Opinion
2012-01-23
In the Matter of the GUARDIANSHIP OF the PERSON & CUSTODY OF FAITH D.A.
Leake & Watts Services, Inc., James Abramson, Esq., New York City, for Petitioner. Lisa Licata, Esq., Bronx, for the Respondent.
Leake & Watts Services, Inc., James Abramson, Esq., New York City, for Petitioner. Lisa Licata, Esq., Bronx, for the Respondent.
Ronald G. Fisher, Esq., Bronx, for the Child.
JEANETTE RUIZ, J.
INTRODUCTION
This termination of parental rights (TPR) proceeding was brought pursuant to Social Service Law (SSL) section 384–b by Leake & Watts Services, Inc., (Petitioner) against respondent, Natasha A. (RM), in connection to her child, Faith, age four. The petition, filed August 24, 2009, seeks to terminate the parental rights of RM on the grounds of mental illness.
The Court held a fact finding hearing on September 22, 2010, October 18, 2010, December 21, 2010, January 18, 2011, January 20, 2011, January 21, 2011, February 4, 2011, March 4, 2011 and April 26, 2011. On June 27, 2011, counsel delivered oral summations with supplemental written summations submitted to the Court on July 8, 2011.
The original petition included permanent neglect as a separate ground for the termination of RM's parental rights. Petitioner, however, withdrew that cause of action on or about September 21, 2010, immediately before the commencement of trial.
Petitioner presented the testimony of one (1) witness: Dr. Sari Trungold, Ph.D., a qualified expert in the field of clinical psychology. Respondent presented the testimony of two (2) witnesses: Dr. Arthur Quatrano, Ph.D., a qualified expert in the field of forensic psychology, and RM who testified on her own behalf.
Additionally, Petitioner moved the following exhibits into evidence:
Exhibit “1” Subject Child's Birth Certificate;
Exhibit “2”—Putative Father Registry Response;
Exhibit “3”—Dr. Sari Trungold's Clinical Evaluation Report of RM; and
Exhibit “4”—Dr. Sari Trungold's Curriculum Vitae.
Petitioner also submitted for judicial notice the following court orders, decisions and documents/photographs, in connection with the underlying child protective proceeding and prior termination of parental rights proceeding brought against RM as to her child, Jayvon, who was freed for adoption by order dated June 24, 2008.
• Office of Chief Medical Examiner, Report of Autopsy, dated November 21, 2001, pertaining to RM's deceased child, Inez, under Docket No. NA 19325/01, including a series of five (5) autopsy photographs;
• Order of fact-finding (severe & repeated abuse) dated, June 10, 2003, under Docket No. NA 19325/01;
• Order of Disposition & Permanency Hearing, dated 1/14/04;
• Decision in connection with a prior Termination of Parental Proceeding as to the child Jayvon, under Docket No. B2542/04, dated December 26, 2006, which refers to an earlier finding against RM on the grounds of repeated and severe abuse and enters a second TPR finding against her on the grounds of permanent neglect; and
• Decision and Order dated, June 24, 2008, under Docket No. B2542/04, freeing the child Jayvon for adoption.
RM moved into evidence Exhibit “A”—Dr. Arthur Quatrano's Curriculum Vitae.
BACKGROUND
The underlying child protective proceeding in this case involves the brutal murder of the child, Inez B., by RM's ex-paramour, on November 21, 2001. A severe & repeated abuse petition, brought on behalf of the deceased child's surviving half-sibling, Jayvon, was filed against RM and her ex-paramour, Jason Lewis, pursuant to Article Ten of the Family Court Act. Thereafter, a finding of severe & repeated abuse by clear and convincing evidence was entered against them both on June 10, 2003.
Subsequently, a termination of parental rights proceeding was brought against RM as to her surviving child, Jayvon, on the grounds of repeated & severe abuse and permanent neglect. In two (2) separate decisions, dated December 26, 2006 and June 24, 2008 respectively, findings were entered against RM on each ground and the child Jayvon was freed for adoption.
On February 20, 2007, RM's third child, Faith, who is the subject of this proceeding, was born and placed directly from the hospital into foster care. A finding of derivative abuse was entered against RM as to Faith on December 8, 2008.The instant petition seeking to terminate RM's parental rights on the grounds of mental illness was filed eight (8) months later on August 24, 2009.
FINDINGS OF FACTS
Based on the testimony of the witnesses, the documents entered into evidence, the oral and written summations of counsel, and the applicable law, the Court finds as follows:
A. Petitioner's Witness:
Sari Trungold, Ph.D
1. Dr. Trungold, a court appointed clinical psychologist, conducted an evaluation of RM consisting of a one-time interview on April 2, 2010 for approximately 2 hours and 40 minutes, and a review of twenty-seven (27) documents.
2. Based her evaluation, Dr. Trungold diagnosed RM as suffering from a Major Depressive Disorder in full remission, Post–Traumatic Stress Disorder (PTSD), Physical Abuse of a Child, Abuse of Adult as a Victim and a Personality Disorder, NOS (not otherwise specified). Dr. Trungold explained that the “not otherwise specified” aspect of her diagnosis derives from her finding that although RM did not meet all the criteria for any one specific or particular personality disorder she exhibited some of the criteria of several different types of personality disorders. Specifically, Dr. Trungold found RM exhibited symptoms of four different personality disorders: narcissistic, schizoid, antisocial, and dependent.
3. Dr. Trungold indicated RM exhibited the symptoms of lack of empathy and remorse, a pattern of noncompliance and avolition (reduction in one's initiation of goal directed behavior), a sense of grandiosity, and a pattern of irresponsible behavior.
4. Dr. Trungold concluded that the personality disorder RM suffers from is likely intractable and interferes with her thinking and her ability to properly care for the child, Faith. Specifically, Dr. Trungold found that RM's mental condition prevents her from seeking proper accommodations for the child in that she failed to follow through with certain court recommendations pertaining to housing, education, and employment, and that she did not fully understanding the risk factors of exposing her children to further abuse.
5. Dr. Trungold also found that RM's history of noncompliance will impact her ability to take care of child, Faith, because there is a potential that she will not follow through with a doctor's orders or with any particular care that the child may need.
