Matter of Xavier G.

[*1] Matter of Xavier G. 2008 NY Slip Op 50670(U) [19 Misc 3d 1113(A)] Decided on March 11, 2008 Family Court, Kings County Olshansky, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 17, 2008; it will not be published in the printed Official Reports.

Decided on March 11, 2008
Family Court, Kings County

In the Matter of Xavier G., Children Under the Age of Eighteen Alleged to be Neglected by Pedro G., Angelica H., Respondent.



V-03240/07



APPEARANCES:

Daniel M. Fraidstern, Esq.

Special Assistant Corporation Counsel

Administration for Children's Services

330 Jay St. Brooklyn NY, 11201

Gabriel Freiman, Esq.

Brooklyn Family Defense Project

Legal Services of New York City

for respondent father

177 Livingston St. (7th Floor)

Brooklyn NY, 11201

Beth Mermelstein, Esq.

for respondent mother

2920 Avenue R, Ste 341

Brooklyn, NY 11229

Denise J. Costanza, Esq.

Law Guardian

26 Court St. (Suite 1003)

Brooklyn NY, 11242

Emily M. Olshansky, J.

The issue currently before the Court in this pre-fact-finding Family Court Act article 10 proceeding is whether to grant respondent father's motion pursuant to CPLR § 3211 (a) (7) to dismiss the first and third allegations in the neglect petition filed by the Administration for Children's Services (hereinafter, "ACS") based on an asserted failure to state a cause of action. In addition, the Court must decide whether to grant ACS's motion for disclosure of respondent father's psychiatric hospital records covering a six-day period from June 28, 2006 to July 3, 2006. For the reasons set forth herein, the Court conditionally grants respondent father's motion to dismiss but stays that order for a period of seven days to permit the filing and service of an amended petition and denies ACS's motion for disclosure.

Procedural History

On October 26, 2007, ACS filed petitions against respondent mother and respondent father alleging that they had neglected the child Xavier, born January 11, 2007. The allegations concerning respondent father relate to a psychiatric hospitalization in 2006, acts of domestic violence against the mother in the presence of the child in 2007 and substance abuse in 1998 and 2006.

Specifically, the first paragraph in the petition alleges that respondent father was admitted to Woodhull Hospital from June 28, 2006 until July 3, 2006 where he was diagnosed with psychotic disorder not otherwise specified, poly-substance dependence, substance induced psychotic disorder, borderline and anti-social personality traits. The petition also alleges that following his hospitalization, respondent father failed to take prescribed medication (risperdal and klonopin), or obtain psychiatric treatment.

Second, the petition alleges that on April 15, 2007, respondent father committed acts of domestic violence against respondent mother in the presence of the child, that he was arrested as a result and charged with assault in the third degree, attempted assault in the third degree, menacing in the third degree and harassment in the second degree. It is further alleged that on July 20, 2007 and October 4, 2007, respondent father violated an order of protection issued by the Criminal Court in that he was observed in the presence of respondent mother and was thereafter charged with two counts of criminal contempt in the second degree. Third, it is alleged that respondent father has a history of marijuana use as is evidenced by his testing positive for [*2]that substance on May 19, 1998, June 12, 1998 and May 29, 2006.

Respondent father appeared in court on October 26, 2007. Issue was joined, counsel was assigned and the subject child was remanded on consent and placed with the paternal grandmother. An order of protection was entered against respondent father on consent directing him not to commit any family offenses against the subject child, excluding him from the home of the paternal grandmother (which had been his residence) and directing him to stay away from the child and the paternal grandmother's home except for court-ordered visitation.

On November 19, 2007, respondent mother appeared in court. Issue was joined, counsel was assigned and the remand was continued on consent. On December 13, 2007, the child was paroled to respondent mother on consent. The temporary order of protection was modified on consent to direct that respondent father refrain from committing any family offenses against respondent mother or the subject child and that he stay-away from both of them except for agency supervised visitation.

On February 8, 2008, respondent father moved to dismiss the first and the third allegations in the petition asserting that the allegations were "stale" and, even if true, insufficient to establish a cause of action for neglect. Respondent father emphasizes that the allegations regarding mental illness and marijuana use concern parental behavior predating the birth of the subject child. He notes that there is no allegation regarding any contemporaneous or ongoing conduct; nor any allegation that his prenatal conduct resulted in impairment or imminent risk of impairment to the child. Accordingly, he moves to have these allegations dismissed.

