New York Family Law Blog
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.
1. Disclosure of the subject child’s post-incident hospital records is granted 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. 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. 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 physician-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 physician-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”.
A review of the history behind these disclosure provisions reveals a legislative intent to help the court secure the most complete record possible regarding allegations of child abuse and neglect. Toward that end, FCA § 1038 was enacted to authorize liberal disclosure in child protective proceedings to safeguard against erroneous determinations and help ensure that decisions affecting a child’s welfare will be based on the most complete record possible.
In the instant case, ACS filed petitions alleging that respondent father raped Lizmarie on November 20, 2006 and that he had raped her once before in February 2005. During the fact-finding hearing, Lizmarie testified that respondent father raped her on November 20, 2006. She testified that he touched her breasts, rear end, stomach and vagina and that he put his penis in her vagina. She testified that she tried to push him away and that she cried. She testified that after it was over, she left the home, went to a friend’s house, told the friend what happened and that the friend’s mother called the police. Later that day, Lizmarie was taken to the Lutheran Medical Center. A hospital social worker called in a report of suspected child abuse. Lizmarie testified that respondent father had done the same thing to her in February 2005.
Respondent father has adamantly denied the allegations. He contends that the hospital records are necessary to assist in the preparation of his case and that they are material and necessary to his defense. In addition, he asserts that the records are required for a determination of the issues before the Court since they contain no evidence of sexual abuse. He also notes that Lizmarie has made similar allegations against someone else in the past.
After a review of the relevant case and statutory law, the Court grants respondent father’s application, finding the evidence sought to be competant, material and necessary under established law. It is undisputed that the subject child’s hospital records contain no physical evidence of sexual abuse. While the significance of this fact in disproving abuse is sometimes minimal, in this case, it may be inconsistent with the allegations of rape. Moreover, the lack of physical evidence may raise questions about the child’s credibility. As such, respondent father’s ability to present a complete defense could be seriously curtailed if he were not able to review and introduce relevant portions of the hospital records.
While the Court is aware of the potential impact this decision may have upon the subject child, here, there is no evidence that disclosure will traumatize her. In fact, at this point in time, Lizmarie is no longer a minor, she has not resided with respondents since the commencement of the action and she no longer has any relationship with them whatsoever. In addition, the attorney for the child has failed to introduce any evidence as to her client’s current psychological status, and no claim is made that the requested disclosure would cause her to suffer any particular or significant psychological trauma. Such trauma cannot be presumed – especially in the case of older children.
2) The Records are Subject to Disclosure to the Extent that they Contain Information within the Scope of the State’s Mandatory Child Abuse Reporting Statute Social Services Law § 415 requires that 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.” The statute also requires disclosure by hospitals of information concerning suspected child abuse or neglect, including the nature and extent of the child’s current and prior injuries, the name of the person alleged to be responsible, the actions taken by the hospital, including the taking of photographs and x-rays, the removal or keeping of the child; and any other information which the hospital believes might be helpful, as well as the family composition, the source of the report, and the child’s name, address, age, sex and race.
In addition, Social Services Law § 422 (4) (A) (e) requires disclosure of all reports of child maltreatment from hospitals, as mandated sources, as well as any other information obtained, reports written or photographs taken, by a court order “upon a finding that the information in the record is necessary for the determination of an issue before the court.”
In the instant case, the mandated reporter who initiated the investigation of child maltreatment, was a social worker from Lutheran Medical Center. Accordingly, the hospital is required by statute to disclose records relating to the child’s diagnosis, prognosis and treatment, the nature and extent of her current and prior injuries, the name of the person alleged to be responsible, the actions taken by the hospital, including the removal of the child; and other information concerning the child and the family composition. Such information is also subject to disclosure here, since the court finds that the records may be necessary to a determination of the issues before it.
B. Disclosure of the Subject Child’s Post-Incident Hospital Records is authorized under Federal Law Under the rulemaking authority set forth in HIPAA, privacy regulations were enacted to restrict the ability of hospitals, as “covered entities,” to release patient medical records, which constitute “protected health information”. The purpose of the privacy regulations is to prevent unauthorized disclosure and ensure that disclosure only takes place upon the explicit written consent of the patient or, without the patient’s consent, where disclosure is otherwise “required by law”.
