Termination of parental rights on the grounds of parent's mental illness is constitutional as it is not the parent's status that results in the termination but their inability to parent the child. Matter of the Guardianship and Custody of Nereida S., 57 NY2d 636, 454 NYS2d 61 (1982).

NYS statute properly balances the rights of children and parents Matter of the Custody and Guardianship of Ursula P.., 108 Misc2d 181, 437 NYS2d 225 (Family Court, Kings County 1981), Matter of Daniel, 106 Misc 2d 370, 431 NYS2d 936 (Family Court, New York County 1980).

NYS Statute does not violate the federal Rehabilitation Act of 1973 Matter of Robert Scott T., 86 AD2d 748, 447 NYS2d 776 (4th Dept. 1982).

Experts

• Statute requires court appointment of qualified licensed expert to do evaluation of parent. Expert must testify.
• Can be an expert who has worked for DSS in past Matter of Hannah C., 132 AD2d 659, 518 NYS2d 32 (2nd Dept. 1987).
• Expert can receive materials from DSS as long as standard procedures and tests are used and conclusion is reached in an objective manner Matter of Elizabeth "Q.", 126 AD2d 905, 511 NYS2d 181 (3rd Dept. 1987) but expert not required to review all the records. Matter of Tyeshia., 687 NYS2d 16 (lst Dept. 1999)
• Only one expert need be court appointed, defense is free to cross examine and may present their own expert Matter of Edward., R123 AD2d 866, 507 NYS2d 647 (2nd Dept. 1986).

Expert's Evaluation

• If parent refuses to submit, leaves or conceals, expert can testify based on other available info on parent.
• Parent has a right to have counsel present during the evaluation by the court appointed expert unless proof that presence would impair validity and effectiveness of evaluation Matter of the Guardianship and Custody of Alexander L., 60 NY2d 329, 469 NYS2d 626 (1983)
• Defense attorney can not object to expert's questions or stop the examination, just an observer; recording or transcript of exam is not mandated Matter of Guardianship Q of Jose T., 126 Misc2d 559, 481 NYS2d 991 (Family Court, Kings County 1984).
• Court does not have to advise parent of right to have counsel present at the evaluation Matter of Rosemary ZZ., 154 AD2d 734, 545 NYS2d 948 (3rd Dept. 1989).
• Parent can not complain re attorney not attending unless the requested that attorney attend and can show that failure of attorney to attend created ineffective assistance of counsel Matter of John Lawrence M., 142 AD2d 950, 531 NYS2d 149 (4th Dept. 1988); Matter of Kevin R., 112 AD2d 462,490 NYS2d 875 (3rd Dept. 1985).
• Agency attorney and law guardian may also have right to be present Matter of Tanise B., 119 Misc2d 30, 462 NYS2d 537 (Family Court, Bronx County 1983).
• Court can order a second exam if first exam is inconclusive or was not timely Matter of Ronald F., 128 Misc2d 1023, 492 NYS2d 338 (Family Court, Kings County 198S); Matter of Klaus K., 77 AD2d 568, 429 NYS2d 730 (2nd Dept. 1980), but may not order second exam where agency should have known that exam was flawed Matter of Jennifer HH., 193 AD2d 850, 597 NYS2d 515 (3rd Dept. 1993).
• Other experts besides the court appointed one may testify and can be relied on to establish the needed proof Matter of Karen Y., 156 AD2d 823 (3rd Dept. 1990); Matter of Joy Cylinda C., 663 NYS2d 249 (2nd Dept. 1997).

