Opinion
NN-06138-9/13
10-01-2015
In the Matter of M.S., L.J., D.S.J., Children Under Eighteen Years of Age Alleged to be Neglected by v. B.J., E.S., Respondents.
Corporation Counsel, Michael Cordozo, by Special Assistant Corporation Counsel, Molly Lundberg, Esq., 330 Jay Street, Brooklyn, NY 11201. Julia Hiatt, Esq., attorney for the Respondent Mother, Brooklyn Defender Services, 180 Livingston Street, Suite 300, Brooklyn, NY 11201. Denise Costanza, Esq., attorney for Respondent Father, 26 Court St., Suite 1003, Brooklyn, NY 11242. Maria Roumiantseva, Esq., Attorney for the Child,111 Livingston St., 8th Floor, Brooklyn, NY 11201.
Corporation Counsel, Michael Cordozo, by Special Assistant Corporation Counsel, Molly Lundberg, Esq., 330 Jay Street, Brooklyn, NY 11201.
Julia Hiatt, Esq., attorney for the Respondent Mother, Brooklyn Defender Services, 180 Livingston Street, Suite 300, Brooklyn, NY 11201.
Denise Costanza, Esq., attorney for Respondent Father, 26 Court St., Suite 1003, Brooklyn, NY 11242.
Maria Roumiantseva, Esq., Attorney for the Child,111 Livingston St., 8th Floor, Brooklyn, NY 11201.
Ann E. O'Shea, J.
Petitioner, the Administration for Children=s Services (APetitioner@ or AACS@), commenced these proceedings with a petition filed on February 27, 2013, (A2013 Petition@), which alleges that Respondents B.J., (Athe Mother@), and E.S. (the AFather@), neglected their daughters, M.S., born on September 9, 2012, and L.J., born on August 1, 2010. A second petition was filed on February 5, 2014, (A2014 Petition@) alleging that the Mother and Father derivatively neglected their newborn daughter D.S.J., born on February 2, 2014. All three children were removed from the parent's custody and placed in nonkinship foster care.
At a fact-finding hearing, witnesses appearing on ACS=s behalf included the children=s pediatrician, Dr. Ravi Saksena (ADr. Saksena@); ACS Child Protective Specialist (ACPS@) Keisha Best, (AMs. Best@); Clara Delacruz, (AMs. Delacruz@), a supervisor at SCO Family Services (ASCO@), the foster-care agency charged with the care of the children; SCO Case Planner Eslady Paulino, (AMs. Paulino@); Dr. Danielle Laraque, (ADr. Laraque@), Chair of the Department of Pediatrics at Maimonides Medical Center, who was qualified as an expert in pediatrics with a sub-specialty in child abuse; Dr. Deborah DeSantis-Moniaci, (ADr. DeSantis-Moniaci@), Director of Pediatric Psychology at Maimonides Medical Center; and Sharona Blaire, (AMs. Blaire@), a foster parent. Neither the Father nor the Mother testified, although both were present at fact-finding. The following documents were admitted into evidence: (1) an Oral Transmittal Report (AORT@) dated October 25, 2012; (2) a Domestic Incident Report, dated October 25, 2012; (3) certified, delegated and marked records from Maimonides Medical Center; (4) certified, delegated and marked records from Maimonides Medical Center, Pediatric Subspecialty Consultation Clinic; (5) the curriculum vitae of Dr. Laraque; and (6) the curriculum vitae of Dr. DeSantis-Moniaci. Evidentiary Standards and Burdens A party seeking to establish neglect must show, by a preponderance of Acompetent, material, and relevant@ evidence (Family Ct Act ' 1046 [b] [i] and [iii]), that a child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the respondent=s failure to exercise a minimum degree of care (FCA '1012 (f); Nicholson v. Scoppetta, 3 NY3d 357, 368 [2004]). ATo protect against unwarranted state intervention into private family life, the statute requires proof of actual (or imminent danger of) physical, emotional or mental impairment to the child, clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child@ (Nicholson, 3 NY3d at 368, internal quotations and citations omitted). Recognizing that a finding of neglect may be appropriate even when a child has not suffered actual harm, the legislature established Aimminent danger of impairment@ as an independent and separate ground of neglect (id. at 369). AImminent danger@ means Anear or impending@ danger, not merely possible (id). Whether actual or threatened, the harm must be A serious . . . not just . . . what might be deemed undesirable parental behavior@ (id.). Additionally, to establish neglect, Athere must be a link or causal connection between the basis for the neglect petition and the circumstances that allegedly produce the child=s impairment or imminent danger of impairment@ (id.), and there must be proof that the actual harm or imminent risk of harm is a result of Athe parent=s failure to exercise a minimum degree of care@ (id. at 370). A>Minimum degree of care= is a baseline of proper care for children that all parents, regardless of lifestyle or social or economic position must meet@ (id., internal quotations and citations omitted). The test is A>minimum degree of care= B not maximum, not best, not ideal . . . .@ (id.). The 2013 Petition
1. The Mother
