On June 7, 2018, ACS filed petitions against Denise T. [hereinafter the "Respondent"] alleging that she neglected the children Jonefe R. (DOB: xx/xx/2013) and Alexa N. (DOB: xx/xx/2010) within the meaning of section 1012(f)(i)(b) of the Family Court Act by suffering from a mental illness which impaired her ability to care for her children.The fact-finding hearing in this matter commenced on December 3, 2018 and continued on January 29, 2019. The non-respondent father of the child Alexa (Mr. Luis N.), preventive services case-planner Ms. Sherman, and ACS caseworker Mr. Cureton testified on behalf of the Petitioner. The Court accepted into evidence without objection the child Jonefe’s birth certificate (Petitioner’s Exhibit 1), the child Alexa’s birth certificate (Petitioner’s Exhibit 2), and certified and delegated medical records from Lincoln Medical and Mental Health Center related to the Respondent (Petitioner’s Exhibit 3). Neither the Respondent, nor the attorney for the children, called any witnesses or presented any evidence. Each attorney gave an oral summation1 and the matter was adjourned for decision.Family Court Act §1012 (f) (i), in pertinent part, defines a “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 to exercise a minimum degree of care. A party seeking to establish neglect must show first that the child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent. Nicholson v. Scoppetta, 3 NY3d 357 (2004). In determining whether a child is neglected within the meaning of Family Court Act §1012, courts must evaluate parental behavior objectively and ask whether a reasonable and prudent parent would have so acted, or failed to act, under the circumstances then and there existing. Nicholson v. Scoppetta, supra at 370. The standard takes into account the special vulnerabilities of the child, even where general physical health is not implicated. id. A finding of neglect does not require actual injury but, rather, an imminent threat that such injury or impairment may result. Matter of Aiden L., 47 AD3d 1089 (3rd Dept. 2008). The court is required to “focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior.” Nicholson v. Scoppetta, supra at 369. A finding of neglect should not be made lightly, nor should it rest upon past deficiencies alone. Matter of Daniel C., 47 AD2d 160 (1st Dept. 1975).A parent’s mental condition may form the basis of a neglect finding if it is shown by a preponderance of the evidence that his or her condition resulted in imminent danger to the child. Matter of Noah Jeremiah J. v. Kimberly J., 81 AD3d 37 (1st Dept. 2010). Neither expert testimony, nor a definitive psychiatric diagnosis, is required to show a parent suffers from a mental illness. Matter of Danielle M., 151 AD2d 240 (1st Dept. 1990); Matter or Zariyasta S., 158 AD2d 45 (1st Dept 1990). In Matter or Zariyasta S. supra, the First Department held that courts should consider the threat to the child’s well-being, instead of the formal diagnosis of the condition from which the threat emanates.In the present case, the evidence against the Respondent is not refuted as she did not testify on her own behalf. A child protective proceeding is a civil proceeding and therefore the court may draw the strongest inference that the opposing evidence in the record permits where parties fail to testify at the fact-finding hearing. Commissioner of Social Services v. Philip De G., 59 NY2d 137 (1983). However, the strongest negative inference cannot provide a missing element of proof. Matter of Kayla F., 39 AD3d 983 (3rd Dept. 2007).The medical records, in evidence as Petitioner’s Exhibit 3, indicate that on June 2, 2018, the Respondent was seen in the emergency room of Lincoln Medical and Mental Health Center [hereinafter "LMMHC"] where she reported feeling anxious. The Respondent was diagnosed as having an “acute stress reaction” as well as a urinary tract infection. The Respondent was tearful and at times refused to answer questions, so the Respondent was referred to the psychiatry department for an evaluation.At some point during the Respondent’s evaluation with the psychiatry department, a social worker joined to assist with the evaluation. The medical records contain notes from both the doctor and the social worker who was present during the evaluation. During the interview, the Respondent denied any history of psychiatric conditions, denied any history of taking psychotropic medications and denied any history of seeing a psychiatrist. The Respondent reported that she had been feeling stressed lately and that she had not slept in two days. The Respondent reported that people are following her and that she feels threatened by her neighbors. The Respondent denied having any suicidal ideations or homicidal ideations. The Respondent admitted to hearing voices. The Respondent indicated that she hears “many” voices that want to harm her. The Respondent reported that the first time she ever heard voices was two weeks prior. The Respondent