apart from the father for a whole year his opinion would remain the same. It was Dr. Liotta's opinion that the mother had her own issues separate and apart from those of the father and their relationship. He found that her Personality Disorder with dependent and borderline features is not amenable to treatment. Her MMPI-2 testing was consistent with her behavior over time because of her emotional problems adjusting and coping with stress. Her personality disorder affects her ability to care for her children. Furthermore, she is unable to discipline her children for fear of losing their affection. She would rather be a "friend" than be a parent to her children. Dr. Liotta also opined that the mother's personality disorder would make it difficult for her to separate from the father of her children. He found that she would stay even if it was detrimental or destructive to her or her children and, in fact, she has stayed. This fact is borne out in the record. The mother has often talked of leaving the father, but she has been unsuccessful in completing separating herself from him despite the encouragement from her mental health providers and caseworkers. As early as 2003 the issue of her ability to support herself without her husband was discussed in therapy (see Petitioner's Exhibit # 12). The issue was revisited in therapy in 2007. The mother, at that time, realized her ability to regain custody of her children would improve if she left her husband (see id).

Ultimately, the mother failed to act. After the father's parental rights were terminated, the mother remained living with him. When Dr. Liotta met with her in February 2010 she told him she was no longer in a relationship with the father, but remained living with him. She told Dr. Liotta that she had asked the father to move out, but that he refused. The mother could have chosen to move out instead of asking the father to move. She further stated she regretted not leaving the relationship sooner. The mother reported she stayed with the father, but her children were her priority and more important than her relationship with their father. She claimed to have stayed because she loved him and needed his support, but now believes she can live on her own because she has more support. The mother went on to say to Dr. Liotta that she realized there was support for her to leave her husband and believed she could do it. In Dr. Liotta's opinion even if what the mother stated to him was true it would not change his conclusion about her ability to care for the children. The mother [*14]also reported being able to control her anger and that the father caused much of her anger. As Dr. Liotta observed, the mother gained some insight since the first interview and said the right things. Her insight, however, is still limited and many of her problems remain, although she believed them to be resolved. Of utmost concern to this Court is the mother's continuing inability to control her anger and her inability to leave her husband (see Petitioner's Exhibit # 18). Dr. Liotta was able to review more recent case notes which detailed the mother's anger. For example, after the Court's decision to terminate the father's parental rights and reopen her case she left two (2) angry messages, one (1) to her caseworker and one (1) to her lawyer (see id).

The petitioning agency also called two (2) of its caseworkers to testify, Holly Blauvelt and Stacy VanBrocklin. Their testimony established and highlighted some of the doctors' observations and findings regarding the mother. For example, Ms. Blauvelt testified about some of the mother's inappropriate behavior and her belief that she was being persecuted. In January 2006, when speaking to the mother during a face-to-face contact, the mother cried during the whole meeting and lied about attending a Women's Group. Later in that same month, while the caseworker was speaking to the father on the telephone, the mother was heard yelling in the background "tell her I said thanks" because she was supposedly fired from her job because she had to attend parenting classes, and she blamed the caseworker. Again, after being served with the petition for termination of parental rights on the basis of permanent neglect, the mother was crying. She told the caseworker she was not sure why she should continue services if she was going to have her parental rights terminated. The caseworker advised her to continue with her services. After an incident during a supervised visit in February 2007, the mother acknowledged to the caseworker that she can never predict what the father is going to do. Ms. Blauvelt testified that she spoke to the mother on many different occasions about leaving the father. She first suggested she leave the father prior to the mother's receiving the suspended judgment. It appeared to her that the mother might have some parenting skills, but she denied or minimized the impact of the father's inability to care for his children and his behavior upon the children. In her discussions with the mother about leaving the father, Ms. Blauvelt explained what support she would have, but made no promises regarding the return of the children to her care. Her progress always had to be evaluated within the impact of keeping the father as part of the family; it was all integrated.

