In re Chance Jahmel B.
OPINION OF THE COURT
A petition was filed by the Director of the Monroe County Department of Social Services on May 28, 1999 requesting the termination of parental rights of Alphonse B. regarding his son Chance, born August 31, 1996, based upon the alleged mental illness of the respondent.
Counsel was assigned for Mr. B. Mr. B. always appeared in court with his mother Ruth B. A Law Guardian was assigned for Chance.
A psychiatric evaluation was directed as required by Social Services Law § 384-b (6) (e), which was completed by court-appointed forensic psychiatrist, Rajendra P. Singh, M.D. Several adjournments were required to obtain the court-ordered evaluation.
The trial commenced on May 2, 2000 and continued on May 12, 2000. Shortly thereafter the court was informed that Mr. B.’s attorney was leaving her employment in the Monroe County Public Defenders Office and relocating outside of New York State. As a result, a new attorney was assigned to represent Mr. B. It was necеssary for new counsel to review the transcripts of the two days of trial and to assess whether a motion would be made for a new trial. After substantial delay it was determined that the case could proceed and that no request for a new trial would be made by any party. The trial was finally completed on January 18, 2001 and permission given to all parties to submit written closing arguments and memoranda of law.
Chance B. was bom to the respondent Alphonse B. and Cora S. on August 31, 1996. Chance presently lives in the foster care home of Willie and Ruth M., where he has lived for three years. Ms. M. is the respondent’s aunt. Chanсe has been in foster care continuously since his placement on February 7, 1997 as the result of a neglect petition filed against Mr. B.
In February 1999 Cora S. signed a surrender instrument consenting that Chance be adopted by the Ms. Chance’s brother, Poncho, lives with Ms. S. Ms. S. and Poncho visit with Chance on an informal basis, sometimes once or more per week.
Mr. B. suffered a brain injury on June 4, 1997 during an apparent suicide attempt while he was an inmate at the Monroe County Jail. As a result of oxygen deprivation to his brain, he experienced anoxic encephalopathy due to strangulation. Mr. B. was taken to St. Mary’s Hospital where he was initially admitted to the Intensive Care Unit. On June 17, 1997 Mr. B. was transferred to St. Mary’s Brain Injury Unit where he remained until his discharge on August 17, 1998. At the time of discharge, Dr. Tony M. Wong, Director of Neuropsychology, described Mr. B. as having long-term cognitive impairments with “significant impairments in memory and in certain front/ executive skills” (exhibit 3A, neuropsychology discharge summary).
Mr. B. resides with a roommate in a two-bedroom 24-hour supervised apartment. He is able to take care of himself with direction provided by a supervisor. He cooks, cleans, shops and attends a day program for individuals with brain injuries. Mr. B. visits with his family and sees his son regularly. During visitatiоns Mr. B. plays with his son.
Mr. B.’s primary physician is Dr. Lisa Harris, an internist with special experience caring for patients with traumatic brain injuries. Dr. Harris stated that Mr. B. suffers from hypoxic encephalopathy,
The respondent presented testimony from neuropsychologist Tony M. Wong, Ph D, who treated Mr. B. at the St. Mary’s Brain Injury Unit and who prepared the discharge summary contained in the hospital records received in evidence as exhibit 3A. Dr. Wong is an expert in treating and assessing brain-injured patients. Dr. Wong again saw Mr. B. in January 2000 for further assessment at which time his medical diagnosis continued to be hypoxic or anoxic encephalopathy. Dr. Wong testified that he would not describe Mr. B.’s condition as dementia, as did Dr. Singh, and that such a diagnosis would be misleading since there are so many types of dementia. Additionally, Dr. Wong noted that dementia is a descriptive term for a constellation of symptоms, but does not address the cause of the symptoms. Dr. Wong clearly stated that in his opinion Mr. B. has a medical condition that has caused his cognitive impairments.
Dr. Wong testified that Mr. B. has rather severe cognitive deficits due to his brain injury. While Mr. B. can make very simple judgments, he needs assistance in caring for himself, еspecially concerning planning. It was Dr. Wong’s opinion that Mr. B. was not able to independently parent his son. Dr. Wong did not expect that Mr. B. would significantly improve over time, although he noted that some modest and measurable improvements have occurred.