General Proof of Mental Illness

• Agency should be open in discovery matters in TPR cases and should allow parents counsel to view any records in advance that it intends to offer into evidence Matter of Christina C., 185 AD2d 843, 856 NYS2d 990 (2nd Dept. 1992).
• Parent can not be excluded from the court room unless knowing and intelligent waiver or compelling necessity Matter of Daniel Aaron D., 49 NY2d 788, 426 NYS2d 729 (1980); Matter of James W., 155 AD2d 381 (lst Dept. 1989).
• Court can ignore court appointed expert's testimony if examination was too brief, or too old Matter of Dochingozi B., 57 NY2d 641 (1982), Matter of Sylvia M..82 AD2d 217, 443 NYS2d 214 (lst Dept. 1981).
• Court should appoint a guardian at litem if parent is incapable of defending her rights Matter of Daniel Aaron D., 49 NY2d 788,426 NYS2d 729 (1980).
• Court can take as some proof prior TPR on mental illness grounds and can take judicial notice of findings in neglect proceedings Matter of Suzanne NY., 77 AD2d 433,433 NYS2d 580 (lst Dept.); Matter of Claudina Paradise DaMaris B., 641 NYS2d 643 (1st Dept. 1996).
• Diagnoses of a "personality disorder" sufficient re mental illness Matter of Joseph ZZ., 666 NYS2d 827 (3rd Dept. 1997); Matter of Natasha C., 199 AD2d 500, 606 NYS2d 35 (2nd Dept. 1994) Matter of D., 703 NYS2d 537 (2nd Dept. 2000).
• Use of drugs as enhancing the mental illness Matter of Virginia Denise R., 671 NYS2d133 (2nd Dept. 1998); Matter of Timothy Maurice B., 626 NYS2d 665 (Family Court, Bronx County 1995); Matter of Aridyse Ashley J., 242 AD2d 438, 662 NYS2d 47 (3rd Dept. 1997).
• TPR appropriate where mother could parent when stable but had periods of decompensation when no meds In Re Guardianship of Shannon Monique W., 666 NYS2d 121 (lst Dept. 1997).
• Each element of the diagnoses need not be proven by clear and convincing proof Matter of Melissa R., 209 AD2d 155 (lst Dept. 1994); expert need not even give specific mental illness suffered Matter of Dylan K., 702 NYS2d 487 (4th Dept. 2000).
• Expert's opinion can be based wholly on records Matter of Donald LL., 188 AD2d 899, 591 NYS2d 876 (3rd Dept. 1992).
• Mother in remission is not currently mentally ill as required Matter of Mark GG., 69 AD2D 311 (3rd Dept. 1979) but partial remission may not be enough to prevent TPR where mental illness long standing Matter of Ebony Shaquiren C., 695 NYS2d 590 (2nd Dept. 1999).
• Court may consider child's special needs Matter of Natasha C., 199 AD2d 500, 606 NYS2d 35 (2nd Dept. 1993).

Foreseeable Future

• Expert proof must show that parent can not parent now and for foreseeable future Matter of Hime Y., 54 NY2d 282, 445 NYS2d 114 (1981),Matter of Shaneek Christal.,W.2 122 AD2d 215, 504 NYS2d 748 (2nd Dept. 1986). 
• Parent's history of failure to use treatment and medication can be relied on to conclude inability will continue Matter of Vaketa "Y"., 141 AD2d 892, 528 NYS2d 932 (3rd Dept. 1988); In re Guardianship of Vera T., 80 AD2d 511,435 NYS2d 598 (I st Dept. 1981); Matter of Sheila S., 180 AD2D 687 (2nd Dept. 1992); Matter of Jamie YY., 176 AD2D 1004 (3rd Dept. 1991).
• Expert's position that parent might be able to improve someday but not really foreseeable does not preclude TPR Matter of Demetrius F., 176 AD2d 940, 575 NYS2d 552 (1991); In re Brett., 206 AD2D 595 (3rd Dept. 1994); Matter of Joseph and April R., 191 AD2D 1034, 595 NYS2d 153 (4th Dept. 1993). 
• Mother's possible ability to parent 5-10 years in future not sufficient to prevent TPR Matter of Jessica "SS"., 651 NYS2d693(3rd Dept. 1996).

Agency Efforts

• Diligent efforts are not required Matter of Jammie C., 149 AD2d 822, 540 NYS2d 27(3rd Dept. 1989); Matter of Demetrius F.,176 AD2d 940, 575 NYS2d 552 (1991).
• Extraordinary services such as 24 hour child care are not the measure Matter of Kevin "R"., 112 AD2d 462, 490 NYS2d 875 (3rd Dept. 1985); Matter of Karen Y., 156 AD2d 823 (3rd Dept. 1990)

Disposition

• Court does not have to hold a dispositional hearing, can consider long term foster care but is not required to do so Matter of Joyce T., 65 NY2d 39, 489 NYS 705 (1985); Matter of Kevin "R"., 112 AD2D 462, 490 NYS2d 875 (3rd Dept. 1985). 
• Lack of identified adoptive home for child not sufficient to prevent TPR In re Roselyn Mercedes F., 657 NYS2d 8 (1st Dept. 1997); Matter of Tyesha W., 687 NYS2d 16 (1st Dept. 1999).
• Slight hope for improvement does not merit a long term foster care placement Matter of Naticia Q., 640 NYS2d 334 (3rd Dept. 1996).
• Suspended judgment is not a statutory alternative Matter of Dionne W., 710 NYS2d 574 (4th Dept. 1999).

Margaret A. Burt
ATTORNEY AT LAW
63 CALLINGHAM ROAD PITTSFORD, NEW YORK 14534
TEL: (585) 385-4252 FAX: (585) 385-7717

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