Jesse DD, Matter of

• Decision Date: 25 January 1996
• Citation: 223 A.D.2d 929,636 N.Y.S.2d 925
• Parties: In the Matter of JESSE "DD" 1 et al., Alleged to be Neglected Children. Commissioner of the Schenectady County Department of Social Services, Respondent; Brenda "EE", 1 Appellant. Supreme Court, Appellate Division, Third Department
• Court: New York Supreme Court — Appellate Division

Page 925

636 N.Y.S.2d 925

223 A.D.2d 929

In the Matter of JESSE "DD" 1 et al Alleged to be Neglected Children Commissioner of the Schenectady County Department of Social Services, Respondent Brenda "EE", ¹ Appellant Supreme Court, Appellate Division, Third Department.

Jan. 25, 1996.

Adam G. Parisi, Schenectady, for appellant.

Deanna L. Siegel, Department of Social Services, Schenectady, for respondent.

Laura H. Tracy-Ireland, Law Guardian, Schenectady, for Jesse "DD" and another.

Before CARDONA, P.J., and MIKOLL, CREW, CASEY and SPAIN, JJ.

SPAIN, Justice.

Appeal from an order of the Family Court of Schenectady County (Griset, J.), entered April 2, 1993, which granted petitioner's application, in a proceeding pursuant to Family Court Act article 10, to adjudicate respondent's children to be neglected.

Respondent is the biological mother of a son, Jesse (born in 1981), and a daughter, Alysha (born in 1986). This neglect proceeding was commenced by petition dated August 8, 1991 which alleged, inter alia, that respondent suffers from an emotional illness as defined in the Mental Hygiene Law and the Social Services Law (see, Mental Hygiene Law § 1.03[20]; Social Services Law § 384-b[6][a] ) and is unable to properly care for her infant children, and that she has not been compliant with the local mental health agency and has refused all treatment. On October 8, 1991 Family Court adjourned the proceedings in contemplation of dismissal for a period of one year on the consent of the parties, continued the children in respondent's care and issued two temporary 12-month orders, to wit, an order of protection and an order of supervision. The order of supervision directed respondent to cooperate with the supervision of the Schenectady County Department of Social Services (hereinafter DSS), specifically directing her, in pertinent part, to meet with her caseworker when and where directed by DSS and to permit the caseworker to visit her home. An order of disposition made the same day directed that respondent abide by the aforesaid orders and additionally directed that she cooperate with and participate in counseling at the local mental health agency and that she "insure" that the children attend counseling at an agency designated by DSS.

Thereafter, a violation petition, dated March 9, 1992, was filed which alleged that respondent refused to insure that the children attend counseling and that she refused a DSS caseworker access to her home in violation of the order of supervision. On March 11, 1992, after a hearing, Family Court issued a temporary order of removal. Thereafter, an amended neglect petition, dated March 30, 1992, was filed against respondent and a fact-finding hearing was commenced April 2, 1992 on the amended neglect petition and the violation petition. At the hearing DSS called five mental health professionals as witnesses; respondent called no witnesses. Family Court concluded, inter alia, that respondent suffered from a mental disease or illness which affected her ability to properly care for her children, that she failed to cooperate and participate in the necessary treatment services recommended to improve her circumstances and that the children were neglected as defined in the Family Court Act. Respondent thereafter consented to a dispositional order placing the children in the care and custody of DSS. Respondent appeals.

We affirm. The Family Court Act defines "neglected child" as a child, less than 18 years old, "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent or other person legally responsible for his [or her] care to exercise a minimum degree of care" (Family Ct.Act § 1012[f][i]. A respondent's mental condition may form the basis of a finding of neglect if it is shown by a preponderance of the evidence that his or her condition resulted in imminent danger to the children (see, Matter of Madeline R. [Mila R.], 214 A.D.2d 445, 446, 625 N.Y.S.2d 512; see also, Family Ct.Act § 1046[b][1] ).

One of the five mental health professionals who testified at the hearing stated that her May 1992 interview with respondent lasted only 15 minutes due to respondent's refusal to continue, which at least confirms a consistent pattern of respondent's lack of cooperation even during a period of time she was under the watchful eye of Family Court. The remaining mental health professionals included a psychiatrist at the Capital District Psychiatric Center in Albany County where respondent was a patient in July 1991; a psychiatric social worker associated with Ellis Hospital's Mental Health Unit, Schenectady County's local mental health agency, who performed a court-ordered evaluation of respondent in October 1991; a psychologist who evaluated respondent in June 1992, after the commencement of the hearing; and a child psychologist who evaluated the children at the request of Family Court in September 1991.

In summary, the testimony of these four witnesses was consistent as to the concern respondent showed her children; that at the time of their particular evaluations respondent did...