The mother testified on her own behalf twice. She first testified June 9, 2009. At that time, she was living with her mother separate and apart from the father. This move occurred approximately three (3) weeks prior to her testimony. Coincidentally, Dr. Liotta testified May 21, 2009, prior to the move, making her move proximate to his testimony. The mother testified, however, that no one told her she would get her children returned to her if she left the father. She explained leaving him was very difficult, but people told her she should leave. The mother did not state who advised her she should leave the father. She discussed the issue with her counselor, Ms. VanBuskirk and she agreed. Furthermore, Alberta Hyde, another SLCDSS caseworker, advised the mother the parents could no longer have visits together. She did not elaborate any further on this subject. The mother also explained she underwent anger management for about one (1) month. She testified the caseworker's discussing adoption and separating from her husband caused her anger. Both of these issues have been significant stressors for her, yet she failed to acknowledge any other [*15]problem. At the time of that testimony, she was taking Trazadone and Cymbalta for depression. She has been taking those medications for approximately two (2) years to control her depression.

The mother has been given umpteen opportunities to leave the father and has repeatedly stated she would leave him for the sake of her children. Her actions say otherwise. When the mother testified in 2010 she explained she moved out in 2009 for approximately one (1) month, but returned to live with the father because she had nowhere else to stay. She further testified that during this month-long separation she still depended on him for transportation, thereby continuing a relationship with him. After receiving the suspended judgment in 2007 the mother chose to stay with the father after stating she was going to leave him; in 2009 during this current proceeding she left for one (1) month but returned; and even after the father's parental rights were terminated, she stated she was willing to leave the father but remained living with him as of February 2010. Dr. Liotta used this information to some degree in forming his opinion. The mother denied living with the father in February 2010, but her testimony is not credible since she told Dr. Liotta she was still living with him when she met with him on February 15, 2010. The mother did move out sometime prior to her testimony, but continued to have a relationship with the father. She testified that they met to discuss these proceedings and she relies on him for transportation. The Court finds even if the mother did not have her own issues, if the children were returned to her care how would she be able to protect the children from the children.

Patricia Mueller, a licensed mental health counselor, also testified on the mother's behalf. Ms. Mueller works at Counseling Services of Northern New York. She provided the parents with couples counseling beginning in June 2007 and provided the mother with anger management classes in July and August of 2007 (see Respondent's Exhibit # B). During anger management classes the mother was taught the early signs of anger, to own emotions, and how to deal with those emotions. In the past, the mother stated she had let things build up, would not express it, and then would explode. Treatment was discontinued because it was believed the mother had reached her treatment goals. The Court has previously discussed the mother's on-going anger issues, however.

Next, Mary VanBuskirk testified on the mother's behalf. She is a licensed social worker who saw the mother in 2000 and again beginning in 2002 at Massena Mental Health. Ms. VanBurkirk was not qualified as an expert when testifying. Therefore, her testimony will not be considered as rebutting the expert testimony presented. According to her, the mother was diagnosed with an Adjustment Disorder with mixed anxiety and depressed mood. Based upon her observations, the mother has made gains in controlling her depression, asserting herself, and making eye contact. She believed the mother's difficulty stemmed from dealing with SLCDSS. Ms. VanBuskirk, as a social worker, must work under the care of a psychologist. She admitted Massena Mental Health has changed psychologists quite frequently. The current one, Dr. Malcolm, has not performed psychological testing on the mother. The Court finds Ms. VanBuskirk's testimony to be of limited value when weighed against Dr. Danser's report, each report from Dr. Liotta, the expert testimony of each psychologist, the redacted records of SLCDSS, and the mother's mental health records. Ms. VanBuskirk sympathized with her client and believed she would leave the father if it meant her children would be returned to her. As evidenced in her mental health records, SLCDSS's records, [*16]each report from Dr. Liotta, and the mother's own testimony she has had many, many opportunities to leave the father, but has chosen to stay time and time again.

