| Matter of Jayvien E. (Marisol T.) |
| 2010 NY Slip Op 00892 [70 AD3d 430] |
| February 9, 2010 |
| Appellate Division, First Department |
| In the Matter of Jayvien E., a Child Alleged to be Neglected.Marisol T., Appellant; Commissioner of the New York City Administration for Children'sServices, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (John Hogrogian of counsel), forrespondent. Tamara A. Steckler, The Legal Aid Society, New York (Patricia Colella of counsel), LawGuardian.
Order of disposition, Family Court, New York County (Jody Adams, J.), entered on or aboutApril 8, 2008, which, upon a fact-finding determination that respondent mother neglected thesubject child, inter alia, placed the child with his maternal grandmother pending the completionof the next permanency hearing, unanimously reversed, on the law and the facts, without costs,the findings of neglect vacated and the neglect petition dismissed.
On December 14, 2006, at approximately 11:15 a.m., respondent, who was then 19 years old,gave birth to a son, Jayvien E., at Beth Israel Medical Center (BIMC). After delivery, a nursecame to respondent's room and began to push on her stomach. Respondent asked the nurse tostop. When the nurse continued to push on her stomach, respondent became upset and allegedlyyelled at the nurse to stop. That evening, at approximately 10:30 p.m., respondent called andrequested that an unwanted visitor, the baby's father, be removed from her hospital room.Security had to be called to remove Jayvien E.'s father from respondent's room.
The next morning, at approximately 6:15 a.m., a medical student overheard respondentcalling her baby "greedy" and "too much." As a result, BIMC conducted a psychiatricconsultation of respondent. Dr. A. Newfield, a psychiatrist, prepared a report. Dr. Newfieldstated that when he first encountered respondent, she was in bed holding and feeding her son,and she appeared fairly groomed, well-related with appropriate eye contact, seemingly reliableand cooperative. Dr. Newfield's report noted that respondent had an "unclear" psychiatrichistory.
During his second visit with respondent later that same day, Dr. Newfield was accompaniedby another doctor, Dr. Kato. When the two first arrived, respondent was asleep. Dr. Newfieldrecounted that after being awakened, respondent appeared less well-related, that [*2]she was ignoring the conversation at times and was uncooperative.He recommended that the New York City Administration for Children's Services (ACS) becontacted to determine respondent's history and to evaluate what should be done with her son.Dr. Newfield further recommended that respondent be referred to outpatient treatment, stating"Axis I R/O Borderline MR, R/O intermittent explosive D/O, R/O Bipolar, R/O Psychotic D/O."
Dr. Kato also prepared a report, in which he stated that during his interview with respondent,she became easily agitated and uncooperative. Dr. Kato further reported that respondent hadvague thoughts, poor insight and judgment. Dr. Kato's report states "R/O depression/anxiety"and that he was "concerned about her ability to safely . . . care for the baby."Neither Dr. Newfield nor Dr. Kato indicated in their reports how long they spent interviewingrespondent.
The record also contains a number of BIMC postpartum daily patient care flow sheets signedby registered nurses tracking respondent's behavior after the birth of her son. Two of thesesheets, prepared on December 14, 2006, for the day and night shifts, state that respondent's moodwas appropriate, and that she was cuddling and talking to her son and performing baby care.Another flow sheet similarly described respondent's interaction with her son during the nightshift of December 15, 2006. Further, the flow sheet dated December 16, 2006, for the day shift,noted the identical observations. The record also contains a progress note titled "Psych F/U,"which states that respondent was observed on December 15, 2006, at approximately 9:15 p.m.,and that she did "not display any psychiatric symptoms at present."
The medical records from BIMC assert that respondent has a history of behavior problemsincluding aggressive outbursts, depression, and suicidal ideation, and that she has beenprescribed medication including Wellbutrin and Risperdal. The BIMC reports indicate that shehad been hospitalized and evaluated previously at Saint Vincent's Hospital and had receivedcounseling services. However, the record does not contain any of respondent's medical recordsfrom Saint Vincent's Hospital. Respondent does acknowledge that she has had periods ofdepression and that she has been hospitalized five or six times.
On December 15, 2006, ACS received a mandated oral report transmittal (ORT) from asocial worker indicating that ACS should investigate respondent. The ORT asserts that "safetyfactors" were involved because respondent suffered from a mental illness or disability thatimpaired her ability to care for Jayvien E. ACS assigned Child Protective Specialist KarinaVargas to investigate the allegations.