The 2013 Petition alleges that the Mother is a person of diminished intellectual capacity who has difficulty understanding and expressing herself verbally as well as remembering and quickly processing information, and, because of these deficits, the Mother failed to mix M.S=s infant formula properly, resulting in an inadequate weight gain and a diagnosis of Afailure to thrive.@ The 2013 Petition also alleges that the Mother is unable to travel or take her children to their medical appointments on her own; that she failed to keep four medical appointments for M.S. between October 2012, and February 7, 2013; and that she failed to have M.S. properly immunized. There are no specific allegations against the Mother with respect to L.S. On October 26, 2012, the Mother and Father brought M.S. and L. to their pediatrician, Dr. Saksena for a well-child visit. Dr. Saksena testified that he had no concerns about either child=s health on that day, but that he observed a bruise on the Mother=s arm and suspected that the Father might be perpetrating acts of domestic violence against her. After questioning the Mother outside the Father=s presence, Dr. Saksena called a report of suspected child abuse or neglect into the State Central Register. Based upon his suspicions, Dr. Saksena referred the Mother and children to the Maimonides Hospital Pediatric Subspecialty Consultation Service (APSCS@), which provides special clinical services for children with ACS cases. An appointment for the Mother to bring M.S. to the PSCS clinic (Athe Clinic@) was scheduled for November 14, 2012. On October 26, 2012, in response to Dr. Saksena=s report, CPS Best visited the family home and met with the Mother, L.S. and M.S. CPS Best testified that she observed L.S., who was two years old at the time, to be clean, healthy, and very active, and that the Mother appeared to be appropriately holding, feeding, and relating to M.S., who was about six weeks old. She had no concerns about the safety of either child with the Mother. The Father was not at home when Ms. Best called on the family. According to a Domestic Incident Report, dated October 25, 2012, the Father was arrested on that date, based on a complaint of the Mother about an incident that allegedly occurred on October 24, 2012. Although he was apparently released in time to take the Mother and the two children to the well-child visit with Dr. Saksena on October 26, 2012, the parties apparently agree that, at some point, the Father was excluded from the home by a Criminal Court order of protection. By February 2013, the order of protection had apparently expired, and the Father returned to the family home. The Mother missed her November 14, 2012, appointment at the Clinic and then missed a rescheduled appointment for November 20, 2012. She disclosed to CPS Best that she had difficulty traveling alone and that the Father had usually taken the children or had accompanied her to the children=s medical appointments. The Mother had come to New York from Los Angeles about three years earlier, had no family or other support in New York, except for the Father, and depended on him for his assistance in caring for the children. Until he was excluded from the home, he and the Mother were coparenting L.S. and M.S., and there is some evidence that he was, in fact, the primary care-giver for the children. Once the Father was excluded from the home and precluded from being around the Mother by the Criminal Court order of protection, the Mother had no one to help her with caring for the Children. In or about December 2012, CPS Best referred the Mother for ACS preventive services, but, for reasons unknown, the referral was rejected. She then made a referral to ACS=s Family Preservation Program (AFPP@), which accepted the case and arranged for a caseworker B Mr. Bey B to accompany the Mother to the children=s medical appointments. With Mr. Bey=s assistance, the Mother attended the newly rescheduled appointment at the Clinic on December 13, 2012, and all subsequently scheduled appointments. There is no evidence to support Petitioner=s allegation that the Mother missed four medical appointments or failed to have M.S. immunized. In addition to Mr. Bey, a parent advocate was assigned to the Mother, and she occasionally accompanied the Mother to the Children=s doctor appointments. Dr. Laraque testified that when she first examined M.S. on December 13, 2012, she noted that the child was in the third percentile for weight. Except for her low weight, M.S. appeared otherwise healthy. When Dr. Laraque questioned the Mother, she learned that the Mother had been using powdered formula and mixing it in a ratio of one scoop of formula to five ounces of water, when the correct amount is one scoop to two ounces of water. Dr. Laraque concluded that M.S. was Afailing to thrive@ because she had been consuming an insufficient number of calories. Dr. Laraque testified that she observed