Opinion
NA-35478-81/06.
Decided February 5, 2009.
Delano Connolly, Esq., Special Assistant Corporation Counsel, Administration for Children's Services, Brooklyn, New York.
William C. Hoffman, Esq., Attorney for respondent mother-person legally responsible, Brooklyn, New York.
Gail Rich, Esq., Attorney for respondent father-person legally responsible14 Billings Place, Brooklyn, New York.
Nicole Barnum, Esq., Attorney for the Children, Jasmine B. and Lizmarie B., New York, New York.
Anthony J. Johnson, Esq., Attorneys for the Children, Leocadio B., Jr. and Andrea B., Jamaica, New York.
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.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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. 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.
Lizmarie and Jasmine are the children of Zaida B., who is the sister of respondent father (according to the petitions their biological father is unknown). Jorge B., the brother of Zaida and respondent father, has an order of guardianship for Lizmarie and Jasmine. He was hospitalized in October, 2005 for complications relating to his diabetes. Prior to his hospitalization, he and the girls were residing with respondents and their children. During his hospitalization, Lizmarie and Jasmine continued to reside with the respondents who cared for them in their uncle's absence.
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.
The petition states: "Upon information and belief, the source of such being Jorge B., such individual has legal guardianship of the children Lizmarie and Jasmine, and when such guardian became hospitalized on or about November 6, 2005, such guardian left the aforementioned children in the care of respondents Leocadio Sr. and Valerie B. who were residing at the case address with the subject children. Based upon the aforementioned, the subject children Jasmine, Andrea and Leocadio Jr., are deemed derivatively abused and neglected children, by virtue of the acts perpetrated upon the child Lizmarie by respondent Leocadio Sr."
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. 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 temporary order of protection excluded respondent father from the home and directed that he stay away from all of the children except for court-ordered visitation.
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.
LEGAL ANALYSIS 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 (Judiciary Law § 2-b; 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; 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).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 privilege and which also constitutes "protected health information" pursuant to the Health Insurance Portability and Accountability Act of 1996 (hereinafter, "HIPAA"), 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.
The physician-patient privilege is codified in CPLR 4504. CPLR 4504 (a) provides that "unless the patient waives the privilege . . . a person authorized to practice medicine . . . shall not be allowed to disclose any information which [s]he acquired in attending a patient in a professional capacity, and which was necessary to enable him [her] to act in that capacity." The courts have afforded the physician-patient privilege "a broad and liberal construction to carry out its policy" ( People v Sinski, 88 NY2d 487, 492 [1996], see Matter of Marie H. , 25 AD3d 704 [2d Dept 2006] [Skelos, J., concurring]). In this context, "[t]he privilege applies not only to information communicated orally by the patient, but also to information obtained from observations of the patient's appearance and symptoms, unless the facts observed would be obvious to laymen" ( Dillenbeck v Hess, 73 NY2d 278 [1989]). The privilege applies to information contained in a patient's medical record ( Id.), and "it serves also to protect the patient from being compelled to disclose the substance of a communication made to the medical professional in an attempt to obtain treatment" ( Williams v Roosevelt Hospital, 66 NY2d 391 [1985]).
45 CFR § 160.103 defines "protected health information" as "individually identifiable health information." "Individually identifiable health information" is defined as health information "created or received by a health care provider, health plan, employer, or health care clearinghouse; and relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and (i) that identifies the individual; or (ii) with respect to which there is a reasonable basis to believe the information can be used to identify the individual."
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] [denying the mother's motions for production of the child's psychiatric and social work treatment records after an in camera inspection, because the mother failed to demonstrate that the records were needed for the preparation of her case]).
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 ( Besharov, Douglas J., McKinney's Cons. Laws of New York, Practice Commentaries to FCA § 1038 [1998]). 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 ( Matter of Tricia K ., 160 Misc 2d 935 [Fam Ct, Kings County 1994], citing FCA § 1011; Matter of Marie B., 62 NY2d 352; see also Matter of Jessica R. by Feder , 78 NY2d 1031 [the statute is designed to enhance procedural fairness and the fact-finding process]).
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.
