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Child Protective Services Claims Mother Incapable of Guardianship


In this child protective proceeding, a County Social Services/Child Protective Services, seeks adjudication that the subject child is a neglected child within the meaning of FCA (Family Court Advisory).

A New York Family Lawyer said that by petition, CPS (Child Protective Services) alleges that the mother has placed the child at imminent risk of becoming physically, mentally and emotionally impaired, in that the mother’s seriously impaired mental condition renders her unable to provide adequate guardianship, supervision and care to the child. CPS further alleges that the mother has failed to secure suitable housing for the child.

The mother was served with the summons and petition but did not appear on the first court date. At that time, an order was issued placing the child in the custody of maternal grandmother, and an order of protection was issued restricting the mother’s contact with the child to visitation supervised by the Department of Social Services.

The mother appeared on the second court date and was assigned counsel. At the request of the mother’s attorney, and on the County Child Protective Services’ consent, a court appointed guardian was assigned for mother without a hearing. A New York Custody Lawyer said the matter subsequently proceeded to a fact finding hearing, during which the mother, although not physically present herself, appeared through counsel and court appointed guardian.

Having heard the evidence presented by the parties at the fact-finding hearing and after due and careful consideration thereof, the court concludes that the allegations of neglect are predicated primarily upon mother’s alleged psychiatric condition, which purportedly renders her unable to care for the child, and upon the mother’s alleged failure to provide the child with adequate housing.

The only purported evidence of the mother’s alleged seriously impaired mental condition, for the one-year period prior to the birth of the subject child, is the somewhat vague and inconsistent psychiatric history provided to the hospital and prenatal clinic staff by mother herself.

A Queens Family Lawyer on 8/24/02, the mother was diagnosed with schizoaffective disorder and was released from the emergency room. On 5/14/02, she was brought to the emergency room after threatening a resident at the shelter who had threatened her. She was diagnosed with schizoaffective disorder, bipolar type which was responding well to medication. She was transferred to a Hospital. It is unknown whether she was actually hospitalized in that Hospital, as those records were not produced. On 12/4/01, she was brought to the emergency room stating she wanted to kill herself because she did not like where she was living. She was transferred to a Facility for further treatment and evaluation.

In addition to the emergency room records, there were two witnesses called by CPS. The first witness was a medical social worker who met with the mother only once, shortly after she had just given birth. They discuss the mother’s plans for the child. She was unaware if the mother had received any anesthesia during the delivery or any pain medication afterwards. The extent of the social worker’s testimony was that she found mother to be infantile because she presented herself as a child and almost saw the child as a doll. The social worker filed a report of suspected neglect with the CPS State Central Registry (SCR) stating that her main concern was the mother’s immaturity.

The other witness called was a senior CPS caseworker with emergency services. He investigated the SCR report filed by the social worker and met with mother once in the hospital. A Queens Child Custody Lawyer said he found the mother to be very cooperative and gentle. He indicated that the DSS-provided housing shelter in which the mother resided was unsuitable for a child because of drug and criminal activity. The reason for the continued public funding of such egregiously dangerous and unsuitable housing was unclear.

A closer examination of these records reveals that mother’s main complaints leading to these emergency room psychiatric evaluations were related to problems she was having with the housing facility in which she was placed and with some of the other residents of the facility. There was no evidence during any of these visits of any psychotic symptoms. There was one visit during which mother admitted making up a story about hearing voices so she would be taken to the emergency room and out of the shelter.

It is hard to imagine how a 20-year-old with a seriously impaired mental condition so severe that it renders her unable to care for a child could go without medication for nine months, endure the added stress of her first pregnancy, abide the additional burden of a full period of labor and delivery, and remain calm and cooperative throughout, with no signs or symptoms of mental illness of any kind at any time. No expert witness was called to explain such apparent phenomenon.

What is clear is that if anyone is to be found neglectful by this court for expecting a child to live in such atrocious housing, it is not going to be mother. Since DSS, the presentment agency has provided the very housing they find so unacceptable and since they have failed to provide the mother with any suitable alternative housing resources, the allegation of neglect predicated upon inadequate housing is dismissed.

A review of the evidence presented leads the court to conclude that the County Child Protective Services has failed to meet its burden of proof and has failed to show that the subject child is a neglected child within the meaning of FCA.

A finding of neglect may be predicated upon proof that a child’s physical, mental, or emotional condition is in imminent danger of becoming impaired as a result of a parent’s mental illness. Although no demonstration of actual harm to the child is necessary to support such a finding, proof of the parent’s mental illness must be established by a preponderance of the credible evidence.

The petitioner mother who is a homeless 20-year-old girl was abandoned by her family after years of unsuccessful out of home placements and has had her first baby. While there may be a suggestion of some prior diagnoses of mental illness years before the child’s birth, it is inconsistent, vague, and conclusive at best.

It has long been held that a psychiatric diagnosis or prior psychiatric hospitalizations, standing alone, are insufficient to establish neglect. The evidence presented demonstrates that for more than a year prior to the birth of her child, mother has had no psychiatric hospitalizations, no psychotic symptoms, no thought disturbance and no dangerous behavior. Quite to the contrary, the mother has been consistently depicted as calm, cooperative, pleasant, clear thinking, and well-oriented. Remarkably, the mother has remained stable throughout a full pregnancy without medication. The main concern here is mother’s immaturity.

Assuming that the evidence permits the inference that the mother does indeed suffer from a mental illness, it is clear that a finding of neglect is not warranted when there is no demonstration of any threat to the welfare of the subject child.

There is, quite simply, a complete paucity of proof to support a finding that the subject child’s physical, mental, or emotional condition is in imminent danger of becoming impaired as a result of mother’s alleged mental illness within the meaning of F.C.A.

In view of the foregoing, the court finds that the allegations in the petition have not been established by a preponderance of the evidence. Accordingly, the petition is dismissed for failure to establish a legitimate case, and all prior orders are hereby vacated.

Every parent wants the best for their child even if the way of showing it may seem odd to others. No parent would intentionally hurt or harm their child. If you are being accused of doing such, a Suffolk County Child Custody Lawyer or a Suffolk County Guardianship Attorney together with a Suffolk County Family Lawyer from Stephen Bilkis and Associates can help you explore your legal options.

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