Matter of N. Children

[*1] Matter of N. Children 2010 NY Slip Op 50812(U) [27 Misc 3d 1220(A)] Decided on May 10, 2010 Fam Ct, Kings County Hamill, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 10, 2010
Fam Ct, Kings County

In the Matter of The N. Children Children under Eighteen Years of Age Alleged to be Negelected by Angela N., Respondent.



NN-30520-4/09

Bryanne A. Hamill, J.

On January 5, 2010, ACS filed a motion for an order granting summary judgment for the petitioner and entering a finding of neglect against the respondent mother. On February 26, 2010, the respondent mother filed opposition to ACS's motion and a cross-motion requesting an order dismissing the neglect petition pursuant to CPLR §3212. The attorney for the children filed an affirmation in support of ACS's motion for summary judgment and supports a finding of neglect against the respondent mother. ACS and the law guardian filed replies to the respondent mother's opposition and the respondent mother filed a reply to ACS's opposition to her cross-motion.

On October 19, 2009, ACS filed a petition against the respondent mother alleging that the respondent suffers from a mental illness which seriously impairs her ability to care for the five subject children, Diana, age 6; Daniel, age 4; Marianna, age 2; Margarita, age 1; and Chaim, age 2 months. The mother had been diagnosed with a personality disorder, a psychotic disorder and mild mental retardation, and had been prescribed medication in the past, but failed to take it. The petitioner further alleges that the respondent had exhibited delusional behavior in front the children and had accused the father of sexually molesting the child Diana although no evidence had been found as to this claim. The petitioner also alleges that the respondent mother is verbally abusive to the father, that the police have been called to the home on at least four occasions and that ACS has provided homemaking and daycare services to the respondent for five years , but she has remained aggressive and delusional.On October 19, 2009, the mother appeared in court. The subject children were

released to the nonrespondent father and the Court issued an order which excluded the respondent mother from the home. The mother requested a §1028 hearing.

This Court started the §1028 hearing on October 23 and continued it on October 26, 27 and 28. The Court heard testimony from the respondent mother; the nonrespondent father; Linette Brown, the ACS caseworker; Ms. Repka, an expert in social work and psychotherapy; Ms. Mikhli, the social worker at the children's early intervention organization and Marie Remi, the mother's home care attendant. This Court found that, based on the credible testimony, the mother does suffer from a longstanding mental health disorder, which includes delusional disorder, non-other specified; personality disorder, non-other specified; and mild mental retardation. The Court further found that the mother has exhibited symptoms which include outbursts of anger, mood swings, paranoid ideation and suicidal ideation. The Court also found her impulse control and judgment is impaired in that she is easily frustrated, and, by her own admission, although she did not know what the word impulsive meant, she acts quickly without thinking things through and can become angry when things don't work out the way she wants [*2]them to. The Court found that the mother's recommended treatment plan for the past twenty years has been a day treatment program; due to her recent poor attendance she was transferred to adult outpatient psychiatric services. Further, it was proven to this Court that the mother failed to take prescribed medication regularly until quite recently. The mother has very little insight into her mental health, its treatment and management. She has accused the father of sexually assaulting one of the children and had reported this to the social worker at the child's early intervention program and to the child's doctor. Ms. Mikhli, the social worker, testified that she did not believe the allegations to be true and seemed to minimize the significance of the allegations, which are in fact consistent with the symptoms of the mother's mental health problem. The mother also repeatedly accused the father of sleeping with the therapist and his own mother.

This Court found that based on the totality of the circumstances in this case, the children would be at imminent risk if placed in the mother's care and custody, that risk being near and impending harm, as a result of the mother's mental health. The Court also informed counsel that, based on all the evidence and testimony including that of Ms. Repka, an expert in social worker and psychotherapy, if the mother continued with the hearing there could be basis for a motion for summary judgment. Certainly this judgment would be based on the mother's own admissions here, which are consistent with other competent evidence indicating a finding of neglect by virtue of the mother's mental health.