The ORT dated November 20, 2006 was entered into evidence as petitioner's exhibit number one. The report was called in by a social worker from Lutheran Medical Center and alleged that "Uncle Leocadio raped Lizmarie, age 17, approximately one year ago for the first time. Lizmarie never told anyone about the abuse. Then today 11/20/06, uncle Leocadio raped Lizmarie for the second time. Lizmarie's uncle Jorge, who is also her guardian, has been in the hospital. His role, aunt Valerie's and the other children's roles are unknown." The report further states that "Lizmarie is currently at the hospital with source and police from 72nd precinct. Uncle Leocadio and his wife fled from the home after learning that Lizmarie disclosed the rape. Their whereabouts are unknown. "
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 ( see Matter of Dora F., 239 AD2d 228 [1st Dept 1997], lv denied 92 NY2d 805 [the absence of physical evidence does not preclude a finding of sexual abuse]; Matter of Linda K., 132 AD2d 149 [2d Dept 1987], lv denied 70 NY2d 616), 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 ( see In re Carolyn D., 65 Misc 2d 752 [Fam Ct, Westchester County 1970] [granting respondent parents access to the child's hospital records in a child abuse case, finding disclosure necessary to assist them in preparing for trial and to rebut any evidence that the child protective agency might introduce regarding the child's physical condition]; In re Fatima M. , 16 AD3d 263 [1st Dept 2005] [in a child abuse case involving no physical evidence of abuse and a child who had made similar allegations against others in the past, the Family Court erred in making a finding without ordering adequate disclosure since an accurate assessment of the credibility of the witnesses was vital to determining whether the events took place as described and required that all methods available be utilized to enhance the reliability of the fact-finding process]; see also, 2 NY Fam Ct Law Prac § 12:31, Callaghan's Family Court Law Practice NY, Database updated June 2008, Kristin M. Kerschensteiner, Esq. Publisher's Editorial Staff, Chapter 12, Child Protection).
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 ( see Department of Social Services v Phillip C., NYLJ, Nov. 18, 1991, p. 33, col. 4 [Fam Ct, Ulster County]; Matter of G./A. Children, 161 Misc 2d 64 [Fam Ct, Kings County 1994]).
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 ( see e.g., Schuyler County Dept. of Social Services by Balch , 144 Misc 2d 250 [Sup Ct, Schuyler County 1989] [a hospital that files a report of suspected maltreatment is required by law to disclose the medical records of the alleged victim; accordingly, the medical records of the alleged victim are subject to mandatory disclosure, since they contained information concerning the nature and extent of the child's present and prior injuries, the name of the person alleged to be responsible and the actions taken by the reporting source]).
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" ( 45 CFR §§ 164.500 534). 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" ( 45 CFR § 164.501).
Under HIPAA a covered entity may not use or disclose "protected health information" except as permitted or required by the statute or the regulations ( 45 CFR § 164.502 [a]). "Protected health information" includes "individually identifiable health information" that is "[t]ransmitted or maintained in any . . . form or medium" ( 45 CFR § 160.103). "Individually identifiable health information," is created by a health care provider and "[r]elates to the past, present, or future physical or mental health or condition of an individual . . . and . . . identifies the individual. . . ." ( Id.).
A disclosure is "required by law" if it is a "mandate contained in a law that compels an entity to make disclosure of protected health information that is enforceable by law." It includes but is not limited to "court orders and court ordered warrants, subpoenas or summons issued by court order" ( 45 CFR § 164.103; see e.g., Ex parte John Alden Life Ins. Co., 2008 WL 2469371 [Ala 2008] citing Standards for Privacy of Individually Identifiable Health Information, 65 Fed Reg 82462-01, 82529 [Dec. 28, 2000] [a hospital may disclose information requested pursuant to a court order, without additional process, since a court order constitutes a disclosure required by law and nothing in the regulations was intended to interfere with the ability of a hospital to comply]).
