PADS

A psychiatric advance directive (PAD) is a legal document that documents a person’s preferences for future mental health treatment and allows appointment of a health proxy to interpret those preferences during a crisis. See https://www.nami.org/Advocacy/Policy-Priorities/Responding-to-Crises/Psychiatric-Advance-Directives

Currently, only 25 states have laws that specifically allow them. But in New York, which does not have a specific PAD statute, the PAD can be addressed in the general Health Care Proxy (Public Health Law § 2981).

SEALING MENTAL HEALTH RECORDS OF INVOLUNTARY COMMITMENT

Generally, pursuant to an application made under Mental Hygiene Law 33.14, a court may order that the petitioner's involuntary mental illness records be sealed, subject to such limitations or exceptions as the court may impose, upon a finding that:

"a. the petitioner was illegally detained by a facility by reason of fraud, error or falsified documents, and the records pertain to such illegal detention; or

b. the petitioner has demonstrated by competent medical evidence that he is not currently suffering from a mental illness, has not for a period of three years received inpatient services for the treatment of a mental illness, and the interests of the petitioner and society would best be served by sealing the petitioner's records.  It shall be presumed that it would be in the best interests of the petitioner and society to seal any record of a petitioner's receipt of services for the treatment of mental illness prior to his sixteenth birthday."

 But this may not always be a simple application. The most recent case I could find on this was MATTER OF GARDNER v. BASSETT MEDICAL CTR., 148 AD 3d 1331 - NY: Appellate Div., 3rd Dept. 2017:

"At all times relevant, petitioner was a student at the State University of New York at Cobleskill in Schoharie County. In early 2013, petitioner sent a text of an apparently concerning nature to one of his professors; although the precise nature of the text is not disclosed in the record,^[1] this incident — according to petitioner — resulted in the involvement of law enforcement and appears to have marked the beginning of a deteriorating relationship between petitioner and the university. At the beginning of the summer of 2013, petitioner moved into a hotel because he "didn't feel safe on the campus" and, in August 2013, suffered an alcohol-induced blackout — during the course of which he sent a text expressing suicidal thoughts.

As a result of his personal experiences on campus, petitioner began to lobby university officials "to insure that when the school police question a student with possible mental health issues that a mental health advocate is present to act as an advocate for the student." To that end, petitioner met with the university's president on November 21, 2013 to discuss this and other issues; also in attendance at that meeting was one of the university's therapists, with whom petitioner previously had spoken "about various personal issues in [his] life." Although the meeting apparently ended without incident, petitioner and the therapist continued to speak in the hallway afterwards, during the course of which — the therapist subsequently reported — petitioner became "agitated, hostile and angry" and "blam[ed] the school for his current problems, depression, poor grades and [the] suicidal episode in August of [that] year." As the conversation continued, petitioner made 1332*1332 reference to "violent acts" — invoking the 1999 shooting incident at Columbine High School in Colorado — and the connection between such violent episodes and "those who snap," stating, "[P]eople wonder why these people snap[;] it's because of the situations like I am going through that cause them to snap and do what they did." Petitioner also made reference to New York's Secure Ammunition and Firearms Enforcement Act, more commonly known as the SAFE Act (L 2013, ch 1), which he previously had characterized as a "new law [that] was aimed to take his weapons away," theorizing that the law "cause[d] people to disengage in therapy, leading to an increase in murder/suicides." Shortly after making that statement, petitioner terminated his counseling relationship with the therapist.

Concerned that petitioner "may have underlying plans for violence," the therapist arranged for an emergency psychiatric admission pursuant to Mental Hygiene Law § 9.39. As a result, petitioner was involuntarily committed to respondent Bassett Medical Center from late in the evening on November 21, 2013 to early in the morning on November 24, 2013.^[2] The stated basis for the emergency admission was paranoid delusions and threats to harm others. During the course of his stay, petitioner was evaluated by a number of medical professionals, including two psychiatrists, and petitioner variously reported and then denied a prior diagnosis of bipolar disorder. According to the psychiatrist who evaluated petitioner upon his admission, although petitioner did not exhibit evidence of any delusions or obsessions and denied "frank suicidal ideation," petitioner expressed "clearly helpless[,] hopeless and depressed thinking." In addition, petitioner's demeanor was described as "tense" ("with paranoid flavor somewhat cryptic at times"), his thought processes were characterized as "overinclusive" and possessing a "more obsessional style," his insight was assessed as "[p]oor with marked use of denial," his judgment was deemed to be "diminished" and his capacity was described as "limited, impacted on by his perceptions with a paranoid flavor." Against the backdrop of petitioner's stated (and then denied) bipolar disorder, concerns that he may also be suffering from an "affective disorder" or "isolated paranoid disorder," the statements made to the university's therapist and petitioner's prior history, the admitting psychiatrist determined that petitioner was in need of involuntary hospitalization "for acute stabilization of [his] psychiatric symptoms" and to safeguard petitioner's safety and the safety of others. Although another psychiatrist 1333*1333 subsequently concluded that she could not extend petitioner's emergency admission beyond the initial 48-hour period (see Mental Hygiene Law § 9.39 [a] [2]), petitioner elected, as noted previously, to voluntarily admit himself for an additional two days.

