In re Anthony WW.
Respondent and Karen WW. (hereinafter the mother) are married and have three children, Anthony WW., Mary WW. and Madison WW. (born in 1999, 2001 and 2003, respеctively). In 2002, Family Court found that the mother had neglected two of the children and an order of supervision was entered against both her and respondent. In 2003, all three children were placed
In January 2008, during the period of suspension, petitioner commenced this proceeding seeking to terminate respondent‘s parental rights, not because he had violated any of the terms of the suspension, but because he allegedly suffers from a mental illness that prevents him from providing proper care for the children.1 One month later, while the termination proceeding was pending, petitioner filed a petition seeking an extension of the suspended judgment. A trial was subsequently conducted and Family Court ultimately terminated rеspondent‘s parental rights on the ground that he suffered from a mental illness that prevented him from providing proper care for his children (see
“Parental rights may be terminated if it is estаblished by clear and convincing evidence that [the] respondent is ‘presently and for the foreseeable future unable, by reason of mental illness ... to provide proper and adequate care for a child who has been in the care of an authorized agency for the period of one year immediately prior to the date on which the petition is filed in the cоurt‘” (Matter of Evelyn B., 37 AD3d 991, 992 [2007], quoting
Tо that end, petitioner presented the testimony and reports of Richard Liotta and Donald Danser, both of whom are licensed psychologists who examined respondent — Liotta by order оf Family Court and Danser per petitioner‘s request. Respondent contends that both psychologists relied on inadmissible hearsay in preparing their reports and in arriving at their final opinions, and thаt since Family Court‘s decision terminating his parental rights was based in large measure on their reports and trial testimony, it must be reversed.
Specifically, respondent argues that both psychologists, in thеir reports and in their trial testimony, made reference to statements about respondent attributed to other witnesses who did not testify at trial, none of which was admitted into evidence or was otherwise qualified for admission pursuant to a recognized exception to the rule against hearsay. To the contrary, petitioner contends that both opinions were properly аdmitted and were either “based on facts in the record or personally known to the witness” (Hambsch v New York City Tr. Auth., 63 NY2d 723, 725 [1984] [internal quotation marks and citation omitted]) or qualified as material “‘of a kind accepted in the profession as reliable in forming a professional opinion‘” (id. at 726, quoting People v Sugden, 35 NY2d 453, 460 [1974]; accord Matter of Murphy v Woods, 63 AD3d 1526, 1526 [2009]), and, as such, were properly admitted at trial.
In that regard, Danser testified that, in forming his opinion, he relied on his interview with respondent, as well as the results of various psycholоgical tests that he performed on him. Danser also reviewed records that petitioner had on file regarding respondent, including case, progress and supervision notes, all of which were compiled during a four-year period beginning in 2003,4 as well as documents describing mental health treatment that respondent received during this time period.
While Danser did not testify that this evidence was commonly relied upon in his profession to perform such an evaluation,
Similar issues exist with Liotta‘s report and testimony, both of which were admitted into evidence at trial. When he was first retained to perform his evaluation, Liotta was provided with petitioner‘s complete file on respondent. Later, he was asked to return the file and then, pursuant to a court order, was provided with a limited record to review. Liotta was also directed to limit his review to the records provided and not base his evaluation on respondent‘s fitness as a parent on statements made by the mother about respondent or on any collateral interviews that he may have conducted with other individuals regarding respondent. However, it is clear from the content of his report, as well as his testimony at trial, that Liotta, in forming his final opinion regarding respondent‘s fitness as a parent, relied on observations of respondent made by his eldest son‘s mental health provider as well as on statements made by the mother about respondent. In addition, Liotta‘s interviews with respondent‘s caseworker and his current mental health therapist are referenced in his report and obviously played a role in the opinion that he ultimately offered regarding respоndent‘s mental illness and its impact on his ability to be a parent. Like Danser, Liotta was never asked if this evidence was normally relied on within his profession as appropriate for the pеrformance of such an evaluation and, while some of it was redacted, including any reference to his interview with the mental health therapist, Liotta was never asked what impact this evidence had in formulating his final opinion as to respondent‘s fitness as a parent. As a result, a proper foundation was not laid for the admission of the testimony of either psychologist or their reports (see generally
Finally, we share Family Court‘s concern regarding petitioner‘s decision to seek termination of respondent‘s parental rights based on the existence of a mental illness while the suspended judgment was still in full force and effect. What is particularly troubling about the process that petitioner employed is that it has made no claim that respondent did anything during the period of suspension that would warrant vacating it or, for that matter, justify the commencement of this proceeding. To the contrary, it appears that respondent and the mother have made progress in planning for their children‘s future and facilitating their return to the family home. With that in mind, we remind the parties that, by reversing Family Court‘s order in this proceeding, the petition to extend the suspended judgment is no longer moot and is still pending.
Spain, J.P., Stein, Garry and Egan Jr., JJ., concur. Ordered that the order is reversed, on the law, without costs, termination petition dismissed, and matter remitted to the Family Court of St. Lawrence County for further proceedings not inconsistent with this Court‘s decision.