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Court Decides Child Custody in Light of Mentally Ill Respondent


A New York Family Lawyer said that on 12 October 2001, a petition was filed against the respondent mother.

As alleged in the petition, the respondent mother neglected her seven-year-old child, T, by failing to provide the child with appropriate medical attention to treat her ADHD, by refusing to accept board of education referrals for a special education program for T, and by failing to provide T with adequate shelter because of her failure to pay rent, electricity and gas bills, and by using marijuana and not enrolling in a drug treatment program; and, the respondent mother has been diagnosed as suffering from mental illness, “specifically as paranoid and delusional, and with a possible personality disorder.”

A New York Divorce Lawyer said on the basis of the mental illness allegation, the petitioner seeks for an order pursuant to Family Court Act §§ 251, 1038 (d) to have the respondent evaluated to determine whether she in fact suffers from an untreated mental illness which impairs her ability to care for the child.

The factual basis:

A Nassau County Family Lawyer said the petitioner filed five exhibits all essentially showing that: the respondent had been in treatment with a certified social worker at Brookdale Medical Center from 22 September 2000 until February 2001; the respondent had been seen about five times before treatment was discontinued in February due to the noncompliance; the therapist’s recommendations in the discharge summary were day treatment, medication management and parenting skills classes; the respondent had been prescribed an antidepressant, Paxil, and an antianxiety medication Xanax, on 22 November 2000; the respondent’s principle complaint was anxiety attacks; the respondent told the evaluators that she felt like she would “burst” when she got angry and that she slept only a few hours a night; the respondent’s diagnosis was panic disorder and agoraphobia; the respondent was not seen by her therapist at the clinic after 13 November 2000, until she contacted the clinic in May 2001, due to problems she was having with the board of education; and, the respondent was seen twice before contact was again lost.

Sometime in August 2001, the respondent became known to the Administration for Children’s Services (ACS) when she reported that she believed T had been sexually abused by a friend of T’s father, some eight months before. Based on the records of Brookdale Medical Center, the respondent provided an incoherent narrative to her former therapist, the certified social worker, about T touching her breasts and telling her that her father’s friend did the same thing to her; that the father’s friend inserted his finger into T’s vagina; and, that the father’s friend had raped T.

The respondent then reported that T’s father was in jail. She connected this with having seen a police car leaving the vicinity of her residence; and, talked about leaving T alone while she reviewed a court transcript that someone had “planted” where she could find it. The respondent then spoke about cults and about the police being against her. When the therapist suggested reopening the mother’s counseling, the respondent refused. The therapist suggested that the respondent might want to go to the emergency room to speak to a psychiatrist, and again the respondent refused. The respondent was described as paranoid by the therapist.

Also, a Staten Island Family Lawyer said the respondent called the police about the alleged sex abuse. Consequently, on 21 August 2001, T was examined at a pediatric emergency room but no physical evidence of sexual abuse was found. After an investigation, ACS determined that the sexual abuse could not be substantiated.

By reason of the foregoing, ACS decided to request for an evaluation of the respondent by the mobile crisis team (MCT) at Interfaith Hospital.

According to documents of the MCT, from 2 September 2001 to 25 November 2001, numerous attempts to see the respondent were unsuccessful with the exception of a visit to her home by a psychologist on 4 September 2001; the September 4 evaluation was incomplete due to the presence of T who was extremely hyperactive; the evaluator found no apparent delusions or thought disorder; the respondent was not found to be a danger to herself or others; the respondent’s sole contingent diagnosis was personality disorder; the respondent told the evaluator that she was in treatment at Brookdale; when MCT determined that the respondent was not in treatment, they attempted unsuccessfully to conduct a further evaluation; and, in a letter to ACS, the evaluator concluded that the initial diagnosis was likely incorrect and, founded upon conversations with the respondent’s therapist, it was more likely that the respondent is paranoid and delusional.

In November of 2001, ACS learned that the child T had been placed into foster care by Connecticut Department of Children and Family Services (DCFS).

