In the Matter of B., 2009 NY Slip Op 50841(U) (N.Y. Fam. Ct. 2/5/2009)
| Decision Date | 05 February 2009 |
| Docket Number | NA-35478-81/06 |
| Parties | IN THE MATTER OF B. Children under the age of eighteen alleged to be neglected and abused by VALERIE B. LEOCADIO B., Respondents. |
| Court | New York Family Court |
Delano Connolly, Esq., Special Assistant Corporation Counsel, Brooklyn, New York, Administration for Children's Services.
William C. Hoffman, Esq., Brooklyn, New York, Attorney for respondent mother-person legally responsible.
Gail Rich, Esq., Brooklyn, New York, Attorney for respondent father-person legally responsible.
Nicole Barnum, Esq., New York, New York, Attorney for the Children, Jasmine B. and Lizmarie B.
Anthony J. Johnson, Esq., Jamaica, New York, Attorneys for the Children, Leocadio B., Jr. and Andrea B.
There are several issues currently pending before the Court in this mid-fact-finding Family Court Act article 10 proceeding. The first issue is whether to grant the motion of respondent father-person legally responsible (hereinafter, "respondent father") to compel the production of the subject child, Lizmarie B.'s, post-incident hospital records, despite her opposition and refusal to execute a HIPAA release. The second issue is whether to grant the motion of the Administration for Children's Services (hereinafter, "ACS") to admit the criminal record of respondent father, over his objection. The third is whether to grant the motion of ACS for reargument or renewal of the Court's July 28, 2008 order and decision, based on actions of respondent mother that took place "subsequent to when this court was rendering its decision regarding this matter during the summer months of 2008." The attorney for the two older children supports the motion for reargument or renewal, which is opposed by respondent mother and the attorney for the younger children. For the reasons set forth herein, the first two motions are granted and the third is denied.
Valerie B. (hereinafter "respondent mother") and Leocadio B. Sr. (hereinafter "respondent father") are the parents of two of the subject children, Leocadio B. Jr., born January 1, 2000 and Andrea B., born January 1, 1998. The other two children, Lizmarie B., born May 25, 1989 and Jasmine B., born July 9, 1993, are the nieces of the respondent father.1 On November22, 2006, at approximately 1:00 AM, ACS removed the subject children Lizmarie and Jasmine B. from the care of the respondents without a court order pursuant to Family Court Act §1024.
On November 22, 2006, ACS filed petitions against both respondents. The petitions allege that respondent father raped the subject child Lizmarie on November 20, 2006 after watching a pornographic film with her and that he had raped her once before in February 2005. In addition, the petitions allege that respondent mother failed to provide adequate care and supervision for the children Leocadio Jr. and Andrea by allowing respondent father to leave the home with the children after she learned that he had sexually abused Lizmarie. Finally, the petitions allege that Jasmine, Andrea and Leocadio Jr. are derivatively abused and neglected children by virtue of the abuse of Lizmarie.2
On the day the petitions were filed, Hon. Anne Feldman granted the request of ACS for a remand of all of the children. The subject children Leocadio Jr. and Andrea were removed at approximately 9:00 PM, pursuant to the court-ordered remand.
Thereafter, respondent mother requested a Family Court Act § 1028 hearing seeking the immediate return of Leocadio Jr. and Andrea. The hearing took place before Hon. Anne Feldman, over several court dates, beginning on November 27, 2006 and ending on December 31, 2006. At the conclusion of the hearing, Leocadio Jr. and Andrea and were paroled to respondent mother under ACS supervision on the condition that she enforce the temporary order of protection entered against respondent father on November 27, 2006.3 Since respondent mother did not request that Lizmarie or Jasmine be returned to her care they were both placed in non-kinship foster care where they remained until August 1, 2007, when they were paroled to their guardian uncle.
The fact-finding hearing began on May 8, 2007 and continued over the course of approximately 20 months on numerous court dates. During the fact-finding hearing, ACS called Catherine McLeod, the ACS caseworker, Melinda Vega from Emergency Children's Services, Lizmarie B. and respondent mother.
