Matter of Alexander L., 60 N.Y.2d 329, 457 N.E.2d 332 (1983)

A parent facing a court-ordered psychiatric examination in a parental rights termination proceeding is entitled to have their attorney present during the examination, unless there is a specific showing that the attorney’s presence would impair the validity and effectiveness of that particular examination.

Summary

This case addresses the right to counsel during a psychiatric examination in a parental rights termination proceeding. The mother, facing termination of her parental rights based on mental illness, was ordered to undergo a psychiatric examination. When she appeared with her attorney, the psychiatrist refused to conduct the examination with counsel present, citing a policy against third-party presence. The Family Court later admitted the psychiatrist’s report and testimony, which were based on a limited observation and review of hospital records. The New York Court of Appeals held that the mother had a statutory right to have her counsel present, and that the burden was on the petitioner or the court to demonstrate that the attorney’s presence would impair the examination’s validity.

Facts

The Cardinal McCloskey Children and Family Services filed a petition to terminate the mother’s parental rights to her son, Alexander, alleging that her mental illness prevented her from providing adequate care. Alexander had been in foster care since shortly after his birth in 1978. The Family Court ordered the mother to undergo a psychiatric examination as mandated by Social Services Law § 384-b(6). The designated psychiatrist, Dr. Sheinkman, refused to examine the mother in the presence of her attorney, citing the Bureau of Mental Health Services’ policy. The mother then refused to proceed without her counsel present.

Procedural History

The Family Court admitted the psychiatrist’s report and testimony, which were based on a limited observation of the mother and review of her hospital records. The Family Court found clear and convincing evidence of the mother’s mental illness and terminated her parental rights. The Appellate Division affirmed the Family Court’s decision. The New York Court of Appeals granted leave to appeal.

Issue(s)

Whether a parent is entitled to have their attorney present during a court-ordered psychiatric examination in a proceeding to terminate parental rights based on the parent’s alleged mental illness.

Holding

Yes, because the parent has a statutory right to counsel in such proceedings, and the burden rests on the party opposing counsel’s presence to demonstrate that it would impair the examination.

Court’s Reasoning

The Court of Appeals based its decision on Family Court Act § 262(a)(iv), which explicitly grants a parent the right to assistance of counsel in proceedings under Social Services Law § 384-b. The court stated that the mother’s right to counsel during the psychiatric examination, a critical phase of the litigation, was beyond question given this legislative action. The court emphasized that there was no prohibition against counsel’s presence in the order directing the examination. The court rejected the argument that the mother had a duty to demonstrate that her attorney’s presence would not impair the examination, stating, “The predicate for such a restriction however may not be the failure of the parent to demonstrate a negative — i.e., the absence of the prospect of impairment — but must be a positive showing, usually by the examining expert on the initiative of the petitioner or the court, that there is justification in a particular case for exclusion of the third person or restrictions on his or her conduct during the examination.” The court found that the psychiatrist’s statement of the Bureau of Mental Health Services’ blanket policy was insufficient to justify excluding counsel. The court emphasized the importance of the right to counsel and that any restriction must be justified by a specific showing of impairment in the particular case, quoting the statute directly: “Each of the persons described below in this subdivision has the right to the assistance of counsel. When such person first appears in court, the judge shall advise such person before proceeding that he has the right to be represented by counsel of his own choosing * * * and of his right to have counsel assigned by the court in any case where he is financially unable to obtain the same… (iv) the parent…in any proceeding under…three hundred eighty-four-b…of the social services law”.