119 Misc. 2d 30 | N.Y.C. Fam. Ct. | 1983
OPINION OF THE COURT
In these proceedings to terminate parental rights respondent mother has made a motion requesting the presence of her attorney at the court-ordered psychiatric examination to be conducted by the Bureau of Mental Health Services pursuant to section 384-b (subd 6, par [e]) of the Social Services Law. For the reasons set forth below respondent’s motion is granted.
Respondent is the mother of Dailon B., born on December 29,1972, and Tanise B., born on July 31,1980. On June 5, 1981 a finding of abuse was made as to Dailon and Tanise on respondent’s admission under docket numbers N-3612/80 and N-3613/80. On August 14, 1981 a disposi
The termination petitions, dated June 2, 1982, allege that respondent mother is unable by reason of mental illness to provide proper and adequate care for her children (Social Services Law, § 384-b, subd 4, par [c]) and, in the alternative, that she has permanently neglected her children (Social Services Law, § 384-b, subd 4). With regard to those portions of the termination proceedings alleging mental illness, respondent moved on October 26, 1982 to disqualify the Bureau of Mental Health Services from conducting the court-ordered psychiatric examination required by section 384-b (subd 6, par [e]) on grounds of alleged bias and incompetence. That motion was briefed and argued by counsel on December 16, 1982. During oral argument the instant motion was made by respondent to permit her attorney to be present at the court-ordered psychiatric examination in the event that the application to disqualify the Bureau of Mental Health Services was denied. On December 21, 1982 respondent’s motion to disqualify the Bureau of Mental Health Services was denied and the attorneys were directed to brief the issues involved in the instant motion. In addition to the legal memoranda submitted by counsel, a memorandum dated January 7, 1983 was received by the court from Dr. Richard Schuster, the director of the Bronx Mental Health Clinic. On February 25,1983 oral argument on the motion was held. At that time the attorneys for all parties waived
Essentially, respondent contends that in a proceeding to terminate parental rights on the ground of mental illness, she has a right to have her attorney present at the court-ordered psychiatric examination based on New York constitutional and statutory principles of effective assistance of counsel. In support of her motion, respondent relies, inter alia, on Matter of Lee v County Ct. of Erie County (27 NY2d 432), and People v Cerami (33 NY2d 243), wherein the Court of Appeals found that the right to counsel in criminal prosecutions includes the presence of counsel at pretrial psychiatric examinations of a defendant conducted pursuant to court order. By analogy respondent argues that in a termination proceeding based on a charge of mental illness the right to counsel also encompasses the right to have counsel present at the court-ordered psychiatric examination so that counsel can effectively cross-examine the psychiatrist at trial.
In opposition, the petitioner and Law Guardian have argued that a termination proceeding cannot be equated with a criminal proceeding in either substance or form. In addition, they contend that the right to counsel afforded a parent in a termination proceeding does not extend to counsel’s presence at the psychiatric examination since the presence of a third person at the examination is likely to compromise the independence and accuracy of the evaluation. In support of their contention counsel have relied on the statement submitted by Dr. Schuster. In pertinent part, that statement sets forth the clinic’s belief that an attorney’s presence at the psychiatric examination “could disrupt or distort the subtle but important behaviors observed during a doctor-patient interaction”, and that with such a “contaminating element” it would become “more difficult to assess the patient’s behavior accurately”.
Since no statute or decision has addressed the issues presented here the court has examined the matter as one of
In light of the nature of a termination proceeding, at least 33 States, including New York, have guaranteed parents the right to counsel in proceedings to terminate their parental rights.
In determining the scope of the right to counsel in New York the courts have applied the test enunciated in United States v Wade (388 US 218). Under the Wade test the right to counsel is not merely satisfied by counsel’s presence at trial, but counsel is required at all critical stages of a prosecution, formal or informal, where it is necessary to preserve the defendant’s right to a fair trial, including the right to meaningful cross-examination. Thus, where the right to counsel exists it necessarily extends to any stage of a proceeding where there is the potential for substantial prejudice and where the presence of counsel will avoid the risk of such prejudice. (United, States v Wade, supra, at p 227.)