Thereafter, in March 2015, petitioner commenced this proceeding pursuant to Mental Hygiene Law § 33.14 (a) (1) against the hospital and respondent New York State Office of Mental Health seeking to seal his psychiatric records. Respondents opposed the application. Following a hearing, Supreme Court, relying upon petitioner's hospital records and the affidavits tendered in support of and in opposition to petitioner's application, denied petitioner's sealing request, finding, among other things, that petitioner failed to demonstrate that he was illegally detained. This appeal by petitioner ensued.

We affirm. Pursuant to the provisions of Mental Hygiene Law § 33.14 (a) (1), "[a]ny person who has been admitted to receive inpatient or outpatient services for mental illness may commence a special proceeding ... for an order directing the sealing of those records ... upon a finding that ... the petitioner was illegally detained by a facility by reason of fraud, error or falsified documents, and the records pertain to such illegal detention." Here, petitioner was admitted under the emergency admission procedures set forth in Mental Hygiene Law § 9.39 (a), which permits a hospital director to "retain... as a patient for a period of [15] days any person alleged to have a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself [or herself] or others." For purposes of the statute, the required likelihood of harm means either a "substantial risk of physical harm to himself [or herself] as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he [or she] is dangerous to himself [or herself], or ... a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm" (Mental Hygiene Law § 9.39 [a] [1], [2]; see Matter of Rueda v Charmaine D., 17 NY3d 522, 529-530 [2011]). An individual may be admitted under the statute "only if a staff physician of the hospital upon examination of such person finds that such person qualifies under the requirements" of the statute and, as alluded to previously, a person so admitted cannot "be retained for a period of more than [48] hours unless within such period such finding is confirmed after examination by another physician who shall be 1334*1334 a member of the psychiatric staff of the hospital" (Mental Hygiene Law § 9.39 [a] [2]; see Matter of Rueda v Charmaine D., 17 NY3d at 530).

As petitioner does not contend that his involuntary admission was procured by fraud or falsified documents, his application for sealing may succeed only if he can demonstrate that such admission was erroneous. To that end, petitioner tendered his hospital records and the affidavit of John Tanquary, a licensed psychiatrist, who opined that, based upon his October 2014 evaluation of petitioner and a review of petitioner's hospital records, petitioner "did not meet the criteria for involuntary hospitalization ... and should never have been hospitalized against his will." To our analysis, this conclusory and hindsight assessment of petitioner's mental status at the time of his involuntary admission in November 2013 — an assessment that is both predicated in large measure upon petitioner's self-reporting of that event and otherwise minimizes the documented psychiatric symptoms displayed by petitioner upon his admission — falls short of demonstrating that petitioner's hospitalization was in error within the meaning of Mental Hygiene Law § 33.14 (a) (1). At best, Tanquary's affidavit reflects a difference of opinion between the psychiatrist who evaluated petitioner upon his admission and the psychiatrist who evaluated him nearly one year later, and this conflicting medical opinion does not demonstrate that petitioner's involuntary admission was erroneous.

In reaching this result, we acknowledge that petitioner and his expert focus on the propriety of petitioner's initial, involuntary admission — claiming that respondents failed to satisfy the criteria set forth in Mental Hygiene Law § 9.39 (a). It is important to note, however, that it is petitioner, and not respondents, who bears the burden of proof here. Notably, petitioner did not commence a proceeding to challenge his initial admission to the hospital and, at the end of the 48-hour period, consented to a voluntary admission. Hence, even assuming, without deciding, that an emergency admission pursuant to Mental Hygiene Law § 9.39 (a) — once challenged — compels the admitting facility to present clear and convincing evidence to justify its retention of the affected patient (compare Rodriguez v City of New York, 72 F3d 1051 [1995], with Matter of Boggs v New York City Health & Hosps. Corp., 132 AD2d 340 [1987], appeal dismissed 70 NY2d 972 [1988]), that simply is not the nature of this proceeding, and nothing in the case law imposes either that burden or that evidentiary standard upon respondents in the context of the instant sealing application. 1335*1335 Accordingly, we agree with Supreme Court's dismissal of petitioner's application.

Ordered that the judgment is affirmed, without costs.

[1] The record does reflect, however, that petitioner reported to the professor that he suffered from bipolar disorder.

[2] On November 24, 2013, petitioner executed a voluntary request for hospitalization, which extended his stay until November 26, 2013."

MENTAL HEALTH ISSUE AND NEGLECT

If you suffer from mental illness, does it mean you are incapable of parenting your children? Would the result have been different if this was a custody matter and not a neglect proceeding?

Matter of Jonefe R. v. Denise T., NYLJ April 12, 2019 , Date filed: 2019-03-27, Court: Family Court, Bronx, Judge: Judge Sarah P. Cooper:

"On June 7, 2018, ACS filed petitions against Denise T. [hereinafter the "Respondent"] alleging that she neglected the children Jonefe R. (DOB: xx/xx/2013) and Alexa N. (DOB: xx/xx/2010) within the meaning of section 1012(f)(i)(b) of the Family Court Act by suffering from a mental illness which impaired her ability to care for her children.

The fact-finding hearing in this matter commenced on December 3, 2018 and continued on January 29, 2019. The non-respondent father of the child Alexa (Mr. Luis N.), preventive services case-planner Ms. Sherman, and ACS caseworker Mr. Cureton testified on behalf of the Petitioner. The Court accepted into evidence without objection the child Jonefe’s birth certificate (Petitioner’s Exhibit 1), the child Alexa’s birth certificate (Petitioner’s Exhibit 2), and certified and delegated medical records from Lincoln Medical and Mental Health Center related to the Respondent (Petitioner’s Exhibit 3). Neither the Respondent, nor the attorney for the children, called any witnesses or presented any evidence. Each attorney gave an oral summation1 and the matter was adjourned for decision. Family Court Act §1012 (f) (i), in pertinent part, defines a “neglected child” as a child, less than 18 years old whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his or her parent to exercise a minimum degree of care.