Vargas commenced her investigation by speaking to her supervisor, contacting the socialworker who was the source of the ORT and having a 15 minute telephone conversation withrespondent. On December 15, 2006, at approximately 6:00 p.m., Vargas telephoned respondent'shospital room and asked her why she had called her baby "greedy." Respondent explained toVargas that after she had fed her son, he started to cry as if he wanted to be fed again.Respondent then picked up her child and called him "greedy." Respondent told Vargas that shedid not mean it in a bad way.
Vargas also questioned respondent about why she had yelled at a nurse shortly afterdelivering Jayvien E. Respondent explained to Vargas that she told the nurse to stop pressing onher stomach because she was not feeling well and was still sore from the birth of her son. Shebecame angry after the nurse had ignored her requests and continued to press down on herstomach. Respondent also told Vargas that she was not an angry person, however, sometimeswhen she gets upset, she would throw things, but not directly at people.[*3]
In a petition dated December 18, 2006, ACS asked theFamily Court to find that Jayvien E. was a neglected child. ACS's petition asserts it wasnecessary to remove Jayvien E. from respondent's custody on December 16, 2006, without acourt order, because his physical, mental or emotional well-being had been impaired or was inimminent danger of becoming impaired due to his mother's mental illness. The neglect petitionspecifically alleges that after respondent gave birth she: (1) exhibited bizarre behavior; (2) wasnot nurturing toward the child; (3) would not look at the child; and (4) had called the baby"greedy" when her son was hungry. The petition further asserts that after a psychiatric evaluationof respondent, it was revealed that she suffers from intermittent explosive disorder and that shehas borderline cognitive abilities with poor insight and judgment. The petition also asserts thatrespondent failed to be forthcoming about the medications she had been prescribed and that sheused to take antidepressants, antipsychotics, and mood stabilizers.
The Family Court conducted a fact-finding hearing on June 13, 2007, August 10, 2007,October 5, 2007 and March 14, 2008. The court heard testimony from two witnesses: Vargas,who was the assigned caseworker and the person who signed the neglect petition, andrespondent's expert witness, psychologist Dr. Peter F. Wolf.
At the fact-finding hearing, Vargas admitted during her cross-examination that Jayvien E.'sphysical or emotional well-being had not been impaired, nor was it in imminent danger of beingimpaired, by respondent asking the nurse to stop pressing on her stomach or by her calling him"greedy." Vargas also admitted that Jayvien E.'s physical and emotional well-being had not beenimpaired, and had not been in imminent danger of being impaired, by the fact that respondenthad been prescribed antidepressant medication.
When questioned regarding what information led her to believe that respondent had beenphysically violent, Vargas stated that she had reviewed some domestic incident reportsdescribing altercations between respondent and respondent's mother, Jayvien E.'s maternalgrandmother. In particular, Vargas stated that according to a February 2005 domestic incidentreport, there had been an altercation between respondent and her mother which involved somepushing, a verbal argument and a chair being thrown. However, Vargas admitted that theFebruary 2005 report failed to state who pushed whom and that the report only indicated "thatsomebody threw a chair at someone."
Vargas never contacted Dr. Newfield although she admitted that speaking to him wasimportant. Moreover, Vargas admitted she never ascertained the identity of the nurse who hadpushed on respondent's stomach, nor obtained her account of the interaction. Vargas testified thatDr. Newfield's report was the document upon which she based some of the allegations containedwithin the negligence petition. However, after being asked to show the court where in Dr.Newfield's report he diagnosed respondent with having intermittent explosive disorder, Vargasidentified the portion of the report which stated "Axis I . . . R/O Intermittentexplosive D/O." When asked what the quoted phrase meant, Vargas admitted that she "[did]n'tknow for sure." When asked to identify the source of the diagnosis that respondent hadborderline cognitive abilities, Vargas admitted she did not see anything in Dr. Newfield's reportthat diagnosed respondent with borderline cognitive abilities.