6. On cross-examination Dr. Trungold testified that the clinical examination she conducted of RM was a forensic evaluation consistent with the guidelines of the New York City Health and Hospitals Corporation, Family Court Mental Health Services, which are different, but likely based, on the American Psychological Association (APA) guidelines. Dr. Trungold stated that the guidelines for a forensic evaluation include reviewing mental health and medical records, conducting an evaluation, testing, and if appropriate, and conducting collateral interviews.
7. Dr. Trungold described that she interviewed RM for approximately 2 hours and 40 minutes asking her standard clinical evaluation questions tailored specifically for her. The interview was loosely structured with latitude to ask additional questions. Dr. Trungold maintained that her one interview of RM together with the available information she reviewed was sufficient to determine whether RM is presently or for the foreseeable future, unable by reason of mental illness, to properly care for her child, Faith.
8. Dr. Trungold indicated her diagnosis of RM was not based solely on the interview but also on her extensive review of records covering the years since the death of RM's daughter, Inez.
9. When questioned about possible biases that might affect her assessment and evaluation of the RM, Dr. Trungold stated that she is not biased and that she was able to conduct a neutral assessment and compile a fair evaluation as to RM. She also indicated that she monitors her own biases through supervision with a senior psychologist and that she objectively reviews all documents and considers all of the documents provided to her.
10. Dr. Trungold stated she believes she summarized each document in a neutral tone and did not make value judgments. She indicated that she based her conclusions on the available information and diagnostic criteria and her clinical skills. In making her final conclusions and recommendations, Dr. Trungold stated that she relied on the diagnostic criteria set forth in the Diagnostic and Statistical Manual on Mental Disorders, 4th Edition (DSM–IV), which is commonly accepted among many psychiatrists and psychologists in America.
11. Dr. Trungold testified she reviewed several documents (twenty-seven (27) were referred to in her report) and that she considered, but did not rely on the documents, in formulating her diagnosis and expert opinion. Dr. Trungold stated that she disagreed, in large part, with the treatment records she reviewed pertaining to RM from the Institute for Family Health, dated May 23, 2007 through January 10, 2010, but agreed that RM's Major Depressive Disorder and PTSD had resolved and that she responded positively to medication.
12. Dr. Trungold also testified that she never contacted RM's therapist at the Institute for Family Health, Ms. Stone. Instead, Dr. Trungold relied on the several petitions and findings she reviewed (severe & repeated abuse petition, derivative abuse petition and TPR petition) and the therapy notes of Ms. Stone. Dr. Trungold also relied on Ms. Brown's (caseworker) statements and notes as confirmation of what she observed about RM but she did not speak to Ms. Brown and did not consider her qualifications in considering the observations and conclusions Ms. Brown made in her notes about RM.
13. Additionally, Dr. Trungold stated that she considered a report prepared by Alan Supraner, Ph.D. as to RM but she never spoke to him about his report and did not rely on that particular document. Dr. Trungold also indicated that although she did not rely on the reports provided by FEGS, she agreed with findings contained in the psychological evaluation performed as to RM on July 16, 2003.
14. When questioned about other testing, Dr. Trungold testified that she did not feel it was necessary to conduct psychological testing on RM.
15. Dr. Trungold also testified that she is aware that RM has been having unsupervised visits with the subject child, Faith, twice a week, for the past two years. And, while there was no indication RM failed to recognize any of the child's needs during these visits, RM was having problems following through on some of the child's medical care.
16. Dr Trungold indicated she has never met with the child Faith, she did not observe RM interacting with the child, and she did not speak to anyone who had personal knowledge regarding the relationship between RM and the child.
17. Dr. Trungold stated that the primary focus of her examination was RM's diagnosis and prognosis and not her parental functioning. As such, she did not think it necessary to meet with the child because her evaluation was one of RM's mental state and not of her parental functioning per se.
18. Dr. Trungold indicated that the type of personality disorder RM exhibits requires intensive, long-term, one-on-one treatment with professionals and that while RM had been engaged in therapy, the type of therapy she receives is the not appropriate type given her mental disorder and symptoms.
19. Dr. Trungold noted that during her clinical interview, RM failed to demonstrate an appropriate degree of distress when recounting what occurred to her deceased child, Inez. Hence, Dr. Trungold testified that she believes RM's lack of empathy makes it difficult for her to recognize and respond to her child's needs. Though RM repeatedly said that she had failed her children Dr. Trungold found that RM did not sufficiently accept accountability for her role in the events involving Inez's death.
20. Specifically, Dr. Trungold testified that RM has shown a pattern of not having secured proper income, housing, employment, and has not made provisions for the care of the subject child. The RM lives in an SRO for mentally ill individuals in a three bedroom with two roommates, which in Dr. Trungold's opinion, is not an appropriate environment for a child. Even though RM has not engaged in an abusive relationship in the past 10 years, she is financially dependent as she received public assistance, which places her at risk of engaging in another domestic violence relationship.
21. Dr Trungold testified that when she questioned RM about her past she primarily focused on how she has suffered as opposed to the suffering of her children. Although RM shed genuine tears during questioning about her children, her tears appeared to be more about herself. Dr. Trungold testified this was evidence of RM's lack of empathy and her narcissism. In making her assessment that RM displayed a lack of empathy, Dr. Trungold testified she relied on her clinical experience and judgment.
22. Dr. Trungold stated that RM has dependent personality traits as evidenced by her behavior of making others responsible for her life, i.e., not taking responsibility for her own financial and housing needs. In regards to anti-social personality traits, Dr. Trungold found that RM exhibited characteristics of irresponsibility based on her not securing appropriate housing or employment.
23. Dr. Trungold testified that RM did not exhibit the expected amount of rage and horror when discussing the death of her child Inez and the abuse of her other child, Jayvon, and that she expressed no anger towards the perpetrator of the abuse. This, according to Dr. Trungold, is evidence of schizoid personality traits.
24. Dr. Trungold testified that RM's past of shoplifting and marijuana use was evidence of her anti-social personality traits even though these behaviors date back to her childhood and have not been manifested in her adult years.
25. Dr. Trungold stated that RM has a reckless disregard for the safety of others evidenced by her tendency to leave children alone with an abuser and that she consistently makes goal directed plans but fails to follow through on them.
26. Dr. Trungold found that while RM expressed remorse, this was not the same as accepting responsibility and, though RM stated during her clinical interview that she failed to protect her children, there was a risk that RM would enter into another violent relationship.
