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Family Court, Kings County, New York.

IN RE: M. CHILDREN, Children Alleged to be Neglected. Maria O., Also Known as Maria M., et al., Respondents.

Decided: February 24, 1997

Paul A. Crotty, Corporation Counsel of New York City (Judith Anthony, New York City, of counsel), for petitioner. John Eyerman, New York City, Law Guardian. Michael D. Carlin, New York City, for Maria O., respondent. Seth A. Myles, for Wilson M., respondent.

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.