Opinion
XXXXX
01-14-2019
In the Matter of the K. Children, Children subject of a Termination of Parental Rights Proceeding.
Rachel E. Tanguay, J.
DECISION AND ORDER ON TERMINATION OF PARENTAL RIGHTS PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.
TANGUAY, J.
On September 12, 2017, the Rockland County Department of Social Services ("the Agency") filed a petition to seeking terminate the parental rights of the Respondent-Mother Alicia A.("the Mother") on the basis of permanent neglect. The Agency had also filed petition to terminate the parental rights of the subject children's father, Patrick K., on the basis of abandonment. The subject children had been removed from the Mother's care on June 30, 2015. On December 17, 2015, the Court directed the Mother to comply with the terms of Child Protective Services Supervision after adjudicating all four children to be neglected children. By the end of 2017, the children remained in care and the Agency filed petitions against the Mother and the father seeking to terminate their respective parental rights.
In or about the beginning of 2018, this Judge was assigned the pending termination of parental rights matters and trial dates were scheduled. On March 26, 2018, the first scheduled trial date, the parties appeared and the Agency requested permission to withdraw their petitions against the Mother alleging permanent neglect of the children. The Agency had revised its position and argued that the Mother's rights should be terminated on the basis of mental illness, not on the basis of permanent neglect. The Agency had filed petitions reflecting those new allegations earlier that day. The Agency asked this Court to order the Mother to be examined by a psychiatrist or psychologist licensed pursuant to Art. 154 of the Education Law, as defined in C.P.L. § 730.10, as required by S.S.L. § 384-b(6)(e). The Court granted the request, marked the prior petitions alleging permanent neglect withdrawn, issued an order directing a mental health evaluation of the Mother, and proceeded to inquest on the father's petitions only. The Court scheduled one conference and trial dates for May and June of 2018 as regards the newly filed petition against the Mother.
The Father's rights were terminated via inquest on the basis of abandonment of all four children.
All parties appeared for a conference on May 8, 2018, after the mental health evaluation report from Dr. Dominic Ferro, M.D. was received. The Mother's counsel requested an adjournment of the trial dates to allow time for the Mother to have an independent mental health assessment in light of the opinions proffered in the report by Dr. Ferro. The Court vacated the May trial dates, granted the Mother's request for an adjournment and directed counsel to file a motion under County Law §722-c, if needed, to secure funds to retain an independent expert for the Mother.
On June 27, 2018, the fact-finding hearing began. The Agency called Dr. Dominic Ferro to testify as their first witness. Dr. Ferro is a licensed psychiatrist, having graduated from Columbia University in 1987 and having received his M.D. from Emory University in 1991. He is board certified in psychiatry and forensic psychiatry. Dr. Ferro is currently in private practice and also employed by the Department of Mental Health, Rockland County, Forensic Health Unit. He has performed over 100 psychiatric evaluations as directed by the court in criminal and civil matters, and he has testified over 110 times in 12 different jurisdictions.
Dr. Ferro stated that on May 3, 2018, he evaluated the Mother pursuant to this Court's order. His report was admitted into evidence, with certain portions redacted upon objection from the Mother's attorney. He took a lengthy history of the Mother during his examination of her. She had a long history of mental illness, and has been treated since adolescence. She has also had a number of psychiatric hospitalizations. Both of the Mother's parents were substance abusers, which caused her to spend time in foster care as a child. She essentially lived out of a duffel bag. Dr. Ferro opined that the Mother met criteria for bipolar disorder, substance use disorder, and attention deficit/hyperactivity disorder (ADHD), which he stated is a disorder of the system that helps people with executive functions/decisions by using their frontal lobes. The Mother's decisions were often impulsive and connected with this disorder.
The Court ultimately did not redact the portion of the report relating to the conversation that Dr. Ferro had with Cheryl Oti, Child Protective Service caseworker, as she independently testified at this hearing, making this collateral source reference in the report admissible. See Wagman v. Bradshaw, 292 AD2d 84 (2d Dept. 2002).