that M.S. was Afisting@ B holding her hands in fists B when developmentally she should have been opening her hands more at that point. Dr. Laraque testified that a low weight gain can result in developmental delays, but if the condition is brief, any delays are usually overcome. Dr. Laraque discussed the proper proportion of powder to water with the Mother and gave her a prescription for ready-to-feed formula. For reasons she did not explain, Dr. Laraque testified that she Aassessed@ that the Mother might not have completely understood the formula-mixing instructions, so she ordered Visiting Nurse Services to make home visits to instruct and monitor the Mother and to regularly weigh M.S. Six follow-up visits at the Clinic were scheduled. Dr. Laraque noted in the Maimonides records a concern that, without preventive and supportive services to help the Mother, the Mother might not be able to adequately care for M.S. and L.S. and that M.S. could be at continued risk for failure to thrive. Dr. Laraque testified that she never had any concerns that the Mother was abusing M.S. or intentionally withholding food from her and that she never recommended that the children be removed from the Mother=s care. Dr. Laraque referred the Mother for a cognitive evaluation, and that the Mother was receptive and cooperative with all referrals and services provided. On January 2, 2013, the Mother appeared for a cognitive evaluation by Dr. DeSantis-Moniaci, another member of the Maimonides PSCS team. Dr. DeSantis-Moniaci testified that the Maimonides team and the Mother=s ACS FPP Caseworker Mr. Bey concluded that the Mother could benefit from supportive housing, and determined that a low IQ score could help the Mother qualify for such housing and accompanying services. Dr. DeSantis-Moniaci conducted the evaluation on January 10, 2013. The test results showed that the Mother had an IQ score of 69 on the Wechsler Adult Intelligence Scale, Version IV, which, according to Dr. DeSantis-Moniaci, met the criteria for Amild mental retardation.@ There was a wide discrepancy between the Mother=s verbal score of 68, which placed her in the Aextremely low range,@ and her nonverbal score of 81, which placed her in the Alow average range@ of intelligence. Dr. DeSantis-Moniaci testified that the scores indicated that the Mother might have difficulty understanding instructions that were given exclusively orally, but would do better with nonverbal demonstrations, simply written instructions, or pictures. Dr. DeSantis- 3 Moniaci also diagnosed the Mother with dysthymia (pattern of low-grade depressed mood), and Aanxiety disorder, not otherwise specified.@ Dr. DeSantis-Moniaci specifically testified that IQ tests do not measure psychopathology, impulse control, judgment, or parenting abilities. M.S. had six scheduled follow-up visits at the Clinic between December 13, 2012, and January 24, 2013. The Mother brought M.S. to each of the visits. By the last visit, M.S. had achieved good catch-up growth, was showing steady weight gain, and was developing normally. No longer was she observed to be Afailing to thrive.@ Dr. Laraque noted in the Maimonides records that A[w]ith the help of her Family Preservationist, Mr. Bey, as well as our PSCS team, this family is beginning to make great strides. [The Mother] reports improved mood and decreased stress due to Mr. Bey=[s] consistent presence in her home and his work to secure multiple services that this family needs, including public assistance and Early Intervention services. . . . Ms. J. has been able to achieve small yet monumental steps towards independent living. Ms. J. is now able to feed and dress the children on her own.@ Unlike New York=s Social Services Law, which specifically includes a parent=s Amental retardation@ as one of four grounds for terminating a parent=s rights to his or her child (see SSL '384-b [4](c)), the Family Court Act does not include a parent=s intellectual deficits among the specific conduct or conditions that could serve as a basis for a finding of neglect. The closest I could come to finding a decision suggesting that a parent=s intellectual deficits could be a basis for a neglect finding is the Court of Appeal=s decision in In re Trina Marie H. (48 NY2d 742 [1979]), in which the Court upheld a remand of the subject child, stating that Athe mother's mental retardation, while not a per se basis for a finding of neglect, adds to the legitimate concern that her toleration of her present husband's beating of the infant child and her own lack of proper care . . . will not readily yield to reformation (see also Matter of Joseph MM. (Clifford MM.), 91 AD3d 1077, 1079 [3d Dept 2012], lv denied 100 NY2d 516 [2003][evidence of respondents' intellectual disabilities, alone, will not support a finding of neglect]; Matter of Erica D. (Maria D.), 77 AD3d 505 [1st Dept 2010][a parent's mental retardation will not support a finding of neglect per se]). As in any case alleging neglect, the Petitioner must prove that the child suffered actual harm or was placed in imminent danger of harm to her physical, mental, or emotional condition as a result of the respondent=s failure to exercise a minimum degree of care (Nicholson, 3 NY3d 4 at 368; see also Matter of Summer Y.