In the instant proceeding it is alleged that respondent is suffering from a mental illness sufficiently serious to permit the State to permanently terminate her parental rights. In such a proceeding the sole issue is whether the respondent is afflicted with a mental disease or condition as defined in section 384-b (subd 6, par [a]), to such an extent that she is unable now and in the foreseeable future to provide proper and adequate care for her children. In
Undoubtedly, in a termination proceeding based on mental illness, the testimony of the court-appointed psychiatrist is crucial. Although the petitioner and the respondent have the right to submit other psychiatric, psychological or medical evidence bearing on respondent’s mental condition (Social Services Law, § 384-b, subd 6, par [e]), the testimony of the examining psychiatrist is, in practice, frequently controlling since it is often the only probative evidence available to the petitioner to support the case. Consequently, the court-ordered psychiatric examination is a critical, if not the most critical, stage of a proceeding to terminate parental rights based on mental illness. The right to counsel in such a proceeding must therefore include the right to have counsel present at the examination for, otherwise, the risk of prejudice to the respondent is not insubstantial.
It is widely recognized that psychiatric diagnosis and judgments are often subjective and unreliable. Therefore, effective cross-examination of the psychiatrist is essential to assess the validity of the psychiatric testimony and to avoid the risk of prejudice as much as possible.
Despite the need for counsel indicated above, petitioner, relying on Dr. Schuster’s statement, has argued that the presence of a third person at the psychiatric examination, such as respondent’s attorney, is likely to impair the psychiatric process and taint the accuracy of the evaluation.
Based on the foregoing, the court finds that in order to be meaningful the right to counsel afforded a parent in a termination proceeding based on mental illness must include the right to have counsel present as an observer at the court-ordered psychiatric examination. In the interest of fairness, since respondent’s counsel has a right to be present, the same right is given to counsel for the petitioner and the Law Guardian.
This matter is adjourned to April 25, 1983, when a date for the court-ordered psychiatric examination will be fixed and procedures established for counsels’ attendance at the examination. At that time the court shall also determine the manner in which the examination will be recorded.
. The dispositional order contained certain conditions regarding the duties of the commissioner and the agency as well as the mother’s rights of visitation in order to work toward reuniting the family.
. The decision of the Appellate Division in Matter of Alexander L. (92 AD2d 755), which affirmed without opinion a Family Court order terminating parental rights after a finding of mental illness, is not dispositive here. In that case the respondent parent refused to be examined by the court-appointed psychiatrist in the absence of counsel, without having made an application for counsel to attend the examination. Therefore, the court’s finding ofmental illness was based on the testimony of a psychiatrist who examined respondent’s prior psychiatric and medical records pursuant to section 384-b (subd 6, par [e]) of the Social Services Law. Similarly not applicable here is Matter of Patricia P. (117 Mise 2d 826), in which the court denied a motion for counsel to be present at a mental health examination in a neglect proceeding for extension of placement where the respondent opposed the extension. In that case the issue was whether the children should return to their father or remain in placement for another year with continuing parental contact. The issue here is the complete termination of respondent’s parental rights and permanent disruption of the family unit. In addition, the psychiatric examination directed in the instant case is an essential part of the fact-finding process while the mental health evaluation in Patricia P. was ordered after a previously made neglect finding.
. In determining the kind of substantive and procedural protections required in a particular type of proceeding, the courts have consistently disregarded labels such as civil, criminal, and quasi-criminal and have instead focused on the nature and weight of the private and public interests at stake. (Matter of Gault, 387 US 1, 49-50 [juvenile delinquency]; Addington v Texas, 441 US 418, 425-426 [civil commitment); Santosky v Kramer, 445 US 745 [termination of parental rights); Vitek v Jones, 445 US 480, 492 [prisoner transfer to mental hospital]; Chaunt v United States, 364 US 350, 353 I denaturalization 1; Matter of Winship, 397 US 358, 365-366 [juvenile delinquency].)
. See Lassiter v Department of Social Servs., 452 US 18. 33-34.
. In termination proceedings based on permanent neglect and abandonment no psychiatric examinations are required for the fact-finding hearing but mental health evaluations may be directed after a finding has been made for use at the dispositional hearing.
. Addington v Texas, 441 US 418, 429, supra; O’Connor v Donaldson, 422 US 563, 584 [Chief Justice Burger’s concurring opnl; Matter of Bennett v Jeffreys, 40 NY2d 543, 549; United. States vBohle, 445 F2d 54; Ennis & Litwack, Psychiatry and Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal L Rev 693; Diamond, Fallacy of Impartial Expert, 3 Archives Grim Psychodynamics 221.
. Matter of Bennett v Jeffreys, supra, at p 549; see Ennis & Litwack, 62 Cal L Rev, p 746.
. The holding in Matter of Lee v County Ct. of Erie County (27 NY2d 432) has been codified in 1980 (CPL 250.10).
. The court notes that in termination proceedings where the respondent parents speak little, if any, English, the psychiatric examination is conducted with the assistance of an interpreter. .