W.H., Matter of

• Decision Date: 28 July 1993
• Parties: In the Matter of W.H., S.H., Children Under Eighteen (18) Years of Age Alleged to be Neglected by H.H., Respondent.
• Court: New York Family Court

Page 70

602 N.Y.S.2d 70

158 Misc.2d 788

In the Matter of W.H., S.H., Children Under Eighteen (18)

Years of Age Alleged to be Neglected by H.H., Respondent.

Family Court, Rockland County.

July 28, 1993.

Barbara M. Wilmit, New City, for petitioner.

Morrison, Cohen, Singer & Weinstein by Michele A. Katz, of counsel, New York City, for respondent.

Legal Aid Soc. of Rockland County by Jacqueline Sands, of counsel, New City, Law Guardian.

Birbrower, Montalbano, Condon & Frank, P.C. by William Frank, of counsel, New City, for non-respondent father.

O'Connell and Aronowitz by Sarah W. Birn, of counsel, Albany, for Arms Acres, Inc.

Briggs and Morgan by Terry L. Slye, of counsel, St. Paul, MN, for Hazelden Foundation.

Wilfred T. Friedman, P.C., New York City, for The Washton Institute.

Moira Morrissey, Katonah, for Four Winds Hosp.

WILLIAM P. WARREN, Justice.

This court has before it applications brought on by the signing of an order to show cause on June 11, 1993 and a second order to show cause on June 17, 1993 seeking an order pursuant to 42 U.S.C. § 4582 (renum. 42 U.S.C. § 290dd-3) and subpart E of 42 CFR part 2 directing that this court determine whether good cause exists for the disclosure of certain objective data pertaining to the alleged treatment of the respondent at four (4) different substance abuse/psychiatric facilities, and if the facts and circumstances necessitating disclosure of the information outweigh possible adverse effects upon the successful treatment and rehabilitation of the respondent, the physician/patient relationship, and the treatment program, ordering that the said facilities and a named person from each facility be authorized pursuant to 42 CFR § 2.61-2.64 to disclose to the court and/or certain named parties the disclosure of essential information which shall be described by the court and to direct that each said individual be prepared to testify at a hearing regarding such information. The application is supported by an affirmation of Barbara M. Wilmit, an attorney for the Rockland County Department of Social Services (undated) and the affirmation of G. Nicholas Del Pizzo, an attorney for the Rockland County Department of Social Services (undated). The attorney for the respondent has submitted an affirmation dated June 21, 1993 opposing the application.

Opposition to the application has been submitted on behalf of the Hazelden Fellowship Club New York through a letter from Terry L. Slye dated June 21, 1993, a second letter of July 1, 1993 from Terry L. Slye; opposition has been received from Arms Acres, Inc. by affidavit of Sarah W. Birn, sworn to June 19, 1993 and a reply affirmation of Sarah W. Birn affirmed July 6, 1993; opposition has been submitted from Four Winds Hospital by Moira Morrissey by affirmation dated June 18, 1993; opposition has been submitted on behalf of the Washton Institute by letter of June 21, 1993 from Wilfred T. Friedman. A reply affirmation of June 29, 1993 was submitted by Barbara M. Wilmit. A further affirmation of June 30, 1993 was submitted by Michele Katz.

A motion for permission to appear pro hac vice has been made by Terry L. Slye, to enable him to represent the Hazelden Fellowship Club for this proceeding. An affidavit in support thereof has been submitted by Mr. Slye and upon review of that affidavit, the court grants the application to permit him to appear and file papers before this court in this matter as attorney for Hazelden Fellowship Club.

This is a child neglect proceeding in which it is alleged that the respondent has been taking and abusing codeine, valium and demerol for the last year and that she has been using cocaine and abusing alcohol on a regular basis for the past six (6) months. It is further alleged that she was breast feeding a child during the period of time that she was abusing the aforementioned substances. There are two (2) allegations with regard to automobile accidents while the children were in the vehicle and it is alleged that on November 15, 1992 the respondent took the children for a drive despite a warning from a Child Protective Service caseworker to refrain from doing so. On that date it is claimed she was under the influence of drugs when she returned home with the children. It is also claimed that two (2) days later, on November 17, 1992, the respondent admitted to members of the Palisades Park Police Department and Child Protective Service that she has been using cocaine and is a substance abuser.