-T, 32 AD3d 212 [1st Dept. 2006]; Matter of Anthony TT v. Philip TT, 80 AD3d 901, 902 [3d Dept. 2011). Thus, Petitioner was required to prove that the Mother suffered from some intellectual deficit; that she failed to exercise the requisite minimum degree of care; and that L.S. and/or M.S. were impaired or placed in imminent danger of becoming impaired as a consequence. Petitioner failed to do so. While the tests conducted by Dr. Desantis-Moniaci establish that the Mother met the criteria for Amild mental retardation,@ Petitioner presented no evidence that the Mother=s designation as Amildly mentally retarded@ impaired her ability to adequately parent her children or her capacity to learn how to be a more competent, effective parent. None of Petitioner=s witnesses were experts qualified to render any opinion about the effect of the Mother=s IQ on her parenting capacity. The Court cannot simply assume that an overall IQ of 69 renders a parent incapable of adequately and safely parenting her child. Petitioner also failed to establish that either L.S. or M.S. was harmed or placed in imminent risk of serious harm to their physical, mental, or emotional condition because of the Mother=s intellectual deficits. Concern about the Mother=s intellectual capabilities was first raised as a result of her error in mixing M.S.=s formula, which gave rise to M.S.=s failure-to-thrive diagnosis. There was no evidence that the error was a result of the Mother=s intellectual deficits or anything more than a simple, albeit unfortunate, mistake.The error was immediately rectified. No lasting harm befell M.S. at all, let alone a serious harm. Dr. Laraque=s initial examination of M.S. revealed an underweight but otherwise normal and healthy child. Dr. Laraque noted that M.S. was still Afisting,@ which she stated could signify some developmental delays. Dr. Laraque also speculated that there Amay@ be a connection between M.S.=s insufficient nutrition and the child not opening her hands as would otherwise have been expected at three months, but she rendered no professional opinion with a reasonable degree of medical certainty either that M.S. was harmed, or that the cause of harm was attributable to conduct by the Mother (see Matter of Nicole G. (Louis G.), 105 AD3d 956 [2d Dept. 2013][expert opined that child=s "behavior" and "affect" were consistent with that of a sexually abused child, but she did not render a professional opinion with a reasonable degree of certainty that it was likely the abuse occurred]. Dr. Laraque also testified that children typically grow and develop normally after a short Afailure to thrive@ period. Although Dr. Laraque initially expressed concerns about what she perceived as the Mother=s Ainability to grasp@ the instructions about the proper proportion of powdered formula to water, her concerns were ameliorated within a month, and by January 24, 2013, M.S. had gained sufficient weight, was developing appropriately, and the Mother had learned to feed and dress the children on her own. Notwithstanding her concern about M.S.=s low weight and what she perceived as the Mother=s lack of understanding of the proper formula-mixing instructions, Dr. Laraque never recommended that M.S. be removed from her Mother=s care. As for the allegation that the Mother did not know how to travel through New York City by herself, the Mother admitted as much to Ms. Best. Until the Father was excluded from the home, she relied on him to either take the children to their medical appointments by himself or to accompany her. Once the Father was excluded from the home, she relied on FPP caseworker Mr. Bey and other caseworkers to accompany her in her travels. However, there was no 5 evidence presented that the Mother is unable to learn to travel on her own or that her reliance on a support system to help her travel has actually endangered or presents an imminent risk of danger to either child. Parents may lack knowledge of many things that may affect their children. However, a lack of knowledge is not a basis for a finding of neglect. Even if the Mother=s intellectual deficits contributed to the erroneous formula preparation and her inability to take the Children to their medical appointments on her own, the evidence established that, once certain supports were put into place, the Mother was able to properly mix the formula, bring the Children to their appointments, and otherwise adequately care for the Children.Counsel for the Mother, citing Nicholson, argues that the standard to be applied is whether the Mother cared for her children