NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.Procedural History On August 14, 2018, Administration for Children’s Services (hereinafter, “ACS”) filed a petition against the respondent father Mr. Jose S. (hereinafter “the Respondent”) alleging that he sexually abused the subject child Valerie S. over the course of several years, starting when she was four years old. On the day of filing, this Court granted the request of ACS for a release of the child to the non-respondent mother under the supervision of ACS. Fact-finding is scheduled to commence on September 5, 2019.On or about April 8, 2019, ACS served an expert witness disclosure pursuant to Civil Practice Law and Rules (CPLR) §3101(d), indicating it would be calling Valerie’s therapist from Post Graduate Center for Mental Health (hereinafter, “Post Graduate”), as an expert witness to “testify regarding the nature of her treatment of the subject child Valerie related to her diagnosis of PTSD.” The disclosure further indicated that the therapist “will testify that the behaviors and symptoms exhibited by the subject child are consistent with symptoms of PTSD suffered due to the respondent’s actions, particularly the actions of sexual abuse.”On April 9, 2019, counsel for the Respondent filed a motion seeking the release of records from Post Graduate which relate to the mental health diagnosis and treatment of the subject child Valerie. The attorney for the child filed an affirmation in opposition on April 15, 2019. On April 17, 2019, counsel for the Respondent filed an affirmation in response to the affirmation in opposition, and on April 22, 2019, the attorney for the child filed another affirmation in opposition in response.On April 29, 2019, the Court reserved decision on the motion and indicated a written decision would be rendered. The matter was adjourned to September 5, 2019 for fact-finding hearing.Legal Analysis:Counsel for the Respondent argues for the Court to order the full disclosure of the subject child Valerie’s mental health records from Post Graduate. Given that these are records which fall within the scope of the state’s physician-patient privilege1 and which also constitute “protected health information” pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Court cannot simply issue an order or a subpoena directing their production on the premise that they may be relevant in this proceeding. Rather, the Court must abide by the restrictions placed on the release of mental health records and be guided by provisions of the law that specifically address the manner in which the physician-patient privilege may be abrogated.The law is well-settled that upon a showing of good cause, a court of competent jurisdiction may authorize disclosure of confidential mental health records of an individual in a child protective proceeding. See FCA §1038(d); NY Men. Hyg. Law §33.13(c)(1). In its assessment, the court must apply a balancing test, which weighs the public interest and the need of the party for the discovery against the possible harm or injury to the child from the discovery. See FCA §1038(d); NY Men. Hyg. Law §33.13(c)(1); CPLR §2302. Additionally, the court must consider whether there are alternative and effective means of obtaining the information sought. 42 CFR Section 2.64(d); In re Maximo, 710 N.Y.S.2d 864 (Fam Ct Kings Co, 2000). If a court finds that the interests of justice significantly outweigh a patient’s privacy interests, then finally, a court must define the scope of that disclosure, limiting it to what is necessary for the movant’s legitimate purposes. See NY Men. Hyg. Law §33.13(f); see also, Hickox v. Hickox, 64 AD2d 412 (1st Dept. 1978); Matter of Dean T., 117 AD3d 492 (1st Dept. 2014).In the instant matter, where ACS has alleged that the Respondent has raped his daughter, the Court finds that the interests of justice significantly outweigh the child’s need for confidentiality. In the court’s balancing test, there were several factors which were considered. First, counsel for the Respondent has established good cause to warrant disclosure of Valerie’s mental health records. ACS has squarely put the child’s mental health at center by indicating it will be calling the child’s therapist to testify at fact-finding as an expert. More precisely, ACS has delineated that the crux of the therapist’s testimony will focus on the child’s PTSD diagnosis, specific symptoms and behaviors of the child, the child’s mental health treatment and how these all relate to the child’s allegations of sexual abuse by the Respondent. To this end, as counsel for the Respondent has laid out, since the Post Graduate records contain information relating to the essence of the therapist’s testimony — the child’s diagnosis and treatment — they are materially relevant and should be disclosed. See FCA §331.4(1)(a); see also, Matter of Terry D., 81 NY2d 1042, 1045 (Ct. of App. 1993). Secondly, because the Post Graduate records are records which the therapist authored and which likely support the basis of her expert opinion, the Respondent has further demonstrated that the records are material and necessary to his defense and that they are essential to assist in the preparation of his case and a thorough cross-examination of the expert witness. See F.C.A. §1038(d); In re B Children, 886 NYS2d 70 (Fam. Ct. Kings Co., 2009); cf. In re Imman H, 49 AD3d 879 (2d Dept. 2008)(denying motion for production of child’s psychiatric treatment records because mother failed to demonstrate that records were needed for preparation of her case). Third, Respondent has shown that the information sought in the records is not available through other sources. Tying these factors all together, counsel for the Respondent has articulated a clear link between the information sought and the issues to be determined by this Court.Considering the factors outlined above, a full disclosure of the Post Graduate records is warranted. While this Court does not deem it necessary for the attorney for the child to redact portions of the records, to the extent that there may be portions of the records which are not relevant in proving the specific allegations, in order to protect the best interests of the child and afford her surety against unnecessary full disclosure, before permitting disclosure to counsel, the Court will conduct an in camera review of the records. The undertaking by the Court of assessing the parameters of disclosure will ensure that any such disclosure is limited to information necessary and comports with the reason for the disclosure.WHEREFORE, based on the foregoing, Respondent’s motion for the disclosure of the Post Graduate records is granted for purposes of an in camera review by the Court. After such in camera review, to the extent the records contain information consistent with the parameters of the disclosure laws, the records will be distributed to counsel and may be admitted into evidence. Finally, this Court will enter the attached qualified protective order to ensure the records are further protected. Notify parties.Dated: May 9, 2019Bronx, New York