Dr. Ferro also concluded that the Mother suffered from post-traumatic stress disorder (PTSD), which leads her to feel overwhelmed and in imminent danger under a variety of circumstances. The Mother's PTSD is rooted in her early childhood experiences and is extremely complex. The Mother's own mother traumatized her, and as did her foster parents. The Mother was worried as a child that her own mother would kidnap her from her foster home, and this had a pernicious affect on her development. By the time she was in kindergarten, the Mother was in an abusive foster home. She had been in numerous mental health placements by the time of her adolescence. The Mother met her first husband shortly after graduating high school. That man had developed a heroin addiction and was physically abusive to her. After that relationship ended, she met the father of the subject children. Within three months, she was pregnant and they moved in together. In 2013, the couple had lost their house, and the Mother and the children resided in a shelter for nine months. The Mother had previously been the manager of a tanning salon for a period of three years, but was now unable to work. She applied for social security disability benefits based upon anxiety/depression/PTSD/ADHD diagnoses. She has functioned well enough to attend treatment and had reasonable hygiene. Dr. Ferro noted that the Mother has had no psychiatric hospitalizations since her adolescence.
In Dr. Ferro's estimation, the Mother relives these traumatic experiences, and engages in fearful avoidance of things that remind her of her prior trauma. PTSD can color everything, according to Dr. Ferro. Strong reactions to stimuli can cause flashbacks, make a person easy to anger, create distortions. People with PTSD are more inclined to think that people are against them or willing to harm them, and Dr. Ferro saw these traits in the Mother. People with PTSD often have trouble sleeping, like they have to be on guard. Here, the Mother is taking four different medications to sleep. The Mother is quick to see herself as a victim or becomes overwhelmed. She described herself to Dr. Ferro as being isolated during most of her life, close only to her sister, who is now deceased. The Mother finds social interaction difficult, so she avoids it.
As regards the diagnosis of bipolar disorder, Dr. Ferro noted that the Mother is somewhat depressed in mood, spending a lot of time in bed. She has a history of having manic episodes, having spent days or weeks making impulsive decisions or feeling elated. These symptoms have impacted her ability to care for the children, or to function in a normal environment. The Mother told Dr. Ferro that was unable to work and receiving disability income. She is living in Loeb House, a supported living environment for people with mental illness. Children cannot reside with parents at that facility.
Dr. Ferro concluded that the Mother's mental health condition is chronic. It is his professional opinion that the subject children would be neglected if left in Mother's care given these issues. When asked if whether her illness would only negatively impact the two younger children, as opposed to the two teenage subject children, Dr. Ferro opined that even the older children would be in danger if returned to the Mother. When pressed during the assessment, the Mother admitted that she does not have any plan for parenting the children who had not been with her more than three years. During her evaluation, she never volunteered to Dr. Ferro that she applied for section 8 housing, or that she has been on that list for more than five years. The Mother did not present any articulated plan for how she will rectify her housing situation to accommodate the children being returned to her, and how she will manage her existing mental health conditions; her judgment is impaired to the extent that she lacks insight into how that will impact her parenting capacity. She was unable to engage in any meaningful discussion of how she would compensate for those challenges if the children were returned to her.
Dr. Ferro admitted that he met with the Mother on only one occasion for the assessment, reviewed records provided by the Agency, but did not speak with any of the Mother's current mental health or medical providers. He stated that he followed protocol on how to perform a proper mental health assessment. He conceded that he had no indication that the Mother was not in compliance with her current treatment plan. Dr. Ferro was unaware that since the date of the evaluation, the Mother's living situation had changed, in that she stepped down in mental health supportive living, from a residence that had staff on site to one that had staff available but not on site. Dr. Ferro indicated that this did not change his opinion about the Mother's prognosis, as it was unclear to him whether the Mother would be able to manage in a completely independent residential setting in the long term. Dr. Ferro recognized that given the turbulent and unstable upbringing that the Mother had, she did the best she could with her children, but that her mental health impaired her now and will for the foreseeable future. In his report, Dr. Ferro concluded that "[e]ven with optimal treatment, [the Mother's] stability and capacities for insight and appropriate judgment are limited. At her present rate of improvement, she is several years away from being able to manage herself independently." Petitioner's Exhibit 2 at 16 (brackets added).