The motion is opposed by ACS and the Law Guardian. They both acknowledge that the allegations regarding respondent father's prenatal use of marijuana are probably insufficient standing alone to state a cause of action. Nevertheless, they urge the Court to view the allegations in light of the other allegations contained in the petition including respondent father's hospitalization in 2006.

ACS and the Law Guardian dispute respondent father's assertion that the allegations of mental illness are insufficient to survive a motion to dismiss. Although they submit no affidavit from a psychiatrist or other expert or layperson with personal knowledge of the facts, they assert that, "a diagnosis of mental illness is an ongoing condition that does not simply go away with the passage of time [without] compliance with [a] mental health program." In addition, ACS asserts that "someone with untreated mental illness of the nature that respondent has poses a risk to many people including himself [and] the subject child Xavier [who] is in need of special protection due to his tender years."

In addition, ACS and the Law Guardian believe that respondent father's hospital records may contain evidence establishing a serious substance abuse problem. According to ACS "there is a strong likelihood that [the father's prior] toxicology reports are not the sole evidence of a continuing pattern of drug use Therefore, the records from Woodhull Hospital may well indicate that the respondent father's drug history is not stale but rather that his drug misuse actually further exacerbates his very concerning mental health." Accordingly, ACS contends that it "should not be penalized for not stating everything that the records may contain with specificity," since it could not obtain access to the complete Woodhull Hospital psychiatric records prior to the filing of a petition. "On the contrary, the petitioner must be afforded the opportunity to obtain the records and present those records to the court, in order to prove its case [*3]rather than having the court reach a determination without being afforded the opportunity to prove the allegations."

In addition, the Law Guardian contends that, "if a child is born with a positive toxicology for drugs, [ACS] does not have to prove that the mother continued to use drugs after birth." The Law Guardian proposes that, "the same should hold true for the father who is living with the mother and caring for the child." Although not alleged in the petition, the Law Guardian speculates that, "[I]f the father was smoking marijuana in the presence of the mother he was exposing his unborn child to second hand smoke."

When Considering a Motion to Dismiss Issue Finding Rather than Issue Resolution is the Court's Function

Turning first to the issue of staleness of the allegations, the Court commences its analysis by noting that on a motion to dismiss for insufficiency, the pleadings are to be afforded a liberal construction. The court must accept the facts alleged in the petition as true, accord the petitioner the benefit of every possible favorable inference which may be drawn from the petition, and determine only whether the facts as alleged fit within a cognizable legal theory (Matter of Moises D., 128 AD2d 775 [2d Dept 1987]; Rotanelli v Madden, 172 AD2d 815 [2d Dept 1991]; Williams v Aliano, 246 AD2d 592 [2d Dept 1998]; Fisher v Queens Park Realty Corp., 41 AD2d 547 [2d Dept 1973]).

If the facts stated set forth any cause of action cognizable at law, the pleadings must be sustained (Morone v Morone, 50 NY2d 481 [1980]; Rovello v Orofino Realty Co., Inc., 40 NY2d 633 [1976]; In re Lyndell C. R., 102 Misc 2d 723 [Fam Ct, New York County 1980]). Indeed, the sole criterion is whether the pleading states a cause of action and if from its four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law, a motion for dismissal will fail (Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR 3211:24, at 31; One Acre, Inc. v Town of Hempstead, 215 AD2d 359 [2d Dept 1995]). Issue finding rather than issue resolution is the court's function (In re Christopher Anthony M., 46 AD3d 896 [2d Dept 2007]; Patricia YY v Dept of Social Services, 238 AD2d 672 [3d Dept 1997]).

The relevant inquiry is whether the proponent of the pleading has a cause of action, not whether he has stated one or whether he may ultimately be successful on the merits (Guggenheimer v Ginzburg, 43 NY2d 268 [1977]; Rovello v Orofino Realty Co., Inc., 40 NY2d 633 [1976]). In other words, "[d]raftsmanship is secondary. Under the CPLR, if a cause of action can be spelled out from the four corners of the pleading, a cause of action is stated and no motion lies under CPLR 3211 § (a) (7). The pleading can be parenthetically drawn; it can reek of miserable draftsmanship. That is not the inquiry. We want only to know whether it states a cause of action—any cause of action. If it does, it is an acceptable CPLR pleading." (Siegel, New York Practice § 208 [4th ed. 2008]).