to the best of her ability Aunder the circumstances then and there existing@ (Nicholson, 3 NY3d at 370), including her cognitive limitations and the fact that the Mother may need support and assistance in caring for her children is not a basis for a neglect finding (see, e.g., In the Matter of Loraida G.,183 Misc 2d 126 [Fam. Ct., Schenectady County, 1999]). Petitioner, also citing Nicholson and quoting from the definition of Aimpairment of mental or emotional condition@ set forth in FCA '1012 (h), counters that a neglect finding can be based upon the respondent=s Aunwillingness or inability@ (id.) to exercise a minimum degree of care towards the child. Petitioner appears to argue that a finding of neglect is appropriate if the parent=s intellectual deficits interfere with his or her ability to provide adequate care on his or her own, without regard to whether supportive services are available to compensate for any such deficiencies. This is contrary to the teaching of Nicholson. In Nicholson, the Court of Appeals was faced with the question of whether a mother, who was a victim of domestic violence, could be found to have neglected her children simply because her children witnessed the violence. The Court held that a finding of neglect against the victim of domestic abuse would not be justified solely because the child had witnessed the violence. The Court noted that, assuming that actual harm or imminent danger to the child=s mental or emotional condition had been shown, the petitioner would still have to show that the respondent failed to exercise a minimum degree of care toward the child (id. at 370). The Court ruled that, in determining whether the respondent exercised a minimum degree of care, A[c]ourts must evaluate parental behavior objectively: would a reasonable and prudent parent have so acted, or failed to act, under the circumstances then and there existing@ (3 NY3d at 370). The Court noted that a finding against the mother might be justified where she knows that her children have witnessed repeated acts of violence but, nonetheless, she permits the perpetrator to remain in the home or repeatedly invites him back. However, Nicholson cautions that, in determining whether such mother is Aneglectful,@ courts must consider the surrounding circumstances, including, for example, the risks the mother might face if she was to try to resist or leave the batterer; whether the perpetrator has threatened to kill her if she does; whether she is financially or otherwise dependent on the perpetrator. The Court concluded that A[w]hether a particular mother in these circumstances has actually failed to exercise a minimum degree of care is necessarily dependent on facts such as the severity and frequency of the violence, and the 6 resources and options available to her@ ( id. at 371). In other words, there must be an element of fault ? of Aneglect@ ? to support a finding of neglect. The same analysis may be applied to the question of whether a parent could be found to have neglected her child simply because she has intellectual deficits that interfere with her ability to provide the requisite minimum degree of care on her own. Under Nicholson, a court must consider relevant circumstances, including the level of the deficiency and whether there are supportive services available B either through other family members or from social service agencies B that could compensate for the parent=s deficiencies. In other words, a finding of neglect would not be supportable if a parent=s disabilities can be overcome with appropriate services (see, e.g., In the Matter of Loraida G., supra, 183 Misc 2d at 131; cf. In the Matter of the H. Children, 156 AD2d 520[2d Dept. 1989 [mother=s mental illness properly diagnosed and successfully treated was not a valid basis for a neglect finding]). It is not whether an intellectually challenged parent is able on her own to provide the requisite minimum degree of care, but whether such parent is able to do so with appropriate assistance. It is inconceivable that a neglect finding would be justified because a parent had a physical disability that prevented her from carrying out normal parenting functions, such as lifting or holding a child. In such a circumstance, appropriate supportive services could be provided by family members B including the other parent B or social services agencies that could compensate for the parent=s disability. The same must hold true for cognitive limitations. The fact that ongoing assistance or support may be necessary to enable a parent to adequately care for her child is not a basis for a finding of neglect. And, in fact, state and local social services agencies may be required to provide such assistance under the Americans With Disabilities Act and the Rehabilitation Act of 1973. If an intellectually challenged parent refuses appropriate services, that might be a basis for a neglect finding. Had