In re G.

Full title: In the Matter of G., A Child under the Age of Eighteen Years Alleged to be…

Court: Family Court, Bronx County

Date published: May 4, 2015

2015 N.Y. Slip Op. 51973 (N.Y. Fam. Ct. 2015)

Opinion

NA XXXXX/14

05-04-2015

In the Matter of G., A Child under the Age of Eighteen Years Alleged to be Abused by P.L., Respondent.

Zachary W. Carter, Corporation Counsel of the City of New York by Alan W. Sputz, Special Assistant Corporation Counsel, Administration for Children's Services, Bronx, New York (Lindsey Ferioli, Esq., Allison Corley, Esq., of counsel) for Petitioner ACS, 900 Sheridan Avenue, 6th Floor, Bronx, New York 10451; Aleza Ross, Esq., Attorney for the Child G., 320 Carlton Avenue, Suite 2500, Central Islip, NY 11722; The Bronx Defenders - Family Defense Practice (Erin Cloud, Esq., Mara Fleder, Esq., of counsel; pro bono counsel Davis, Polk & Wardwell, LLP) for Respondent P. L., 360 East 161 Street, Bronx, New York 10451.

Carol R. Sherman, J.

Zachary W. Carter, Corporation Counsel of the City of New York by Alan W. Sputz, Special Assistant Corporation Counsel, Administration for Children's Services, Bronx, New York (Lindsey Ferioli, Esq., Allison Corley, Esq., of counsel) for Petitioner ACS, 900 Sheridan Avenue, 6th Floor, Bronx, New York 10451; Aleza Ross, Esq., Attorney for the Child G., 320 Carlton Avenue, Suite 2500, Central Islip, NY 11722; The Bronx Defenders - Family Defense Practice (Erin Cloud, Esq., Mara Fleder, Esq., of counsel; pro bono counsel Davis, Polk & Wardwell, LLP) for Respondent P. L., 360 East 161 Street, Bronx, New York 10451. Carol R. Sherman, J.

In this child abuse proceeding pursuant to Article 10 of the Family Court Act, which commenced on April 17, 2014, Respondent Mother P. L. moved on June 20, 2014 for an order to dismiss and/or to vacate or modify the Qualified Protective Order issued by this court on April 17, 2014. The Protective Order prohibited re-disclosure of pre-trial discovery documents and records pertaining to the subject child G. (DOB XX/XX/2012) and her brother, the deceased child J. (DOB XX/XX/2010), to any persons, other than those directly involved in trial preparation and the representation of the parties in this Article 10 proceeding (see Family Court Act § 1038 [d]; CPLR 3103). On June 25, 2014, the court modified its Protective Order to permit Respondent Mother's counsel to provide discovery records and documents to any experts retained solely for the purposes of the Family Court proceeding, and stated that the expert was not permitted to re-disclose the information contained in the documents and records or retain copies of them unless authorized by the court.

On June 24, 2014, the Attorney for the Child filed a cross-motion that sought dismissal of Respondent Mother's motion on the grounds that the Protective Order issued by this court was valid under the law and that the motion to dismiss and/or to vacate or modify the Order was premature and not ripe for review. Petitioner Administration for Children's Services (ACS) submitted papers that supported the motion by the Attorney for the Child and opposed the motion filed by Respondent Mother. Respondent Mother's counsel submitted a reply in opposition to the cross-motion filed by the Attorney for the Child. FACTUAL BACKGROUND

On April 17, 2014, based on the circumstances surrounding the death of the child J., ACS filed a child abuse petition pursuant to Family Court Act § 1012 (e) and made the following allegations:

"G. (D.O.B. XX/XX/2012) is a child who is less than eighteen years of age whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of her MOTHER P. L. (D.O.B. XX/XX/1992) to exercise a minimum degree of care in providing her with proper supervision or guardianship by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, or by any other acts of a similarly serious nature requiring the aid of the Court within the purview of the FCA Section 1012 (f) (i) (b), in that:



1. The RESPONDENT MOTHER creates or allows to be created a substantial risk of physical injury to the subject child by other than accidental means which would likely cause death or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function or any bodily organ, in that:



a. Upon information and belief, the source being a doctor at Montefiore Medical Center, the subject child's sibling, J. (D.O.B. XX/XX/2010) was brought to St. Barnabas Hospital on or about April 8, 2014 after being found unresponsive and face down in the bathtub. The source further stated that the child J. was transferred to Montefiore Medical Center that same day, and was pronounced brain-dead on April 11, 2014. The child J. was taken off the ventilator and was pronounced dead on April 15, 2014.