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 ( Sforza v City of NY, NYLJ, Nov. 6, 2008, p. 30, col. 1 [SDNY]; Northwestern Mem'l Hosp. v Ashcroft, 362 F3d 923 [7th Cir 2004]; Johannes v Baehr , 2008 WL 3388161 [Wis App II Dist 2008]). 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 ( Findley v Findley , 937 So2d 912 [La App 3d Cir 2006], writ denied 938 So2d 88 [La 2006]; In re Zyprexa Products Liability Litigation , 2008 WL 4415259 [EDNY 2008], aff'd 2008 WL 4682311 [EDNY]; Northwestern Memorial Hosp. v Ashcroft , 362 F3d 923 [7th Cir 2004]). As a result, the courts in the states that have addressed the issue, 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 ( see e.g., Bihm v Bihm , 932 So2d 732 [La App 3d Cir 2006] writ denied, 938 So 2d 81 [La 2006] [in a custody and visitation proceeding, the non-custodial parent was granted access to the child's medical records to defend against allegations of child abuse, despite objections based on HIPAA's privacy provisions, since state law abrogated the physician-patient privilege and since HIPAA created no new separately enforceable privilege]; Findley v Findley , 937 So2d 912 [La App 3d Cir 2006] [granting a parent's request for the disclosure of medical records of the other parent and the children since the records were discoverable under state law; while HIPAA regulates disclosure of medical information by health care providers, it did not create any new privileges]).
Since HIPAA was enacted fairly recently, there are few New York State precedents to assist the Court in its analysis. Extant state case law addressesing HIPAA in the context of Family Court proceedings is not dispositive of the instant case since those cases were decided under different articles of the Family Court Act in which the physician-patient privilege had not been statutorily abrogated (see e.g. In re Antonia E., 16 Misc 3d 637 [Fam Ct, Queens County 2007] [although HIPAA allows for court ordered discovery, disclosure of victim's post-incident hospital records in an article 3 case was precluded by the physician-patient privilege which was not waived and did not allow the hospital to reveal any information acquired for patient's medical treatment]; AOS v RM, 2008 WL 4387731 [Fam Ct, Queens County 2008] [although HIPAA allows disclosure of protected health information pursuant to court order, the physician-patient privilege precludes disclosure of a respondent's medical and psychiatric records in an article 8 proceeding where the records were sought to prove that a family offense occurred and where there were other ways of obtaining the information]); or, involved requests for the disclosure of records specifically protected under the Mental Hygeine Law (see e.g. In re Michelle HH., 18 AD3d 1075 [3d Dept 2005] [Family Court could not order Department of Social Services to disclose confidential foster care records of person involving mental health, without first complying with Mental Hygiene Law requirement that it find that the interests of justice significantly outweigh the need for confidentiality]; In re Richard SS., 29 AD3d 1118 [3d Dept 2006], appeal after remand 55 AD3d 1001 [3d Dept 2008] [Family Court improperly issued a subpoena directing petitioner to provide respondents with all of the child's mental health records since the court failed to comply with Mental Hygiene Law which requires that clinical records may be released only upon a finding that the interests of justice significantly outweigh the need for confidentiality]).
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" ( 45 CFR § 164.512 [e] [1] [i]). Consequently, the courts have held that "disclosure without patient authorization is broadly permitted"( In re Antonia E. , 16 Misc 3d 637 [Fam Ct, Queens County 2007]; Noll v Hartford Roman Catholic Diocesan Corp. , 2008 WL 4307983 [Conn Super 2008]).
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 (45 CFR § 512 [a]; § 160.202; § 160.203; 42 USCA § 1320d-7 [B]). 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 ( see 45 CFR §§ 164.512 [b] [1] [ii]; [c] [1] [i]).