A party seeking to establish neglect must show first that the child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent. Nicholson v. Scoppetta, 3 NY3d 357 (2004). In determining whether a child is neglected within the meaning of Family Court Act §1012, courts must evaluate parental behavior objectively and ask whether a reasonable and prudent parent would have so acted, or failed to act, under the circumstances then and there existing. Nicholson v. Scoppetta, supra at 370. The standard takes into account the special vulnerabilities of the child, even where general physical health is not implicated. id. A finding of neglect does not require actual injury but, rather, an imminent threat that such injury or impairment may result. Matter of Aiden L., 47 AD3d 1089 (3rd Dept. 2008). The court is required to “focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior.” Nicholson v. Scoppetta, supra at 369. A finding of neglect should not be made lightly, nor should it rest upon past deficiencies alone. Matter of Daniel C., 47 AD2d 160 (1st Dept. 1975).

A parent’s mental condition may form the basis of a neglect finding if it is shown by a preponderance of the evidence that his or her condition resulted in imminent danger to the child. Matter of Noah Jeremiah J. v. Kimberly J., 81 AD3d 37 (1st Dept. 2010). Neither expert testimony, nor a definitive psychiatric diagnosis, is required to show a parent suffers from a mental illness. Matter of Danielle M., 151 AD2d 240 (1st Dept. 1990); Matter or Zariyasta S., 158 AD2d 45 (1st Dept 1990). In Matter or Zariyasta S. supra, the First Department held that courts should consider the threat to the child’s well-being, instead of the formal diagnosis of the condition from which the threat emanates.

In the present case, the evidence against the Respondent is not refuted as she did not testify on her own behalf. A child protective proceeding is a civil proceeding and therefore the court may draw the strongest inference that the opposing evidence in the record permits where parties fail to testify at the fact-finding hearing. Commissioner of Social Services v. Philip De G., 59 NY2d 137 (1983). However, the strongest negative inference cannot provide a missing element of proof. Matter of Kayla F., 39 AD3d 983 (3rd Dept. 2007).

The medical records, in evidence as Petitioner’s Exhibit 3, indicate that on June 2, 2018, the Respondent was seen in the emergency room of Lincoln Medical and Mental Health Center [hereinafter "LMMHC"] where she reported feeling anxious. The Respondent was diagnosed as having an “acute stress reaction” as well as a urinary tract infection. The Respondent was tearful and at times refused to answer questions, so the Respondent was referred to the psychiatry department for an evaluation. At some point during the Respondent’s evaluation with the psychiatry department, a social worker joined to assist with the evaluation. The medical records contain notes from both the doctor and the social worker who was present during the evaluation. During the interview, the Respondent denied any history of psychiatric conditions, denied any history of taking psychotropic medications and denied any history of seeing a psychiatrist. The Respondent reported that she had been feeling stressed lately and that she had not slept in two days. The Respondent reported that people are following her and that she feels threatened by her neighbors. The Respondent denied having any suicidal ideations or homicidal ideations. The Respondent admitted to hearing voices. The Respondent indicated that she hears “many” voices that want to harm her. The Respondent reported that the first time she ever heard voices was two weeks prior. The Respondent reported that she had been hearing the voices constantly for the past three days. The Respondent denied any visual hallucinations and she was able to correctly identify the number of people in the room at that time. The Respondent indicated that she had a painful headache and that her vision was blurred. The Respondent reported that she had attempted suicide by overdose about three years prior.

The social worker’s notes from the interview indicate that the Respondent was reported as being “tearful but engaged” in the interview. Both the social worker and the doctor noted that, throughout the interview, the Respondent was pre-occupied with concern for her children. The Respondent indicated that, prior to coming to the hospital, she had left the children with a neighbor she knew and trusted. With the assistance of the social worker, the Respondent was able to contact her eldest daughter to confirm that the Respondent’s children were fine. The social worker noted that the Respondent appeared relieved after she spoke to her daughter. The doctor noted that the Respondent’s thought process during the interview was “linear” and “goal directed.” The doctor assessed that the Respondent was not a suicide risk. The doctor’s notes indicate that the Respondent was experiencing auditory hallucinations and that there was a concern for “new onset psychosis” as there was “no previous documented history of psychiatric diagnosis.” The doctor’s assessment from the interview was that “given the level of psychosis and distress, the patient could potentially be a danger to self and others” and that the Respondent could “benefit from psychiatric hospitalizations for stabilization and safety.” The doctor’s notes indicate that “current presentation could be etiologically related with a primary psychotic process, but substance and medical induced psychosis, mood disorder and somatic symptoms disorder, even factitious disorder and malingering” need to be carefully ruled out. The doctor prescribed Seroquel to the Respondent for “anxiety and psychosis.”

After being evaluated by the psychiatry department, the Respondent was admitted to the hospital. A doctor ordered a CT scan, indicating in the order under “history” that the Respondent had “new onset psychosis with auditory hallucinations” and that the Respondent’s diagnosis was an “acute stress reaction.” The Respondent was prescribed “Seroquel” for a “psychotic disorder not due to a substance or known physiological condition.”