While HIPAA regulates disclosure of medical information by medical providers and establishes a uniform reporting system for health facilities, it’s privacy provisions are procedural in nature and do not create any new privileges. Accordingly, the courts have emphasized that there “was no federal common law health care provider-patient privilege prior to the enactment of HIPAA, and while HIPAA regulates the disclosure of medical information it did not create a privilege.” Any applicable privileges are therefore found – if at all – outside of HIPAA’s regulations, e.g., in state law. As a result, the courts in the states that have addressed the issue,9 have granted disclosure of medical records over the objection of former patients based on HIPAA’s privacy provisions, where, as here, the physician-patient privilege was abrogated by applicable state statutory law.
In addition, HIPAA’s privacy regulations broadly allow for the disclosure of medical or hospital records in the course of any judicial proceeding “in response to an order of the court provided that the covered entity discloses only the protected health information expressly authorized by such order. Consequently, the courts have held that “disclosure without patient authorization is broadly permitted.
In this context, the regulations authorize a “covered entity” to disclose “protected health information” where the entity is required to report suspected child maltreatment under state law. Toward that end, the regulations explicitly authorize the disclosure of medical or hospital records without the consent of the patient about victims of child abuse, neglect or domestic violence to any appropriate government authority authorized to receive such reports, to the extent the disclosure is required by law and complies with and is limited to the requirements of such law.
With these provisions in mind, the courts have granted disclosure of medical records finding it to be a necessary component of the disclosure explicitly required by state law. In such cases, the courts have rejected the assertion that the information contained in the medical records exceeds the scope of disclosure necessary to satisfy the state’s reporting requirements. In that case, the court ordered the disclosure of a former patient’s medical and substance abuse treatment program records concluding that the information contained in the records fell within the scope of the state mandatory child abuse reporting statute. The court explicitly rejected the contention that the information in the records exceeded the scope of what was necessary to the report of suspected child abuse. The court held that HIPAA does not bar disclosure of information that is “integral to a report of suspected child abuse.” The court construed that term broadly and ordered disclosure of information about the victim and the suspected abuser, the nature and extent of the victim’s injuries, the source of the report, as well as the evaluation of the former patient by his counselor, his present treatment status, information about his drug use and medication, his statements about the incident of suspected child abuse and his mental health since that information was part of the child abuse report and it provided a basis for assessing the credibility of the report.
In the instant case, disclosure of the subject child’s hospital records is required under state law, which explicitly abrogates the physician-patient privilege. The records are material and necessary in the defense of the matter and may be necessary to a determination of the issues before the court. In addition, respondent father’s need for the records in preparing his case outweighs any potential harm to the child. Moreover, since the mandated reporter who initiated the investigation of child maltreatment was a social worker from Lutheran Medical Center, the hospital is required by statute to disclose records relating to the child’s diagnosis, prognosis and treatment, the nature and extent of her current and prior injuries, the name of the person alleged to be responsible, the actions taken by the hospital, including the removal of the child and other information concerning the child and the family composition.
Disclosure of the child’s hospital records in also required under federal law. Under the circumstances presented in the instant case, HIPAA provides no greater privacy protection than is afforded under state law. HIPAA did not create any newly enforceable privileges. In fact, it explicitly allows for disclosure heresince the records fall within the exception to the privacy provisions requiring disclosure of suspected child maltreatment. Finally, the case law is clear, that mandatory disclosure extends beyond the report itself and includes the disclosure of medical records relating to the child’s diagnosis, prognosis and treatment, the nature and extent of her current and prior injuries, the name of the person alleged to be responsible, the actions taken by the hospital, including the removal of the child; and other information concerning the child and the family composition. Accordingly, the motion by respondent father for disclosure of Lizmarie’s hospital records is granted for purposes of an in camera review. After an in camera review, those records will be admitted into evidence to the extent they contain information consistent with the parameters set forth above.
In addition, in an effort to ensure that the records are not used for any purpose other than this proceeding, the Court will enter “a qualified protective order” pursuant to 45 CFR § 164.512 (e) (1).10 Accordingly, the parties shall be prohibited from using or disclosing the subject child’s hospital records for any purpose other than the instant litigation. Furthermore, the parties and their attorneys are directed to return any and all copies of the hospital records at the end of the proceeding.