The petitioner brings on this application and seeks to have the court determine whether good cause exists for the disclosure of certain information from the aforementioned facilities. It is claimed in the moving papers that information from the facilities will be crucial to the petitioner being able to present sufficient testimony at the hearing to sustain its burden of proof. It is further claimed that there is no other competent source for the information.

Three (3) of the four facilities involved in this proceeding are governed by provisions of the United States Code and the Code of Federal Regulations (42 U.S.C. § 290ee-3 governing drug abuse--42 U.S.C. § 290dd-3 governing alcohol abuse and 42 CFR part 2--confidentiality of alcohol and drug abuse patient records). Those federal statutes and regulations apply to the Hazelden Club New York, Arms Acres, and the Washton Institute. Under New York State law these facilities must comply with the applicable sections of the New York State Mental Hygiene Law contained in Article 23 thereof. Four Winds Hospital is a private freestanding psychiatric hospital licensed by the New York State Office of Mental Health and governed by Articles 31 and 33 of the Mental Hygiene Law.

The opposition to the application relies upon the New York State Mental Hygiene Law § 23.05 as well as the Federal Statute and Regulations dealing with the confidentiality of alcohol and drug abuse patient records. Distinction must be made between the three (3) facilities which are subject to the Federal Alcohol and Drug Abuse Regulations and § 23.05 of the Mental Hygiene Law and the one (1) facility, Four Winds Hospital, which is a psychiatric hospital and, therefore, not governed by the aforementioned regulations. As to the Four Winds Hospital, the applicable statutory provision is § 33.13 of the New York Mental Hygiene Law.

Turning the court's attention first to the three (3) facilities involved with substance abuse programs, it is important to analyze Mental Hygiene Law § 23.05. Pertinent portions of that section read as follows (a) Notwithstanding any other provision of law including but not limited to the election law, no person's rights as a citizen of the United States or of the state of New York shall be forfeited or abridged because of such person's participation in a substance abuse program. Such participation shall include but is not limited to the certification as substance dependent of a person to the care and custody of the office or the transfer of such person to the care and custody of the office under previously existing provisions of law. The facts, proceedings, application or treatment relating to a person's participation in a substance abuse program shall not be used against such person in any action or proceeding in any court....

(c) All records of identity, diagnosis, prognosis, or treatment in connection with a person's receipt of substance abuse services shall be confidential and shall be released only in accordance with applicable provisions of the public health law, any other state law, federal law and court orders.

For this court to arrive at a decision in this matter, it is necessary for it to construe subdivisions (a) and (c) of § 23.05 of the Mental Hygiene Law. On the one hand, the excerpt from § 23.05(a) would appear to create an absolute prohibition upon the use of any of the "facts, proceedings, application or treatment" in any action or proceeding. However, subdivision (c) states that records may be released in accordance with public health law, state law, federal law and court orders. Certain rules of statutory construction are helpful in the court's analysis of these two (2) sections.

In construing a statute, all sections of the law must be read together to determine its fair meaning. McKinney's Cons.Laws of N.Y., Book 1, Statutes § 130. Generally, all parts of a statute are to be harmonized with each other, as well as with the general intent of the whole statute in arriving at an interpretation of the meaning. People ex rel. Jackson v. Potter, 47 N.Y. 375; Matter of Anderson v. Board of Ed., 46 A.D.2d 360, 362 N.Y.S.2d 536, affirmed 38 N.Y.2d 897, 382 N.Y.S.2d 750, 346 N.E.2d 551; Honeoye School District v. Berle, 72 A.D.2d 25, 423 N.Y.S.2d 336. The legislative policy behind Articles 19, 21, 23 and 25 of the Mental Hygiene Law has been set forth in § 19.01. Therein it provides:

Alcoholism, substance abuse and chemical dependence pose major health and social problems for individuals for their families when left untreated, including family devastation, homelessness, and unemployment ... The tragic, cumulative and often fatal consequences of alcoholism and substance abuse are, however, preventable and treatable disabilities that require a coordinated and multi-faceted network of services ... Substantial benefits can be gained through alcoholism and substance abuse treatment for both addicted individuals and their families ... The primary goals of the rehabilitation and recovery process are to restore social, family, lifestyle, vocational and economic supports by stabilizing an individual's physical and psychological functioning....

It cannot be argued against that the confidential nature of the treatment process in substance abuse facilities is an extremely important aspect of those programs. The affidavit of Patricia L. Owen, PhD., submitted in connection with this application attests to the truth of that statement. Dr. Owen is Director...