In this termination of parental rights proceeding, the Petitioner, Coalition for Hispanic Family Services, seeks a finding that the respondent mother, Angie B., suffers from a mental illness to such an extent that if the child was returned to her, the child would be in danger of becoming a neglected child, and that as a result of her mental illness, the mother is presently and for the foreseeable future unable to provide proper and adequate care for the child. After a full fact finding hearing, the court finds that the Petitioner has met its burden of proving by clear and convincing evidence that the mother suffers from a mental illness within the meaning of SSL [*2]§384-b(4)(c). Matter of Katherine H.S., 82 AD2d 807 (2nd Dep't 1981).

The fact finding hearing commenced on August 2, 2013. The Petitioner introduced into evidence the Kings County Family Court Mental Health Services Report (hereinafter MHS report) of Dr. Jolie Silva (Petitioner's 1), and the Curriculum Vitae of Dr. Silva (Petitioner's 2). The Petitioner presented the testimony of Dr. Silva who was qualified as an expert in clinical psychology on consent of the Attorney for the Child and respondent's counsel. Dr. Silva received her Ph.D. in clinical psychology from Hofstra University in 2006, and is a licensed psychologist in New York State. Dr. Silva was employed as the associate clinic director of Kings County Family Court Mental Health Services for five years. In that capacity, she has testified in approximately fifty court cases involving termination of parental rights cases as well as abuse and neglect matters and has always been qualified as an expert in psychology. Dr. Silva is now in private practice on a full time basis.

The MHS report concludes to a reasonable degree of professional certainty that the respondent mother suffers from a mental illness and that, for this reason, "she is and will remain for the foreseeable future incapable of adequately caring for the subject child to the extent that should Akila be returned to the care of Ms. B., she would be in danger of becoming subject to further neglect." Dr. Silva concluded that the respondent mother suffers from the Axis 1 diagnosis of Schizophrenia, Disorganized Type that manifests as significant impairment in the respondent's behavior, feelings, thinking and judgment. Dr. Silva noted in both her report and her testimony that the respondent mother has been psychiatrically hospitalized on nine occasions over the past five years and has been diagnosed with schizophrenia, paranoia and depression. Dr. Silva credibly testified that the mother denied that she had any mental illness at all and that her hospitalizations were "for no reason" and because her family was trying to control her.

Dr. Silva further noted that a consistent theme throughout the medical records and her evaluation of the mother was the mother's poor insight into her mental illness and her failure to recognize the need for medication. Dr. Silva indicated that based on the respondent's history of sporadic compliance with outpatient therapy and medication, and recurrent hospitalizations in addition to the respondent's statements that she is only taking psychotropic medication now because it is court ordered and that once the case is over, she will no longer take the medication, Dr. Silva determined that the respondent's condition is chronic and that her prognosis is poor.

Dr. Silva identified the link between the mother's mental illness and her ability to parent as being both her failure to recognize the necessity of medication compliance as well as her "preoccupation with auditory hallucinations and paranoid delusions." The MHS report also addresses the mother's reliance on family members for assistance with basic independent living skills. Dr. Silva further identified the mother's lack of independent management of her own needs- financial, housing, employment- as a basis for suggesting that the mother is incapable of managing her own needs plus the needs of a young child.

On August 2, 2013, the proceeding concluded in the middle of the Attorney for the Child's cross examination of Dr. Silva and the matter was adjourned to October 7, 2013 at 9:30am time certain for continued fact-finding. The mother failed to appear when the case was called on October 7th. The mother's attorney stated he had no legal excuse for the mother's absence and would remain mute for the remainder of the hearing. The hearing proceeded with the continued cross-examination of Dr. Silva by the Attorney for the Child.