In considering a motion to dismiss based on "stale" allegations, the Court must also be cognizant of the fact that the powers of the Family Court under article 10 are intended to be quite broad. Family Court proceedings do not focus on penal sanctions but are instead directed to the protection of minors. The statute is designed to "help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being" (Family Court Act §1011). With that mandate in mind, the courts have repeatedly held that "the usual [*4]treatment of transgressions by limiting legal prosecutions thereof to a statutory period is unavailing in Family Court," which recognizes no statute of limitations (Matter of Charles DD., 163 AD2d 744 [3d Dept 1990] [eight-year lapse of time from the occurrence of the abuse to the initiation of the abuse charges under the Family Court Act did not deny stepfather due process or equal protection under the law]).

A parent's rights must be subordinate to the paramount purpose of the statute, which reflects the strong public policy of the State to protect a child's interests against an unwilling or inept discharge of parental responsibilities. A court cannot close its eyes to any imminent danger to a child and normal concepts of staleness may not be applicable when a child may still be in such danger (Matter of Baby Girl M. (Robert M.), NYLJ, May 6, 1996, p 37, col 2 [Fam Ct, Sullivan County]).

A Finding of Neglect should not be Made Lightly, Nor should it Rest upon Past Deficiencies Alone

With the above considerations in mind, the court must also consider that a finding of neglect cannot be based on past deficiencies alone (Matter of Daniel C., 47 AD2d 160 [1st Dept 1975] [conduct more than two years old at the time of the filing of a neglect petition standing alone would not be proof of neglect]; Matter of Sais, 94 Misc 2d 40 [Fam Ct, Suffolk County 1978] [allegations based solely on prior adjudications two to four years before, are insufficient to establish neglect]; Matter of Dina M., 104 Misc 2d 766 [Fam Ct, Suffolk County 1980] [dismissing a neglect petition as insufficient where it was based upon a two-year-old incident]; In re Keith B., 306 AD2d 343 [2d Dept 2003] [prior findings of neglect with respect to two other children are insufficient to establish derivative neglect as to a third child where two of the prior findings were remote in time and the conduct underlying the third finding, while occurring approximately three months before the birth of the third child, was an isolated incident which did not warrant a finding of derivative neglect]).

The neglect statutes are concerned with parental behavior not as behavior per se, but only and solely as it adversely affects the child in those areas of the child's life about which the statutes have expressed concern. The court's duty in a child neglect proceeding is to determine whether, despite any past deficiency, a child is at the time of the proceeding, suffering or likely to suffer from neglect (In re Foreman, 75 Misc 2d 348 [Fam Ct, Queens Co 1973]; Matter of Nina A. M., 189 AD2d 1010 [3d Dept 1993]; Matter of Charles DD., 163 AD2d 744 [3d Dept 1990]).

Accordingly, it is black letter law that the allegations in a neglect petition must refer to present, near contemporaneous or ongoing conduct. The allegations may not be "stale" (Matter of TC., 128 Misc 2d 156 [Fam Ct, New York County 1985] [allegations of abuse or neglect must refer to present, near contemporaneous or ongoing conduct or continuing behavior patterns and the allegations may not be stale; accordingly, prior termination of the mother's rights to two children, nine and six years earlier, does not provide grounds for a current finding of neglect as to the subject child]; Matter of Maureen G., 103 Misc 2d 109 [Fam Ct, Richmond County 1980] [proof of abuse or neglect must be so proximate in time to the date of the current proceedings that it can reasonably be concluded that the condition is a current one that still exists; the evidence must not be stale]; Matter of Theresa C., 121 Misc 2d 15 [Fam Ct, Monroe County 1983]; In re Grenier, 165 Misc 784 [Dom Rel Ct, Bronx County 1937][allegations in a petition must relate to a condition now existing, not one that existed some time in the past and it must [*5]state facts as they affect the child at the time the petition is heard; allegations that the child was not properly cared for 10 months ago are insufficient where there are no allegations that the conditions existed at the time the petition was filed];Matter of Deanna E., 150 Misc 2d 1074 [Fam Ct, Schenectady County 1991] [dismissing an abuse proceeding since there had been a two year delay in prosecuting the case]; Matter of W.M. and C.M., 2001 WL 914103 [Fam Ct, Schenectady County] [a petition filed two years earlier, alleging that a parent had, during the last five years, engaged in substance abuse for which she is at high risk of relapse, that she appeared intoxicated once during the year the petition was filed, that she failed to utilize available support systems, and that she is unable to meet her own personal needs, is insufficient to establish a cause of action for neglect where no present incidents of neglect were alleged, the children had not resided with respondent for years and there was no proof, nor even an allegation, that respondent's addiction continued to impair her ability to parent])." A Parent's Prenatal Marijuana use Cannot be the Basis of a Neglect Finding Absent Evidence that the Child Was Harmed or Placed at Imminent Risk of Harm by the Parent's Actions