ACS has now moved for summary judgement seeking a finding of neglect against the respondent mother based on this Court's findings. ACS argues in its motion that during the course of the §1028 hearing, the competent and relevant evidence established that the subject children were neglected by virtue of (a) the mother's mental illness and (b) her failure to provide adequate supervision and guardianship of the children, because she failed to take her medication for many years. ACS has annexed a copy of parts of the transcript in support of its motion.

The respondent mother filed a cross-motion seeking summary judgment dismissing the petition. The mother argues that ACS's motion should be denied as there are issues of fact as to whether ACS has established that the mother's past diagnoses of a personality disorder, psychotic disorder and mild mental retardation were correct at the time of the petition; as well, there is a preponderance of evidence demonstrating that the children were never in fact harmed as a result of these diagnoses. The mother further argues that she is entitled to summary judgment dismissing the petition, because the record offers a preponderance of competent evidence that (a) the mother's care of the children exceeded the minimum degree of care at times, and that (b) no evidence of any failure of her part caused or was at risk of causing harm to her children.

In support of her cross-motion, the mother has annexed an affidavit stating the programs and services she is now attending. Also annexed to the motion are letters from Maimonidies stating that she is undergoing a mental health evaluation and that she is attending parenting classes. Insofar as this is a motion for summary judgment the letters cannot be considered documentary evidence and further, because they describe events taking place after the filing of the petition, as such they cannot be considered competent evidence for purposes of this motion.

In support of the respondent's argument that ACS has failed to make a cause of action for neglect based on mental illness, the mother cites to numerous trial level and First Department cases, including a recent case decided by the First Department, In re Jayvien E., 894 NYS2d52 (1st Dept. 2010). In Jayvien E., the First Department reversed the trial court's finding of neglect and held that the agency failed to prove that the mother had a mental illness that impaired her child or placed him in imminent danger. The Court found that the agency alleged that the mother's psychiatric evaluation diagnosed her as suffering from Intermittent Explosive Disorder and Borderline Cognitive abilities with poor insight and judgment, but this conclusion was not supported by any testimony, and the unrefuted expert testimony of a psychologist established that there was no diagnosis in the aforementioned psychiatric report. Further, no witnesses testified to having observed the mother's alleged bizarre behavior.

The respondent, however, fails to cite to or distinguish any Second Department cases [*3]which do not follow the holdings of the case law they cite to. The Second Department in Matter of Somma H., 306 AD2d 531 ( 2nd Dept. 2003) held, "A finding of neglect may be predicated upon proof that child's physical, mental or emotional condition is in imminent danger of becoming impaired as result of a parent's mental illness, (see Matter of Madeline R., 214 AD2d 445). No showing of past or present harm to the child is necessary to support a finding of neglect." Matter of Karyn D., 282 AD2d 746 (2nd Dept. 2001); Matter of Octavia S., 255 AD2d 316 (2nd Dept. 1998); Matter of Raul B. v. Diane B., 231 AD2d 523 (2nd Dept. 1996).

In the Matter of Domaniqua H., 1 AD3d . 438 (2nd Dept. 2003) the Second Department found, "The finding of neglect is supported by a preponderance of the credible evidence, which demonstrated that the mother's mental illness and refusal to undergo psychiatric treatment placed her child in imminent danger within the meaning of the Family Court Act 1012(f)." In Matter of Karyn D., supra , the Court held " the finding of neglect was supported by a preponderance of the evidence which demonstrated that the mother's mental illness and failure to continue with her prescribed course of medical treatment placed her child in imminent danger within the meaning of the Family Court Act. Contrary to the mother's contention, no finding of past or present harm to the child is necessary to support a finding of neglect." Id at 746,747.