reported that she had been hearing the voices constantly for the past three days. The Respondent denied any visual hallucinations and she was able to correctly identify the number of people in the room at that time. The Respondent indicated that she had a painful headache and that her vision was blurred. The Respondent reported that she had attempted suicide by overdose about three years prior.The social worker’s notes from the interview indicate that the Respondent was reported as being “tearful but engaged” in the interview. Both the social worker and the doctor noted that, throughout the interview, the Respondent was pre-occupied with concern for her children. The Respondent indicated that, prior to coming to the hospital, she had left the children with a neighbor she knew and trusted. With the assistance of the social worker, the Respondent was able to contact her eldest daughter to confirm that the Respondent’s children were fine. The social worker noted that the Respondent appeared relieved after she spoke to her daughter. The doctor noted that the Respondent’s thought process during the interview was “linear” and “goal directed.” The doctor assessed that the Respondent was not a suicide risk. The doctor’s notes indicate that the Respondent was experiencing auditory hallucinations and that there was a concern for “new onset psychosis” as there was “no previous documented history of psychiatric diagnosis.” The doctor’s assessment from the interview was that “given the level of psychosis and distress, the patient could potentially be a danger to self and others” and that the Respondent could “benefit from psychiatric hospitalizations for stabilization and safety.” The doctor’s notes indicate that “current presentation could be etiologically related with a primary psychotic process, but substance and medical induced psychosis, mood disorder and somatic symptoms disorder, even factitious disorder and malingering” need to be carefully ruled out. The doctor prescribed Seroquel to the Respondent for “anxiety and psychosis.”After being evaluated by the psychiatry department, the Respondent was admitted to the hospital. A doctor ordered a CT scan, indicating in the order under “history” that the Respondent had “new onset psychosis with auditory hallucinations” and that the Respondent’s diagnosis was an “acute stress reaction.” The Respondent was prescribed “Seroquel” for a “psychotic disorder not due to a substance or known physiological condition.”The medical records indicate that, at times during her hospitalization, the Respondent was seen talking to herself. A nurse noted on June 3, 2018 that the Respondent appeared paranoid and “internally preoccupied.” Additionally, at times during her hospitalization, the Respondent would remain mute instead of answering questions. The medical records indicate that the State Central Registry was called after the neighbor who had one of the children indicated they were unsure how long they could keep the children. On June 4, 2018, the Respondent was noted as being “stable but disorientated to time and place” and the Respondent was prescribed Risperdal and Ativan on an “as needed” basis for agitation and anxiety. The medical record indicates that, on June 4, 2018, a doctor determined that the Respondent was unable to care for herself or her children at that time and that she needed inpatient psychiatric care. On June 4, 2018, the Respondent was transferred from LMMHC to Brunswick Hospital to be psychiatrically hospitalized. The Petitioner did not admit the Respondent’s records from Brunswick Hospital.The medical records clearly establish that, when the Respondent was hospitalized at LMMHC in June of 2018, the Respondent was suffering from a serious mental disturbance. The medical records indicate that the Respondent’s mental disturbance was “acute” and “new.” The medical records indicate that the Respondent did not have a prior history of psychosis or psychiatric treatment. It is significant to this Court that none of the Petitioner’s three witnesses presented any evidence that the Respondent’s actions in June of 2018, or in the days and weeks leading up to June of 2018, were neglectful. Most significantly, the two witnesses who were familiar with the Respondent prior to June 2018 (Mr. Luis N. and Ms. Sherman) both indicated that they did not have concerns regarding the Respondent’s behavior, or concerns regarding the Respondent’s care of the children, prior to the Respondent being hospitalized in June of 2018. In fact, Mr. Luis N. testified that prior to the instant petitions being filed, he was seeing the Respondent three to four times a week and he had no concerns regarding the Respondent’s mental health.The preventative services case-planner, Ms. Sherman, testified that she was the Respondent’s assigned worker from September 13, 2017 to June 18, 2018. She testified that she would visit the Respondent’s home two to three times a month and that at no time did she ever note any concerns