The trial continued on November 8, 2018, with the Agency's caseworker, Cheryl Oti, testifying. She has been a caseworker for twenty-four years and assigned to the Mother's case since July 2015. On April 20, 2018, she spoke with Dr. Ferro about setting up a mental assessment for the Mother. She has been working with this family for a few years, since the subject children were removed. She devised a service plan that was designed have the Mother work on issues so the children could be safely returned to her, but that plan has not been successfully completed. In 2015, the Mother had supervised visitation with the all of the children, multiple times per month for the two older children, W. and M. The Mother moved to Loeb house two years ago, and a month after talking to Dr. Ferro, the Mother moved to Burgundy Gardens, a supportive living, less structured environment than Loeb House. Ms. Oti was asked about a November 17, 2016 letter from Loeb house in which it was stated that the Mother felt unsupported in achieving her goals set forth in the service plan. The Mother was without an individual therapist. Ms. Oti testified that the Mother was working with the PROS program, and that the program had a staffing change. The Mother did not receive individual therapy during the transition, which lasted for several months. Thereafter, there was period of time that the Mother was non-compliant with treatment, despite having an individual therapist in place.
The Mother called Mary Hollander, her current treating therapist, to testify on her behalf. In May 2014, Ms. Hollander received her Master's of Social Work from New York University and has been employed by Jawonio for almost two years as the intake coordinator and a clinical therapist. Before coming to Jawonio, she worked at Catholic Charities as a clinician. She has treated the Mother since November 3, 2016. She started seeing the Mother once per week, more if the Mother needed. Ms. Hollander stated that the Mother had a significant trauma history, and she was helping her to manage her symptoms of depression and anxiety. She employs cognitive behavioral therapy to challenge the Mother's negative thoughts. The Mother had others at Jawonio working with her too: Dr. Sadler, her psychiatrist, for medication management; Larry Middleton, her advisor who helps her with transportation and housing issues; and Steve Allen, her case manager, who takes care of her needs outside of mental health recovery. The Mother had been working with Jawonio since her intake date of January 22, 2016. She is currently on a waiting list to get a supportive apartment through CLUE, which would include family housing. The Mother recently got a car, and has achieved more independence in housing.
The Mother is always very consistent with therapy. She always attends sessions, and calls to reschedule if she needs to. During the sessions, the Mother is very engaged in therapy, where they work to reduce symptoms of depression, manage mood and emotions, and address symptoms of trauma. At the beginning of treatment, she treated the Mother for major depressive disorder, anxiety NOS (not otherwise specified) and PTSD. The Mother did not report manic episodes to her. If Ms. Hollander was aware of the manic symptoms, then she would have worked more on managing mood stability. She conceded that the symptoms reported by the Mother to Dr. Ferro are consistent with a diagnosis of bipolar disorder. Over the course of her time working with Ms. Hollander, the Mother has changed and become more goal-focused, instead of focusing on the past. She is more trusting of people and open to feedback and support. She has more self-esteem. The Mother completed a peer specialist program; she received training online and received a certification.
Ms. Hollander recalls one conversation with Cheryl Oti in November 2017 about the Mother's lack of compliance with treatment. Ms. Oti had been under the incorrect impression that the Mother revoked her consent to discuss treatment with staff at Jawonio, but the consent had expired, instead of the Mother having revoked it. However, Ms. Hollander testified that prior to January 2018, the Mother was going through a "rough time" and responded by avoiding program, in that she was not consistent with group therapy attendance and participation.
