Matter of Tyler S.

LEE H. ELKINS, J. A petition filed on October 12, 2001 alleges that the respondent mother neglected her seven-year-old child, Tyler, 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 Tyler, and by failing to provide Tyler 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. The petition also alleges that the respondent mother has been diagnosed as suffering from mental illness, "specifically as paranoid and delusional, and with a possible personality disorder." On the basis of this last allegation, the petitioner seeks an order of this court 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.

In support of its motion, the petitioner files five exhibits. Essentially, the exhibits show that the respondent had been in treatment with a certified social worker at Brookdale Medical Center from September 22, 2000 until February 2001. She had been seen about five times before treatment was discontinued in February due to the respondent's 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 November 22, 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. Her diagnosis was panic disorder and agoraphobia. The respondent was not seen by her therapist at the clinic after November 13, 2000, until she contacted the clinic in May 2001, due to problems she was having with the board of education. She was seen twice before again being lost to contact. The respondent became known to the Administration for Children's Services (ACS) in August 2001, when she reported and Family Services (DCFS). On November 15, 2001 the respondent was found with Tyler at the Norwalk, Connecticut, emergency shelter, apparently hallucinating, slapping at herself and reprimanding Tyler to "stop you're making it crawl on me." The respondent told the shelter staff that she lost her job and apartment and had no money. The staff noted that Tyler was running all around the shelter and was beyond her mother's control. The respondent was evaluated by a crisis center psychiatric nurse, and found to suffer from posttraumatic stress disorder, severe depression and Myasthenia Gravis. The nurse recommended that she be evaluated at a hospital. Based upon Tyler's behavior and the respondent's statement to shelter workers in Connecticut that Tyler had been vaginally penetrated by a friend of her father's, Tyler was taken by ambulance to a Norwalk hospital for examination. A doctor at the Norwalk hospital diagnosed Tyler as suffering from severe ADHD and recommended to the respondent that the child be medicated. The respondent refused. Connecticut child protective documents show that the hospital staff observed the respondent pull a remote control wire out of the wall and attempt to hit Tyler with it. The Connecticut DCFS records state that the caseworkers believed respondent unable to manage Tyler's behavior due to respondent's own emotional problems. Connecticut DCFS referred respondent for a psychiatric evaluation on November 16, 2001. 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 Tyler in foster care.^[1] On November 20, 2001, acting on a warrant issued by this court after the respondent had disappeared from her residence with Tyler, the police and ACS child protective worker went to the respondent's Brooklyn residence. A neighbor informed the officers that the respondent mother recently knocked on his door at 2 o'clock in the morning to inform him that she "had been playing hide and seek with her cat and placed the cat in the freezer." The neighbor told the police that he entered the respondent's apartment and removed the frozen, dead cat from the freezer and placed the carcass in the garbage.

Family Court Act § 1038 (d) applies Civil Practice Law and Rules article 31 to child protective proceedings "unless adjudication of neglect" (Matter of Verena E., 163 Misc 2d at 467), there is nothing in the legislative history of Family Court Act § 1047 (b) or other statutes cited by the court to 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. (See, e.g., Matter of Diane P., supra, 110 AD2d 354.) Unlike a criminal defendant, a respondent in a child protective proceeding may suffer an adverse inference from his or her silence at trial. (See, Commissioner of Social Servs. v Phillip De G., 59 NY2d 137, 141 [1983].) As in any other civil proceeding, a respondent in an article 10 proceeding may be required to answer interrogatories. (See, e.g., Matter of David E., 176 Misc 2d 363 [Fam Ct, Orange County 1998].) Reading Family Court Act § 1038-a consistently with Family Court Act § 1038 (d), there is 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. Had the Legislature intended to impose stricter standards for the discovery of testimonial evidence, then the Legislature would have been equally specific.^[5] Consequently, the court holds that Family Court Act § 1038-a does not preclude this court from ordering that the respondent be examined by a psychiatrist for the purpose of evaluating the respondent's mental condition. The court directs 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. [1] Tyler was returned to this jurisdiction, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, after this court informed the Superior Court for Juvenile Matters at Norwalk, Connecticut, of this pending child protective proceeding. [2] In Matter of Sebastian M. (NYLJ, Jan. 9, 1997, at 29, col 6 [Fam Ct, Kings County]), the applicability of CPLR 3121 in article 10 proceedings was not in issue, since the petitioner did not comply with notice provisions of the statute. The court wrote: "Were the Commissioner to attempt to use the results of this examination as proof of the allegations in the neglect petition against Dorothy M., admission of the Bellevue evaluation into evidence should be precluded under CPLR 3126(2) because the procedural aspects of the Rule were not followed, Matter of Kaitlyn S., 148 Misc.2d 276 (Fam. Ct. Rockland Co. 1990), and as a result, the Respondent had no opportunity to object to the examination under CPLR 3122 or to request a protective order under CPLR 3103." (Matter of Sebastian M., at 30, col 1.) [3] It appears that the report at issue in Sebastian M. was prepared for purposes of determining a suitable placement for the respondent, as a subject child in a neglect proceeding brought against her mother. Therefore, the provisions of Family Court Act § 1047 (b) were fully implicated. [4] The court also stated in dicta in Sebastian M. (at 30, col 1), "Submission to a mental health examination requires a person to give testimonial evidence and, therefore, is not a type of evaluation which could be ordered under FCA § 1038-a. When FCA § 1038 (d) was enacted, the legislature did not remove the proscriptions on nontestimonial evidence from FCA § 1038-a, therefore, mental examinations of respondents under CPLR 3121, as well as depositions of respondents under CPLR 3106 and interrogatories under CPLR 3130, are not available as discovery devices through FCA § 1038 (d). The Commissioner may not avail himself of the discovery tools in CPLR 3121 to gain what he is denied under FCA § 1038-a." [5] "[A] court cannot by implication supply in a statute a provision which it is reasonable to suppose the Legislature intended intentionally to omit; and the failure of the Legislature to include a matter within the scope of an act may be construed as an indication that its exclusion was intended." (McKinney's Cons Laws of NY, Book 1, Statutes § 74.)