27. Similarly, though RM stated to Dr. Trungold that if she were to find herself in an abusive relationship in the future she would remove herself and her children, this answer did not suffice because she did not say explicitly that she would terminate the relationship.
28. Dr. Trungold also testified that RM used poor judgment in a different relationship with Faith's father based on the fact that Faith was conceived as a result of a one-night stand. She stated that RM described her relationship with Faith's father as a brief fling; RM does not know his first or last name. The individual does not know of the child's existence.
29. Dr. Trungold stated that RM made gains in her treatment of depressive symptoms and PTSD as her depressive symptoms and PTSD have been resolved.
30. Dr. Trungold indicated that although RM received extensive treatment she does not display markers of having internalized that treatment and, therefore, does not appear to have gained insight as to what led her to leave her children with the abuser. As such, her lack of insight places RM at continuing risk for similar behavior even though she has not engaged in a domestic violence relationship during the past ten (10) years.
31. Dr. Trungold concluded that RM's maladaptive characterlogical traits raise concerns about whether she will be able to identify and respond to Faith's needs. She believes that RM's lack of remorse leaves her vulnerable to allowing the child to be in similar situations in the future, her dependency makes her vulnerable to similar relationships, and her flattened effectivity and detachment leave her without emotional cues.
32. Dr. Trungold testified that RM needs long-term psycho-dynamically oriented therapy to address her maladaptive personality traits; her dependent, narcissistic, schizoid and antisocial personality traits. She recommended RM engage in long-term therapeutic treatment with a psychiatrist or psychologist along with continued ACS oversight and parental support.
33. Dr. Trungold indicated that a personality disorder is not a thought disorder though it does affect one's interpretation of events. A personality disorder is a mental disease as evidenced by characterlogical traits she observed in RM that are likely to be intractable in the absence of intensive long-term treatment. As such, Dr. Trungold found that there is a fair expectation that RM will repeat similar patterns in the future.
34. Dr. Trungold did not perceive anything that would indicate that RM needed to be prescribed medication. Personality disorder cannot be treated with medication.
B. Respondent's Witnesses:
I. Arthur Quatrano, Ph.D
1. Dr. Quatrano was qualified as an expert in the field of forensic psychology. He defined a “forensic evaluation” as an evaluation that is conducted for legal purposes and for submission to a court of law using the guidelines established by APA.
2. The APA provides specific guidelines for conducting an evaluation in a TPR proceeding brought on the grounds of mental illness. It delineates the methodology that should be implemented; it operationally defines the assessment techniques that should be used, and defines how the evaluation should be conducted, including the types of interviews, the information that should be reviewed, and how to collate all of these areas into a forensic report.
3. In TPR cases a clinician must conduct a multiple source assessment of all areas of family functioning. This includes reviewing legal documents, conducting interviews and performing psychological testing. In order to assess the parent child relationship, the clinician may wish to conduct collateral interviews with pediatricians, therapists, or any persons who may be able to provide information regarding parenting. A direct assessment can be done directly through psychological testing.
4. Because a clinician must use multiple sources of data collection in a TPR case, interviewing the parent alone is insufficient. The clinician should interview and conduct an assessment of the child involved in the case as well as assess the nature of the relationship between the parent and the child.
5. If there is a question regarding mental illness the clinician should consider conducting a psychological assessment. Additionally, there should be some attempt at conducting a parenting assessment.
6. Dr Quatrano testified that when he conducts an evaluation in a TPR case he may spend approximately 3 to 4 hours on an interview with a respondent in multiple sittings. This allows him the opportunity to corroborate information presented during an initial interview with outside sources before he re-interviews the litigant.
7. Dr. Quatrano testified that in his opinion Dr. Trungold's evaluation was not a forensic evaluation, but rather it was a clinical evaluation. Her evaluation described symptoms of behavior in a general way but did provide objective findings based upon a scientific methodology consistent with APA guidelines, which is required for it to be admissible in a court.
8. Dr. Quatrano opined that Dr. Trungold's evaluation of the RM was insufficient because while Dr. Trungold referenced the documents that she reviewed in her report, she made no attempt to communicate with the individuals who authored them to determine their credentials and qualifications or how they arrived at their conclusions. Also, Dr. Trungold did not use multiple sources of data to collect information; she used a single point data system, an interview with RM. Dr. Trungold reached a diagnosis based on a single two hour and 40 minute interview of the RM.
9. Further, Dr. Trungold's report was inadequate as she failed to interview the child, failed to evaluate the child's relationship with the RM, and failed to observe them together.
10. Dr. Quatrono testified that Dr. Trungold's exclusive use of and reliance on the DSM–IV in formulating for her expert opinion as to RM mental illness and prognosis is inappropriate in conducting a forensic evaluation for submission to a court of law. In support of this position, Dr. Quatrano testified that the introductory section of the DSM–IV explicitly states that it is not suitable for forensic evaluations because it does not meet the criteria of the legal standard of mental disorder or disability. In his opinion, if a clinician is going to use a DSM diagnosis it must be done in conjunction with other sources of data in order to confirm the expert's findings because a DSM diagnosis is descriptive in nature and does not indicate any functional impairment. Specifically, it does not indicate severity of the behavior and does not take into account the cultural matters involved in a case.
11. The DSM section on personality disorders cautions that these descriptions of behaviors are common in the general population and one needs to be specific when determining impairment. Characteristics that are responses to life stressors come and go and would not indicate a personality disorder, whereas the ones that are longstanding, or from childhood, or can be operationally defined, might indicate a personality disorder.
12. Dr. Quatrano indicated that by definition a TPR case indicates there is one or more deficiency, which prevents the parent from adequately parenting. In clinical terms, this is referred to as a functional impairment, operationally defined as being incapable, disabled, or otherwise unable to take care of the child.
13. Dr. Quatrano stated when he conducts an evaluation in a TPR case, he performs a thorough review of all legal documents and pleadings, interviews the litigant and obtains a complete family and psychiatric history, including a history of any drug and alcohol abuse, arrest, employment, academic work, religious background, an assessment of parenting skills, and conducts an interview of the child.
14. While Dr. Trungold's report references problematic areas in RM's life, she does not fully define how they impact on her capacity to parent. Further, she uses the diagnosis Personality Disorder–NOS, but does not use the criteria outlined in the DSM–IV when formulating this diagnosis.