Ms. Hollander never spoke with Dr. Ferro about the Mother's treatment, diagnoses or prognosis, nor did anyone else at Jawonio. Ms. Hollander testified that the Mother's goals in therapy are a work-in-progress, and that they have done no specific work on parenting and reunification with her children. She admitted that mental health barriers continue to exist to the return of the children to the Mother at this point, but that there has been steady improvement in the Mother's functioning.
The trial concluded on December 14, 2018, with the Mother's testimony. Currently, she lives with a roommate in a two-bedroom apartment in Burgundy Gardens, which she obtained through Loeb House. There is no staff on site, but children are not permitted to live there. Staff come to do a "service" once a week with her at the apartment; they go over goals set over a three-month time period. The Mother is responsible for paying her share of the rent with her disability benefits. She has had her own car since September 2018, as well as a valid driver's license. While she supports herself with social security disability income, she speaks to her job coach at Jawonio and looks at the postings there to find employment. She is looking for employment that will require her to work about ten hours a week. She spent fifteen months taking online classes to get certified as a coach/peer support to work with mental health professionals. To remedy her housing situation, she has applied for SPOA (Single Point of Access) to transition to CLUE, which provides family housing. The Mother testified to being on the Section 8 housing lists for about five years.
While the Mother had consulted with Dr. Marc Tarle for an independent mental health assessment, as was requested on May 8, 2018, the Mother chose not to call Dr. Tarle as a witness or seek the admission of any report he may have prepared.
With respect to her mental health treatment, since 2016, she has attended the Jawonio PROS program on Tuesday, Wednesday and Thursday for group sessions. On Wednesdays, the Mother attends individual therapy, and every four to six weeks, she sees her psychiatrist. In therapy, she works on coping skills, self-esteem, and how to compartmentalize her life. She has maintained sobriety for at least twelve to thirteen years. She was previously living in Loeb House, where they had her holding her own medications, starting first with a supply only for a few days and then graduating to holding several weeks' worth at a time. The Mother now holds all of her own medications and administers them to herself. She also had her prescription for Klonopin reduced from 4 to 2 milligrams per day. The Mother stated that she has had no psychiatric hospitalizations since eighteen to nineteen years ago. The Mother is aware that her PTSD has affected her, and stated that anything could trigger a memory. Whenever she sees someone who is nasty and violent, it triggers anxiety and brings on a panic attack. To cope, the Mother accesses one of her supports to work through it and finds another way to stop it. However, it can take ten to sixty minutes to calm down when dealing with panic attack, according to the Mother. She also stated that she still deals with depression, but is much more capable of handling it now than before. She journals feelings of depression to deal with them. Mornings can still be difficult for the Mother, as depressive feelings slow her down and it can take twenty minutes or so until she is able to function.
In recounting her history, she testified that in 2013, she was living in Haverstraw with the four subject children. The father of the children would stay there from time to time. The relationship she shared with him was one of violence, verbal abuse and watching him drink himself to death. The father directed verbal abuse at everyone and physical abuse against her. The Agency filed a neglect case against her and removed her children from her on June 2015. At that time, she had an understanding of what she needed to do to get the children returned to her: attend her mental health program, take prescribed medication on a daily basis, submit to drug testing, engage in regular visitation with the children, and find suitable housing for herself and the children.
In 2015, she was working with the "ACT" team, but in 2016 switched to a more structured program at Jawonio PROS, and she lived in supportive housing at Loeb House from April 2016 until May 2018. The Mother testified to visiting W. at Rockland Children's Psychiatric Center, and she visited M. at Cardinal McCloskey. She visited the two younger children supervised by the Agency at their offices. Once W. was placed at the LaSalle Academy, the Mother has engaged in family therapy with him, addressing his anger and resentment towards her, how they could improve their relationship, and what better coping skills they could develop to have a parent/child relationship. As for M., she has engaged in family therapy with her as well, at her placement at St. Ann's. Unlike W., M. is dealing with feelings of guilt, blaming herself for everything. They have been working on how M. should use coping skills to realize that this situation is not her fault. She used to have some limited unsupervised visitation with both W. and M., but that was suspended when during a visit, the Mother left W. alone in a hotel while she went shopping with M. W. invited a friend from LaSalle Academy to the hotel to join him in the Mother's absence.