It is well-settled that a parent's prenatal conduct alone cannot be the basis of a neglect finding in the absence of evidence showing that the child was harmed or placed at imminent risk of harm by the parent's actions (In re Jessica YY., 258 AD2d 743 [3d Dept 1999] [parent's past history of alcohol and drug abuse and her failure to fully participate in a parenting education program are insufficient to establish neglect where the child was born without any health problems or special needs and no evidence was presented demonstrating that the parent's prenatal conduct presented any risk of harm to the child]; Matter of Milland, 146 Misc 2d 1 [Fam Ct, New York County 1989] [mother's prenatal conduct alone cannot be the basis of a finding of neglect without a showing of a specific detriment to the newborn child; mother's prenatal conduct must be connected to a post-birth risk of harm to the child to support a finding of neglect]).The purpose of a neglect proceeding is not to punish a parent for pre-natal marijuana use. Rather, it is to determine whether that use, togetherwith the other evidence in the case, establish by a preponderance of the evidence that the subject child has been harmed by the parent's actions, or would be at imminent risk of harm if placed in the parent's care (Nassau County Dept. of Social Services on Behalf of Dante M., 87 NY2d 73 [1995] [child's positive toxicology alone was insufficient to support a finding of neglect, however, a positive toxicology, in conjunction with other evidence, including that the child was born prematurely, with a low birth weight, requiring a specialized level of care, a lengthy hospital stay in the Neonatal Intensive Care Unit, a high degree of follow-up care at a high-risk clinic and the parent's history of being unable to care for her children because of her drug use, as well as her continued drug use during pregnancy supported a finding of neglect on the ground that the children would be placed in imminent danger of impairment by the mother's drug use]).

A Prior Psychiatric Hospitalization Standing Alone is Insufficient to Establish Neglect Per Se

It has long been held that a psychiatric diagnosis or prior psychiatric hospitalization, standing alone, is insufficient to establish neglect per se. The dispositive issue is whether the parent is [*6]now suffering from mental or emotional illness at the time of the hearing (In re Karr, 66 Misc 2d 912 [Fam Ct, Richmond County 1971]; Matter of Nina A. M., 189 AD2d 1010 [3d Dept 1993]). In addition, even if the evidence establishes that a parent currently suffers from a mental illness, a finding of neglect is not warranted where there is no demonstration of any threat to the welfare of the child (In re G.A.B., 4 Misc 3d 1011(A) [Fam Ct, Suffolk County 2004] [mother's psychiatric history is insufficient to establish neglect where the mother had no psychiatric hospitalizations, no psychotic symptomatology, no thought disturbance, no dangerous behavior, for more than a year prior to the birth of her child; nevertheless, even assuming that the evidence permitted the inference that the mother did presently suffer from a mental illness, a finding of neglect is not warranted where there is no demonstration of any current threat to the welfare of the subject child];see also Matter of Moises D., 128 AD2d 775 [2d Dept 1987] [while past deficiencies and psychiatric hospitalizations do not, by themselves, establish neglect or unfitness, here the medical records and psychiatric testimony established that if the children were released to the respondents, there would be a substantial probability of neglect since the father was repeatedly hospitalized and diagnosed as a paranoid schizophrenic, which caused him to hear threatening voices telling him he was possessed by an evil spirit and where he had kicked his 15-year-old daughter in the stomach, beat her with a belt, repeatedly hit her with a stick and threatened her with a knife and hammer]; Administration for Children's Services v Silvia S.,18 Misc 3d 326 [Fam Ct, Queens County 2007] [mother's psychiatric history was insufficient to establish a cause of action for neglect although she stopped attending therapy prior to the child's birth, suffered from postpartum depression and failed to take prescribed medication, since there was no allegation that mother was currently incapable, due to a psychiatric, psychological or medical condition, of caring for her child as to give rise to a reasonable belief that the child's physical, mental or emotional condition was in imminent danger of being impaired]).