b. On or about April 9, 2014, the RESPONDENT MOTHER stated to the undersigned caseworker that she was at the park with the subject child's sibling J. on April 8, 2014, when J. tripped and fell forward, resulting in a bloody nose and bruise to this forehead. The RESPONDENT MOTHER stated that she did not take the child to the doctor or hospital after the fall. The RESPONDENT MOTHER stated that later when the child denied a lollipop, she felt J. and he was warm. The child J. then asked to take a shower, and the RESPONDENT MOTHER filled the bathtub and placed the child in the tub. The

RESPONDENT MOTHER stated that she left J. alone and unattended in the bathroom to get a towel and when she came back into the bathroom J. was face down in the water. She stated that when she lifted him out of the tub he was limp and unresponsive and she called 911.



c. Upon information and belief, the source being family friend Mr. A., he met up with the RESPONDENT MOTHER and the child J. when they were on the way home from the park on April 8, 2014. Mr. A. stated that he immediately noticed that the child was not acting like himself, and when he asked the mother what was wrong with J. the RESPONDENT MOTHER stated that he fell. Mr. A. stated that after they arrived home J. was drowsy and was consistently trying to go to sleep, but he was keeping the child awake because the RESPONDENT MOTHER had told him that the child had fallen and hit his face on the ground. In spite of this, RESPONDENT MOTHER failed to take the child for any medical attention after the fall.



d. Based on the foregoing allegations, the subject child G. is a derivatively abused and neglected child."

On April 17, 2014, the court entered an order finding that it was necessary to remove the child G. from Respondent Mother's care to avoid imminent risk of harm to the child and remanded the child to the ACS Commissioner for foster care, directing that she remain in the care of her Paternal Grandmother F. with whom the child was residing. Subsequently, the court modified its order and directed the temporary release of the child G. to Paternal Grandmother F. under ACS supervision.

At this pre-fact-finding stage of the proceeding, ACS has provided all counsel with confidential records and documents as part of discovery pursuant to court order and judicial subpoenas. The discovery records and documents are as follows:

Oral Report Transmittal of Suspected Child Abuse Maltreatment and ACS Progress Notes, the investigative notes prepared by Child Protective Specialists.



Certified records of St. Barnabas Hospital and Montefiore Medical Center for the child J. .



The Medical Examiner's autopsy report as to the circumstances of the death of the child J..

On April 17, 2014, based on the best interests of the child and the requirements of federal and state privacy laws that apply to the confidential records and documents submitted in this matter, the Attorney for the Child requested that the court issue a Qualified Protective Order governing the re-disclosure and re-distribution of such records and documents. The court issued a Protective Order as follows:

". . . all records turned over to all counsel for discovery are to have a protective order that such records cannot be re-disclosed to anyone else without court permission including Respondent Mother's counsel in criminal court if she is criminally charged" (Order, NA XXXXX/14, dated April 17, 2014).

On June 25, 2014, the court modified the Protective Order and permitted counsel, without prior application to the court, to provide discovery documents and records submitted in this Article 10 proceeding to an expert retained for the purposes of this Article 10 proceeding only, and directed that such documents and records may not be copied, re-disclosed or retained by the expert.

On June 20, 2014, Respondent Mother filed the instant motion to dismiss and/or to vacate or modify the Protective Order stating that there was no showing by the Attorney for the Child as to the need for a Protective Order in this matter. Respondent Mother stated that the Protective Order was not tailored to prevent discovery abuse or potential harm to the child and its requirement to obtain prior court approval before sharing discovery documents with experts infringed upon the due process rights of Respondent Mother and her ability to prepare a defense and receive advice from counsel as to any proposed resolution of this matter. Respondent Mother stated that the Protective Order placed undue restrictions on her access to and use of information, which prejudiced her in that Petitioner and Attorney for the Child were not prevented from re-disclosing discovery documents and records or Respondent Mother's responses to their experts or other government agencies. On July 25, 2014, Attorney for the Child moved for dismissal of Respondent Mother's motion to dismiss and/or to vacate or modify the Protective Order on the grounds that it was a valid order under law, that it did not interfere with the attorney-client relationship and, further, the motion was premature and not ripe for review in that no criminal proceeding had been brought against Respondent Mother in regard to the death of the child J..¹ Attorney for the Child stated that although Respondent Mother claimed a right to distribute discovery documents and records to her criminal defense counsel, she has not been arrested, a criminal proceeding has not commenced, and a defense counsel has not been assigned to represent her in a criminal proceeding or in this Article 10 proceeding. Further, the Attorney for the Child argued that the Protective Order as modified on June 25, 2014 permitted counsel, without prior application to the family court, to provide confidential discovery documents and records to experts retained in this proceeding, did not interfere with or place any restrictions on Respondent Mother's attorney-client relationship or trial preparation in this Article 10 matter, the only court proceeding that has been commenced and is pending. Attorney for the Child stated further that the Protective Order issued by this court balanced the need of the parties for discovery to assist in preparation of this case with the need to prevent potential harm from unauthorized disclosure of confidential records and documents submitted in discovery. Further, the Protective Order was a valid exercise of the court's discretion in accordance with the provisions of the Family Court Act § 1038 and additional safeguards set forth in CPLR 3103 (a), which authorized this court, in its discretion, to "make a protective order denying, limiting, conditioning or regulating the use of any disclosure device . . . to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any person or the courts."