Dr. Silva further testified that the mother's diagnosis coupled with her lack of insight into [*3]the need for treatment "would affect her ability to parent because she was often preoccupied with her internal auditory hallucinations and delusions and may thereby neglect her child's needs." At the conclusion of Dr. Silva's testimony, the Petitioner rested. The Attorney for the Child did not present a case and the mother's attorney's request for an adjournment was denied. During Petitioner's oral summation, the mother appeared in the courtroom. She appeared at approximately 10:04 a.m. despite the fact that the hearing began at 9:30 a.m, stating that "the busses are late." The Court permitted respondent's counsel to re-open the fact finding to allow the mother to testify on her direct case. The testimony of the respondent mother was vague and incredible. On direct examination, the mother stated that she does not suffer from a mental illness and is unaware of the reason she was hospitalized. She further testified that she is currently receiving mental health treatment. When asked whether she takes medication, she stated she takes Haldol every month by injection. When asked why she takes Haldol, the mother stated "I have no clue. They told me that I have schizophrenia and that's not true." She further stated that her current doctors ask her why she comes to get medication, and that she believes that they ask her this "because they really don't think I have a medical problem." On cross examination, the mother repeated that she does not have a mental illness and that she does not believe she needs medication.

To support a termination of parental rights on the grounds of mental illness or mental retardation, the petitioning agency must show, by clear and convincing evidence, that the parent is presently, and will continue for the foreseeable future to be, unable to provide proper and adequate care for the children by reason of the parent's mental illness or mental retardation. SSL § 384-b(4)(c); Matter of Diante B., 75 AD3d 599 (2nd Dep't 2010). Furthermore, Social Services Law § 384-b(6)(e) provides that, in every termination of parental rights proceeding with a mental illness or mental retardation cause of action, the judge shall order the parent to be examined by, and shall take the testimony of, a qualified psychiatrist or a psychologist. Matter of Hime Y., 52 NY2d 242 (1981); Matter of Robert M. P.-D., 31 AD3d 560 (2nd Dep't 2006).

With respect to the mental illness cause of action, the court finds that the testimony of Dr. Silva was credible and wholly unrebutted. Dr. Silva's conclusions were based upon her two interviews with the mother, psychological testing of the mother, an examination of Petitioner's files, and a review of the mother's mental health records. The Petitioner's evidence, along with the testimony of the mother which was consistent with Dr. Silva's testimony as it related to the respondent mother's lack of insight into her mental illness, adequately established that the respondent mother is unable, presently or in the foreseeable future, to care for her child due to mental illness. Matter of Justin Javonte R., 103 AD3d 524 (1st Dep't 2013) (upholding finding of mental illness based on expert testimony of court-appointed psychologist who examined the mother on two occasions and reviewed all of her available medical records); Matter of Michael WW., 29 AD3d 1105 (3rd Dep't 2006) (report and testimony of licensed psychologist established respondent's mental illness without any refutation); Matter of Nina D., 6 AD3d 702 (2nd Dep't 2004) (Family Court determination of mental illness upheld where the court appointed psychologist's unrebutted opinion was clearly sufficient to support a finding); Matter of Dylan K., 269 AD2d 826 (4th Dep't 2000) (evidence supported terminating parents' right based on mental illness where psychologist based his conclusions on his review of each respondents' history of mental illness, respondents' medical records, results of standardized tests, and interviews with and observation of respondents and the child; petitioner's failure to introduce respondents' medical records in evidence does not render the evidence less than clear and [*4]convincing); Matter of Virginia Denise R., 249 AD2d 400 (2nd Dep't 1998) (agency established by clear and convincing evidence that mother was unable to care for her child, at present or in the foreseeable future, by reason of mental illness based on the MHS psychiatrist's examination of the mother and his review of her psychiatric hospitalization records).

Finally, although the Petitioner has stated that the agency only proceeds on the mental illness cause of action, the Petitioner did not formally withdraw the mental retardation cause of action. Therefore, based on the MHS report which concludes that the mother does not suffer from mental retardation, and based on the fact that the petitioning agency failed to submit any proof with respect to this allegation, the mental retardation cause of action is dismissed. Similarly, with respect to the cause of action for permanent neglect, the Petitioner has not offered any proof as to permanent neglect pursuant to Social Services Law § 384-b (7)(a). As such, allegations 5 and 6 of the petition are dismissed.

Accordingly, the court finds that the petitioning agency has established by clear and convincing evidence that by reason of mental illness, the respondent mother is unable, presently and for the foreseeable future, to provide proper and adequate care for her child, Akila.

Dated: November 29, 2013

_______________________________Hon. Lillian Wan, J.F.C