On April 25, 2008, at the conclusion of ACS's case, respondent mother orally moved to dismiss the petition, asserting that ACS had not presented sufficient evidence to establish a prima facie case of neglect. She asserted that she did not have any knowledge that her husband had allegedly raped Lizmarie in 2005 and did not know that he had allegedly done so again in 2006. Therefore, she asserted that when she allowed respondent father to take their two children to her mother's house she had no reason to think he would do anything to harm them. By Notice of Motion dated May 16, 2008, respondent mother moved for the same relief. ACS opposed the application and filed an affirmation in opposition, asserting that respondent mother did not believe Lizmarie, called her a liar and a slut and took no action to protect Lizmarie or her own children. The attorneys for the children filed no papers in support of or opposition to the motion, although they both orally indicated that they supported dismissal.
By decision and order dated July 28, 2008, respondent mother's motion to dismiss was granted with respect to the allegations of direct neglect and derivative neglect of Leocadio Jr., Andrea, and Jasmine. The motion was denied with respect to Lizmarie.
Thereafter, the respondent father presented his direct case and testified on his own behalf. ACS inquired of him on cross-examination about his prior criminal convictions. He acknowledged that he had two prior felony convictions for selling drugs and that he was once sentenced to "two and one-half to five (years)." He denied any other convictions and denied that he had ever been arrested for possession of firearms. In addition, throughout the proceeding, he repeatedly asserted that most of the information contained in his criminal record "is not even mine."
ACS sought leave to subpoena respondent father's criminal records and respondent father sought to introduce Lizmarie's hospital records from Lutheran Medical Center. Judicial subpoenas were signed for both sets of records.
The Family Court is authorized to issue a subpoena duces tecum to order the production of materials which are relevant to a pending judicial proceeding (Judiciary Law § 2-b[1]; Family Court Act § 153; CPLR 2307; In re Antonia E., 16 Misc 3d 637 [Fam Ct, Queens County 2007], citing Matter of Terry D., 81 NY2d 1042 [1993]; Matter of Bernard C., 168 Misc 2d 813 [Fam Ct, New York County 1996]; Matter of Constantine v Leto, 157 AD2d 376 [3d Dept 1990], aff'd 77 NY2d 975 [1991]).However, in the instant case, because respondent father seeks to compel the production of information which comes within the scope of the state's physician-patient privilege4 and which also constitutes "protected health information" pursuant to the Health Insurance Portability and Accountability Act of 1996 (hereinafter, "HIPAA"),5 the Court is unable to simply issue an order or a subpoena directing the production of a hospital record which appears to be relevant to the issues in this proceeding.
A. Disclosure is Authorized under State Law
1) The Records are Material and Necessary to assist Respondent in the Preparation and Defense of his Case and may be Necessary for the Determination of the Issues before the Court Statutory authority for the disclosure of hospital records in a child protective proceeding is found in the Civil Practice Law and Rules (hereinafter, "CPLR"), the Family Court Act (hereinafter, "FCA"), and the Social Services Law (hereinafter, "SSL").
Article 31 of the CPLR provides that there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof (CPLR 3101; In re Crystal AA, 271 AD2d 771 [3d Dept 2000], lv denied 95 NY2d 903 [2000]). FCA § 1038 (d) provides that "Article 31 of the CPLR shall apply to article 10 proceedings."
FCA § 1038 (a) provides for disclosure of evidence from any hospital "having custody of any records, photographs or other evidence relating to abuse or neglect, upon the subpoena of the court." The statute requires that such a hospital shall send any "records, photographs or evidence to the court for use in any proceeding relating to abuse or neglect."
Further, both the Family Court Act and the Social Services Law abrogate the physican-patient privilege. FCA §1046 (a) (vii) provides that "the privilege attaching to confidential communications between the physician-patient shall (not) be a ground for excluding evidence which otherwise would be admissible." Social Services Law § 415 provides that notwithstanding the physican-patient privilege, a mandated reporter who initiates an investigation of maltreatment is required to comply with all requests for records relating to such report, "including records relating to diagnosis, prognosis or treatment, and clinical records, of any patient that are essential for a full investigation of allegations of child abuse or maltreatment."
Nevertheless, FCA §1038 (d) requires that the court apply a balancing test where one party seeks a protective order. In this context, the statute requires the trial court to "consider the need of the party for the discovery to assist in the preparation of the case and any potential harm to the child from the discovery" (In re Imman H., 49 AD3d 879 [2d Dept 2008] [...
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