According to respondent's expert witness, a psychologist, Dr. Peter F. Wolf, "R/O" means"rule out." It is used where a diagnosis is a "possibility," and indicates that more information isrequired to "rule it out or rule it in." Dr. Wolf testified that Dr. Newfield's report contained "nodiagnosis that's ruled in." Dr. Wolf recounted that he met with respondent for [*4]approximately two hours. During a psychological evaluation ofrespondent, he performed two psychological tests: thematic apperception test and the Rorschachtest. Dr. Wolf stated that based upon his evaluation as to whether respondent had intermittentexplosive disorder, he determined that "[t]here was no indication of that and there was noindication that at the time she was seen in [BIMC] at least from the hospital's report that therewas anything of that nature."
Although Dr. Wolf did not perform an IQ test for respondent, he stated "she was able tocommunicate coherently" and that she had a good awareness of reality. When asked ifrespondent had any psychological condition that would negatively impact her ability to parenther son, Dr. Wolf testified that "I think that she's young she's had a rough life . . .she needs to learn . . . to grow[ ] into being a parent . . . I don't seethat reaches the point where I would be concerned about neglect or abuse." However, Dr. Wolfadmitted that he did not review respondent's medical records regarding her prior hospitalizations.
On December 12, 2008, the Family Court rendered an oral decision holding Jayvien E. was aneglected child whose physical, mental and emotional condition was in imminent danger ofbecoming impaired as a result of respondent's failure to exercise a minimum degree of care. Thecourt expressed concern over the altercation between respondent and Jayvien E.'s father, notingthat security had to be called to resolve the situation. The court found that Dr. Wolf's testimonywas of limited value because he did not examine respondent's complete psychiatric history andhad placed undue reliance on respondent's self-reporting. The court concluded that given thesedeficiencies in Dr. Wolf's testimony, it was insufficient to rebut ACS's direct case.
The court held that the evidence established a causal connection between respondent'scondition and actual and potential harm to her child, based upon "the chronicity and durability of[respondent's] behavior symptoms[,] . . . [her] chronic history of the pattern ofnoncompliance with treatment, medication, and follow-up treatment recommendations. . . [and that] [t]here is no evidence in the record that she understands the nature ofher own behavior and how it could affect her ability to safely care for a child." The court notedthat respondent had been "psychiatrically hospitalized" at Saint Vincent's Hospital in 1999,which resulted in her being discharged with a prescription for psychiatric medication, and thatshe was considered to be a patient at high risk.
Citing a "November 2002 report in the Beth Israel records of aggression in [respondent's]day treatment that led to a concern for the safety of others in her program," the court found a"nexus between respondent's symptoms and her parental capacity is her long standing pattern ofaggressive acting out." The Family Court held that an adverse inference against respondent waswarranted due to her failure to testify at the fact-finding hearing. Ultimately, the court concludedthat respondent's chronic aggressive behavior "would pose a risk for a vulnerable, young,dependent child in her care" and ordered that Jayvien E. be placed temporarily in the custody ofhis maternal grandmother.
We reverse. "A finding of neglect should not be made lightly, nor should it rest upon pastdeficiencies alone" (Matter of Daniel C., 47 AD2d 160, 164 [1975]). The Family CourtAct defines "neglected child" as a child, less than 18 years old, "whose physical, mental oremotional condition has been impaired or is in imminent danger of becoming impaired as a resultof the failure of his [or her] parent or other person legally responsible for his [or her] care toexercise a minimum degree of care" (Family Ct Act § 1012 [f] [i]). "A respondent's mentalcondition may [*5]form the basis of a finding of neglect if it isshown by a preponderance of the evidence that his or her condition resulted in imminent dangerto the child[ ]" (Matter of Jesse DD., 223 AD2d 929, 930-931 [1996], lv denied88 NY2d 803 [1996]; see also Family Ct Act § 1046 [b] [i]).
Before rendering a finding of neglect, Family Court Act § 1012 (f) (i) requires thecourt to determine whether there is proof of actual or imminent danger of physical, emotional ormental impairment to the child. Indeed, a family court is required to: "focus on serious harm orpotential harm to the child, not just on what might be deemed undesirable parental behavior.'Imminent danger' reflects the Legislature's judgment that a finding of neglect may beappropriate even when a child has not actually been harmed . . . Imminent danger,however, must be near or impending, not merely possible" (Nicholson v Scoppetta, 3 NY3d 357, 369 [2004]).
