Disability Law

Court Reverses the Termination of Mentally Retarded Parents? Parental Rights

By Danielle

In a pleasantly surprising decision yesterday, New York’s Appellate Division, Third Department reversed a Family Court decision which terminated the parental rights of both of Natasha RR.’s parents. Matter of Natasha RR, 2007 NY Slip Op 6137 (3d Dept. 2007). Natasha’s father was deemed borderline mentally retarded, and her mother was deemed mildly mentally retarded.

Incidentally, we need to develop a better vocabulary with which to discuss the issue of ‘mental retardation’. Even Ohio doesn’t use the terms ‘imbecile’ or ‘lunatic’ anymore. ‘Retard’ isn’t much better.

Still, the decision in Matter of Natasha RR is a good one, and I admire the Court that took the risk in allowing a family to stay together.

Here is the meat of the decision:

When Horenstein was asked at the termination hearing whether he had an opinion with a reasonable degree of clinical certainty whether respondents could provide safe and adequate care for the child, he acknowledged that he “struggled” with these issues in his report and that he continued to be impressed by the high level of respondents’ motivation and cooperation. He opined that, with an extensive network of support in place, they could safely parent the child. When asked by petitioner’s attorney whether 24-hour-a-day support was necessary, he responded “somebody needs to eyeball this child regularly,” which he further quantified as “at least weekly.” He was questioned by Family Court regarding emergency situations and explained that he believed they could deal with obvious emergencies but might not do as well with subtle problems.

The other expert to offer an opinion was Stephanie Tsandikos, a clinical psychologist, who had spent about one hour with each respondent. She responded to the inquiry regarding respondents’ ability to provide safe and adequate care by stating that, “with extensive services in place, it might be doable,” but she had “grave concern[s].” When asked about the extent of services, she indicated that her “fantasy situation” would be a family member living with them or some other situation with 24-hour help available.

There was evidence during the various proceedings that the Columbia County ARC has services available 24 hours per day to assist with family situations if either respondent called. This service was based on Wayne’s continuation in the ARC program and there was some question as to whether his eligibility would continue because, ironically, his intellect level may be considered too high for the program. However, the social worker from ARC, Donna Coons, was confident that he would continue and, if not, application into the program was pending on behalf of Malissa. Indeed, Coons was so impressed with respondents’ efforts and abilities that she had offered a year of personal pro bono services to assist in reuniting the family.

Others who worked directly with respondents provided similarly highly supportive testimony. These individuals included Theresa Lux, coordinator of visitation from Catholic Charities, who monitored well over 100 visits by respondents with the child and reported proper conduct, an obvious bond between respondents and the child, and respondents’ ability to appropriately administer asthma medicine to the child as needed. Kelly Steinke, a family specialist from Berkshire Farms whose job included transitional services aimed toward reunification, testified to many positive observations and added that her various unannounced visits to respondents’ home revealed nothing of concern. In short, the record from the extension hearing and the termination hearing are replete with testimony from these and other individuals who worked directly with respondents and reported positively on respondents’ parenting abilities and the potential for a successful reuniting of the family.

Family Court’s termination decision was premised in large part upon its conclusion that the testimony of the experts established that “24-hour care” would be required. If, in fact, around-the-clock extensive care from providers was the only way the child could be safely returned to respondents, then reuniting her with her parents would be untenable (see Matter of Kevin R., 112 A.D.2d 462, 462-463 [1985], lv denied 67 N.Y.2d 602 [1986]). The record, however, does not support that factual conclusion by the requisite level of proof. Horenstein was the expert who spent the most time with respondents and his testimony reflected his admitted struggles with the case. While he believed extensive services would be needed and his testimony was at times equivocal, it is a mischaracterization of that testimony considered as a whole to state that Horenstein clearly set forth a need for around-the-clock monitoring or assistance. Tsandikos’ suggestion of 24-hour help was characterized by her as a “fantasy situation.” Termination of parental rights must be soundly based in reality and necessity, not fantasy. In any event, Tsandikos’ testimony should not be the principal supporting ground to terminate respondents’ rights in light of her very limited involvement with them (see Matter of Shantelle W., 185 A.D.2d 935, 938 [1992]). The testimony of the two experts was not clear and convincing regarding the level of assistance found by Family Court.

Moreover, the record reflects that services which could be characterized as extensive were, in fact, available from several providers. Family Court did not discuss or otherwise consider these services. Efforts to provide proof at the hearing of further services including a relative who ostensibly was willing to have respondents and the child live with him if that would help with reuniting the family were not allowed into evidence. The current decision of Family Court appears to be premised upon the conclusion that, since respondents cannot function with total independence, they cannot have their child returned. As we explain in our decision in the appeal from the extension hearing that is being decided herewith (Matter of Natasha RR. [Malissa SS.], supra), this is not a correct legal standard (see Matter of Commissioner of Admin. for Children’s Servs. of City of N.Y. [Marcel A.], 254 A.D.2d 416, 417 [1998]; Matter of Patricia N. [Elsie P.], 239 A.D.2d 622, 623 [1997]). The necessity and extent of ongoing services becomes one factor in a multi-pronged analysis, but it is not dispositive.

The gravity and seriousness of the state seeking to terminate parental rights has been repeatedly recognized and characterized as affecting a precious right “‘plain beyond the need for multiple citation’” (Santosky v Kramer, 455 U.S. 745, 758-759 [1982], supra, quoting Lassiter v Department of Social Servs., 452 U.S. 18, 27 [1981]). This record does not contain clear and convincing evidence supporting termination of respondents’ parental rights. The order must therefore be reversed and the petition dismissed.

Full post as published by Mental Disability Law Blog on July 20, 2007 (boomark / email).