the Mother in this case continued to feed M.S. inappropriately after she was given proper instructions or had she rejected the directions given to her by Dr. Laraque and others, she might be considered to have neglected her child (see e.g. Matter of Josephine BB. (Rosetta BB.), 114 AD3d 1096 [3d Dept. 2014]; In re Camarra R, 263 AD2d 710, 712 [3d Dept. 1999]). But that was not the case here. The Mother was fully cooperative and accepting of the services provided by the case workers and the advice and directions of the PSCS doctors. In addition, the Father, who, aside from the domestic violence allegations, has never been accused of failing to provide the children with adequate care, had returned to the home and was available to coparent with the Mother until the Children were removed. For all the foregoing reasons, I find that Petitioner failed to prove by a preponderance of the evidence that the Mother neglected M.S. or L.S. 2. The Father According to the DIR, the Mother reported to the police an incident between her and the Father that occurred on October 24, 2012. The Father was arrested on that date, but apparently was soon thereafter released as he and the Mother brought the Children to the pediatrician, Dr. 7 Saksena, for a well-child visit on October 26, 2012. Dr. Saksena testified that he noticed a bruise on the Mother=s arm and suspected that the Father had committed acts of domestic violence against the Mother. Although there is no independent evidence of any Criminal Court orders, the parties do not dispute that a Criminal Court temporary order of protection excluded the Father from the home around this time. The 2013 Petition alleges that, on or about October 24, 2012, the Father Aperpetrated acts of domestic violence against the respondent mother in the presence of the children, actions that subject the children to emotional and physical harm or risk thereof.@ Domestic violence will support a finding of neglect where a preponderance of the admissible evidence establishes that the respondent engaged in domestic violence in the child=s presence, and the child=s physical, mental, or emotional condition was actually impaired or placed in imminent danger of becoming impaired by the parent's conduct (see Matter of Elijah J. [Phillip J.], 77 AD3d 835 [2d Dept. 2010]; Matter of Briana F., 69 AD3d 718 [2d Dept 2010]; [2008]; Matter of Andrew Y., 44 AD3d 1063, [2d Dept. 2007]; Matter of Jayda D.-B., 33 AD3d 998[2d Dept 2006]).Petitioner submitted no admissible evidence in support of its contention that the Father engaged in domestic violence against the Mother in October 2012 in the presence of the Children. Petitioner relies on statements allegedly made by the Mother to police officers, which are included in the October 24, 2012, DIR; statements allegedly made by the Mother to Dr. Saksena on October 26, 2012; statements allegedly made by the Mother to CPS Best; and other statements she purportedly made to Doctors Laraque and Saksena. The statements reported in the DIR are hearsay, not subject to an exception to the hearsay rule, and, consequently, inadmissible (see generally Matter of Christy C.[Jeffrey C.], 74 AD3d 561, 562 [1st Dept 2010][court improperly relied on hearsay statements by respondent mother and respondent father contained in police domestic incident reports that did not fall within another exception to the hearsay rule]; Matter of Imani B. v. Vernon B., 27 AD3d 645 [2d Dept 2006][out-of-court statements made by the mother to a police officer and caseworker concerning a domestic dispute were inadmissible]).The statements the Mother allegedly made to Ms. Best are similarly inadmissible hearsay not subject to any exception. Contrary to ACS=s contention, the Mother=s statements to the pediatricians, Drs., Saksena Laraque, and DeSantis-Moniaci, are not admissible under the hearsay exception for statements made for purposes of medical diagnosis and treatment.Statements made by a patient that are germane to medical diagnosis and treatment may be admissible as an exception to the hearsay rule because such statements Ahave an intrinsic guarantee of reliability, for only a foolish person would lie to his or her own doctor when seeking medical help@ (People v. Ortega, 15 NY3d 610, 620 [2010] [Smith, J., concurring]; (see also People v Spicola, 16 NY3d 441 [2011][boy=s statements to nurse practitioner]; People v Mccray,102 AD3d 1000[3d Dept. 2013] [crime victim=s statements to medical personnel]; People v Jaikaran, 95 AD3d 903 [2d Dept. 2012][same)]; People v. Thomas, 282 AD2d 827 [3d Dept.] appeal denied, 96 NY2d 925 [2001][treating physician may testify to history obtained from patient if germane to diagnosis and treatment]). Third party statements do not carry the same indicia of reliability and so are not admissible even if they are germane to diagnosis and treatment (see, e.g., Sermos v Gruppuso, 95 AD3d 985 [2d Dept. 2012][statements