The medical records indicate that, at times during her hospitalization, the Respondent was seen talking to herself. A nurse noted on June 3, 2018 that the Respondent appeared paranoid and “internally preoccupied.” Additionally, at times during her hospitalization, the Respondent would remain mute instead of answering questions. The medical records indicate that the State Central Registry was called after the neighbor who had one of the children indicated they were unsure how long they could keep the children. On June 4, 2018, the Respondent was noted as being “stable but disorientated to time and place” and the Respondent was prescribed Risperdal and Ativan on an “as needed” basis for agitation and anxiety. The medical record indicates that, on June 4, 2018, a doctor determined that the Respondent was unable to care for herself or her children at that time and that she needed inpatient psychiatric care. On June 4, 2018, the Respondent was transferred from LMMHC to Brunswick Hospital to be psychiatrically hospitalized. The Petitioner did not admit the Respondent’s records from Brunswick Hospital.

The medical records clearly establish that, when the Respondent was hospitalized at LMMHC in June of 2018, the Respondent was suffering from a serious mental disturbance. The medical records indicate that the Respondent’s mental disturbance was “acute” and “new.” The medical records indicate that the Respondent did not have a prior history of psychosis or psychiatric treatment. It is significant to this Court that none of the Petitioner’s three witnesses presented any evidence that the Respondent’s actions in June of 2018, or in the days and weeks leading up to June of 2018, were neglectful. Most significantly, the two witnesses who were familiar with the Respondent prior to June 2018 (Mr. Luis N. and Ms. Sherman) both indicated that they did not have concerns regarding the Respondent’s behavior, or concerns regarding the Respondent’s care of the children, prior to the Respondent being hospitalized in June of 2018. In fact, Mr. Luis N. testified that prior to the instant petitions being filed, he was seeing the Respondent three to four times a week and he had no concerns regarding the Respondent’s mental health. The preventative services case-planner, Ms. Sherman, testified that she was the Respondent’s assigned worker from September 13, 2017 to June 18, 2018. She testified that she would visit the Respondent’s home two to three times a month and that at no time did she ever note any concerns about how the Respondent cares for the children. Ms. Sherman noted that the Respondent was forthcoming, that she kept her children’s medical appointments up to date and that she appeared to have insight. Ms. Sherman referred the Respondent for a mental health evaluation because the Respondent had disclosed to Ms. Sherman that she had been depressed in the past after a romantic relationship ended. The Respondent had disclosed to Ms. Sherman that she attended therapy in 2015 because she was sad over the end of the relationship and because it had been a relationship with domestic violence. The Respondent further disclosed that she stopped attending therapy after she felt better. Ms. Sherman testified that she referred the Respondent for a mental health evaluation, not because of the Respondent’s behavior, but rather because she thought the Respondent could benefit from extra support.

The ACS caseworker, Mr. Cureton, testified that he was assigned to the Respondent’s case after an ORT came in on June 3, 2018. Mr. Cureton first spoke to the children on June 4, 2018. Both children told Mr. Cureton that over the past weekend, the Respondent had gotten sick and gone to the hospital. The child Alexa told Mr. Cureton she was sad because her mother was not with her. Mr. Cureton did not ask the child Alexa whether the Respondent had made any plans for Alexa’s care while the Respondent was hospitalized.

The present case can be distinguished from cases where evidence of parent’s inability to care for their child and evidence of a parent’s long-standing history of mental illness, is sufficient to support a finding that the child’s physical, mental, or emotional condition was in imminent danger of becoming impaired (see for example, Matter of Jayden S., 159 AD3d 500 [1st Dept. 2018]).

The medical records clearly demonstrate that the Respondent was hospitalized in June of 2018 because she was suffering from a serious and new onset of psychosis. There is no evidence before this Court to suggest that the Respondent could have anticipated in June of 2018 that she would have to be psychiatrically hospitalized, nor is there any evidence that the Respondent was neglectful of her own mental health needs leading up to June of 2018. While the Respondent did attempt suicide three years prior to her hospitalization in June of 2018, and while the Respondent attended therapy for a period of time three years prior to her hospitalization in June of 2018, there is no evidence that in the years since then the Respondent has had any mental health issues2. Further, the evidence demonstrates that, after not sleeping for two days and hearing voices for three days, the Respondent sought medical and mental health treatment by going to the hospital. Before seeking such treatment, the Respondent made an appropriate plan for her children by leaving them in the care of a neighbor the Respondent knew and trusted. The medical records show that at the hospital, even in the midst of her psychosis, the Respondent was pre-occupied with concern for the children. The Respondent leaving the children in the care of a neighbor she knew and trusted to go to the hospital to address an acute mental disturbance does not constitute neglect and in fact demonstrates that the Respondent acted appropriately to make a safety plan for her children. Accordingly, the Respondent’s actions did not fall below what a reasonable or prudent parent would have done in her situation.