2. Disclosure of respondent father’s criminal record is granted
While cross-examination on collateral matters is generally not permissible, there is a specific statutory exception which allows for the admission of a record of a conviction where the witness denies having been convicted. In this regard, CPLR 4513 provides that a “person who has been convicted of a crime is a competent witness; but the conviction may be proved, for the purpose of affecting the weight of his testimony, either by cross-examination, upon which he shall be required to answer any relevant questions or by the record. The party cross-examining is not concluded by such person’s answer.” Consequently, any witness who testifies at a civil proceeding may be impeached by proof of a conviction of a crime.
Courts have interpreted CPLR 4513 broadly, holding that witnesses in civil actions may be impeached by convictions for crimes of any type. A number of courts have held that the statute provides the trial court with virtually no discretion to exclude a particular conviction.
Other courts have held that the trial court may not even place limits on the number of convictions that may be admitted.
Indeed, evidence of a prior crime may be used for impeachment even where a certificate of relief has been issued. Moreover, cross-examination need not be limited strictly to the fact of a conviction, but may explore the nature of the underlying crime.
Nevertheless, by its terms CPLR 4513 is limited to convictions of “crimes.” “Crimes” are felonies or misdemeanors (Penal Law § 10.00).11 In addition, the key word for impeachment purposes is conviction. The courts have held that inquiries about prior arrests are improper because there is absolutely no logical connection between a prior unproven charge and [a] witness’ credibility. Nor, may a witness be cross-examined regarding a youthful offender adjudication. Likewise, an indictment which did not lead to a conviction may not be inquired into upon cross-examination because it is a “mere accusation of guilt. However, upon cross-examination counsel may inquire as to the facts underlying an arrest, a youthful offender adjudication or an indictment. And, while an adjournment in contemplation of dismissal is neither a conviction nor an acquittal, the acts underlying such a disposition may nevertheless be the subject of impeachment inquiry, provided the inquiry is not used to show that the witness has a propensity to commit the offense charged.
It is well-settled that CPLR 4513 is applicable to child protective proceedings and that a respondent parent may be impeached on cross-examination by proof of any prior convictions.
In the instant case, ACS inquired of respondent father on cross-examination about his prior criminal convictions. Respondent father acknowledged he had two prior felony convictions for selling drugs and that, in one of those cases, he was sentenced to “two and one-half to five (years).” He specifically denied any other convictions and denied that he was ever arrested for possession of firearms. In addition, both respondent father and respondent mother repeatedly asserted that most of the information contained in respondent father’s criminal record “is not even his.” ACS shall therefore be permitted to subpoena respondent father’s criminal record. To the extent that an in camera review of those records reveals information consistent with the parameters set forth above, the records shall be admitted into evidence.
3. Leave to renew or reague is denied ACS seeks leave to reargue and renew this Court’s July 28, 2008 order and decision, based on actions allegedly taken by respondent mother on unspecified dates described only as “subsequent to when this court was rendering its decision regarding this matter during the summer months of 2008” ACS alleges that the Court erred in granting respondent mother’s motion in part and finding that ACS failed to establish a prima facie case of neglect or derivative neglect as to the children Jasmine, Andrea and Leocadio, Jr. ACS asserts that the prior decision was erroneous because unbeknownst to ACS or the Court, subsequent to the prior order and decision, respondent mother repeatedly called Lizmarie and Jasmine “sluts” and “whores.” ACS asserts that these actions placed Lizmarie and Jasmine “at risk of impairment.” In addition, ACS asserts that these remarks “shouted from in front of the residence of Leocadio Jr. and Andrea by their mother,” placed them “at least at risk of derivatively if not directly being neglected by exposure to such foul, derogatory statements.”
A. The Motion to Reargue is Untimely and Improperly based on Additional Facts not Previously Presented at the Time of the Prior Motion or Decision A motion to reargue must be made within 30 days after service of a copy of the order determining the prior motion. Since the underlying order in the instant case was entered on July 28, 2008, and served upon counsel and the parties in court shortly thereafter, the motion to reargue is untimely.
In addition, a motion to reargue shall not include any matters of fact not offered on the prior motion. Its purpose is simply to convince the trial court that the prior decision was erroneous and should be changed. It must be based upon matters of law or fact which were overlooked or misapprehended by the court in arriving at its determination of the prior motion. Thus, the moving party must be able to show where in the papers submitted on the original motion the overlooked or misapprehended fact was asserted or the overlooked or misapprehended argument was made. Since the facts asserted in support of the instant motion were not previously presented, the motion to reargue is unavailing.
