Opinion
February 24, 1997
Paul A. Crotty, Corporation Counsel of New York City (Judith Anthony of counsel), for petitioner.
John Eyerman, Law Guardian. Michael D. Carlin for Maria O., respondent.
Seth A. Myles for Wilson M., respondent.
Petitioner 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 A.D.2d 929 [3d Dept. 1996]; Matter of Madeline R., 214 A.D.2d 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 Tricia 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 U.S. 757), and is inapplicable to mental health examinations for which CPLR 3121 (a) specifically provides (Koump v. Smith, 25 N.Y.2d 287; Watson v. State of New York, 53 A.D.2d 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.