The present case can be distinguished from cases where the parent’s behavior in front of the child, or the parent’s care of the child, supports a finding of neglect based upon mental illness (see for example, Matter of Melanie C., 136 AD3d 512 [1st Dept. 2016] where the evidence established that the mother, while in the child’s presence, threatened to kill herself and the child, that the mother did not take her medication on a consistent basis, and that the child had two facial injuries that were not adequately explained, as well as diaper rash that became more severe after the mother failed to fill the child’s prescription.) There is no evidence before this Court, other than the children missing their mother while she was hospitalized, that the children were ever affected by the Respondent’s psychosis in June of 20183.There is no evidence before this Court of any inappropriate or concerning behavior by the Respondent other than her behavior in the hospital in June of 2018. In fact, two of the Petitioner’s witnesses testified that they saw the Respondent regularly leading up to June of 2018 and that they had no concerns regarding the Respondent’s care of the children.

For the foregoing reasons, the Court finds that the Petitioner has failed to prove by a preponderance of the evidence that the Respondent neglected the children within the meaning of Section 1012(f)(i)(b) of the New York State Family Court Act. Accordingly, the petitions are dismissed with prejudice. This constitutes the decision and order of the Court."

BEING HOMELESS DOES NOT MEAN BEING INCAPACITATED

Matter of Fritz G., 2018 NY Slip Op 05592, Decided on August 1, 2018, Appellate Division, Second Department:

"The petitioner is the mother of Fritz G., who allegedly suffers from schizophrenia and bipolar disorder. The petitioner commenced this proceeding pursuant to Mental Hygiene Law article 81 seeking to be appointed as the guardian of the person and property of Fritz G. She alleged that Fritz G. was not compliant with his medications and that, as a result, he lived on the street and did not take care of himself. After a hearing, the Supreme Court, inter alia, granted that branch of the petition which was to have the petitioner appointed as the guardian of the person of Fritz G., and appointed the petitioner as the guardian of Fritz G.'s person. Fritz G. appeals.

The Supreme Court may appoint a guardian for a person if the court determines that the appointment is necessary to provide for the person's personal needs or to manage his or her property and financial affairs, and the person either agrees to the appointment or is incapacitated (see Mental Hygiene Law § 81.02[a]; Matter of Harold W.S. [Mark P.—Lauralyn W.], 134 AD3d 724, 724-725). In determining whether the appointment of a guardian is necessary, the court must consider the report of a court evaluator as well as the sufficiency and reliability of resources that may be available to provide for personal needs or property management absent the appointment of a guardian (see Mental Hygiene Law § 81.02[a]). A determination of incapacity must be based on clear and convincing evidence and must consist of a determination that a person is likely to suffer harm because he or she is unable to provide for personal needs or property management and cannot adequately understand and appreciate the nature and consequences of such inability (see Mental Hygiene Law § 81.02[b]). Moreover, a guardian should be appointed only as a last resort, where no available resources or other alternative will adequately protect the alleged incapacitated person (see Matter of Harold W.S. [Mark P.—Lauralyn W.], 134 AD3d at 725; Matter of Albert S., 286 AD2d 684, 684; Matter of Maher, 207 AD2d 133, 140).

Here, the evidence at the hearing consisted only of the petitioner's testimony regarding Fritz G.'s mental illness, and a cursory report and testimony of the court evaluator, who had only one brief conversation with Fritz G. by telephone. This evidence failed to establish that Fritz G. was incapacitated. Moreover, the Supreme Court failed to consider less restrictive options than appointment of a guardian. Accordingly, that branch of the petition which was to have the petitioner appointed as the guardian of the person of Fritz G. should have been denied. Nevertheless, it was clear from the petitioner's testimony that Fritz G. is in need of assistance, and the parties' attorneys specifically mentioned the possibility of assisted outpatient treatment to address those needs. The petitioner's failure to establish, on this record, the necessity of Mental Hygiene Law article 81 guardianship does not preclude her from seeking any appropriate assistance for Fritz G. (see e.g. Mental Hygiene Law § 9.60)."

WORK RELATED STRESS AND WORKER'S COMPENSATION

MATTER OF CUVA v. State Ins. Fund, 2016 NY Slip Op 7734 - NY: Appellate Div., 3rd Dept. 2016:

"We affirm. It is well established that "mental injuries caused by work-related stress are compensable if the claimant can establish that the stress that caused the injury was greater than that which other similarly situated workers experienced in the normal work environment" (Matter of Lozowski v Wiz, 134 AD3d 1177, 1178 [2015] [internal quotation marks and citation omitted]; see Workers' Compensation Law § 2 [7]; Matter of Guillo v NYC Hous. Auth., 115 AD3d 1140, 1140 [2014]; Matter of Witkowitch v SUNY Alfred State Coll., 80 AD3d 1099, 1100 [2011]). In resolving that factual question, the Board's determination will not be disturbed provided that it is supported by substantial evidence (see Matter of Lozowski v Wiz, 134 AD3d at 1178).

While the medical evidence concluded, based upon claimant's self reporting, that the March 7, 2013 incident caused or exacerbated her mental health problems, substantial evidence supports the Board's factual determination that the incident was not compensable on the ground that the work-related stress suffered by claimant that led to her anxiety, PTSD and depression was not "greater than that which other similarly situated workers experienced in the normal work environment" (Matter of Lozowski v Wiz, 134 AD3d at 1178 [internal quotation marks and citation omitted]). Regarding the incident, claimant testified that she was standing outside the examiner's cubicle discussing a work issue when he became angry, grabbed the arms of his chair and began "shaking," gritting his teeth and "seething," making a hissing sound. However, he remained seated, facing his computer and did not make verbal or physical threats or raise his voice. While claimant testified that the examiner swore at her during the encounter, the WCLJ credited a coworker who testified that she had overheard "a work interaction" in which claimant and the examiner "disagreed" and that she had informed claimant, after the incident, that the examiner used profanity after claimant walked away from the disagreement. The WCLJ also discredited claimant's account of the incident and her claim that this brief episode left her terrified, based upon her testimonial demeanor as well as her inconsistent accounts and actions after the incident, including claimant's return to the examiner's work area shortly after the incident to speak with a coworker; her treating physician's testimony that she had inconsistently reported that the examiner had made knifelike gestures at her; her testimony and emails establishing that, the day after the incident, she had a meeting with the examiner and later reported that the matter was "settled" and that they were "moving forward with a good working relationship"; and her reassignment to another unit in April 2013 where she did not work with or supervise the examiner.