15. Dr. Quatrano detected a bias in Dr. Trungold's work in that among the documents she listed there were some positive reports and some negative reports about the RM's parenting and her capability in dealing with domestic violence, yet Dr. Trungold focused only on the negative reports.
16. Dr. Quatrano testified that in TPR cases where the cause of action is mental illness it is appropriate to conduct psychological testing (regarding the absence or presence of mental illness), personality testing (to ascertain whether there are any personality characteristics or disturbances present) and a parenting assessment (because the major issue is parenting and whether the individual has the capacity to adequately parent). Dr. Trungold's evaluation of RM did not involve any of these tests. Because Dr. Trungold did not corroborate any of the sources of information that she used to arrive at her conclusions, her evaluation of RM is incomplete.
17. Further, Dr. Trungold's evaluation is flawed because the different personality characteristics she found, were never operationally defined as it pertains to the nature of RM's relationship with her child, or how these characteristics would interfere with that relationship. Dr. Quatrano opined that Dr. Trungold went beyond her clinical scope in concluding the that RM's personality disorder was permanent. Dr. Quatrano also observed that since Dr. Trungold asserted that the RM suffers from serious deficiencies, her report should include how or what can remediate those deficiencies. Instead, her report fails to fully defined the deficiencies.
18. Dr. Quatrano indicated that forensic psychologists must include in their report how they conducted the evaluation and list the limitations of their findings in the report, including any flaws that may be involved. Dr. Quatrano noted that one bias he observed in Dr. Trungold's report is that she did not indicate any positive parenting whatsoever on the part of RM. In determining a parent's capacity to provide for a child, a clinician should look at the parent's capacity to provide for food and shelter, meet the child's medical and educational needs as well as assess the level of communication between parent and child, the parent's involvement in the child's outside and after-school activities, their availability to the child and the parent's social networks and extended family system. None of these factors were included in Dr. Trungold's evaluation of RM.
19. Dr. Quatrano testified that in her report, Dr. Trungold arbitrarily took four (4) different personality diagnoses and never operationally defined how the characteristics she described interfered with RM's ability to parent. Dr. Trungold also concluded that RM's mental disorder is intractable but never explained how she conducted this assessment and on what she based this conclusion.
20. While Dr. Trungold listed in her report that she reviewed twenty-seven (27) documents, all of which were substantial, relevant and appropriate, her report failed to include how the information she reviewed contributed to her conclusions.Dr Trungold should be expected to follow a higher standard of presenting reliable and quantifiable and qualitative findings; it is not acceptable to simply provide opinion evidence. Opinion evidence must be accompanied by scientific based assessments that can withstand the burden of proof in a court of law. In Dr. Quatrano's view, the report presented by Dr. Trungold was of no value to the Court in the TPR case at bar.
II.Natasha A.—RM
1. RM testified she is the biological mother of Faith, age 4, Jayvon, age12, (who was freed for adoption), and Inez, now deceased.
2. RM resides in a Single Room Occupancy (SRO) program for the past 3 years. She lives in a three bedroom apartment and currently has only one roommate. The SRO was supposed to be a 1–year program but an apartment has not yet been located for her. She is on a waiting the list for public housing.
3. RM receives public assistance and is assigned to work at a nursing home two (2) days a week and attends school three (3) days out of the week. She is working on getting her GED, which she expects to complete in six (6) to twelve (12) months. RM has been on public assistance since 2007. She supplements her income by selling handmade costume jewelry. In the past, she also worked as a home health aide.
4. Her child Faith is in foster care and placed with Amanda L. Her child Jayvon was placed in foster care in 2001.
5. RM became involved with her ex-paramour, Lewis, in late 1996. Her deceased child's (Inez) father is also deceased. Her relationship with Lewis became abusive in 1997. In 1998 Jayvon was born. Lewis was physically abusive towards her while she was pregnant with Jayvon and was physically violent toward Inez during that time. The abuse continued after Jayvon was born through the time Inez was murdered by Lewis in 2001.
6. Lewis would hit Inez and Jayvon with a belt, cable wire, or his fists. When RM tried to stop him, he hit her too. She called the police on occasion but, out of fear, never followed through with a police report.
7. In November 2001, RM went into the hospital for a high risk pregnancy and left her two children with Lewis knowing they would not be safe. RM tried to arrange for and called a couple of family members to go to her house, but none of them helped.
8. RM testified that during her hospitalization, Lewis came to visit her and told her that he had broken Inez's arm. After learning this information, RM stated that she took no action because she was afraid. When she came home from the hospital, she found Inez in bed badly hurt with her face bruised. Jayvon was in the bed with her and he had marks on his neck. For the twenty-four (24) hours that followed, Lewis made them all stay in bed as he watched them. If she tried to run out he would grab her and physically abuse her. After twenty-four (24) hours she was able to run out. She knocked on the door of her neighbors and cried for help but no one was home. She ran out to a pay telephone to call the police. They police told her to go back upstairs to watch Inez and they would be there shortly. When the ambulance and police arrived they took Jayvon to the hospital and RM was taken to the police precinct. Inez died on the way to the hospital. Lewis was arrested and he is now incarcerated for causing Ines' death. He received a sentence of twenty (20) years to life.
9. RM testified that she takes responsibility for Inez's death in that she failed to call 911 earlier, failed to remove Ines immediately out of that situation, failed to obtain an order of protection, and by leaving the children in the apartment with Lewis. RM stated that she failed her child Inez in every way a parent can fail a child. RM testified she is morally responsible for the death of her child.
10. RM testified that she also failed to register Inez for school. RM stated that Lewis did not allow her to enroll Inez in school; he threatened her and told her that her children would be taken from her and that he would kill her.
11. There were times that RM sought medical attention due to injuries caused by Lewis and though she alerted authorities as to what was going on, she did not follow through with obtaining an order of protection. There was one instance where she brought Inez in to get stitches for a gash under her chin that Lewis caused. Lewis coached RM on what she should tell to the hospital staff; that the child slipped and fell on the tub.
