In re M. Children

OPINION OF THE COURT Philip C. Segal, J. [839] 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 AD2d 929 [3d Dept 1996]; Matter of Madeline R., 214 AD2d 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 Trida 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 US 757 [1966]), and is inapplicable to mental health examinations for which CPLR 3121 (a) specifically provides (Koump v Smith, 25 NY2d 287 [1969]; Watson v State of New York, 53 AD2d 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.