In the case before the Court, the preponderance of the credible evidence clearly established that the mother has been recommended for mental health treatment since childhood. The treatment team at her day program has diagnosed this mother with mild mental retardation, delusional disorder and personality disorder NOS. This Court placed a great deal of weight on the testimony of Ms. Repka, the mother's case manager and a qualified expert in social work and psychotherapy. Ms. Repka testified that the mother had been in treatment since childhood, and since Ms. Repka met this mother in 2006, she has not taken medication as prescribed. Ms. Repka has observed the mother to have outbursts of anger mood swings, impaired judgment and impulsive actions. Ms. Repka further testified that the mother was afraid to take her medication, and she accused her husband having an affair or stated that men were after her; Ms. Repka believed that the mother could not care for the children on her own. Ms. Repka also testified that the mother had been switched to adult outpatient service because of her poor attendance at the day program. In order to become a fit mother, Ms. Repka testifies, the respondent mother needs to attend anger management and parenting skills classes, and she needs to attend a day treatment program which is more structured than her current program.

This Court placed a substantial weight on the testimony from the ACS caseworker, which was deemed honest, forthright and credible. The caseworker testified that she has questioned the father and the child Diana and they both told her that the mother screams and yells at the children. The caseworker also testified that she has observed the mother and father together and testified that the mother is always angry at the father and is always complaining that he does not help her out at home. She also testified that she has been in the home when the mother will scream impulsively when the children are present, she will yell at the father to get out of the home and curse at him. The caseworker further testified that she spoke to the social worker at Diana's school, who told her that Diana is a bit uninhibited with other children and uses curse words.

The Court also heard testimony from the respondent mother. This Court did not credit much of her testimony, and found it to be self-serving and not consistent with the other testimony. Further, this Court found that the mother has minimized her own mental health symptomology and did not credit her statement that she will now follow though with her own therapeutic needs and take her medication as prescribed. The Court also found that the mother did make statements, which are really admissions against herself, such as, that she is afraid and overwhelmed to be alone with the children and that she was afraid to take her prescribed medication because she thought it would kill her. She also denied reporting that she accused the father of sexually abusing the child Diana, but when questioned by the Court she testified that she did tell Ms. Mickley, the caseworker at the early intervention program and the child's doctor. The mother also testified that she heard voices when she was pregnant; the doctors prescribed [*4]medication for this symptom, but she would not take it. She also testified that she has threatened and yelled at the father when the children are present.

The Court also heard from the nonrespondent father. This Court credits his testimony and found him to be forthright and candid with the court. He testified that the mother is always yelling at him that he does not help her, and that she has accused him of sexually abusing the child Diana twice. He further testified that she yells at him in the presence of the children and tells him that he should move out because it was her apartment. The father also testified that the mother does not allow him to work and when he does work, the mother will call him at work, telling him to come home.

The competent evidence clearly demonstrates that the mother suffers from mental illness and by her own admission, she has been treated for it for more than twenty years. She has testified that, afraid to take her prescribed medication, she usually refused it until recently, since her children were removed. The mother's own testimony is that the father does not help her and that she is overwhelmed with all the children by herself.

However, the Court heard credible testimony from many other witnesses, who stated that the father helps a great deal in the home and is often home with the children. Further, evidence is clear that because of her untreated mental illness, the mother acts impulsively and causes arguments in the home in the presence of the children. She herself testified that she often acts impulsively and the caseworker had witnessed her cursing and yelling impulsively in the home.

This Court does not doubt this mother's love and concern for her children. However, based on the totality of the circumstances the Court finds that the mother has neglected the children pursuant to FCA §1012; because of her untreated mental illness and her failure to comply with her prescribed course of medical treatment, she has placed her children's physical, mental and emotional condition in imminent danger of becoming impaired.

The mother's cross-motion is hereby denied and this Court enters a finding of neglect against the respondent mother pursuant to §1012(f). This case is adjourned to Part 4 for a dispositional hearing on May 28, 2010 at 9:30 AM.

The foregoing constitutes the Decision and Order of this Court

Dated: May 10, 2010

Brooklyn, New York

ENTER:

_________________________

Hon. Bryanne Hamill, JFC