B, In re

• Citation: 335 N.Y.S.2d 535,71 Misc.2d 176
• Parties: In the Matter of Gigi B, * A Child under Eighteen Years of Age Alleged to be Neglected.
• Decision Date: 25 August 1972
• Court: New York Family Court

Page 535

335 N.Y.S.2d 535

71 Misc.2d 176

In the Matter of Gigi B, ^* A Child under Eighteen Years of Age Alleged to be Neglected.

Family Court, Bronx County.

Aug. 25, 1972.

J. Lee Rankin, Corporation Counsel.

Norman Redlich, (Anthony J. Benedict and Arthur P. Sage, New York City, of counsel), for petitioner.

Kenneth G. Schwarz, New York City, for respondent.

Charles Schinitsky, Brooklyn, Stuart Grabel and Kenneth S. Michaelson, Bronx, for the children.

Louis J. Lefkowitz, Atty. Gen., State of New York (Joel Budnetz, New York City, of counsel), special appearance for New York State Narcotics Addiction Control Commission.

STANLEY GARTENSTEIN, Judge:

The within neglect proceeding brings into direct collision two public policies of this state, each being critical to the existence of the body of law enacted pursuant thereto.

The petition alleges that the infant Gigi, less than a year old, has been neglected by virtue of the fact that her mother, the respondent herein, is a drug addict. If the alleged addiction can be established, this would, standing alone, form a statutory basis for a prima facie finding of neglect. (Family Court Act § 1012(f)(i)(B).)

The infant had been the subject of an emergency removal from the mother's custody and is currently in the temporary custody of the Commissioner of Social Services.

To sustain the allegation of neglect by virtue of drug addiction, the Bureau of Child Welfare which is the petitioner herein, has subpoenaed the records of the New York State Narcotic Addiction Control Commission in whose program for rehabilitation the respondent is enrolled. In response to the Court ordered subpoena, the Commission has produced its records under seal to be broken only by the Court if it rejects the attack on their admissability to be discussed herein; and it further argues, by special appearance, that these records are the subject of statutory privilege both to the respondent and to the Commission. In addition, it has sent the following communication to the Court:

'In response to the subpoena of the Family Court of the State of New York, Docket number N2361--72, in the case involving the above client, Patricia B, we submit the following information:

The client was restored to Aftercare program on June 23, 1972, and then reported to Aftercare Office on June 26, 1972 and July 3, 1972. Urine specimens taken at that time have returned positive--indicating the use of heroin. Since then, the client has failed to report to Aftercare on July 10 and 17, 1972, and she is in the process of violating the terms of her Aftercare status.

We hope that the above information is sufficient. Please contact us if you require further assistance.'

Both the Commission and respondent argue that the records of the Commission are absolutely privileged and not admissable in evidence.

STATUTORY PRIVILEGE--BASIS:

The statute governing commitment proceedings for drug addicts is Article 9 of the Mental Hygiene Law, more specifically, § 206--b which provides that the facts and proceedings 'relating to the admission, certification or treatment of any such narcotic addict' may not be introduced into evidence 'against him In any proceeding in any court (emphasis added), other than a proceeding pursuant to the provisions of this article'.

It has been held that this statute creates immunity to the addict as a matter of substantive law in addition to being privileged as a matter of evidence (In re Spadafora, 54 Misc.2d 123, 281 N.Y.S.2d 923, affd. 29 A.D.2d 742, 288 N.Y.S.2d 588; In re Narcotics Addiction Control Commission, 29 A.D.2d 72, 285 N.Y.S.2d 793, reversed on other grounds 22 N.Y.2d 545, 293 N.Y.S.2d 531, 240 N.E.2d 29).

THE STATE'S PRIVILEGE:

The Narcotics Addiction Control Commission argues that, aside from any privilege running in favor of the respondent, the State itself has a vested right to invoke its own independent privilege. It is argued that a diminution of the immunity granted by Article 9 of the Mental Hygiene Law will weaken a program which depends on the confidence of those it seeks to cure. The Court makes no ruling on this argument. Suffice it to say that if indeed a privilege does exist independently in favor of the State, and we are not convinced that it does, the State has as much capacity to waive it as does any other litigant. As respondent herself points out, a privileged communication may be waived (Regan v. National Postal Transport Assn., 53 Misc.2d 901, 280 N.Y.S.2d 319) and the waiver need not be overt or conscious but may be spelled out by acts committed by a party otherwise entitled to assert it (Lynch v. Mutual Life Ins. Co., 55 Misc.2d 179, 284 N.Y.S.2d 768, Mancinelli v. Texas Eastern Transmission Corp., 34 A.D.2d 535, 308 N.Y.S.2d 882). Further, a partial waiver of a privilege effectively waives the entirety thereof (Clark v. Geraci, 29 Misc.2d 791, 208 N.Y.S.2d 564).

The Court holds that if a privilege ever existed independently in favor of the State, that privilege was effectively waived by the letter in question.

RESPONDENT'S PRIVILEGE:

Respondent resolutely refuses to waive her privilege and argues that the clear public policy of the State encourages addicts to come forward and accept treatment assured by statute that disclosure will not be forthcoming. The legislature has indeed found that the widespread epidemic of drug abuse merits certain incentives for an addict to come forward and accept...