Betsy Mott, a teacher case manager from BOCES, also testified for the mother. She models parenting techniques for parents and after modeling she observes parents with their children. Ms. Mott supervised approximately eight to ten (8—10) visits for the parents. After observing the parents with their children, she believed they had reached a level of sustainability and she was no longer needed.

CONCLUSIONS OF LAW

In a termination of parental rights on the basis of mental illness, the petitioning agency must establish through clear and convincing evidence that the respondent suffers from mental illness, and that by reason of that mental illness, she " is presently, and will continue for the foreseeable future to be, unable to provide proper and adequate care for the children'" (Matter of Michael WW., 29 AD3d 1105, 1106 [3d Dep't 2006]) (citations omitted). The agency must also show that the children have been in foster care for a period of one year prior to the filing of the termination petition (see Matter of Jenna KK., 50 AD3d 1216 [3d Dep't 2008]) (citations omitted). The proof must include testimony from an expert "particularizing how the parent's mental illness affects his or her present and future ability to care for the child[ren]" (Id at 1216) (quotation omitted). A mental illness is defined as "an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that if such child were placed in or returned to the custody of the parent, the child would be in danger of becoming a neglected child as defined in the family court act" (Social Services Law § 384-b [6] [a]).

In this case, two expert witnesses testified that the Respondent/mother suffered from Depressive Disorder not otherwise specified and a personality disorder and with Borderline Intellectual Functioning. Dr. Danser indicated the mother suffered from Depressive Disorder, Borderline Intellectual Functioning, and Dependent Personality Disorder; Dr. Liotta diagnosed the mother with a Depressive Disorder and a Personality Disorder not otherwise specified with dependent and borderline features. Her therapist, Ms. VanBuskirk, contended the mother's diagnosis was Adjustment Disorder with mixed anxiety and depressed mood. Based upon the length of the mother's treatment and her ongoing problems, Dr. Liotta believed his diagnosis was the better one. Both experts stated that further treatment would not improve the mother's situation. Both also stated that the mother would not be able to parent her children now or for the foreseeable future.

In his first report, Dr. Liotta qualified his opinion to state it was based upon the mother's current situation of being involved with the father. In concluding his report, Dr. Liotta stated "if [the mother] can mobilize herself to make different choices . . . the prognosis for the foreseeable future could change substantially. If she does make different choices than how she does could be assessed after a reasonable period of time" (Petitioner's Exhibit # 17). At the time the mother testified, however, she claimed she had made different choices—she was living separate and apart from the father prompting this Court to order an updated evaluation. [*17]

After his second evaluation, Dr. Liotta determined the mother could not parent her children now or in the foreseeable future because her mental illness interferes with her ability to care for her children. Plus, he no longer distinguished the mother's situation. He continues to believe the mother has some strengths and loves her children. He believes, however, that the children would be at risk because the mother's "emotions can be volatile, reactive, and extreme" (Petitioner's Exhibit # 18). While it is true that the mother's anger has been somewhat controlled since the incident at the police station in 2005, the Court is mindful that the mother has only had supervised contact with her children since 2005. The record, however, is replete with examples of her inappropriate behavior (see fact-finding above).

Dr. Liotta also was able to particularize how the mother's mental illness would impact the children's care. He believed the mother's volatility was still an issue. He opined that the mother would be able to control her emotions for some time, but at some point would lash out inappropriately. The mother fails to have any insight about the inappropriateness of her outbursts with SLCDSS and of how angry she becomes. Dr. Liotta also opined that the mother would have difficulty parenting her children because she wants to be their "friend" and she shares adult concerns with her children (even though she is ordered not to discuss the children's placement with them). The mother has very little tolerance to stress and as a result could not deal with unforeseen problems.