1 As of April 2015, a criminal prosecution has not been brought against Respondent Mother in the death of the child J. .

On August 21, 2014, the Respondent Mother filed a reply in response to the Attorney for the Child's cross-motion and in further support of her motion to dismiss and/or to vacate or modify the Protective Order. Respondent Mother stated that her motion was ripe for review by this court because she had an independent right to receive discovery materials and re-disclose them to any counsel with whom she consulted whether or not he/she represented her in Family Court, and whether or not criminal charges were pending. Respondent Mother stated that the Protective Order directly interfered with her ability to consult with and receive assistance from all her attorneys at The Bronx Defender's Family Defense Practice, including staff lawyers who assist in the family court proceeding as well as criminal defense lawyers and other attorneys who practice in housing and immigration law. She stated that she had a right to distribute the discovery documents received in this proceeding to those lawyers and their staff. Respondent Mother stated further that the Attorney for the Child had not shown harm to the child G. that would result from the unfettered disclosure and provision of these records by Respondent Mother to all of these lawyers and their staff. Respondent Mother requested that the court dismiss and/or vacate or modify the Protective Order to allow unlimited and uncontrolled distribution of these documents to all of these attorneys and any others she and/or her counsel or any other counsel in this Article 10 proceeding as deemed necessary.

On August 22, 2014, the Attorney for ACS filed an Affirmation opposing Respondent Mother's motion to dismiss and/or to vacate or modify the Protective Order and in support of the Attorney for the Child's motion to dismiss. ACS stated that Respondent Mother's argument that the Protective Order was prejudicial to Respondent Mother's trial preparation was moot in that the Protective Order as modified on June 25, 2014 permitted full disclosure of records and documents to any persons directly involved in representing her and in preparing for trial in this Article 10 proceeding and allowed disclosure to experts retained as part of that representation and trial preparation. Petitioner ACS stated that the Protective Order was a valid order under the law in that federal and state laws do not permit or authorize re-disclosure of confidential records and documents obtained through discovery in this Article 10 proceeding for use in any other proceedings, including criminal court proceedings. Further, ACS stated that no criminal charges had been brought against Respondent Mother and no criminal court proceedings were pending, and, therefore, Respondent Mother's request to share Article 10 discovery with counsel, who do not represent her in this Article 10 proceeding, should be denied as premature and not ripe for review. LEGAL ANALYSIS

At issue in this matter is the right of a party or counsel to re-disclose confidential documents and records received in pre-trial discovery to persons other than those directly engaged in representation or trial preparation in this Article 10 proceeding. In deciding this issue, the court need not reach the issue as to whether Respondent Mother's request to share Article 10 discovery with counsel who are not appointed in this Family Court proceeding is ripe for review in that the court finds that the Protective Order issued in this case is necessary and in accordance with relevant case law, statutes and regulation governing the disclosure of confidential records and documents.

Discovery in this proceeding is governed by CPLR 3101 (a), which states that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, . . . . " The courts have interpreted this standard "liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" ( Allen v Cromwell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). "While the plaintiff is entitled to relevant and necessary information, material confidential in nature, or information which is subject to abuse if widely disseminated, shall be accorded judicial safeguards where possible" ( Snyder v Parke, Davis & Co, 56 AD2d 536, 536-537 [1st Dept 1977]). Family Court Act § 1038 (d) adds the further requirement of a balancing test by which the court weighs the need of the party for discovery and any potential harm to the child from discovery ( see Matter of Dean T., Jr. [Dean T., Sr.], 117 AD3d 492 [1st Dept 2014], affd 124 AD3d 548 [1st Dept 2015] reversing family court's summary denial of respondent father's motion for disclosure of his child's mental health records in a child abuse proceeding in which the child's credibility was at issue, and no physical evidence of the abuse was alleged in the petition, holding that the family court must conduct a balancing test pursuant to Family Court Act § 1038 [d] to "determine whether the records were relevant to the central issue of the child's credibility before making its disclosure ruling").

