In re the Guardianship of Daniel Aaron D.

66 A.D.2d 728, 411 N.Y.S.2d 582, 1978 N.Y. App. Div. LEXIS 14009

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1978
• Status: Published

Opinions

Order Family Court, New York County, entered December 20,1976, granting petition for guardianship of the person and custody of a minor for the purpose of adoption, affirmed, without costs. Respondent, natural mother of Daniel Aaron D., appeals from an order of the Family Court granting the petition of Louise Wise Services for guardianship of the person and custody of the child, for the purpose of adoption. Following a fact-finding hearing, the court found that respondent, Phoebe D. "has been and is afflicted with a mental disease * * * to such extent that, if Daniel were placed in or returned to her custody, his physical, mental and emotional well being would be endangered,” that the disease was "schizophrenia, chronic undifferentiated type,” and that by reason of her mental condition Phoebe D. would be "unable in the foreseeable future to provide proper and adequate care for Daniel.” The court further found that Daniel "has acquired a stable home with, and is attached to his boarding parents, who desire to make their relationship with Daniel permanent through adoption, and Daniel’s needs, welfare and interests are served best by adoption.” The controlling statutory section is former subdivision 7 of section 384 of the Social Services Law which in pertinent part provides: "(a) If the parent, whose consent would otherwise be required under this section, be determined to be presently and for the foreseeable future unable to provide proper and adequate care, by reason of mental illness * * * for a * * * dependent child * * * the guardianship of the person and the custody of such child may, if the best interests of the child so require, be committed to an authorized agency”. Subdivision (d) provided that such a finding would be made only upon clear and convincing evidence. Daniel Aaron D. was born in Brooklyn Hospital on December 25, 1971. While still in the hospital, and on respondent’s written authorization, he was placed with the Commissioner of Social Services of the City of New York who transferred physical custody of him to the Louise Wise Services. On January 4, 1972, when the child was 10 days old, he was placed with his foster parents with whom he has since lived continuously. It is not disputed that the home is a stable one and that Daniel Aaron D., now seven years old, is attached to his foster parents whom he views as his mother and father. The proceedings were commenced by a petition filed in August, 1974, which alleged, inter alia, that since September, 1968, respondent has been repeatedly certified by psychiatrists on the staff of the Department of Social Services as being disabled because of mental illness, that at all times since September, 1968, she has received and is receiving public assistance as a mentally disabled person, and that in 1973, she was hospitalized at Kings County Hospital because of her mental illness. The principal witness relied upon by petitioner at the fact-finding hearing was Dr. Norman Weiss, a qualified psychiatrist who had been designated by the court to examine respondent. Following that examination, Dr. Weiss filed a written report in which he stated his diagnostic impression as "chronic schizophrenia; schizo-affective type”, and presented in some detail the basis for that conclusion. At the hearing he reaffirmed that conclusion and testified that in his opinion respondent lacked the capacity because of mental illness to provide proper and adequate care for Daniel Aaron D. and that it was "highly doubtful” that she would have the capacity in the foreseeable future to provide such care in a consistent way. His professional reluctance to predict the future in absolute terms does not in our view impair the significance of his testimony. Dr. Irwin Brachman, respondent’s personal psychiatrist, testified to the contrary that she suffered from an "affective disorder” and not schizophrenia. This conflicting testimony presented a factual issue which the hearing Judge was entitled to resolve as he did. We note that Dr. Weiss’ opinion was impressively supported by respondent’s well-documented history of mental illness lasting over a period of a number of years. A detailed summary of that history would serve no appropriate purpose. We note, however, that from a point in time preceding the birth of the child and continuing through the hearing in the Family Court, respondent was receiving financial assistance from the Department of Social Services as a mentally disabled person, a circumstance for which no satisfactory explanation appears either in her testimony or that of the witnesses called in her behalf. Nor do we think it reasonable to minimize the significance of her hospitalization in Kings County Hospital commencing September 18, 1973, which followed aberrational behavior not necessary to describe here. The hospital record details statements and conduct which were described as "grossly delusional” and as responsive to "auditory and visual hallucination.” The diagnosis then given was one of "schizophrenia, schizo-affective type, excited.” As to this event, Dr. Brachman commented without amplification that "she may have had a schizophrenic episode.” Given the persuasive nature of Dr. Weiss’ testimony, and the confirmatory history of mental disease of long duration, we do not attach significance to the circumstance that Dr. Weiss’ examination had occurred some months prior to the hearing. It is true that Dr. Brachman stated that respondent had shown recent improvement. The force of this judgment in terms of the date of the Weiss examination is much reduced by the fact that Dr. Brachman was of the view that at all relevant times, including the date of the Weiss examination and the hospitalization, respondent had not in fact been schizophrenic. In short, we see no basis to disturb the trial court’s factual findings. As noted above, another precondition for the issuance of the order appealed from is a finding that "the best interests of the child so require.” No challenge to the sufficiency of the evidence to support that finding has been presented on this appeal, nor indeed could such a challenge reasonably be made. We fail to see any violation of the respondent’s rights in the circumstances which led to her absence from the courtroom when Dr. Weiss testified. As disclosed by the record, Dr. Weiss had expressed a professional concern that it would be harmful to respondent to hear his testimony. Even before the application was made to the court, and the court gave its direction, respondent’s attorney had expressed his agreement, which he reaffirmed on the record. We see no reason to doubt that respondent’s attorney who discharged his duties throughout the hearings with high professional competence and fidelity to his client, was fully authorized to act for respondent. For the reasons indicated above, the order appealed from is affirmed. Concur—Silverman, Markewich and Sandler, JJ.