Catholic Child Care Society of Diocese of Brooklyn v. Evelyn F.

• Decision Date: 10 July 1985
• Citation: 128 Misc.2d 1023,492 N.Y.S.2d 338
• Parties: In the Matter of the Petition by CATHOLIC CHILD CARE SOCIETY OF the DIOCESE OF BROOKLYN For the Guardianship and Custody of Ronald F. Pursuant to Section 384-b(4)(b), (c), and (d) of the Social Service Law of the State of New York, v. EVELYN F. and Donald F., Sr., Respondents.
• Court: New York Family Court

Page 338

492 N.Y.S.2d 338

128 Misc.2d 1023

In the Matter of the Petition by CATHOLIC CHILD CARE SOCIETY OF the DIOCESE OF BROOKLYN For the Guardianship and Custody of Ronald F. Pursuant to Section 384-b(4)(b), (c), and (d) of the Social Service Law of the State of New York, v. EVELYN F. and Donald F., Sr., Respondents.

Family Court, Kings County.

July 10, 1985.

Frederick A.O. Schwarz by Sara P. Schechter, New York City, for Commissioner of Social Services.

Lenore Gittis by Rhea Friedman, Brooklyn, Law Guardian.

Keenan, Powers & Andrews, P.C., New York City, for petitioner.

Robert Jay Greenfield, Brooklyn, for respondents.

DECISION

STANLEY GARTENSTEIN, Judge:

This proceeding to terminate the parental rights of respondent mother on the grounds of mental illness as defined in Social Services Law § 384-b Subd. 6(a), was commenced almost four years ago, in 1981. It lay dormant until June 21, 1984 when it was restored upon perfection of jurisdiction. On October 11, 1984, a mental examination to determine whether or not respondent was in fact mentally ill within the statutory definition was ordered as authorized by Social Services Law § 384-b, Subd. 6(e).

The examination in question was inconclusive and its results are of no help to the parties or the Court. Its equivocal results may be attributed to the fact that certain mental illnesses are cyclical and contain periods of remission during which the patient appears totally normal. These intervals are in fact part of the illness. (cf. Dodrer v. Dodrer, 183 Md. 413, 37 A.2d 919.)

Petitioner's application for a second mental examination without which its case will collapse is now before the Court. The enabling statute (S.S.L. § 384-b, Subd. 6(e)) fails to indicate any legal basis for ordering a second examination. Additionally, this cause of action has been held to be a creature of statute requiring strict adherence to its specific terms. (Ricky Ralph M. v. Onondaga County Department of Social Services, 56 N.Y.2d 77, 451 N.Y.S.2d 41, 436 N.E.2d 491; Matter of Roxann Joyce M., 99 Misc.2d 390, 417 N.Y.S.2d 396.)

The question of whether or not this Court may order a second mental examination has apparently never been ruled upon in connection with proceedings to terminate parental rights on the grounds of mental disability. There does exist however, persuasive authority which may be extended by analogy.

In Weiss v. Weiss, 31 Misc.2d 256, 221 N.Y.S.2d 296, the Hon. Bernard S. Meyer, then a Justice of the Supreme Court of Nassau County, ruled in favor of a second mental examination with regard to a statutory cause of action for annulment based upon five years of incurable insanity. (cf. DRL § 7 Subd. 5.) In doing so, Justice Meyer stated; (P. 302, 221 N.Y.S.2d 256)

"Further, since the opening sentence of ... (the statute) simply states the minimum required before judgment can be entered, it does not limit the number of examinations. The Court has discretion to order more than one examination if good cause for so doing is shown."

Based upon the equivocal nature of the psychiatric reports therein, the Weiss Court found good cause to exist and rendered its order accordingly.

This Court does not believe it untoward to extend Weiss by analogy to these facts and this cause of action. ...