The child W. is placed in the care and custody of the Commissioner of Social Services pursuant to a finding entered by this Court on June 27, 2015 that he engaged in a juvenile delinquency act. His placement is currently extended in connection with that case until June 30, 2019.
The Mother testified to meeting with Dr. Ferro only once in April 2018. She denied having told him about manic episodes, such as several shopping sprees. She only told him she went on one shopping spree, which was to buy supplies for her kids in care. She further denied telling Dr. Ferro that she felt elated, like she was a million bucks, as he stated in his report and his testimony, as she said that she never feels that way; she stated that she is her own worst critic. The racing thoughts that she told him about occur as a result of her anxiety and ADHD. These symptoms can interfere with her sleep, and she only gets about three to four hours of sleep per night. Moreover, there has only been one time in the past three years that she had a debilitating depression, and it was when she was told in 2017 that she would no longer be permitted to visit with the two younger children. The Mother stated that she feels stronger than she thought she was before, capable of more than she ever thought she would be. She knows that she has a lot more work to do, but she sees herself in a better light than she did three years ago.
DISCUSSION
This Court is charged with the enormous responsibility of deciding whether the sever and permanently terminate the Mother's parental rights to four children, two younger children who are residing with foster parents, and who have no current relationship with the Mother, and two older children who are living in residential care, and who see the Mother on a ongoing basis. The standard the Court must employ in reaching its determination is whether the Agency "established by clear and convincing evidence that the [M]other is presently and for the foreseeable future unable to provide proper and adequate care for the subject child[ren] by reason of her mental illness." In re Ernesto Thomas A., 5 AD3d 380, 380-81, 722 N.Y.S.2d 708, 709 (2d Dept. 2004)(brackets added); see also In re Karyn Katrina D., 19 AD3d 592, 797 N.Y.S.2d 536 (2d Dept. 2005); Matter of Angel S.S. (Caroline S.S.), 129 AD3d 11119, 10 N.Y.S.2d 697 (3d Dept. 2015); Matter of Evelyn B., 37 AD3d 991, 830 N.Y.S.2d 804 (3d Dept 2007). The evidence must include "testimony from appropriate medical witnesses particularizing how the parents' mental illness affects his or her present and future ability to care for the child[ren]." Matter of Ashley L v. Madeline L, 22 AD3d 915, 802 N.Y.S.2d 283 (3d Dept. 2005)(brackets added)(internal quotation marks and citation omitted). If the Court reaches the conclusion that the Agency met its burden, then the Mother is not entitled to a dispositional hearing, and her rights are automatically and immediately terminated. Evelyn B., supra, at 593; S.S.L. § 384-b(3)(g), (4)(c); Matter of Joyce T., 65 NY2d 39, 45-46, 478 N.E.2d 1306, 489 N.Y.S.2d 705 (2004); Matter of Antonio I., 26 AD3d 332, 809 N.Y.S.2d 168 (2d Dept. 2006); Matter of Shawn G. v. Vanessa G., 84 AD3d 957, 958, 924 N.Y.S.2d 398, 400 (2d Dept. 2011).
It is uncontroverted that the Mother has been struggling with mental illness issues for much of her life, and that these issues have impacted her and her parenting. The evidence presented by the Agency, primarily in the form of Dr. Ferro's testimony and report, establishes that the Mother suffers from several significant and different mental illness diagnoses. Even the Mother's own therapist concedes that the Mother suffers from various mental illnesses for which the Mother engages in therapy to address. Both mental health professionals agree that the Mother has had a significant trauma history, and struggles with symptoms of anxiety and depression. From a diagnostic and treatment prospective, the major inconsistency between the two professionals is that in addition to finding that she has PTSD and ADHD, Dr. Ferro has diagnosed the Mother as having bipolar disorder, given her self-reporting of depression mixed with period of mania. Conversely, Ms. Hollander has never heard the Mother complain of any manic symptoms, so her diagnoses were confined to major depressive disorder and anxiety, in additional to PTSD. Ms. Hollander agreed on cross-examination that the symptoms the Mother reported to Dr. Ferro were consistent with mania, making a diagnosis of bipolar disorder appropriate; that she would have worked more on mood regulation if she aware of this diagnosis.