not admissible; not attributable to injured victim]). The Mother was never a patient of Dr. Saksena, Dr. Laraque, or Dr. DeSantis-Moniaci, so none of her statements to those doctors are admissible under the medical diagnosis and treatment exception to the hearsay rule.The testimony of Dr. Saksena and Ms. Best that they observed a 8 bruise on the Mother=s arm does not establish how she got the bruise or whether the Children were present when she got it. The Father=s statement to the Mother and overheard by the caseworker Clara Delacruz during a supervised visit at the Agency that he Aalways hits@ her because she=s Aalways saying stupid stuff@ may be admissible as party=s admission, but it does not establish that the Children were ever present when he hit the mother, and so is not probative of neglect. Eslady Paulino, the SCO case planner, testified that, in September 2014, L.S. told her that Amommy and pappi were fighting like this,@ which she demonstrated by making boxing movements with her hands. L.S. also told Ms. Paulino that both she and M.S. were present, and that she [L.S.] was crying and asked her parents to stop. L.S.=s statements, admissible under FCA '1046(a)(vi), were corroborated by the Father=s admissions to Ms. Paulino that he and the Mother broke into a fight after the Mother broke his television. However, an incident of domestic violence witnessed by a child is not enough to establish neglect (Nicholson, infra, 3 NY3d at 371). Harm or imminent danger of harm to the child=s physical, mental or emotional condition must be shown to establish neglect. There was no evidence that either child was physically harmed or in imminent danger of being physically harmed during the altercation between the parents (cf., In the Matter of Ariella S., 89 AD3d 1092 [2d Dept. 2011](child three feet away from altercation between mother and father when mother stabbed father); In the Matter of Joseph RR, 86 AD3d 723 [3d Dept. 2011] (respondent brandishing a gun in the presence of the child). Unlike physical injury, whether a child=s mental or emotional condition has been impaired or placed at risk of impairment Amay be murky@ (Nicholson, 3 NY3d at 370). The fact that a child has witnessed domestic violence, however abhorrent as that might be, is not sufficient to establish that the child=s mental or emotional condition has been actually impaired or placed in imminent risk of impairment (id.). AImpairment of mental or emotional condition,@ is specifically defined to include "a state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, or acting out or misbehavior, including incorrigibility, ungovernability or habitual truancy; provided, however, that such impairment must be clearly attributable to the inability of the respondent to exercise a minimum degree of care toward the child." (FCA '1012(f)); see Nicholson, 3 NY3d at 369-70. The fact that L.S. reported that she and M.S. were crying during her parent=s fight does not support a finding of Asubstantially diminished psychological or intellectual functioning@ as described in the statute. Something more substantial is required (see, e.g., In re Lonell J., 242 AD2d 58 [1st Dept. 1998][repeated vomiting, soiled bedding, poor health, eating problems]; In re Theresa "CC", 178 AD2d 687 [3d Dept. 1991][behavioral problems, anxiety, bed-wetting, rebellion, withdrawal]; but see Matter of Madison M. (Nathan M.), 2014 NY Slip Op 08918 [1st Dept Dec. 23, 2014] (police observations that the children were crying sufficient). For the foregoing reasons, I find that Petitioner failed to establish by a preponderance of the material, relevant and competent evidence that the Father neglected L.S. and M.S. by engaging in an altercation with the Mother in September 2014 in their presence. The 2014 Petition The 2014 petition repeats the allegations of the 2013 petition and alleges that Respondents= newborn daughter D.S.J. was derivatively neglected and that Respondents failed to complete or to sufficiently benefit from services to which they had been referred to ameliorate the risk of harm to her. As Petitioner has failed to show that the parents neglected L.S. or M.S. as alleged in the 2013 petition, it necessarily follows that no finding of derivative neglect lies (see e.g., Matter of Dalia G. (Frank B.), 128 AD3d 821 [2d Dept. 2015]). Further, although a derivative neglect finding may be premised upon a failure to complete court-mandated programs ordered by a prior order of disposition (see e.g., Matter of Jamarra S. v Jessica S., 85 AD3d 803 [2d Dept. 2011]), here there are neither court-mandated orders to engage in services, nor a prior order of disposition. Conclusion For all the foregoing reasons, the 2013 and 2014 petitions must be dismissed. The Children shall be returned to the parents within five days of the date of this decision and order. Dated: October 1, 2015__________________________________ Ann E. O=Shea, AJSC