Opinion
July 18, 1994
Appeal from the Family Court, Dutchess County (Pagones, J.).
Ordered that the order is reversed, without costs or disbursements, the petitions are reinstated, and the matter is remitted to the Family Court, Dutchess County, for further proceedings consistent herewith.
The Dutchess County Department of Social Services (hereinafter the DSS), alleging that the respondent is mentally retarded as that condition is defined in Social Services Law § 384-b, petitioned for custody of five of her minor children.
Taking the allegations in the petitions to be true and giving the DSS every favorable inference and implication to be derived therefrom, the petitions were sufficient to state causes of action pursuant to Social Services Law § 384-b (see, Morone v Morone, 50 N.Y.2d 481; Licensing Dev. Group v. Freedman, 184 A.D.2d 682; Components Direct v. European Am. Bank Trust Co., 175 A.D.2d 227).
Moreover, the DSS is not collaterally estopped from litigating the issue of the respondent's alleged mental retardation. Although the respondent was subjected to a psychological examination in the context of an earlier proceeding pursuant to Family Court Act article 10 in which the children were adjudged neglected, it is not clear whether that proceeding or the psychiatric examination it entailed addressed the respondent's alleged retardation. Even assuming, arguendo, that the respondent's mental state was placed in issue in that prior proceeding, the question of whether or not she was mentally retarded as that condition is defined in Social Services Law § 384-b (6) (b) was not actually litigated therein (see, D'Arata v New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659; Matter of Hee K. Choi v. State of New York, 74 N.Y.2d 933; Matter of Halyalker v Board of Regents, 72 N.Y.2d 261; Kaufman v. Lilly Co., 65 N.Y.2d 449; Seaman v. Fichet-Bauche N. Am., 176 A.D.2d 793). This is so, inter alia, because under Social Services Law § 384-b (6) (e), a determination as to a parent's incapacity by reason of mental retardation can only be established by legally sufficient evidence after the court has heard testimony from a psychiatric expert who has examined the parent (see, Matter of Jennifer HH., 193 A.D.2d 850; Matter of Donald LL., 188 A.D.2d 899, 900-901). The only expert evidence regarding the mother's mental condition in the instant record is an unsworn typewritten report from a psychologist, diagnosing her "overall intellectual functioning" as "borderline", and noting "the possibility of an organic brain dysfunction". The best interests of the children demand that the statute be adhered to, and that the mother's competence as a parent be more adequately addressed (see, e.g., Matter of Strausberg, 92 Misc.2d 620; see also, Matter of Catholic Child Care Socy. v. Evelyn F., 128 Misc.2d 1023).
We therefore remit the instant petitions to the Family Court, Dutchess County, for an expedited hearing following an examination de novo of the respondent by a court-appointed psychiatrist or certified psychologist in accordance with Social Services Law § 384-b (6). Sullivan, J.P., Pizzuto, Santucci and Friedmann, JJ., concur.