With both professionals agreeing that the Mother, right now, continues to have barriers to reunification due to her mental illness, the penultimate question is whether (regardless of what names are ascribed to the mental illness disorders suffered by the Mother) she is capable of recovering from those disorders in the foreseeable future to a point that the children would no longer be at risk of being neglected if returned to her care. Dr. Ferro sees the Mother's host of illnesses as chronic in nature, with the potential for setbacks given her mood dysregulation, rendering her impaired now and for the foreseeable future from being able to care independently for her children. He testified and wrote extensively about her lack of insight and inability to answer questions demonstrating any concrete plan for parenting, or managing her own symptoms while engaged in parenting. Further, at the time of the assessment, the Mother still lived at Loeb House, and for unknown reason, she did not volunteer to Dr. Ferro that she was moving imminently to Burgundy Gardens, a less restrictive environment. It must be noted, however, the even in this more independent environment, the Mother cannot live with her children. Moreover, she did articulate any definitive plan on how she would financially support herself and four children, given that her sole source of income name is social security disability.
Ms. Hollander, on the other hand, believes that the Mother's improvement in functioning, including her step-down in supportive living, her completion of peer support training and her reduction in Klonopin use, makes it possible in the future for her to be well enough to be reunited with her children. Ms. Hollander points out that in the two years that the Mother has worked with her at Jawonio, the Mother has become more goal-oriented and focused, she has stayed more focused in the present, and is better equipped to handle the stresses of life. Although, Ms. Hollander conceded that she and the Mother have not yet begun to do any work surrounding issues of parenting and how to manage the needs of four children if they were to be returned to her.
Essentially, this Court must determine which expert's opinion shall be afforded greater weight, a determination that can only be made once balancing the competing testimonies with the testimony given by the Mother herself. When the Mother testified, the Court made several different observations. Firstly, the Mother has amassed a noteworthy skill set of tools to help her manage the symptoms that she regular encounters. Secondly, that the Mother loves all four children and wants very much to get better to resume parenting them. Thirdly, that she has undertaken steps over the last two to three years to address her serious mental health impairments, and has made some strides in gaining incremental levels of independence. Fourthly, unfortunately and arguably most importantly to this Court's determination, that the Mother continues to lack any significant insight into how she would realistically handle the stressors of raising two teenage children with their own trauma and issues, and younger children who have chosen to have no interaction with her in a year-and-a-half, all while managing her tremendous mental health challenges.
During cross-examination of the Mother and this Court's own extensive questioning of the Mother, she was asked in a variety of different ways how she would practically approach managing her children in the midst of her own challenges; for example, she was questioned about what she would do if she had a panic attack while responsible for the care of the children, an event that she admitted lasts between ten and sixty minutes. She, in an almost rote fashion, articulated the progressive steps that she would need to take to end the attack, but despite ongoing questioning about this issue, she was never able to speak directly to what she would do if the children were with her in those moments, or if the children had acute parenting needs in those moments. Instead, the Mother continued to systematically identify the tools and skills that she would need to address her own acute mental health event, but never with any details provided about what she would do with the children during the event. Her demeanor almost seemed child-like in her repetition of her de-escalation steps when asked about a series of possible stressful scenarios in which she could find herself, with the Mother emphasizing over and over again that she simply does not put herself in situations which would likely trigger symptoms. The Mother was essentially reinforcing Dr. Ferro's testimony and opinion that the Mother engages in "fearful avoidance" of situations that could trigger trauma. The Court is left to wonder how a parent who engages in such avoidance to manage her mental health challenges would be able to handle the needs of four children all with different, significant needs and issues.Further, the Mother's lack of insight into her own behavior was evident when she testified about her current contact with the four children. The Mother's unsupervised visitation with the older children, who are both in residential therapeutic placements, was suspended after the Mother left W. unsupervised in a hotel room while she went out shopping with M. When questioned about this event, the Mother minimized the seriousness of the risk she created in leaving W. alone, saying that she and M. were only gone for a little while. Moreover, the Mother had a rather bizarre moment when asked questions asked about her contact with the two younger children, E. and P. There were moments of awkward silence, when the Mother ostensibly refused to speak about the subject. The Mother was visibly agitated, and when she was pressed to answer questions on this subject, she expressed her displeasure about the foster family with whom the children are currently placed. She was upset that she had been precluded from seeing or talking to her younger children. The Mother blames others for the E. and P. not wanting to have contact with her. She demonstrated absolutely no insight that the children's feelings could have anything to do with her, the unfortunate history in this case, and her actions.