12. When Jayvon was removed from RM's care and placed in foster care, RM began therapy at the District Attorney's office, which included individual therapy, domestic violence therapy and group therapy. She attended therapy from 2001 through 2003. During this time she was diagnosed with PTSD and Major Depressive Disorder and was prescribed Ambien and Celexa. In 2003, the Administration for Children's Services (ACS) referred her to New Beginnings for mental health treatment where she was given the same diagnosis and was continued on the same medications. She continued counseling at New Beginnings until 2006 when her Medicaid was restricted. She then entered another therapeutic service for about 6 months and then attended the Family Health Institute located in Westchester from 2007 through 2010. She was informed at that location that her PTSD had been resolved and she was diagnosed with mild depression. In 2009 her diagnosis was changed to anxiety. She currently continues to attend a support group that she began attending in 2001.
13. At present, RM has unsupervised visits with her child, Faith, on Thursdays and Fridays. When RM visits with Faith they sometimes visit her sister's apartment or they spend time in places located in the vicinity. RM is not permitted to take Faith to her apartment. If Faith were returned to her care they could go live in a family shelter or they could reside with her sister until RM does can get her own housing. Faith refers to her as “mommy”.
14. The first name of Faith's father is Reggie. He lives in Connecticut. RM met him while she was visiting there for a weekend in 2006. She has not seen him since.
15. RM testified that she is willing to enter the long-term psychiatric treatment that Dr. Trungold described in her report. She also indicated that if Faith were returned to her care She would ensure that Faith continue to receive the special needs services she currently receives and attend the pre-school where she is presently enrolled. RM stated that she would also continue to work and attend school in order to become financially stable.
16. As a result of her counseling, RM indicated she can now detect the signs of abuse by others and has learned to cope with stressful situations. She now looks back and sees how Lewis manipulated her; she now sees herself as an individual.
17. RM does not believe she still suffers from PTSD or from Major Depressive Disorder. She does not believe she has a mental condition that prevents her from caring for Faith. RM testified that she learned about abusive relationships in therapy and also learned about the resources available to her should she ever find herself in an abusive relationship.
18. If Faith is returned to her care, she would permit her to remain in contact with her foster mother because Faith has developed a strong relationship with her.
LEGAL ANALYSIS
It is settled law that in a proceeding to terminate parental rights on the grounds of mental illness, the petitioner bears the burden of demonstrating by clear and convincing evidence, that the parent is presently, and for the foreseeable future, unable by reason of mental illness, to provide adequate care for a child. SSL § 384–b; Matter of Hime, 52 N.Y.2d 242, 437 N.Y.S.2d 286, 418 N.E.2d 1305 (N.Y. Ct. of App.1981). The statute explicitly prescribes certain procedural requirements to assist the court in determining whether a mental illness condition exists. SSL § 384–b (6)(c) & (e); Matter of Hime, supra at 247. Specifically, the court is required to order the parent to submit to an examination by a qualified psychiatrist or psychologist as well as take the testimony of the qualified medical examiner at trial on the question of not only whether the parent suffers from a “mental illness” but also whether such mental illness impairs the parent's present and future ability to care for his/her child. SSL § 384–b (6)(c) & (e).
The clear and convincing standard of proof in a TPR proceeding is applicable as to each of the elements present in a case involving allegations of mental illness. In Matter of Arielle Y., 61 A.D.3d 1061, 876 N.Y.S.2d 529 (3d Dept.2009). Petitioner must first establish that the parent suffers from a mental illness as that term is defined in the statute. SSL § 384–b (6)(a). Next, petitioner must establish that the mental illness impairs the parent's ability to provide appropriate care to his/her child. Lastly, there must be sufficient proof presented to establish that the impairment caused by the diagnosed mental illness not only affects the parent's present ability to properly care for his/her child but that the nature and severity of the illness is to such a degree that it renders the parent unable to adequately care for their child for the foreseeable future. As such, petitioner must present proof not only of the parent's underlying condition the medical testimony must particularize how the parent's mental illness affects her present and future ability to care for her child. In Matter of Arielle Y., supra at 1062, 876 N.Y.S.2d 529;Matter of Anthony Ww. v. Michael WW., 86 A.D.3d 654, 927 N.Y.S.2d 407 (3d Dept.2011) [citing Matter of Evelyn B., 37 A.D.3d 991, 992, 830 N.Y.S.2d 804 (2007) ].
In this case, the issue before the court is the legal sufficiency of the court-ordered mental health examination and of the medical expert testimony petitioner, Leake & Watts Services, Inc., presented to establish that RM's parental rights should be terminated on the grounds she suffers from a “mental illness” of such severity and to such a degree that if the child Faith were placed in or returned to her custody, the child would be in danger of becoming a neglected child. Petitioner's case in chief consisted solely of the testimony of the court appointed psychologist, Dr. Sari Trungold, who examined the RM for approximately 2 hours and 40 minutes five months prior to the commencement of the TPR trial. Additionally, petitioner submitted into evidence a clinical report Dr. Trungold prepared as to RM, which included a review of twenty-seven (27) documents pertaining to RM's prior mental health treatment, numerous court orders and decisions related to the underlying child protective proceedings, a prior TPR case brought in connection with another child, agency progress notes, and NYC Human Resources Administration records regarding RM's application for food stamps and other benefits. At petitioner's request, the Court also took judicial notice of the medical examiner's autopsy report dated November 21, 2001, and four (4) autopsy photographs of RM's deceased child, Inez, which were introduced into evidence in the underlying child protective proceedings and prior TPR trial brought against her.
Dr. Trungold diagnosed RM as suffering from a Major Depressive Disorder, which has been responsive to treatment (both counseling and psycho-pharmacological intervention) such that her symptoms have fully remitted. Similarly, RM's history of Post–Traumatic Stress Disorder (PTSD) related to the murder of her daughter, Inez, has also been responsive to treatment and fully remitted as of the time of Dr. Trungold's examination. Lastly, however, Dr. Trungold, found that RM suffers from a longstanding pattern of maladaptive personality traits and, although RM does not appear to meet the criteria for any specific personality disorder, she exhibits traits associated with a several different personality disorders; dependent, narcissistic, schizoid and anti-social. Hence, Dr. Trungold diagnosed RM as suffering from a “Personality Disorder–Not Otherwise Specified,” which, in her opinion, has resulted in significant impairment of long duration and is not expected to remit.
