Opinion
Index No. 500196/19
12-02-2022
In the Matter of R.H., An Incapacitated Person.
Counsel for Guardian, Selfhelp Community Services, Inc., Daniel J. Reiter, Esq., Law Firm of Daniel J. Reiter, Esq., Counsel for R.H., Diana M. Rosenthal, Esq., Mental Hygiene Legal Service, Appellate Division, First Department Counsel for Department of Social Services, Maria Young, Esq., Office of Legal Affairs.
Unpublished Opinion
Counsel for Guardian, Selfhelp Community Services, Inc., Daniel J. Reiter, Esq., Law Firm of Daniel J. Reiter, Esq.,
Counsel for R.H., Diana M. Rosenthal, Esq., Mental Hygiene Legal Service, Appellate Division, First Department
Counsel for Department of Social Services, Maria Young, Esq., Office of Legal Affairs.
TA-TANISHA D. JAMES, J.
The following papers, numbered 1 to 1-2, were read on this application to Release Transcript
Notice of Motion/ Petition/ OSC - Affidavits - Exhibits No(s) 1
Answering Affidavits - Exhibits No(s) 2
Replying Affidavits No(s)
IT IS HEREBY ORDERED, that the Order to Show Cause ("OSC") filed by Michael H., son of R.H., seeking the release of the transcript of Dr. Rebecca Jones' testimony from the hearing on whether to appoint an Article 81 Guardian for R.H. is denied.
Michael H. filed the instant OSC seeking the transcript for use in an ongoing Family Offense proceeding pending in New York County Family Court in which Ms. H. is seeking an Order of Protection against him. Mr. H.'s OSC indicates he wishes to "establish Ms. H.'s diagnosis and described aspects of her disorder, which may explain her actions in bringing an additional case against [him]."
An Order of Protection was issued in a criminal proceeding whereby Michael H. was ordered to stay away from R.H., but that action is no longer pending.
Diana M. Rosenthal, Esq., court appointed counsel for Ms. H., submitted written opposition opposing the motion on the basis the content sought by Mr. H., namely information pertaining to Ms. H.'s medical and psychological condition, is confidential and Mr. H. has not established the necessity of the transcript of Dr. Jones's testimony.
Mr. H., Ms. Rosenthal, Maria Young, Esq., counsel for the Department of Social Services ("DSS"), the Petitioner in the Article 81 proceeding, and Daniel Reiter, Esq., counsel for the Guardian, appeared before the Court on October 17, 2022. During the appearance, Mr. H. stated the Referee presiding over the Family Offense proceeding indicated it would be helpful to understand Ms. H.'s alleged mental health diagnosis. DSS joined Ms. H.'s counsel in her opposition and additionally argued the requested relief is protected by NY Social Services Law and that the Family Court Referee could obtain a general understanding of Ms. H.'s mental health condition by other means, such as consulting the DSM-5.
NY Social Services Law §473-e pertains to the confidentiality of protective services for adults' records. Section 473-e(4) provides that prior to the release of qualifying records that are in the possession of the department or a social services district, it must be determined that the confidential character of the information will be maintained in accordance with applicable law, and the record will be used only for the purposes for which it was made available. NY Social Services Law §473-e(6)(c) further dictates that when a record made under this article is subpoenaed or sought, the Department of Social Services may move to withdraw, quash, fix conditions or modify the subpoena, or move for a protective order, if appropriate, or otherwise object to the release of all or a portion of the record on the basis that the release sought is for a purpose not authorized under the law.
Here, Mr. H. does not seek a copy of Dr. Jones's written report or other records that DSS may possess. Rather, he seeks the transcript of Dr. Jones' testimony from the Article 81 proceeding related to her evaluation of Ms. H.. Nonetheless, the Court is guided by NY Social Services Law §473 and finds the protections enumerated within appropriate to apply to the instant application. Dr. Jones is a psychiatrist employed by the Human Resources Administration and was assigned to evaluate and diagnose Ms. H. for the purpose of determining whether DSS should petition for the appointment of a guardian. Thus, her testimony during the hearing was based upon her evaluation and affirmation submitted in support of the application to appoint a guardian. While there are limits to confidentiality of those types of evaluations and the full privileges of confidentiality do not attach, the purpose of the evaluation remains limited in scope and is not designed to be used in other types of litigation. Further, it is well settled that the entire mental and physical health conditions of alleged incapacitated persons is not automatically at issue in Article 81 proceedings. See Matter of Astor, 13 Misc.3d 1203 (A) (Sup Ct NY County 2006); Matter of Rosa B.-S. (William M.B.), 1 A.D.3d 355 (2nd Dept 2003).
Additionally, Mr. H. has failed to set forth a sufficient basis as to why the transcript is relevant or necessary to the Family Offense proceeding, in as much as there are other ways for the Family Court to become familiar with Ms. H.'s mental health conditions. Further, it is questionable whether Ms. H.'s mental health is germane to the inquiry of whether Mr. H. committed certain offenses against Ms. H. as enumerated in the Family Court Act. The sole question before the Family Court is whether Ms. H. can prove as required by law Mr. H. committed the alleged offenses, not her motivations behind filing the proceeding.
Accordingly, the motion is denied for the reasons set forth herein.