The Court takes judicial notice of a June 30, 2017 "so-ordered" multi-purpose petition which sought to suspend visitation between the Mother and younger children on the basis that the children no longer wanted any contact with the Mother. Following a conference on June 30, 2017, where the Mother was present, the Court granted the relief sought, and directed that the only supervised contact allowed between the Mother and the children should be if the children wished to have the contact.
In Ashley L., supra, the Appellate Division, Third Department grappled with a set of facts similar to the ones in this case. During the trial, the petitioner's expert psychiatrist noted that the mother, who had major depressive disorder, had recent improvements but "opined that she could not sustain these changes and would ultimately relapse." 22 AD3d at 916. The respondent's own treating psychiatrist, who had diagnosed her with mood disorder, impulse control disorder and personality disorder "noted substantial improvements in her ability to tolerate stress, take her medications and cooperate in treatment." Id. However, he admitted that the respondent's "conditions were managed but enduring" and he failed to refute the petitioner's expert who testified that respondent was likely to relapse. Id. On this basis, the Appellate Division affirmed the trial court's finding that the respondent's parental rights should be terminated on the grounds of mental illness. See also Karyn Katrina D., supra at 593 (affirming the termination of the respondent's parental rights on the grounds of mental illness where the petitioner's expert opined that "due to the chronic nature of her illness, the severity of her symptoms, and her lack of insight about her illness, if returned to the mother, the child would be at risk of being neglected in the present and foreseeable future").
The Appellate Division, Third Department affirmed another trial court's decision to terminate a parent's rights with similar facts. In Evelyn B., supra, the court-appointed evaluator, a licensed psychologist, opined that the "possibility of any significant improvement in respondent's mental illness was extremely low." 37 AD3d at 883. However, the respondent's own treating master's degree level social worker concluded that "following a year-long therapeutic course, respondent's condition may possibly improve to the point where she could adequately parent the child and that such improvement was already evident as a result of the current therapeutic sessions." Id. The Family Court had given more weight to the court-appointed psychologist's opinions that those of the social worker, and the Appellate Division did not disturb those findings. Id.
Here, the Court must ascribe more weight to Dr. Ferro's findings and conclusions than the opinions given by Ms. Hollander. Given the breadth of their respective experience and education, coupled with the Mother's own demeanor and testimony, confirming many of the facet's of Dr. Ferro's testimony about her lack of insight and complete absence of any concrete plan of how to integrate parenting into her life involving significant mental health management, Dr. Ferro's opinions about the Mother's condition and prognosis are afforded superior weight to the opinions of Ms. Hollander. Accordingly, while this Court is aware of the devastation that the Mother and the two older children will feel about this decision, the Court must conclude that the Agency met its legal burden and established by clear and convincing evidence that the Mother's mental illness impairs her ability to provide adequate care for the children now and in the foreseeable future.
IT IS ORDERED that Respondent Alicia A.'s parental rights to all four subject children are hereby terminated on the grounds of mental illness. Dated: January 14, 2019