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 ( see e.g., People v Jimenez , 2008 WL 4592128 [Colo App 2008], rehearing denied [Dec. 31, 2008]). 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 ( Id. pp. 6 8); In re C.B. , 865 NE2d 1068 [Ind App 2007] [hospital records documenting that the mother, while hospitalized for the birth of her second child, tested positive for opiates, cocaine, and marijuana were properly admitted under the exception to the HIPAA privacy provisions allowing for the reporting of suspected child abuse]; People v Trester, 190 Misc 2d 46 [Justice Ct, Westchester County 2002] [in child abuse prosecutions, records that would otherwise be protected against disclosure by the physician-patient privilege must be disclosed as an incident of suspected child abuse pursuant to the state law, therefore, information obtained from defendant's physician could be obtained without defendant's waiver of the privilege]; Matter of N.H ., 569 A2d 1179 [DC App 1990] [disclosure of mother's mental health records ordered where state statutory law abrogated the physician-patient privilege in neglect proceedings and required disclosure by a physician of suspected child maltreatment]; Tyson v Warden , 2007 WL 4171583 [Conn Super 2007] [since disclosure under HIPAA of private health information is broadly permitted in response to a court order, information conveyed by an alleged victim of child abuse to a psychotherapist must be disclosed since it falls within HIPAA's exception permitting disclosure of information about individuals believed to be victims of abuse or neglect and since the psychotherapist was required under state law to report such information]).
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 here since 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). Accordingly, the parties shall be prohibited from using or disclosing the subject child's hospital records for any purpose other than the instant litigation ( 45 CFR § 164.512 [e] [1] [v] [A]). Furthermore, the parties and their attorneys are directed to return any and all copies of the hospital records at the end of the proceeding ( see 45 CFR § 164.512 [e] [1] [v] [B]; US ex rel. Kaplan v Metropolitan Ambulance First-Aid Corp ., 395 FSupp2d 1 [EDNY 2005]).
CFR § 164.512 (e) (1) (v) provides that "a qualified protective order" is a court order that prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or 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 ( Burton v NYCHA, 191 AD2d 669 [2d Dept 1993]; Sansevere v UPS, 181 AD2d 521 [1st Dept 1992]).
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 ( Matter of Linda O., 95 Misc 2d 744 [Fam Ct, Queens County 1978]; Guarisco v E. J. Milk Farms , 90 Misc 2d 81 [Civ Ct, Queens County 1977] [despite trial court's general discretionary power to exclude evidence which is more prejudicial than probative, this power is limited in civil actions by statute making a person who has been convicted of crime a competent witness by allowing proof of such conviction for purpose of affecting the weight of his testimony]).
Other courts have held that the trial court may not even place limits on the number of convictions that may be admitted ( Vernon v New York City Health and Hospitals Corp., 167 AD2d 252 [1st Dept 1990] [rejecting assertion that trial court erred by admitting three of witness' eight marijuana-related convictions, concluding that any of his convictions would have been admissible for purposes of impeachment]; Able Cycle Engines, Inc. v Allstate Insurance Co., 84 AD2d 140 [2d Dept 1981], appeal denied 57 NY2d 607 [any conviction of a crime may be introduced to impeach the credibility of a witness at a civil trial]; Scott v Daddario, 235 AD2d 470 [2d Dept 1997] [a party in personal injury action was properly impeached with a prior felony conviction for driving under the influence of alcohol even though the party's sobriety was an issue in the case]).
Indeed, evidence of a prior crime may be used for impeachment even where a certificate of relief has been issued ( Able Cycle Engines, Inc. v Allstate Ins. Co. , 84 AD2d 140, supra [inquiry into the nature of the crime, not just the fact of the conviction itself, is proper to impeach the credibility of a witness at a civil trial; there is no exception for a crime for which a certificate of relief has been obtained]). Moreover, cross-examination need not be limited strictly to the fact of a conviction, but may explore the nature of the underlying crime ( Id. ).
Nevertheless, by its terms CPLR 4513 is limited to convictions of "crimes." "Crimes" are felonies or misdemeanors (Penal Law § 10.00). In addition, the key word for impeachment purposes is "conviction." The courts have held that inquiries about prior arrests are improper because "[t]here is absolutely no logical connection between a prior unproven charge and [a] witness' credibility" ( People v Cook, 37 NY2d 591). Nor, may a witness be cross-examined regarding a youthful offender adjudication ( Id.). 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" ( Dance v Southampton, 95 AD2d 442 [2d Dept 1983]). However, upon cross-examination counsel may inquire as to the facts underlying an arrest, a youthful offender adjudication or an indictment ( People v Cook, 37 NY2d at 595; Dance v Southampton, 95 AD2d at 453). 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 ( Matter of Jessica Y., 206 AD2d 598 [3d Dept 1994]).