Expert testimony or a definitive psychiatric diagnosis is not required to show a parent suffersfrom a mental illness because "the consequences of the proceedings are temporary rather thanpermanent" (Matter of Zariyasta S., 158 AD2d 45, 48 [1990]; see also Matter ofCaress S., 250 AD2d 490 [1998]). However, the quantum of evidence presented at afact-finding hearing must be "sufficient to prove that if the child [were] released to the motherthere [would be] a substantial probability of neglect" that places the child at risk (Matter ofBaby Boy E., 187 AD2d 512 [1992] [internal quotation marks and citation omitted]; seealso Matter of Danielle M., 151 AD2d 240 [1989]; Matter of Eugene G., 76 AD2d781 [1980], appeal dismissed 51 NY2d 878 [1980]).
Here, the record contains no evidence sufficient to support the hearing court's finding of "alink or causal connection between the basis for the neglect petition and the circumstances thatallegedly produce the child's impairment or imminent danger of impairment" (Nicholson vScoppetta, 3 NY3d at 369). Assuming the truth of ACS's factual assertions regardingrespondent's actions during her hospitalization at BIMC, that she had been hospitalized on prioroccasions, and that she had been prescribed medications, no inference can be fairly drawn thatanything in her history impaired or placed her son "in imminent danger of becoming impaired"(Family Ct Act § 1012 [f] [i]).
ACS Child Protective Specialist Vargas testified that the report prepared by Dr. Newfieldwas the document upon which she based some of the allegations contained within the negligencepetition. However, the negligence petition's assertions that a psychiatric evaluation wasperformed upon respondent and that it revealed she suffers from intermittent explosive disorderand borderline cognitive abilities with poor insight and judgment find no support in any of thetestimony presented at the fact-finding hearing. Indeed, Dr. Wolf's unrefuted testimonyestablishes that there was no diagnosis in Dr. Newfield's report.
Given the fact that the BIMC records contain conflicting observations of respondent'spostpartum behavior, we find that these records fail to provide clear evidence that respondent'ssuffers from mental illness that affects her ability to care for her son (compare Matter of Kazmir K., 63AD3d 522, 523 [2009]). Further, ACS failed to produce a single witness at the fact-findinghearing that observed respondent's allegedly bizarre behavior (see Zariyasta S., 158AD2d at 48). Thus, the evidence produced by ACS failed to provide the quantum of proofnecessary to support the Family Court's conclusion that Jayvien E. would be at immediate risk ifplaced in respondent's custody.
We find that the record provides no support for the Family Court's conclusion that [*6]respondent has engaged in chronic aggressive behavior that "wouldpose a risk for a vulnerable, young, dependent child in her care." The November 2002 reportdoes state that respondent's day treatment program was concerned that her aggressive behaviorpresented issues of safety of others in her program. However, this report is too vague and too farremoved to establish a " 'causal connection between the basis for the neglect petition and thecircumstances that allegedly produce the child's impairment or imminent danger of impairment' "(Matter of Tequan R., 43 AD3d673, 678 [2007], quoting Nicholson v Scoppetta, 3 NY3d at 369).
Although the record does show there have been instances of domestic violence betweenrespondent and her mother, the person to whom the Family Court gave temporary custody ofJayvien E., and between respondent and the baby's father, there is no evidence that respondentwas the aggressor in any of these altercations. The February 2005 domestic incident reportbetween respondent and Jayvien E.'s maternal grandmother which states that "someone threw achair at someone" is also too vague and too far removed to provide evidence of imminent dangerto the physical, emotional or mental condition of Jayvien E. Thus, the record fails to show thatrespondent's behavior constituted conduct toward her son that was of a "serious nature requiringthe aid of the court" (Family Ct Act § 1012 [f] [i] [B]).
The Family Court was entitled to draw the " 'strongest negative inference' " againstrespondent from her failure to testify at the fact-finding hearing (Matter of Devante S., 51 AD3d482 [2008], quoting Matter ofNicole H., 12 AD3d 182, 183 [2004]; see also Matter of Nassau County Dept. ofSocial Servs. v Denise J., 87 NY2d 73, 79 [1995]). This inference notwithstanding, we findthat ACS failed to prove by a preponderance of the evidence that respondent mother has a mentalillness that had impaired her infant son, or that her mental illness placed him in imminent dangerof becoming impaired, or posed to Jayvien E. an imminent risk of harm.
Therefore, the finding of neglect should be vacated and the petition dismissed.Concur—Gonzalez, P.J., Friedman, Moskowitz, Renwick and DeGrasse, JJ.