Conclusions of Law
In order to terminate the respondеnt’s parental rights the petitioner must prove by clear and convincing evidence that Mr. B.:
(1) suffers from a mental illness or condition “which is manifested by a disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that if such child were placed in or returned to the custody of the parent, the child
(2) the parent is unable due to his or her mental illness to presently and for the foreseeable future adequately care for the child (Social Services Law § 384-b [4] [c]); and
(3) the child has beеn in the care of the agency for one year immediately prior to the filing of the petition (Social Services Law § 384-b [4] [c]).
The main issue in this case is whether Mr. B.’s condition constitutes a mental illness or condition within the definition of Social Services Law § 384-b (6) (a). A review of the reported decisions in this arеa does not reveal any cases regarding parents suffering from traumatic brain injuries. Most cases describe long-term or chronic parental mental illness (see, e.g. Matter of Aridyse Ashley J.,
Respondent argues that Mr. B.’s condition is medical in nature and not a mental illness as defined by Social Services Law § 384-b (6) (a). In support of that position he has presented testimony from his primary physician, who has special еxperience in treating patients with traumatic brain injuries and a neuropsychologist, who is the director of neuropsychology at St. Mary’s Brain Injury Unit. Both of these experts agree that Mr. B.’s brain injury has resulted in cognitive deficits that are significant and permanent. Improvements are likely to be modest and mаy, for example, permit Mr. B. to work in a sheltered or supervised workplace or remember forgotten events or family members. In this regard, the opinions of respondent’s experts do not differ substantially from that of the court-appointed forensic psychiatrist that Mr. B.’s disability is expected to be lifеlong and that his deficits in cognition would prevent him from adequately supervising or caring for his four-year-old son.
Where the experts appear to disagree is how to characterize Mr. B.’s condition. The psychiatrist provides a primary diagnosis of dementia, a mental illness or condition. The internist and neuropsychologist would not use that term, but prefer the medical diagnosis of anоxic or hypoxic encephalopathy, which they indicate is not a mental illness.
The definition of mental illness contained in Social Services Law § 384-b (6) (a), however, is broader than the medical or commonly used definition and also includes “mental conditions” that impact mental functioning. This is especially true when the definition is read in conjunction with Social Services Law § 384-b (4) (c) which requires that the mental illness or condition negatively impact on the parent’s ability to adequately care for his child now and for the foreseeable future. Thus, it matters little whether the parent’s condition fits into a recognized clinical mental health diagnosis (see, Matter of Dylan K.,
While the experts have varying views on how to diagnose Mr. B.’s affliction, they agree about its impact on his ability to be an adequate parent. Since the respondent’s brain injury has resulted in a substantial and life-long deficit in his thinking and judgment that regrettably is not subject to remediation and which renders him presently and for the foreseeable future unable to provide the needed care for his son, the petitioner has proven that Mr. B. suffers from a mental illness that warrants a termination of parental rights.
Finally, the court notes that the respondent clаims that he has been discriminated against in violation of the Americans
While the respondent does not suggest what type of accommodations and services wоuld permit him to safely and properly care for his son, the proof indicates that Mr. B.’s condition would not lend itself to the usual parent counseling or training that is often provided to parents who aim to reunite with their children in foster care. It seems unlikely that Mr. B. could learn in the usual sense how to care for Chance, primarily because of his impaired memory and judgment. As a result, the only accommodation possible would be to provide a full-time caregiver for Chance, who would be needed in addition to the extensive supervision services provided to his father.
The ADA provides: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” (42 USC § 12132.) While there is little doubt that Mr. B.’s brain injury constitutes a disability for the purpose of the statute (see, 42 USC § 12102 [2]), termination of parental rights proceedings do not appear to be “services, programs, or activities” such that the ADA would apply here (see, In re B.S., 166 Vt 345, 351-352,
This does not mean, however, that a failure of the government to offer a disabled parent access to remedial services available to nondisabled parents may not in a proper case provide a separate and independent claim under the ADA (see e.g., Interest of Torrance P.,
Nor does the lack of a dispositional hearing to inquire into the child’s best interest for mеntally disabled parents violate the ADA. Although a dispositional hearing is not mandated in cases involving mentally ill or retarded parents (Matter of Sean S. S.,
For all the reasons stated above, the court finds that the petition has been proved by clear and convincing evidence. Since
Notes
. Dr. Harris stated that the terras anoxic encephalopathy and hypoxic encephalopathy are used interchangeably.
. Mr. B. lives in a specialized supervised residence. It seems unlikely that his program could accommodate a child even if a full-time caregiver could be provided for Chance.