In the instant case, the allegations regarding mental illness and substance abuse rest upon past deficiencies alone, some dating back as far as 10 years, all of which pre-date the birth of the child. There is no allegation that respondent father used marijuana in the presence of the child or that he spent time with the child while under the influence of marijuana or any other drugs or alcohol. Indeed, there is no allegation that respondent father ever used marijuana after the birth of his son or at any other time since shortly after to the child's conception. In other words, there is no allegation that respondent father's prenatal substance abuse harmed the child or placed him at imminent risk of harm.

Nor, is there any allegation that respondent father currently suffers from any mental illness, that he requires psychiatric hospitalization, or that he has demonstrated any psychotic symptomatology or thought disturbance during the two years period prior to the filing of the petition. Indeed, even if respondent father's 2006 hospitalization did permit the inference that he presently suffers from a mental illness, a finding of neglect could not be made since there is no allegation of any current threat to the welfare of the subject child. Here, there is no allegation that respondent father is presently incapable, due to a psychiatric, psychological or medical condition of caring for the child.

It is perhaps for these reasons that ACS requests disclosure of respondent father's 2006 psychiatric records asserting "there is a strong likelihood that [the father's prior] toxicology reports are not the sole evidence of a continuing pattern of drug use Therefore, the records [*7]from Woodhull Hospital may well indicate that the respondent father's drug history is not stale but rather that his drug misuse actually further exacerbates his very concerning mental health." Accordingly, ACS contends that it "should not be penalized for not stating everything that the records may contain with specificity" since it could not obtain access to the complete Woodhull Hospital Psychiatric records prior to the filing of a petition. According to ACS, "the petitioner must be afforded the opportunity to obtain the records and present those records to the court, in order to prove its case rather than having the court reach a determination without being afforded the opportunity to prove the allegations."

ACS misses or ignores the point. First, even if the records did reveal additional evidence of respondent father's pre-2006 drug use, it would be irrelevant to establishing a cause of action for neglect in 2008. Second, this statement is a tacit acknowledgement that ACS does not yet have current credible evidence that these allegations are true. Therefore, ACS's request for disclosure of psychiatric, psychological, or medical records would be for the purpose of determining whether a cause of action exists, which is not a permissible purpose (see Administration for Children's Services v Silvia S., 18 Misc 3d 326 [Fam Ct, Queens County 2007] citing Stewart v NYC Transit Auth, 12 AD2d 939 [2d Dept 1985]; Manufacturer's and Trader's Trust Co v Bonner, 84 Ad2d 678 [4th Dept 1981]; Hill v Springer, 132 Misc 2d 1012 [Sup Ct New York County 1986]; see also Mazzaferro v Barterama Corp., 630 NYS2d 346 {218 AD2d 643} [2d Dept 1995] [when a party against whom accelerated judgment has been sought opposes the motion on the ground that additional disclosure is necessary to permit it to uncover facts essential to justify its opposition, the resisting party must show a real likelihood that such a pursuit of evidence will be fruitful; the mere hope that it will surface is not enough]). In the instant case, ACS has failed to make the requisite showing.

In addition, the release of psychiatric and psychological records is governed by HIPPA (45 CFR parts 160, 164) and Mental Hygiene Law § 33.13, which permit the release of such records only upon a finding that the interests of justice significantly outweigh the need for confidentiality. In this instance, where the court finds that a cause of action has not been stated, the interest of justice in determining whether an act of child neglect has occurred is so limited that it does not outweigh the need for confidentiality of respondent's psychiatric, psychological or medical records.

Although this Court believes it would be justified in dismissing the first and the third allegations in the neglect petition at this juncture, the Court elects not to do so. Instead, those allegations are conditionally dismissed such that the Commissioner for ACS shall have a period of seven (7) days from the date of this decision and order within which to serve and file an amended petition that particularizes the specific allegations of respondent's mental illness and drug usage which are contemporaneous with such filing. Should an amended petition, sufficient under law, be timely filed, then the Court will proceed to a plenary hearing regarding the respondent's present ability to care for her children. However, the filing by ACS of a proper amended petition is a precursor to further proceedings concerning allegations the first and third allegations of the petition. If an amended petition is not served and filed within seven days, the fact-finding shall proceed against respondent father based solely upon the second allegation in the petition. [*8]

Dated:Brooklyn, New YorkE N T E R E D

March 11, 2008

______________________

Hon. Emily M. Olshansky