                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 5, 2015                     519783
________________________________

In the Matter of WILLIAM T.

STEPHANIE DUNHAM, as Acting
   Director of Sunmount
   Developmental Disabilities
   Services Office,                         MEMORANDUM AND ORDER
                    Appellant-
                    Respondent;

WILLIAM T.,
                    Respondent-
                    Appellant.
________________________________


Calendar Date:   January 15, 2015

Before:   Lahtinen, J.P., Garry, Devine and Clark, JJ.

                              __________


      Eric T. Schneiderman, Attorney General, Albany (Zainab A.
Chaudhry of counsel), for appellant-respondent.

      Sheila E. Shea, Mental Hygiene Legal Service, Albany
(Jeanne N. Cox of counsel), for respondent-appellant.

                              __________


Devine, J.

      Cross appeals from an order of the Supreme Court
(Feldstein, J.), entered July 8, 2014 in Franklin County, which
dismissed petitioner's application, in a proceeding pursuant to
Mental Hygiene Law article 15, for the involuntary retention of
respondent.

      Respondent, who was born in 1966, has been diagnosed with
and treated for bipolar disorder, pedophilia and exhibitionism,
                              -2-                519783

among other mental conditions. Respondent has an extensive
criminal record that started when he was no older than 23,
including, but not limited to, convictions for public lewdness,
harassment, disorderly conduct and endangering the welfare of a
child. Notably, many of his criminal offenses were of a sexual
nature and involved young female victims. Since 1998, respondent
had resided in a sexual support unit of Taconic Developmental
Disabilities Services Office (hereinafter Taconic DDSO) as a
condition of his probation, which respondent completed in 2001.
While a resident at Taconic DDSO, respondent continued to commit
sexual offenses and was classified as a risk level II sex
offender under the Sex Offender Registration Act (see Correction
Law art 6-C) and was transferred from Taconic DDSO to Sunmount
Developmental Disabilities Services Office (hereinafter Sunmount
DDSO) in 2012 as a condition of his term of probation, which was
set to expire in June 2013. Respondent voluntarily remained at
Sunmount DDSO after his probation concluded, but attempted to
sign out of the facility in March 2014. Petitioner filed this
application to involuntarily retain respondent for a 60-day
period and, following a hearing, Supreme Court dismissed the
petition. These cross appeals ensued.

      Petitioner challenges Supreme Court's determination that
she failed to demonstrate, by the proffer of clear and convincing
evidence, that respondent's developmental disability is
attributable to an intellectual disability that was manifested
during the developmental period. Pursuant to Mental Hygiene Law
article 15, when a facility seeks to retain an individual against
his or her will, such retention may occur when the person has an
alleged developmental disability that, as is relevant here, can
be attributed to mental retardation that originated before he or
she turned 22 years of age, has existed on a continuous basis and
has severely limited his or her ability to function in society
(see Mental Hygiene Law §§ 1.03 [22]; 15.01, 15.27 [a]).
Further, the individual will be subject to involuntary care and
treatment if it is "essential to his [or her] welfare, and
. . . his [or her] judgment is so impaired that he [or she] is
unable to understand the need for such care and treatment"
(Mental Hygiene Law § 15.01; see Matter of Robert OO., 57 AD3d
1304, 1305 [2008]; Matter of Daniel XX., 53 AD3d 819, 820
[2008]). Our authority to review factual findings made in
                              -3-                519783

retention cases of this nature is as broad as that of the trial
court (see Matter of Sidney JJ., 30 AD3d 959, 960 [2006]) and "we
may make our own findings of fact if 'no fair interpretation of
the evidence . . . can support the [court's] determination'"
(Matter of Luis A., 13 AD3d 441, 442 [2004], quoting Matter of
Seltzer v Hogue, 187 AD2d 230, 237 [1993]).

      Despite its determination that there was clear and
convincing proof to demonstrate that respondent is currently
intellectually disabled, Supreme Court ultimately concluded that
petitioner failed to present sufficient evidence that such
disability occurred during the developmental period and that this
longstanding disability was causally related to respondent's
purported adaptive deficits. On that basis, Supreme Court
determined that it was necessary to dismiss the petition.

      Petitioner's chief psychologist, Suzanne Fraser, testified
that respondent's developmental disability involved his inability
to control his urges to engage in pedophilic and exhibitionist
activities – which included several instances of respondent
exposing his genitalia to young females or masturbating in public
– as well as assaultive conduct toward others and, furthermore,
that such disability is attributable to a lifelong intellectual
disability. Fraser indicated that documentation of clinical
assessments of respondent's adaptive abilities during his
formative years is limited, due primarily to the fact that a
diagnosis of intellectual disability under the professional
diagnostic criteria utilized at that particular time in
respondent's life did not include adaptive assessments, but,
rather, were limited to the results of IQ tests. Nonetheless, IQ
tests conducted during respondent's developmental period revealed
that he had "a defective to borderline range of intelligence" and
respondent's records further demonstrated that he received
various assistive educational services as a child to help him
correct his adaptive functioning deficits. Fraser averred that,
within a reasonable degree of medical certainty, respondent
currently suffers from an intellectual disability that emerged
before he reached age 22 and that such disability renders
respondent unable to resist committing sexual offenses. Further,
the record is replete with evidence regarding respondent's
adaptive deficiencies, including his ongoing need to be
                              -4-                519783

redirected by staff members during conflicts with others or when
faced with things that trigger his sexually inappropriate
conduct, such as television commercials featuring children.
Additionally, respondent's records show that he regularly
requires assistance with everyday tasks, including bathing,
receiving proper nourishment and taking medications.

      Although Fraser acknowledged that when, as here, a child
comes from an abusive home or is experiencing emotional
difficulties, it can be difficult to determine whether such
individual has an intellectual disability, she did not waver from
her conclusion that respondent was indeed intellectually disabled
and had limited adaptive abilities before becoming an adult and,
further, that this lifelong intellectual disability is what
causes him to, among other things, engage in inappropriate sexual
behaviors. In addition, while Fraser conceded during
cross-examination that respondent's records indicated that
certain mental health professionals might have questioned the
extent of respondent's deficits, respondent failed to present
such witnesses to testify at the hearing or otherwise proffer
competent evidence that controverts petitioner's clear and
convincing evidence that respondent has had a lifetime
intellectual disability that requires his continued involuntary
retention (see Matter of William S., 74 AD3d 1684, 1685 [2010];
compare Matter of Richard E., 12 AD3d 1019, 1022 [2004]).

      We have considered respondent's arguments that Supreme
Court erred insofar as it determined that petitioner had met her
burden in proving the remaining elements of an involuntary
retention application of this nature and have found them to be
unavailing.

     Lahtinen, J.P., Garry and Clark, JJ., concur.
                              -5-                  519783

      ORDERED that the order is reversed, on the law, without
costs, and petition granted.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