Specifically, Dr. Trungold opined that RM's maladaptive traits included her history of engaging in an abusive relationship, which contributed to the murder of her eldest child, Inez, by her ex-paramour and the removal of her other two (2) children from her care as well as her non-compliance in securing a GED, employment and housing (her current residence in an SRO), and her poor judgment in engaging in a one-night stand resulting in the birth of her child, Faith, the subject child in the instant proceeding. Dr. Trungold's examination further disclosed that RM has been engaged in out-patient mental health services consisting of individual therapy and domestic violence group counseling since 2001 following the murder of her child, has no reported history of any psychiatric hospitalizations, and a history of full compliance with attending treatment sessions and adherence to prescribed psychotropic medication. Further, RM exhibited no evidence of impaired reality testing and denied experiencing delusions or hallucinations.
At trial, RM presented the testimony of Dr. Quatrano, an expert in the field of forensic psychology, to challenge the scientific rigor and reliability of Dr. Trungold's court-ordered examination and the basis of her expert medical opinion. Dr. Quatrano's major criticism of the evaluation Dr. Trungold conducted of RM was that it failed to meet the standard of what is defined as a “forensic report” because it was not performed using the guidelines established by the APA. Dr. Quatrano opined that Dr. Trungold's failure to conduct a “multiple source” assessment of all areas of family functioning in a TPR case, and just conducting an interview of the parent without additional testing, collateral interviews, and/or parent child observations, rendered the court-ordered examination and clinical report presented in this case to be insufficient.
Dr. Quatrano testified that the evaluation and report Dr. Trungold prepared in this case as to RM was not a forensic report but rather a “clinical evaluation” and that her exclusive use of the DSMIV, as the only diagnostic tool in formulating her expert medical opinion of the RM, is inappropriate. This is so because a DMS diagnosis is descriptive in nature and does not indicate any functional impairment, does not address the severity of behaviors, and does not take cultural factors into account. Further, Dr. Quatrano pointed out that while Dr. Trungold's report references problematic areas in RM's life, the report does not fully define how they impact on her capacity to parent. Moreover, the report does not operationally define how the different abnormal personality characteristics impact on RM's relationship with her child, Faith, or how they interfere with the parent-child relationship.
For example, even though RM has been having unsupervised visits with the subject child, Faith, for the past two (2) years, Dr. Trungold did not interview the child, did not speak to anyone with direct knowledge about the quality of the visits between the RM and child, and did not observe any interaction between RM and the child. Indeed, when asked about this during her testimony, Dr. Trungold responded that the primary focus of her examination was RM's diagnosis and prognosis. As such, she did not think it necessary to meet with the child because her evaluation was focused on RM's mental state and not her parental functioning per se. In addition, Dr. Trungold did not conduct any parenting skills testing or parenting surveys of RM.
In essence, Dr. Quatrano testified that Dr. Trungold arbitrarily used four (4) different personality disorders to diagnose RM but she never operationally defined how these characteristics interfered with RM's ability to parent her child. Further, although Dr. Trungold concluded that RM's mental illness is intractable, she failed to explain the basis for this assessment. As to the documents Dr. Trungold reviewed, her report does not indicate or explain how the specific information she reviewed contributed to her conclusions. Dr. Quatrano concluded that the opinion testimony Dr. Trungold presented in the instant case must be supported by scientifically-based assessments able to withstand the evidentiary requirements necessary for presentation in court. In his view, Dr. Trungold's evaluation of RM fails to meet the requirements mandated by the SSL in the instant TPR proceeding in determining whether RM suffers from a mental illness of such severity that she is presently, and the for the foreseeable future, unable to adequately care to her child, Faith.
In the area of child custody litigation, Dr. Quatrano's critique of Dr. Trungold's clinical evaluation of RM is referred to as a “peer review.” The purpose of such a review is to test the evidentiary validity and reliability of an expert's opinion presented in court. The concept derives, in part, from the Supreme Court landmark decision in Daubert v. Merrill Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), which established an empirical standard of evidentiary reliability for permitting the admission of expert opinions as evidence in court. See Timothy M. Tippins, Custody Evaluations, Part XIII: Peer Review and Publication, NYLJ, July 1, 2005, page 3.
It is common, for example, in contested child custody cases for a court to order a “forensic evaluation” in order to assist the court in determining the “best interests” of a child. As described by Dr. Quatrano in his testimony, there are specific guidelines and parameters in the field of forensic psychology for how such evaluations are to be conducted and presented to a court. Indeed, various published guidelines and standards of professional associations exist related to the practice and preparation of forensic evaluations in child custody cases for use in court. These include: Model Standard of Practice for Child Custody Evaluation, published by the Association of Family and Concilation Courts, Practice Parameter for Child Custody Evaluation, published by the American Academy of Child Adolescent and Psychiatry, and Guidelines for Child Custody Evaluations in Divorce Proceedings, published by the APA.
Dr. Quatrano testified that a forensic evaluation in a TPR proceeding should adhere to the guidelines of the APA, which delineates the methodology that should be used in conducting an evaluation in TPR proceedings for use in court. The methodology defines how the evaluation should be performed as well as what materials/documents should be reviewed and presented in a report to the court. A critical element of the reliability of such evaluations requires that the clinician use multiple sources of data collection. Hence, an interview of only the parent is insufficient under the APA guidelines for preparing a forensic evaluation in a TPR case. According to Dr. Quatrano a clinician performing a court-ordered examination of a respondent parent in a TPR case must conduct a multiple source assessment of all of the areas of family functioning. This includes a review of relevant legal documents, interviews of the parent and other key collaterals, assessment of the parent-child relationship, including administering parenting skills testing and/or surveys and parent-child observations as well as psychological testing of the parent. See Guidelines for Psychological Evaluations in Child Protection Matters, published by the APA (rev.2/11). The methodology Dr. Quatrano described in his testimony is also the subject of various published writings and articles dealing with child custody practice. See Timothy M. Tippins, Custody Evaluation Orders: The Written Report, NYLJ, Sept. 1, 2011, page 9; AACAP Abstract, Practice Parameters for Child Custody Evaluation, Supplement—Oct.1997, page 575.
With the exception of the APA guidelines pertaining to child protective matters, including TPR proceedings, and in contrast to the practice in child custody litigation, this court was unable to identify the use of any established or suggested published practice guidelines and parameters for conducting court-ordered examinations of parents named as respondents in TPR proceedings brought on mental health grounds. Even though there are published APA guidelines for performing forensic evaluations in TPR proceedings, this Court found few reported cases where a court specifically ordered a forensic evaluation in a TPR case brought on the grounds of mental illness that complied with the guidelines published by the APA. But See Matter of Nassau County Dept. of Social Servs. (B.M.) v. D.M., 31 Misc.3d 1210(A), 2011 WL 1364456 (Nassau Co. Fam. Ct.2011).