about how the Respondent cares for the children. Ms. Sherman noted that the Respondent was forthcoming, that she kept her children’s medical appointments up to date and that she appeared to have insight. Ms. Sherman referred the Respondent for a mental health evaluation because the Respondent had disclosed to Ms. Sherman that she had been depressed in the past after a romantic relationship ended. The Respondent had disclosed to Ms. Sherman that she attended therapy in 2015 because she was sad over the end of the relationship and because it had been a relationship with domestic violence. The Respondent further disclosed that she stopped attending therapy after she felt better. Ms. Sherman testified that she referred the Respondent for a mental health evaluation, not because of the Respondent’s behavior, but rather because she thought the Respondent could benefit from extra support.The ACS caseworker, Mr. Cureton, testified that he was assigned to the Respondent’s case after an ORT came in on June 3, 2018. Mr. Cureton first spoke to the children on June 4, 2018. Both children told Mr. Cureton that over the past weekend, the Respondent had gotten sick and gone to the hospital. The child Alexa told Mr. Cureton she was sad because her mother was not with her. Mr. Cureton did not ask the child Alexa whether the Respondent had made any plans for Alexa’s care while the Respondent was hospitalized.The present case can be distinguished from cases where evidence of parent’s inability to care for their child and evidence of a parent’s long-standing history of mental illness, is sufficient to support a finding that the child’s physical, mental, or emotional condition was in imminent danger of becoming impaired (see for example, Matter of Jayden S., 159 AD3d 500 [1st Dept. 2018]).The medical records clearly demonstrate that the Respondent was hospitalized in June of 2018 because she was suffering from a serious and new onset of psychosis. There is no evidence before this Court to suggest that the Respondent could have anticipated in June of 2018 that she would have to be psychiatrically hospitalized, nor is there any evidence that the Respondent was neglectful of her own mental health needs leading up to June of 2018. While the Respondent did attempt suicide three years prior to her hospitalization in June of 2018, and while the Respondent attended therapy for a period of time three years prior to her hospitalization in June of 2018, there is no evidence that in the years since then the Respondent has had any mental health issues2. Further, the evidence demonstrates that, after not sleeping for two days and hearing voices for three days, the Respondent sought medical and mental health treatment by going to the hospital. Before seeking such treatment, the Respondent made an appropriate plan for her children by leaving them in the care of a neighbor the Respondent knew and trusted. The medical records show that at the hospital, even in the midst of her psychosis, the Respondent was pre-occupied with concern for the children. The Respondent leaving the children in the care of a neighbor she knew and trusted to go to the hospital to address an acute mental disturbance does not constitute neglect and in fact demonstrates that the Respondent acted appropriately to make a safety plan for her children. Accordingly, the Respondent’s actions did not fall below what a reasonable or prudent parent would have done in her situation.The present case can be distinguished from cases where the parent’s behavior in front of the child, or the parent’s care of the child, supports a finding of neglect based upon mental illness (see for example, Matter of Melanie C., 136 AD3d 512 [1st Dept. 2016] where the evidence established that the mother, while in the child’s presence, threatened to kill herself and the child, that the mother did not take her medication on a consistent basis, and that the child had two facial injuries that were not adequately explained, as well as diaper rash that became more severe after the mother failed to fill the child’s prescription.) There is no evidence before this Court, other than the children missing their mother while she was hospitalized, that the children were ever affected by the Respondent’s psychosis in June of 20183.There is no evidence before this Court of any inappropriate or concerning behavior by the Respondent other than her behavior in the hospital in June of 2018. In fact, two of the Petitioner’s witnesses testified that they saw the Respondent regularly leading up to June of 2018 and that they had no concerns regarding the Respondent’s care of the children.For the foregoing reasons, the Court finds that the Petitioner has failed to prove by a preponderance of the evidence that the Respondent neglected the children within the meaning of Section 1012(f)(i)(b) of the New York State Family Court Act. Accordingly, the petitions are dismissed with prejudice. This constitutes the decision and order of the Court.