On 15 November 2001, the respondent was found with T at the Norwalk, Connecticut, emergency shelter, apparently hallucinating, slapping at herself and reprimanding T to “stop you’re making it crawl on me.” According to the respondent, in her conversation with the shelter staff, she lost her job and her apartment, and she had no money. At that time, the shelter staff noted that T was running all around the shelter and was beyond the respondent’s control.

Thereafter, the respondent was evaluated by the crisis center psychiatric nurse and was found to suffer from posttraumatic stress disorder, severe depression and Myasthenia Gravis. According to the nurse, the respondent has to be evaluated at a hospital. Again, based upon T’s behavior and the respondent’s statement to shelter workers in Connecticut that T had been vaginally penetrated by a friend of her father’s, T was taken by ambulance to a Norwalk hospital for examination. A doctor at the Norwalk hospital diagnosed T as suffering from severe ADHD and recommended to the respondent that the child be medicated but the respondent refused. Based upon the Connecticut child protective documents, the hospital staff observed the respondent pull a remote control wire out of the wall and attempted to hit T with it. The Connecticut DCFS records showed that the caseworkers believed that respondent was unable to manage T’s behavior due to her own emotional problems.

On 16 November 2001, Connecticut DCFS referred respondent for a psychiatric evaluation. According to ACS records, the Connecticut DCFS informed ACS that the respondent left before the evaluation could be conducted. The respondent returned to Brooklyn, leaving T in foster care.

On 20 November 2001, the police and an ACS child protective worker went to the respondent’s Brooklyn residence, acting on a warrant issued after the respondent had disappeared from her residence with T. According to a neighbor, respondent recently knocked on his door at 2 o’clock in the morning informing him that she “had been playing hide and seek with her cat and placed the cat in the freezer” prompting him to enter the respondent’s apartment and remove the frozen, dead cat from the freezer and place the carcass in the garbage.

The legal analysis:

Family Court Act § 1038 (d) applies Civil Practice Law and Rules article 31 to child protective proceedings “unless otherwise proscribed” by Family Court Act article 10. As provided for under CPLR 3121 (a), a party to a civil action whose mental condition is sufficiently in controversy may be compelled to submit to a forensic mental health examination upon motion of a party opponent. A verified petition alleging neglect on grounds of mental illness sufficiently places the respondent’s mental state in controversy, to authorize a prefact-finding examination pursuant to CPLR 3121 (a). The standard applicable under CPLR 3121 (a) is whether such an evaluation is “material and necessary” to the petitioner’s case.

First, the petitioner has shown that the requested evaluation is material to its case by exhibiting an objective basis for believing that the respondent may suffer from a mental illness.

Here, it must be noted that the respondent repeatedly presented to mental health professionals as suffering from paranoia and delusions. In August 2001, the therapist found respondent to be paranoid and agoraphobic, and recommended that she be evaluated by a psychiatrist in the Brookdale hospital emergency room. What’s more, the MCT, in a letter to ACS, based upon an evaluation of 4 September 2001 and upon conversations with the respondent’s therapist, indicated that it was “likely that she is paranoid and delusional.” Furthermore, on 15 November 2001 the staff at the Norwalk, Connecticut, emergency shelter observed respondent apparently hallucinating, slapping at herself and reprimanding T to “stop you’re making it crawl on me.” Also, the crisis center psychiatric nurse evaluating the respondent found her to suffer from posttraumatic stress disorder, severe depression and Myasthenia Gravis, and recommended a hospital evaluation. Moreover, on 20 November 2001, a neighbor reported to the police that the respondent had frozen her pet cat to death under circumstances which indicate that the respondent may have been delusional.

In addition, based upon observations of the respondent’s interaction with T, there is reason to believe that her ability to provide T with adequate supervision and guardianship may be impaired. Aside from the possibly false allegation of sexual abuse, the respondent was heard to tell T to stop making some apparently imaginary thing “crawl on” her; she was seen to attempt to strike T with a cord; and, was found by the Connecticut child protective authorities to be unable to manage T’s behavior in light of the respondent’s own apparent emotional problems.

Second, the petitioner has also shown a need for a forensic evaluation by the absence of an alternate source of information about the respondent’s mental health.