Deferring to the Board's credibility determinations (see Matter of Hill v Shoprite Supermarkets, Inc., 140 AD3d 1564, 1565 [2016]), we find that the record as a whole supports its conclusion that this was, at most, "an isolated incident of insubordination" to which the employer appropriately responded, which was not so improper or extraordinary as to give rise to a viable claim for a work-related injury. Accordingly, we find no basis to disturb the Board's determination that claimant's work-related stress did not exceed that which could be expected by a supervisor in a normal work environment (see Matter of Lozowski v Wiz, 134 AD3d at 1178; Matter of Guillo v NYC Hous. Auth., 115 AD3d at 1141)."

MENTAL HEALTH AND ATTORNEYS

Around this time last year, an article was published in the Journal of Addiction Medicine regarding a study designed "to measure the prevalence of substance use and mental health concerns among licensed attorneys, their awareness and utilization of treatment services, and what, if any, barriers exist between them and the services they may need."

See http://journals.lww.com/journaladdictionmedicine/Fulltext/2016/02000/The_Prevalence_of_Substance_Use_and_Other_Mental.8.aspx

FAMILY LAW - MENTAL ILLNESS AND REMOVAL OF CHILD

MATTER OF GAVIN S., 2016 NY Slip Op 51234 - NY: Family Court 2016:

"FCA §1027 provides that if, after a hearing, "the court finds that removal is necessary to avoid imminent risk to the child's life or health, it shall remove or continue the removal of the child." FCA § 1028, provides that, upon the application of a parent for the return of his or her child who has been removed from his or her care, and following a hearing, "the court shall grant the application unless it finds that the return presents an imminent risk to the child's life or health." In either case, the court must determine if the child's "life or health" would be at "imminent risk" of harm in the respondent's custody and, additionally, whether remaining in or returning to the home would be contrary to the child's best interests (FCA§1027(a)(I); FCA§1028(b); Nicholson v. Scoppetta, 3 NY3d 357, 377 [2004]).

"In order to justify a finding of imminent risk to life or health ... an agency need not prove that the child has suffered actual injury. Rather, a court engages in a fact-intensive inquiry to determine whether the child's [physical or] emotional health is at risk" (Nicholson, 3 NY3d at 377). In reaching its determination, the "court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal; [i]t must balance [the risk to the child's life or health] against the harm removal might bring; and it must determine factually which course is in the child's best interests" (id. at 378); see also Matter of DeAndre S. (Latoya F. S.), 92 AD3d 888 [2d Dept. 2012]). The language and legislative history of the statute establish that "a blanket presumption favoring removal was never intended" (Nicholson, 3 NY3d at 378; see also Matter of Jesse J. v. Joann K., 64 AD3d 598, 599 [2d Dept 2009]). The Legislature placed "increased emphasis on preventive services designed to maintain family relationships rather than responding to children and families in trouble only by removing the child from the family" (Mark G. v Sabol, 93 NY2d 710, 719 [1999]; see also Nicholson, 3 NY3d at 374).

A mental illness that causes a parent to act in a way that presents an imminent risk to his or her child's life or health may support a removal of the child from the parent's care under FCA §1027, just as a finding of neglect under FCA §1012 may be predicated "upon proof that a child's physical, mental, or emotional condition was impaired or was placed in imminent danger of becoming impaired as a result of a parent's mental illness" (see, e.g., Matter of Soma H., 306 AD2d 531[ 2d Dept 2003]). However, just as "proof of mental illness alone will not support a finding of neglect" (Matter of Joseph A. [Fausat O.], 91 AD3d 638, 640, [2d Dept 2012]), neither will it support a removal of the child from the parent's care in the absence of evidence that the parent's illness creates an imminent risk to the child's life or health. As the Court of Appeals cautioned in Nicholson, "[t]he plain language of [FCA§1027] and the legislative history supporting it establish that a blanket presumption favoring removal was never intended. The court must do more than identify the existence of a risk of serious harm." (3 NY3d at 378 [emphasis in original]). There must be proof of an identifiable, specific, serious and imminent risk to the life or health of the child (see Nicholson, 3 NY3d at 377 [the court must engage "in a fact-intensive inquiry" to determine whether the child's life or health is at risk]) caused by the parent's mental illness. In determining whether removal is necessary to avoid imminent risk to the child's life or health, the statute also requires the court to consider "whether continuation in the child's home would be contrary to the best interests of the child and where appropriate, whether reasonable efforts were made ... to prevent or eliminate the need for removal...." (FCA§1027(b)(ii)). In sum, if the court determines that an imminent risk to the child's life or health exists, it "must weigh, in the factual setting before it, whether the ... risk to the child can be mitigated by reasonable efforts to avoid removal, ... balance that risk against the harm removal might bring, and ... determine factually which course is in the child's best interests" (Nicholson, 3 NY3d at 378; see also Matter of Baby Boy D. (Adanna C.), 127 AD3d 1079 [2d Dept. 2015]).The Court in Nicholson also stressed that "imminent" means "near or impending, not merely possible" (3 NY3d at 369; see also Baby Boy D., 127 AD3d at 1080 ("imminent" risk must be shown to justify removal).