The Protective Order as modified on June 25, 2014 directed counsel and parties to comply with statutes and regulations governing access to and disclosure of reports of suspected child abuse and maltreatment, child protective investigative records, hospital records and the Medical Examiner's autopsy report. These confidential documents and records were submitted by private and public agencies pursuant to court order and judicial subpoena for exclusive use in this Article 10 proceeding (see Family Court Act § 1038; 45 CFR 164.512 [e]).

Contrary to Respondent Mother's claims, the confidential records provided through discovery here are not "records of any proceeding in the family court" and are not governed by Family Court Act § 166 which authorizes the court in its discretion to permit the inspection of "records of any family court proceedings." Records of family court proceedings are limited to "pleadings, legal papers formally filed in a proceeding, findings, decisions and orders and, subject to the provisions of CPLR 8002, transcribed minutes of any hearing held in the proceeding" (Uniform Rules for Fam Ct [22 NYCRR] § 205.5). Cases cited by Respondent Mother to support her claim of an independent right to disclose records of family court proceedings are not applicable to the confidential discovery records at issue in this proceeding (see Matter of Michelle HH., 18 AD3d 1075, 1077 [3d Dept 2005], citing Matter of Sarah FF., 18 AD3d 1072 [3d Dept 2005] holding that the family court erred in relying on the provisions of Family Court Act § 166 in directing the petitioner, Saratoga County Department of Social Services, to disclose confidential foster care records to a non-party Court Appointed Special Advocate volunteer in an Article 7 Persons in Need of Supervision proceeding, finding that these confidential records "were held by petitioner and were not records or papers of a Family Court proceeding. In our view, Family Court Act § 166 cannot be interpreted to override the specific dictates of Social Services Law § 372 [4] [a]," which governed the disclosure of confidential foster care records).

Further, the Protective Order issued by this court to safeguard these confidential documents and records does not infringe upon Respondent Mother's right to view and discuss discovery documents nor does it bar free discussion between Respondent Mother and counsel and among counsel at The Bronx Defenders in developing a defense in this family court proceeding. However, in accordance with statutory and regulatory requirements, the Protective Order bars all counsel and the parties from disclosing and distributing confidential discovery documents received in this proceeding for use in or preparation for trial outside this proceeding. Access to Reports of Suspected Child Abuse and Maltreatment and Related Child Protective Records

In New York State, reports of suspected child abuse and maltreatment and the investigative case notes of the Child Protective Specialist are confidential pursuant to the provisions of Social Services Law § 422, which provides that "[r]eports made pursuant to this title, as well as any other information obtained, reports written or photographs taken concerning such reports in the possession of the office or local departments shall be confidential and shall only be made available to" persons or entities enumerated in the statute (Social Services Law § 422 [4] [A]). The statute expressly authorizes the following persons and entities relevant to this proceeding to receive report information:

"(d) any person who is the subject of the report, or other persons named in the report;



(e) a court, upon a finding that the information in the record is necessary for the determination of an issue before the court;



(f) a grand jury, upon a finding that the information in the record is necessary for the determination of charges before the grand jury;

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(l) a district attorney, an assistant district attorney, investigator employed in the office of a district attorney, . . . when such official requests such information stating that such information is necessary to conduct a criminal investigation or prosecution of a person, that there is reasonable cause to believe that such person is the subject of a report, and that it is reasonable to believe that due to the nature of the crime under investigation or prosecution, such person is the subject of a report, and that it is reasonable to believe due to the nature of the crime under investigation or prosecution, such records may be related to the criminal investigation or prosecution;

***

(t) an attorney appointed to represent the child pursuant to the provisions of section one thousand sixteen of the family court act, at any time such appointmentis in effect, in relation to any report in which the respondent in the proceeding in which the attorney for the child has been appointed is the subject or another person named in the report, pursuant to sections one thousand thirty-nine-a [procedures following adjournment in contemplation of dismissal] and one thousand fifty-two-a of the family court act [disposition on adjudication]" (Social Services Law §422 [4] [A] [d], [e], [f], [l], [t]).

