In re M. Children

NYC Family Court

In re M. Children

171 Misc. 2d 838, 656 N.Y.S.2d 119, 1997 N.Y. Misc. LEXIS 75

CourtNew York City Family Court

DecidedFebruary 24, 1997

StatusPublished

Cited by3 cases

This text of 171 Misc. 2d 838 (In re M. Children) is published on Counsel Stack Legal Research, covering New York City Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re M. Children, 171 Misc. 2d 838, 656 N.Y.S.2d 119, 1997 N.Y. Misc. LEXIS 75 (N.Y. Super. Ct. 1997).

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Opinion

OPINION OF THE COURT

Philip C. Segal, J.

[839]*839Petitioner Commissioner of Social Services’ motion in this child protective proceeding (see, Family Ct Act art 10) for an order directing respondents to submit to a forensic mental health examination by petitioner’s expert is granted. The verified petition alleges that respondents’ children are neglected as a result of respondents’ mental illness (see, e.g., Matter of Jesse DD., 223 AD2d 929 [3d Dept 1996]; Matter of Madeline R., 214 AD2d 445 [1st Dept 1995]). As such, respondents’ mental condition is "in controversy” (CPLR 3121 [a]) during the fact-finding phase of this proceeding so that a mental health examination by a psychiatrist or properly qualified psychologist (cf., Family Ct Act § 251 [a]) is appropriate as a matter of pretrial disclosure (Matter of R./G. Children, 165 Misc 2d 521 [Fam Ct 1994]; see, Matter of Trida K., 160 Misc 2d 935 [Fam Ct 1994]).

Contrary to respondents’ assertions, Family Court Act § 1038-a does not compel an opposite result or establish additional requirements for the disclosure petitioner seeks. That section governs the taking of blood, hair or other samples from a respondent’s body (see, Schmerber v California, 384 US 757 [1966]), and is inapplicable to mental health examinations for which CPLR 3121 (a) specifically provides (Koump v Smith, 25 NY2d 287 [1969]; Watson v State of New York, 53 AD2d 798 [3d Dept 1976]).

Settle order on seven days’ notice to opposing counsel including the name of the expert to be utilized and a copy of his or her curriculum vitae.

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OPINION OF THE COURT

Philip C. Segal, J.

[839]*839Petitioner Commissioner of Social Services’ motion in this child protective proceeding (see, Family Ct Act art 10) for an order directing respondents to submit to a forensic mental health examination by petitioner’s expert is granted. The verified petition alleges that respondents’ children are neglected as a result of respondents’ mental illness (see, e.g., Matter of Jesse DD., 223 AD2d 929 [3d Dept 1996]; Matter of Madeline R., 214 AD2d 445 [1st Dept 1995]). As such, respondents’ mental condition is "in controversy” (CPLR 3121 [a]) during the fact-finding phase of this proceeding so that a mental health examination by a psychiatrist or properly qualified psychologist (cf., Family Ct Act § 251 [a]) is appropriate as a matter of pretrial disclosure (Matter of R./G. Children, 165 Misc 2d 521 [Fam Ct 1994]; see, Matter of Trida K., 160 Misc 2d 935 [Fam Ct 1994]).

Contrary to respondents’ assertions, Family Court Act § 1038-a does not compel an opposite result or establish additional requirements for the disclosure petitioner seeks. That section governs the taking of blood, hair or other samples from a respondent’s body (see, Schmerber v California, 384 US 757 [1966]), and is inapplicable to mental health examinations for which CPLR 3121 (a) specifically provides (Koump v Smith, 25 NY2d 287 [1969]; Watson v State of New York, 53 AD2d 798 [3d Dept 1976]).

Settle order on seven days’ notice to opposing counsel including the name of the expert to be utilized and a copy of his or her curriculum vitae.

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Bluebook (online)

171 Misc. 2d 838, 656 N.Y.S.2d 119, 1997 N.Y. Misc. LEXIS 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-m-children-nycfamct-1997.

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