Penal Law §§ 10.00 (4), (5) and (6) set forth the following definitions: "Crime" means a misdemeanor or a felony. "Misdemeanor" means an offense, other than a "traffic infraction," for which a sentence to a term of imprisonment in excess of 15 days may be imposed, but for which a sentence to a term of imprisonment in excess of one year cannot be imposed. "Felony" means an offense for which a sentence to a term of imprisonment in excess of one year may be imposed.
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 ( Id. [Family Court properly permitted impeachment of respondent based on prior convictions provided the cross-examiner questioned in good faith and upon a reasonable basis in fact]; see also Matter of Linda O. , 95 Misc 2d 744 [Fam Ct, Queens County 1978] [statute permitting introduction of prior crimes is applicable to child protective proceedings and special rules applicable to criminal procedure are not required; thus discretion afforded to a trial judge in criminal proceedings to exclude prejudicial impeachment evidence is not available in child abuse proceedings]).
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" (CPLR 2221 [d]). 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" ( Id.). 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 (CPLR 2221[d]; Stecich, M., 8 NY Prac., Civil Appellate Practice § 5:6, Motions for Leave to Renew, Reargue, and Resettle, updated Nov. 2008). 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 ( Petasko v Zweig, 8 AD3d 355 [2d Dept 2004]; CPLR 2221[e]). 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 ( Johnson v Marquez , 2 AD3d 786 [2d Dept 2003] [a motion to renew must be based on previously existing evidence that was not known by movant when the prior motion was decided]; Silverman v Leucadia Inc., 159 AD2d 254 [1st Dept 1990]; Matter of Markim v Assessor, Town of Orangetown, NYLJ, April 11, 2006, p. 19, col. 3 [ Sup Ct, Rockland County] [a motion to renewis intended to draw the court's attention to additional facts which were in existence at the time of the original motion but were unknown to the party seeking renewal]; Faas v Heymann, NYLJ, Oct. 25, 2005, p. 18, col. 1 [ Sup Ct, New York County] [a motion to renew is intended to draw the court's attention to additional facts which, although in existence at the time of the original motion, were unknown to the moving party and therefore not brought to the court's attention]; R D Maidman Family L.P. v Scottsdale Insurance Co., NYLJ, Oct. 14, 2004, p. 18, col.1 [Sup Ct, New York County] [a motion to renew is intended to draw the court's attention to additional facts which, although in existence at the time of the original motion, were unknown to the moving party and therefore were not brought to the court's attention]; Doe v Karpf, NYLJ, June 9, 2006, p. 31, col. 1 [ Sup Ct, Nassau County]).
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 ( In re Ayodele Ademoli J ., 2008 WL 5173862 [2d Dept 2008]; 73 NY Jur 2d Judgments § 203, updated Nov. 2008]). Thus, to qualify as "newly discovered evidence," the evidence must have been in existence at the time of the original proceeding but have been undiscoverable with due diligence at the time of the original order or judgment ( In re Ayodele J., supra [report of psychiatric expert which was not in existence at the time of the Family Court's order of fact-finding and disposition did not meet the criteria for "newly discovered evidence"]; Pezenik v Milano, 137 AD2d 748 [2d Dept 1988], appeal dismissed 72 NY2d 909 [defendants were not entitled to vacatur of a judgment on the ground of "newly discovered evidence" consisting of a report by an Administrative Law Judge since the report was not issued and therefore was not in existence until after the judgment was entered]; Dyno v Village of Johnson City , 255 AD2d 737 [3d Dept 1998] [evidentiary material created after the original decision was handed down was not "newly-discovered evidence"]; Commercial Structures, Inc. v City of Syracuse , 97 AD2d 965 [4th Dept 1983]).
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. 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.
FCA § 1012 (g) provides that a "person legally responsible" includes "the child's custodian, guardian, any other person responsible for the child's care at the relevant time." "Custodian" may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child.
FCA § 1012 (e) defines an abused or neglected child as a child less than 18 years of age.
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.