More commonly, pursuant to Social Services Law section 384–b(6)(e), courts appoint a qualified psychiatrist or psychologist to conduct a court-ordered examination of a parent and direct the respondent parent to submit to the examination. Thereafter, the court receives the opinion testimony of the court appointed expert as to their findings at the TPR proceeding. Often, court-ordered examinations may consist of a one-time interview of the parent and a review of the parent's prior medical, psychiatric, and/or other relevant records, if such materials are of the kind accepted in the profession as being reliable in forming an opinion. See Matter of Robert K. 56 A.D.3d 353, 869 N.Y.S.2d 14 (1st Dept.2008); Matter of Omar B. 175 A.D.2d 834, 573 N.Y.S.2d 301 (2d Dept.1991); But See Matter of Shantelle W. 185 A.D.2d 935, 587 N.Y.S.2d 393 (2d Dept.1992). Should a parent refuse to submit to such a court-ordered examination or fails to make him or herself available, the court appointed expert is permitted to render an opinion solely on the basis of a review of the parent's available and relevant records. SSL § 384–b(e). The court must, however, first issue an order directing the parent to submit to an examination before it is permitted to enter a finding against the parent on the basis of expert medical testimony based solely on a review of relevant records. Matter of Shonica Ahaila S., 41 A.D.3d 606, 840 N.Y.S.2d 78 (2d Dept.2007).
Recognizing there are significantly different considerations, statutory requirements, and case law governing contested child custody cases from TPR proceedings, in this Court's view there should be equally comprehensive court-ordered examinations and reports presented to the court in both types of cases. In both kinds of cases the ultimate question before the court is what is in the “child's best interest.” Both kinds of cases involve fundamental parental rights in relation to their child. In a contested custody case, the right at stake is the right to physical custody and final decision-making as to one's child. It is a right that, even if denied in a particular litigation, can be modified if there is a showing of change of circumstances in the future. The standard of proof at trial in that instance is a preponderance of the evidence. In contrast, the right at stake in a TPR case is profoundly different from the loss of custodial rights. It involves the complete and final severance of all parental ties to one's child .
There is also a higher standard of proof of clear and convincing evidence. Therefore, compelling reasons exist for requiring a thorough and comprehensive court-ordered examination and report in a TPR case.
There is, however, a recently enacted amendment to Article 6 of the Family Court Act, which permits a petition to restore parental rights to be filed under exceptionally narrow circumstances involving subject children who are fourteen (14) years or older and who have not been adopted. F.C.A. § 635–637.
Here, petitioner has failed to establish by clear and convincing evidence that RM suffers from a mental disease that renders her presently, and for the foreseeable future, unable to care for the subject child. The expert testimony provided to this Court by the court appointed psychologist and her written report in evidence fails to meet the rigorous standard which is required particularizing the harm posed to the child by the RM's mental illness. See Matter of Arielle, supra at 1062, 876 N.Y.S.2d 529.
To begin, the Court notes that despite the fact that the RM has been having unsupervised visits with the subject child twice a week for the past two (2) years, no effort was made by Dr. Trungold to assess the parent-child relationship. No collateral contacts were made by her with agency personnel or other key collaterals who have observed the visits between RM and the child. She did not conduct any parenting skills assessment or survey. This important shortcoming reflects Dr. Trungold's mistaken understanding that her primary task was to evaluate RM's mental state and not her parental functioning. In addition to not performing any parenting skills testing or conducting any parenting surveys to assess RM's parenting strengths/weaknesses, Dr. Trungold did not conduct any psychological testing of RM. Instead, Dr. Trungold's examination of RM relied on a psychological report performed eight (8) years earlier, in 2003.
Hence, there was no evidence presented to reconcile Dr. Trungold's expert opinion that RM's mental illness renders her incapable, presently and for the foreseeable future, to adequately care for her child with the fact that RM has had substantial unsupervised visitation with the child Faith for the past two (2) years.
This is significant because according to Dr. Trungold's evaluation, RM's mental state has improved since 2003 as her Major Depression Disorder and PTSD is presently fully remitted.
The evidence presented in this case is in sharp contrast to the evidence present In Matter of Nassau County Dept. of Social Servs. (B.M.) v. D.M. In that case, the trial court terminated the parental rights of both parents on the grounds of mental illness based upon the expert testimony of two (2) court appointed psychologists who conducted comprehensive forensic evaluations of the respondents consistent with the APA guidelines and methodology referenced above. Based upon the extensive and thorough forensic evaluation each of the court appointed psychologists conducted as to each parent and the detailed nature of the various tests they performed, the observations they made of the parents' interactions with their child, and an in-depth analysis detailing how the mental illness of each parent affected his/her ability to adequately parent, the trial court adopted their expert testimony, conclusions and opinions, and entered a finding that both parents were presently, and for the foreseeable future, unable to adequately care for their child to a reasonable degree of medical certainty. Matter of Nassau County Dept. of Social Servs., supra.
Further, as pointed out by Dr. Quatrano in his testimony, Dr. Trungold's reliance on the twenty-seven (27) records referred to in her report in formulating her expert opinion in this case is also troublesome. Although court appointed medical experts are permitted to review records not in evidence in performing court-ordered examinations in TPR proceedings, such records must be of the kind accepted in the profession as reliable in forming an opinion. Matter of Omar B., supra at 834, 573 N.Y.S.2d 301. Here, Dr. Trungold testified she both agreed and disagreed with some of the findings and conclusions of the records she reviewed and considered in conducting her evaluation. She did not, however, indicate specifically what records she relied on and which she rejected and her basis for doing so. Nor did she state what impact these reports had on her evaluation of RM and the expert opinion she offered as to the severity and nature of RM's mental illness and her ability to parent the subject child now and in the future. See Matter of Anthony Ww. Michael Ww., 86 A.D.3d 654, 927 N.Y.S.2d 407 (3d Dept.2011).