......

As previously noted, a parent's mental illness, standing alone, is not a basis for a neglect finding (Matter of Joseph A., supra, 91 AD3d at 640). A fortiori, it does not justify removal of a child from his parent's care in the absence of evidence that the child's life or health is in imminent risk of harm as a result of that illness (cf. Nicholson, 3 NY3d at 375 (exposure of a child to domestic violence is not presumptively neglectful, so "a fortiori, [it] is not presumptively ground for removal, and in many instances removal may do more harm to the child than good"). Where no such imminent risk has been shown, a removed child must be returned to the parent (see, e.g., In the Matter of Jeremiah L., 45 AD3d 771 [2d Dept. 2007]; FCA§1028(a) ("court shall grant the application [for return of a child], unless it finds that the return presents an imminent risk to the child's life or health") [emphasis added]). ACS's speculative concern that Ms. S might have be hospitalized again for her mental illness cannot serve as a basis for a finding of "imminent risk" (see Baby Boy D., 127 AD3d at 1080 [speculation that the mother might not enforce an order of protection against the father could not support a finding of imminent risk to the child's life or health]), particularly when she has been consistent with all aspects of her mental health treatment and has cooperated with the services that were put in place for her and Gavin.

As ACS failed to establish that Gavin's life or health were ever placed in imminent risk as a result of Ms. S's mental illness, ACS's application under FCA§1027 must be denied, and Gavin must be returned to his mother....."

MENTAL HEALTH AND LAWYERS - LAW SCHOOL STUDENTS

This issue was posted before but concerns about mental health and lawyers also exist in law school.

In the following article, someone writes about two suicides at the same law school:

http://abovethelaw.com/2016/08/the-struggle-two-suicides-in-two-months-at-the-same-law-school/

VISITATION ISSUES WITH DRUGS AND MENTAL HEALTH

Matter of Waite v Clancy 2016 NY Slip Op 00793 Decided on February 5, 2016 Appellate Division, Fourth Department:

"Memorandum: Respondent mother appeals from an order that awarded petitioner father sole custody and placement of the parties' child and suspended visitation between the mother and the child "until she engages successfully in mental health and drug and alcohol evaluations, and . . . recommended treatment, and upon successful completion of [the] same is reserved the right to file a [m]odification." Contrary to the mother's contention, Family Court's determination to suspend her visitation is supported by a sound and substantial basis in the record inasmuch as the evidence presented at the hearing established that such visitation was detrimental to the child's welfare (see Matter of Christina F.F. v Stephen T.C., 48 AD3d 1112, 1113, lv denied 10 NY3d 710). We agree with the mother, however, that the court lacked authority to condition the resumption of visitation upon her completion of mental health and drug and alcohol evaluations and compliance with all treatment recommendations (see Matter of Hameed v Alatawaneh, 19 AD3d 1135, 1136; Matter of Davenport v Ouweleen, 5 AD3d 1079, 1079-1080). We therefore modify the order accordingly. Finally, as we similarly concluded in the mother's related appeal (Matter of VanSkiver v Clancy, 128 AD3d 1408, 1408-1409), the court did not abuse its discretion in denying her attorney's request for an adjournment and in holding the hearing in
her absence."

Note that although the Appellate Division held that "the court lacked authority to condition the resumption of visitation upon her completion of mental health and drug and alcohol evaluations and compliance with all treatment recommendations", nevertheless, the suspension of visitation was upheld. Thus, the mother will face this issue - if she wishes to resume visitation by petition in the future and does not engage in any treatment for her mental health and substance abuse issues, will the court still hold that visitation is detrimental to the child's welfare because there has been no change in circumstances?

LAWYERS AND MENTAL HEALTH AND SUBSTANCE ABUSE ISSUES

In "Easy Rider", it was funny for a while. In real life, it is not.

A small minority of lawyers openly acknowledge prior or existing substance or mental health conditions, problem drinking and mental health concerns. But according to a recent and comprehensive landmark study of U.S. lawyers, called “The Prevalence of Substance Use and Other Mental Health Concerns among American Attorneys,”many lawyers are not seeking the help they need.

See http://journals.lww.com/journaladdictionmedicine/Fulltext/2016/02000/The_Prevalence_of_Substance_Use_and_Other_Mental.8.aspx

CHILD CUSTODY AND VISITATION - WHAT KIND OF MENTAL HEALTH TREATMENT CAN A COURT ORDER

Lajqi v. Lajqi, 130 A.D.3d 687, 11 N.Y.S.3d 860 (Second Dept. 2015):

"The Supreme Court properly denied that branch of the defendant's motion which was to direct the plaintiff to undergo a psychiatric evaluation as a condition of continued visitation with the parties' child. A court hearing a pending proceeding or action involving issues of custody or visitation may properly order a mental health evaluation of a parent, if warranted, prior to making a custody or visitation determination (see Family Ct Act § 251[a]; Zafran v. Zafran, 28 AD3d 753, 756; see also Bibas v. Bibas, 62 AD3d 924). In addition, a court may properly direct a party to submit to counseling or treatment as a component of a visitation or custody order (see Matter of Smith v. Dawn F.B., 88 AD3d 729, 730; Matter of Lane v. Lane, 68 AD3d 995, 997–998; Matter of Thompson v. Yu–Thompson, 41 AD3d 487, 488; Matter of Grassi v. Grassi, 28 AD3d 482, 483; Jordan v. Jordan, 8 AD3d 444, 445; Matter of Williams v. O'Toole, 4 AD3d 371, 372).

