IN RE: M. CHILDREN (1997)

Petitioner Commissioner of Social Services' motion in this child protective proceeding (see Family Court 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, 636 N.Y.S.2d 925 (3rd Dept.1996);  Matter of Madeline R., 214 A.D.2d 445, 625 N.Y.S.2d 512 (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 Court Act § 251(a)) is appropriate as a matter of pretrial disclosure.  Matter of R/G Children, 165 Misc.2d 518, 632 N.Y.S.2d 917 (Fam.Ct.1994);  see Matter of Tricia K., 160 Misc.2d 935, 611 N.Y.S.2d 978 (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, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)), and is inapplicable to mental health examinations for which CPLR § 3121(a) specifically provides (Koump v. Smith, 25 N.Y.2d 287, 250 N.E.2d 857, 303 N.Y.S.2d 858 (1969);  Watson v. State, 53 A.D.2d 798, 385 N.Y.S.2d 170 (3rd 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.

PHILIP C. SEGAL, Judge.