Most troubling, Dr. Trungold testified she agreed with the opinions and conclusions contained in court reports she reviewed that were prepared by Valerie Brown, the agency case worker assigned to RM's case. However, Dr. Trungold conceded she did not know what qualifications, if any, the caseworker possessed to form the opinions included in her case notes about RM's response to mental health treatment and her prognosis. There was no testimony offered that records containing lay opinions are of the kind accepted in the profession as a reliable source for forming an opinion. As such, the statements and opinions by the caseworker in her reports may constitute hearsay, which are inadmissible in a TPR proceeding.
Indeed, of the twenty-seven (27) records Dr. Trungold reviewed, many were only remotely, if at all, relevant to the issue of RM's mental illness. More than half of the records were copies of court documents such as permanency hearing reports and court reports involving the ten (10) year period of the instant child protective proceeding. It is not clear to this Court how some of these records are of the kind accepted in the profession as a reliable source for forming an opinion as to a parent's mental illness and the severity and impact of such mental disease on their ability to adequately parent a child.
Indeed, many of the documents, which may have formed a basis for Dr. Trungold's expert opinion, included first and even secondhand hearsay information and opinions by lay persons not qualified to opine as to RM's response to the many years of out-patient mental health treatment she has received. In fact, Dr. Trungold's report even included references to records she reviewed that were subpoenaed from the NYC Administration of Human Resources pertaining to “food stamp and other benefit applications, sub-lease agreements, rent bills, and other similar materials pertaining to the respondent mother.” Clinical Report of Dr. Trungold, Petitioner's Exhibit “3” paragraph 5 at page 2.
This is particularly so in this case because none of the earlier court decisions and orders were based on a finding of mental illness. The prior TPR proceeding was brought on the grounds of repeated and severe abuse and permanent neglect. In contrast, the only cause of action involved in the instant TPR proceeding is mental illness.
In addition to the questionable expert medical evidence presented, this Court is also struck by the absence of evidence in key areas of RM's mental illness history necessary for determining the nature and severity of her mental illness and her present and future ability to adequately care for her child. For example, there was no evidence RM has ever been psychiatrically hospitalized, no evidence she suffers presently, or in the past, from any form of psychosis, and no evidence she has ever been non-compliant with mental health treatment or recalcitrant in adhering to any prescribed psychotropic medication. In fact, Dr. Trungold's written clinical report indicates RM has been involved in out-patient mental health treatment since 2001, following the brutal death of her child Inez by her ex-paramour, and that her diagnosed Major Depressive Disorder and PTSD are in remission in response to the mental health treatment and medication she has received over the past several years.
One of petitioner's central arguments in support of the instant petition to terminate RM's parental rights on the grounds of mental illness is her role in failing to protect her child Inez from the brutal death she suffered at the hands of RM's ex-paramour and her present failure to accept full responsibility for her role in the child's murder. Petitioner maintained this is evidence of her total lack of parental understanding and empathy and confirmation of her diagnosed mental illness. In her report, Dr. Trungold concluded that RM appears to suffer from a demonstrated longstanding pattern of maladaptive personality traits, which she hypotheses, have led to significant functional impairment and contributed to the RM's prior involvement in a profoundly abusive relationship, resulting in grave harm to her children.
While this Court fully acknowledges the finding of severe and repeated abuse entered against RM in the underlying child protective proceeding as to Jayvon and finds the brutal death of RM's child Inez in 2001 to be a tragedy and morally reprehensible, this evidence alone does not constitute a basis for terminating RM's parental rights as to the child Faith on the grounds of mental illness. RM testified that she and her two (2) children, Inez and Jayvon, were the victims of ongoing and severe domestic violence inflicted upon them by her ex-paramour and that she accepts moral responsibility for the death of her child, Inez. RM also testified that as a result of her years of counseling since 2001 she has learned about abusive relationships and how to detect signs of abuse. The Court notes that while Dr. Trungold concluded in her evaluation that RM's dependency trait places her at risk of engaging in another abusive relationship, and places the child Faith at risk of neglect if returned to the RM's care, there is no evidence that RM has been involved in a domestic violence relationship since the death of her child ten years ago.
This Court also agrees and acknowledges that the principles of fairness and due process embedded in our laws imposes upon the court the role of gatekeeper in assuring that expert testimony is not only relevant but reliable. Michael Hoenig, Gatekeeping' Experts: Daubert' Boils and Frye' Sizzles, NYLJ, April 11, 2005 at page 3. In this case, the court-ordered examination of RM and the expert testimony presented fails to satisfy the necessary indicia of reliability required to establish by clear and convincing evidence that RM's diagnosed mental illness renders her, by reason of mental illness, presently, and for the foreseeable future, unable to adequately care for her child. Further, no legal basis exists for requiring any less a comprehensive court-ordered examination in a TPR case brought on mental illness grounds than in a case involving a parent's right to custody of his/her child. As such, the methodology for conducting a court-ordered examination in a TPR proceeding brought on grounds on mental illness should adhere to the guidelines published by the APA to ensure the court is provided with a comprehensive report and a thorough assessment of not only the parent's mental illness but his/her parenting and family functioning consistent with the requirements of the SSL. At a minimum, therefore, a court-ordered examination in a TPR case brought on the grounds of mental illness should involve interviews of the respondent parent, a thorough assessment of his/her parenting skills, including parent-child observations, a current psychological examination and testing, contact with collaterals and other professionals who are providing mental health treatment to the parent or who possesses first-hand information about the parent's over-all family functioning as well as a thorough review of relevant medical/psychiatric records and court records.
Of course, there may be cases involving evidence of well documented mental illness, including in-patient psychiatric hospitalizations and persistent and longstanding history of non-compliance with mental health treatment and prescribed psychotropic medication, which may impact how a court-ordered examination is conducted in a particular TPR proceeding brought on mental illness grounds.
Given the many advances in the area of psychopharmacology, the inherent limitations of providing a mental health diagnosis and predicting future behavior and functioning, as well as the existence of established APA guidelines for conducting a reliable and comprehensive court-ordered examination for presentation in court, more than a one-time interview of a respondent and a review of records is necessary to enable a court to find that a respondent parent not only suffers from a mental illness as defined by SSL, but that the mental illness is so severe and debilitating that the parent is presently, and for the foreseeable future, unable by reason of mental illness, to provide adequate care to their child.
For all the reasons set forth above, the instant petition to terminate RM's parental rights on the ground of mental illness is denied in its entirety.
This constitutes the decision and order of this Court.