B. The Motion to Renew is Improperly based on Additional Facts which did not Exist at the Time of the Prior Motion or Decision Where, as here, the motion does contain new proof, it is a motion for renewal, rather than a motion for reargument, and should be treated as such. A motion for renewal, like a motion to reargue, must be based on additional material facts which existed at the time of the prior motion. The difference between the two is that a motion to renew must be based on evidence that was not previously known to the moving party and therefore was not made known to the court.
Similarly, a motion to vacate on the basis of “newly discovered evidence” must be based on previously existing evidence which could not have been discovered in time to move for a new trial and which, if introduced at the trial, would probably have produced a different result.
The evidence proferred in the instant case fails to satisfy these requirements. The original motion was made orally in open court on April 25, 2008 and then again by Notice of Motion dated May 16, 2008. That motion was decided by order and decision dated July 28, 2008. Thereafter, “subsequent to when this court was rendering its decision regarding this matter,” sometime “during the summer months of 2008,” respondent mother allegedly made derogatory statements to Lizmarie and Jasmine. Six months later, by order to show cause dated December 18, 2008, ACS moved for leave to reargue and renew. Since the events described in the order to show cause did not take place until after the original motion was made and the order and decision was handed down, the evidence was not in existence at the relevant time and the motion to renew is, therefore, improper.
This result is not only consistent with case and statutory law but also with basic notions of due process and fundamental fairness. It is the Court’s view that a motion to renew was never intended to be used under the circumstances presented here, that is, to allow a petitioner in a child protective proceeding to resurrect a previously dismissed cause of action and proceed on the basis of events that were neither pled nor proven, that allegedly took place 26 months after the petition was filed, 20 months after the fact-finding commenced, nine months after petitioner rested and six months after the court determined that petitioner had failed to establish a prima facie case as to three of the children.
While post-dismissal acts of child maltreatment by a respondent parent would, under most circumstances, support the filing of a new child protective proceeding, that option may not be available in the instant case. Although respondent mother was a “person legally responsible” for Lizmarie and Jasmine in November 2006, there is no basis to conclude that she retained that status in the summer of 2008.12 Indeed, Lizmarie and Jasmine have not lived with respondent mother for more than two years. Their maternal uncle, Jorge B., has a final order of guardianship and both Lizmarie and Jasmine returned to his care shortly after the commencement of this proceeding. Neither Lizmarie nor Jasmine has had anything more than passing contact with respondent mother since the Fall of 2006. Finally, at the time of the events described by ACS, Lizmarie was no longer under the age of 18.13 Since the new allegations against respondent mother fail to state a cause of action for neglect as to Lizmarie, they are clearly insufficient to allege derivative neglect as to the three younger children. In any event, ACS’s assertion that the statements were made by respondent mother in front of the house in which Leocardio, Jr. and Andrea live, without any claim that they were heard by them, or that they were even present during the incident, is patently insufficient to allege either neglect or derivative neglect and it is therefore equally insufficient to lead this Court to grant the relief sought by ACS.
Accordingly, it is ordered, that the motion by respondent father for disclosure of Lizmarie’s hospital records from Lutheran Medical Center, in connection with the care she received on or about November22, 2006, is granted for purposes of an in camera review; those records will be admitted into evidence to the extent they contain information consistent with the parameters set forth above; and it is further Ordered, that a qualified protective order is entered pursuant to which the parties and their attorneys are prohibited from using or disclosing the protected health information for any purpose other than the instant litigation and are directed to return any and all copies of the hospital records at the end of the proceeding; and it is further Ordered, that the motion by ACS for disclosure of respondent father’s criminal record is granted for purposes of an in camera review; those records will be admitted into evidence to the extent they contain information consistent with the parameters set forth above; and it is further Ordered that the motion by ACS seeking renewal and reargument and to vacate this Court’s order and decision dated July 28, 2008, is denied.
The Nassau County Family Lawyers and Nassau County Child Custody Attorneys at Stephen Bilkis and Associates works hand in hand in successfully handling family related cases into favorable resolution; contact our lawyers in New York for free legal consultation.