He further observed that the mother has had other parenting problems. She was observed to have difficulty attending to all of her children during her supervised visits and A.D. manipulates her. It is of concern that if the mother cannot provide the children with structure and discipline during supervised visits that these issues would be exacerbated if the children were returned to her care which would lead to increased stress for the mother causing her to react with anger. Dr. Danser also believed the mother would be unable to provide the children with the appropriate structure if they were returned to her care.

The Court also credits Dr. Danser's testimony. He found the mother to suffer from dependency on the father. His opinion was based upon testing, an interview with the mother, one with the father and mother together, his review of the mother's mental health records and SLCDSS's records. Dr. Danser believed the mother's combination of disorders will impair her ability to provide appropriate structures for her children. She would not benefit from further treatment because it would not change her personality structure (see Fact-finding above).

The Court finds that based upon clear and convincing evidence that the petitioning agency has shown that the Respondent for now and for the foreseeable future will be unable to care for her children due to her mental illness (see Matter of Jenna KK., 50 AD3d 1216 [3d Dep't 2008]; Matter of Alexis X., 23 AD3d 945 [3d Dep't 2005], lv denied 6 NY3d 710 [2006]). The mother testified but did not offer any expert witness in rebuttal to the experts who testified. Therefore, the Court finds SLCDSS has satisfied its burden of proof (see Matter of Alexis X., 23 AD3d 945; Matter of Jenna KK., 50 AD3d at 1216). The Court does find this case to be distinguishable from Matter of Arielle Y., 61 AD3d 1061 [3d Dep't 2009] where the family court's decision to terminate parental rights on the basis of mental illness was overturned. Here, prior to Dr. Liotta's opinion, the mother had been [*18]diagnosed with a mental illness. Furthermore, each expert did particularize how the mother's mental illness would impair her ability to care for her children. In a more recent and similar case, the Appellate Division, Third Department affirmed a family court's decision to terminate parental rights on the basis of mental illness (see Matter of Karen GG v Clinton County Department of Social Services, NY Slip Op 507127 [2010]).

The Court further finds that these children have been in care well in excess of one (1) year prior to the petition being filed; they have been in foster care since October 2005.Respondent's counsel requested a dispositional hearing in this matter. The Court finds that a dispositional hearing in this matter is not statutorily mandated, nor is one necessary (see Social Services Law § 384-b; see also Matter of Tiffany S., 302 AD2d 758 [3d Dep't 2003]; cf. Matter of Josh M., 61 AD3d 1366 [4th Dep't 2009]).

The Court, having made examination and inquiry into the facts and circumstances of the case and into the surroundings, conditions and capacities of the persons involved in the proceeding, finds that the best interests of the children require the disposition made below.

NOW, THEREFORE, it is

ORDERED that A.D., M.D. and M.D., are children whose parent cannot provide proper care by reason of mental illness as defined in subdivision six of section 384-b of the Social Services Law; and it is further

ORDERED that Karen D.'s parental rights to A.D., M.D. and M.D. are hereby terminated; and it is further

ORDERED that a certified copy of this order shall be filed for recording at the Office of the County Clerk in accordance with the provisions of Section 384-b of the Social Services Law; and it is further

ORDERED that if the children remain in the custody and guardianship of the authorized agency or foster parent, the next permanency hearing shall be held on , June 22, 2010, at 10:00 AM; and it is further

ORDERED that Petitioner shall transmit notice of the hearing an a permanency report no later than fourteen (14) days prior to the Permanency Hearing date to all remaining parties, attorneys, law guardian and any pre-adoptive parent or relative providing care to the children and, unless dispensed with by the Court, and shall transmit notice of the hearing to a former foster parent(s) who have had care of the children in excess of 12 months.



Dated:May 24, 2010ENTER. [*19]

____________________________________

HON. BARBARA R. POTTER

Judge of the Family Court

Footnotes

Footnote 1:The father's attorney admitted an Addendum to Dr. Danser's report to which mother's counsel never objected (see Exhibit # R—M).