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In re Jayvien E.

February 9, 2010

IN RE JAYVIEN E., A CHILD UNDER THE AGE OF EIGHTEEN YEARS, ETC., AND MARISOL T., RESPONDENT-APPELLANT, COMMISSIONER OF THE NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES, PETITIONER-RESPONDENT.


Order of disposition, Family Court, New York County (Jody Adams, J.), entered on or about April 8, 2008, which, upon a fact-finding determination that respondent mother neglected the subject child, inter alia, placed the child with his maternal grandmother pending the completion of the next permanency hearing, unanimously reversed, on the law and the facts, without costs, the findings of neglect vacated and the neglect petition dismissed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Friedman, Moskowitz, Renwick, DeGrasse, JJ.

On December 14, 2006, at approximately 11:15 a.m., respondent, who was then 19 years old, gave birth to a son, Jayvien E., at Beth Israel Medical Center (BIMC). After delivery, a nurse came to respondent's room and began to push on her stomach. Respondent asked the nurse to stop. When the nurse continued to push on her stomach, respondent became upset and allegedly yelled at the nurse to stop. That evening, at approximately 10:30 p.m., respondent called and requested that an unwanted visitor, the baby's father, be removed from her hospital room. Security had to be called to remove Jayvien E.'s father from respondent's room.

The next morning, at approximately 6:15 a.m., a medical student overheard respondent calling her baby "greedy" and "too much." As a result, BIMC conducted a psychiatric consultation of respondent. Dr. A. Newfield, a psychiatrist, prepared a report. Dr. Newfield stated that when he first encountered respondent, she was in bed holding and feeding her son, and she appeared fairly groomed, well-related with appropriate eye contact, seemingly reliable and cooperative. Dr. Newfield's report noted that respondent had an "unclear" psychiatric history.

During his second visit with respondent later that same day, Dr. Newfield was accompanied by another doctor, Dr. Kato. When the two first arrived, respondent was asleep. Dr. Newfield recounted that after being awakened, respondent appeared less well-related, that she was ignoring the conversation at times and was uncooperative. He recommended that the New York City Administration for Children's Services (ACS) be contacted to determine respondent's history and to evaluate what should be done with her son. Dr. Newfield further recommended that respondent be referred to outpatient treatment, stating "Axis I R/O Borderline MR, R/O intermittent explosive D/O, R/O Bipolar, R/O Psychotic D/O."

Dr. Kato also prepared a report, in which he stated that during his interview with respondent, she became easily agitated and uncooperative. Dr. Kato further reported that respondent had vague thoughts, poor insight and judgment. Dr. Kato's report states "R/O depression/anxiety" and that he was "concerned about her ability to safely . . . care for the baby." Neither Dr. Newfield nor Dr. Kato indicated in their reports how long they spent interviewing respondent.

The record also contains a number of BIMC Postpartum Daily Patient Care Flow Sheets signed by registered nurses tracking respondent's behavior after the birth of her son. Two of these sheets, prepared on December 14, 2006, for the day and night shifts, state that respondent's mood was appropriate, and that she was cuddling and talking to her son and performing baby care. Another flow sheet similarly described respondent's interaction with her son during the night shift of December 15, 2006. Further, the flow sheet dated December 16, 2006, for the day shift, noted the identical observations. The record also contains a progress note titled "Psych F/U," which states that respondent was observed on December 15, 2006, at approximately 9:15 p.m., and that she did "not display any psychiatric symptoms at present."

The medical records from BIMC assert that respondent has a history of behavior problems including aggressive outbursts, depression, and suicidal ideation, and that she has been prescribed medication including Wellbutrin and Risperdal. The BIMC reports indicate that she had been hospitalized and evaluated previously at Saint Vincent's Hospital and had received counseling services. However, the record does not contain any of respondent's medical records from Saint Vincent's Hospital. Respondent does acknowledge that she has had periods of depression and that she has been hospitalized five or six times.

On December 15, 2006, ACS received a mandated Oral Report Transmittal (ORT) from a social worker indicating that ACS should investigate respondent. The ORT asserts that "safety factors" were involved because respondent suffered from a mental illness or disability that impaired her ability to care for Jayvien E. ACS assigned Child Protective Specialist Karina Vargas to investigate the allegations.

Vargas commenced her investigation by speaking to her supervisor, contacting the social worker who was the source of the ORT and having a 15 minute telephone conversation with respondent. On December 15, 2006, at approximately 6:00 p.m., Vargas telephoned respondent's hospital room and asked her why she had called her baby "greedy." Respondent explained to Vargas that after she had fed her son, he started to cry as if he wanted to be fed again. Respondent then picked up her child and called him "greedy." Respondent told Vargas that she did not mean it in a bad way.

Vargas also questioned respondent about why she had yelled at a nurse shortly after delivering Jayvien E. Respondent explained to Vargas that she told the nurse to stop pressing on her stomach because she was not feeling well and was still sore from the birth of her son. She became angry after the nurse had ignored her requests and continued to press down on her stomach. Respondent also told Vargas that she was not an angry person, however, sometimes when she gets upset, she would throw things, but not directly at people.

In a petition dated December 18, 2006, ACS asked the Family Court to find that Jayvien E. was a neglected child. ACS's petition asserts it was necessary to remove Jayvien E. from respondent's custody on December 16, 2006, without a court order, because his physical, mental or emotional well-being had been impaired or was in imminent danger of becoming impaired due to his mother's mental illness. The neglect petition specifically alleges that after respondent gave birth she: (1) exhibited bizarre behavior; (2) was not nurturing toward the child; (3) would not look at the child; and (4) had called the baby "greedy" when her son was hungry. The petition further asserts that after a psychiatric evaluation of respondent, it was revealed that she suffers from Intermittent Explosive Disorder and that she has Borderline Cognitive Abilities with poor insight and judgment. The petition also asserts that respondent failed to be forthcoming about the medications she had been prescribed and that she used to take antidepressants, antipsychotics, and mood stabilizers.

The Family Court conducted a fact-finding hearing on June 13, 2007, August 10, 2007, October 5, 2007 and March 14, 2008. The court heard testimony from two witnesses: Vargas, who was the assigned caseworker and the person who signed the neglect petition, ...


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