Here, in light of the respondent’s repeated refusals to comply with recommendations to submit voluntarily to a meaningful evaluation of her mental state, no other source of such information was available to the petitioner. Differential diagnoses were obtained under circumstances of questionable reliability, specifically: the therapist saw the respondent five times; the MCT saw her once under conditions which led the evaluator to deem the evaluation incomplete; and, the psychiatric nurse saw the respondent briefly in a homeless shelter. Clearly, there is no reliable, competent opinion regarding the respondent’s mental state, as it affects her ability to care for T.

In sum, the petitioner has shown that the evaluation is material to preparation of petitioner’s case, and is necessary as unobtainable from another source.

Under Family Court Act article 10, discovery is limited. Family Court Act § 1038-a preceded the liberal discovery provisions of Family Court Act § 1038 (d), which made clear that general rules of civil discovery apply to article 10 proceedings, “unless otherwise proscribed by xxx article” 10. Thus, Family Court Act § 1038 (d) declared the authority of the Family Court to order discovery in article 10 cases to be coextensive with that possessed by courts in any other proceedings governed by CPLR article 31, except where specifically limited by Family Court Act article 10. Although Family Court Act § 1038-a prohibits the discovery of nontestimonial evidence in article 10 cases, the statute is silent as to testimonial evidence. Therefore, testimonial evidence may be compelled, in a proceeding under article 10, to the same extent as in any other civil proceeding, unless Family Court Act § 1038-a may be read to imply a silent proscription.

In the instant court’s view, section 1038-a was enacted in 1987, in recognition that the judicially crafted exclusionary rule applicable to Fourth Amendment violations does not apply to evidence obtained by governmental authority in child protective proceedings. The Legislature intended by enacting Family Court Act § 1038-a, to limit discovery, by protecting respondents in child protective proceedings from governmental intrusion upon the integrity of their person. The term “nontestimonial” evidence refers to physical evidence compelled from the person, which the Supreme Court has found is protected by the Fourth Amendment requirement of probable cause, but not by the Fifth Amendment privilege against self-incrimination. Family Court Act § 1038-a simply recognizes that when the government seeks to discover evidence by means which intrude upon a person’s bodily integrity, the government action implicates the Fourth Amendment prohibition against unreasonable searches and seizures, and should be justified by probable cause that the evidence is reasonably related to establishing the allegations in the petition. This higher burden on parties in an article 10 proceeding was imposed by the Legislature only as to the discovery of “nontestimonial” evidence obtained from a respondent’s physical body. In the language of the statute of any legislative intent, there is no indication to circumscribe discovery of testimonial evidence from a respondent in a child protective proceeding under article 10. Additionally, there is nothing in the legislative history of Family Court Act § 1047 (b) or other statutes related thereto which would indicate that the Legislature also intended to extend the protections afforded by the Fifth Amendment to respondents in proceedings under Family Court Act article 10. A child protective proceeding is not a criminal prosecution. A respondent in a child protective proceeding, unlike a criminal defendant, may suffer an adverse inference from his or her silence at trial. A respondent in an article 10 proceeding may be required to answer interrogatories, as in any other civil proceeding.

In analyzing Family Court Act § 1038-a with Family Court Act § 1038 (d), there is clearly no evidence of a legislative intent to extend greater protection to testimonial evidence obtained from a respondent in a child protective case than is afforded any other civil litigant whose mental condition is placed in issue by the pleadings. Rather, Family Court Act § 1038-a demonstrates that the Legislature chose to impose a higher burden of discovery in those instances where evidence is obtained from the person of the respondent, and in no others. If the Legislature did intend to impose stricter standards for the discovery of testimonial evidence, the Legislature would have been equally specific.

Accordingly, the court directed the respondent to appear at a time and place designated for the purpose of submitting to a mental status evaluation by a psychiatrist to be selected by the parties. Family Court Act § 1038-a does not preclude the instant court from ordering that the respondent be examined by a psychiatrist for the purpose of evaluating the respondent’s mental condition.

If you find yourself in the same situation as the characters mentioned above, get yourself acquainted with the laws, statutes and case laws involved and learn how you could protect your rights. Contact us at Stephen Bilkis & Associates & speak with our Kings County Family Attorneys. Our Kings County Child Protection Attorneys would be more than honored to assist you.

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