However, "a court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights" (Matter of Smith v. Dawn F.B., 88 AD3d 729, 730; see Matter of Welch v. Taylor, 115 AD3d 754, 756; Matter of Torres v. Ojeda, 108 AD3d 570, 571; Matter of Grassi v. Grassi, 28 AD3d 482, 483). The rationale underlying this rule is that "a court may not properly delegate to mental health professionals the ultimate determination of whether a parent will be awarded visitation rights," a determination that is properly made by the court (Zafran v. Zafran, 28 AD3d at 757). Therefore, the Supreme Court properly denied that branch of the defendant's motion which was to direct the plaintiff to undergo a psychiatric evaluation as a condition of continued visitation with the parties' child."

MENTAL HEALTH AND THE COURTS CLE

A free CLE by PLI 2015 will focus on individuals living with mental illness and their involvement in both the criminal and civil justice systems in New York State. This program is designed for New York State Judges, Court Attorneys, law clerks, prosecutors, defense attorneys, the private bar, state attorneys, and mental health system professionals involved in the New York State justice system. As part of PLI's commitment to the pro bono activities of the legal community, there is no fee to attend this program. New York City and Live Webcast – June 26, 2015

http://www.pli.edu/Content/Seminar/Mental_Health_Issues_the_New_York_State_Courts/_/N-4kZ1z128py?ID=225060&tab=0&t=BHF5_8AEM1&utm_source=8AEM1&utm_medium=EMAIL&utm_campaign=BHF5

LAWYERS AND MENTAL HEALTH

Excellent article from ABA Journal  - Lawyers who self-medicate to deal with stress sometimes steal from those they vowed to protect

MENTAL HEALTH INITIATIVE

The ABA Law Student Division’s National Mental Health Day is March 27 and law schools across the country are being encouraged to spread awareness and promote discussion about mental health and substance abuse in the legal community.

For more information: http://www.americanbar.org/groups/law_students/initiatives_awards/lshealth.html

LAWYERS AND DEPRESSION

Last night, the Lawyers Assistance Program Committee of the Nassau County Bar Association, hosted (of which I am a member) hosted a CLE at the Nassau County Bar Association on "Ethical Dilemmas: Stress & Risk Management.".

Personally, it was an "eye-opener" and perhaps even a "life-changer" and one thing I would like to re-post was a CNN piece that was mentioned by several of the speakers:

CNN - Why Are Lawyers Killing Themselves

And I would just add that reading the "Comments" on the above web post was also an experience.

CLE TODAY

I will be attending an all day CLE re: Article 81 Guardianships at the Nassau County Bar Association.

STRESS & RISK MANAGEMENT FOR ATTORNEYS

The Lawyers Assistance Committee, of which I am a member, is holding a free CLE on Monday March 3 Ethical Dilemmas: Stress & Risk Management at 5pm.

https://www.nassaubar.org/Admin/CMS/SpecialPages/EventPages/Ethical_Dilemmas_Rev.pdf

EMOTIONS, DIVORCE AND COURAGE

As I ready for a custody hearing later today, I thank  The Law Offices of Ian S. Mednick, P.C. for sending me a link to the following blog post:

HUFFINGTON POST - BRAVING DIVORCE

I do sympathize with my clients and their emotions; and yet, for myself, I must also maintain an emotional distance in order to evaluate the case objectively and advise accordingly.

My "bedside manners" can always be improved...sometimes, it is best just to listen.

MENTAL HEALTH OF LITIGANTS

Setting aside the argument that litigation always affects the mental health of a party, there are truly cases where a party who has not been adjudicated as incompetent is nevertheless incapable of adequately prosecuting or defending his/her rights.

There is statutory guidance in Article 12 of the CPLR and of course the cases thereunder when  dealing with a client in litigation (and/or a pro se party in opposition) with a mental health condition and an attorney should be aware that a need for a guardian ad litem may arise at any time. The best course, naturally, is to deal with client competency problems as soon as possible in order to avoid unnecessary delays and costs in litigation.

While researching this, I came across an interesting Court of Claims case from a few months ago where the pro se claimant was making his own motion for a guardian ad litem:

TRUCCHIO v. THE STATE OF NEW YORK, # 2013-048-101, Claim No. 112596, Motion No. M-82864

LAWYERS AND MENTAL ILLNESS

Yesterday I read a decision from the Appellate Division, First Department regarding an attorney's disbarment - basically neglect of work due to depression and mental illness but the Appellate Division noted in dicta that it would only have suspended the attorney if the attorney responded to the charges (but the attorney could not due to the attorney's mental illness). Matter of Blank, 2013 NY Slip Op 05724 (AD 1st Dept August 27, 2013)

Note this editorial from the New York Times earlier this month:

NYT - Lawyers of Sound Mind?