A criminal defense attorney is not authorized to receive report information pursuant to the provisions of Social Services Law § 422 (4) (A). However, the Legislature, in addition to authorizing the district attorney to receive reports of suspected child abuse and maltreatment pursuant to Social Services Law § 422 (4) (A) (l), directed child protective services to give telephone notice to and "forward immediately" a copy of reports which involve the death of a child to the appropriate district attorney (Social Services Law § 424 [4]) and to give telephone notice and "forward immediately" a copy of reports that involve suspected physical injury or sexual abuse or death of a child to the appropriate local law enforcement for investigation jointly by an approved multidisciplinary team, or in counties without a multidisciplinary team, jointly by local child protective services and local law enforcement (Social Services Law § 424 [5-a]). Willful disclosure of child protective investigative information that is not expressly authorized by statute is a criminal offense, "[a]ny person who willfully permits and any person who encourages the release of any data and information contained in the central register to persons or agencies not permitted by this title shall be guilty of a class A misdemeanor" (Social Services Law § 422 [12]).

Respondent Mother is authorized to have access to report information as the subject of a report (Social Services Law § 422 [4] [A] [d]). However, the statute sets forth no exception that would permit Respondent Mother to re-disclose information she has received as a subject of the report to any other person, including her criminal defense attorney. Contrary to Respondent Mother's contentions, there is no independent right to disclose reports and child protective investigative information absent express authority set forth in statute (see Angela N. v Suhr, 71 AD3d 1489, 1490 [4th Dept 2010] in an action brought by the parents seeking damages on behalf of their two children who sustained lead poisoning while residing at an apartment owned by the defendants, the appellate court upheld the trial court's order denying defendant's motion to compel plaintiff parents to provide authorizations for the release of certain child protective records finding that the defendants were not persons authorized by statute to whom such records could be disclosed).

The courts have consistently ruled that "records of child abuse investigations are to be kept strictly confidential except as expressly permitted by statute . . . Though we regret the application of this rule in the case before us, we may not rewrite the statute to suit our own policy preferences" (Lamot v City of New York, 297 AD2d 527, 528 [1st Dept 2002] finding that Social Services Law § 422 [4] [A] did not contain an exception permitting disclosure of child protective investigation records of the siblings of a plaintiff child for that child's use in a negligence action against the City of New York in which the child, who resided with her siblings, charged that the City had failed to remove her from the care of her mother who continued to abuse her for several years following the City's involvement with her siblings. The court noted that this was an "arguably harsh result" but "relief from the existing law must come from the Legislature and we recommend that body consider a measure to serve that end"; see also Matter of Sarah FF, 18 AD3d 1072 [3d Dept 2005] overturning the family court's determination to release child protective information to a Court-Appointed Special Advocate volunteer, a person not included among those enumerated in Social Services Law § 422 [4] [A] to have access to such information, holding that the statute permits the family court to have access to child protective information for its own use in making a determination before it but "[n]othing in this statute permits a court to expand the carefully crafted statutory and exclusive list of those to whom access is authorized"). Thus, Respondent Mother does not have an independent right to turn over child abuse report information and child protective investigative records she has received as the subject of a report of suspected child abuse and maltreatment nor does the family court nor counsel nor the parties have an independent right to re-disclose confidential report and child protective investigation information submitted in pre-trial discovery pursuant to Family Court Act § 1038, absent express statutory authorization. The Protective Order issued by this court ensures compliance with federal and state privacy rules that govern access to and disclosure of protected health information

Respondent Mother states that she, as the parent of the child J., is entitled to have access to the child's hospital records. Public Health Law § 18 governs access to "patient information" maintained by hospitals and other health care facilities licensed by the NYS Department of Health (Public Health Law § 18 [1] [e]). The statute permits access to "patient information" by "qualified persons," which include a parent or guardian (Public Health Law § 18 [1] [g]). Subject to limitations on access set forth in Public Health Law § 18 (3), upon the written request of the parent or guardian, a health care provider is required to:

"provide an opportunity, within ten days, for such parent or guardian to inspect any patient information maintained or possessed by such provider concerning care and treatment of the infant for which the consent of such parent or guardian was obtained or where care was provided without consent in an emergency which was the result of accidental injury or the unexpected onset of serious illness; provided, however, that such parent or guardian shall not be entitled to inspect or make copies of any patient information concerning the care and treatment of an infant where the health care provider determines that access to the information requested by such parent or guardian would have a detrimental effect on the provider's professional relationship with the infant, or on the care and treatment of the infant, or on the infant's relationship with his or her parents or guardian" (Public Health Law § 18 [2] [c]).

The statute limits access to patient information contained in hospital records as follows:

"The law also states that access to the following records or parts of records may be denied:



úúpersonal notes and observations maintained by the practitioner;



úúinformation that was disclosed to the practitioner under the condition that it would be kept confidential and it has been kept confidential since then



úúinformation about the treatment of a minor that, in the opinion of the practitioner, should not be disclosed to the parents or guardians (a patient over the age of twelve may be told that his/her parents or guardians have requested the patient's records, and if the patient objects, the provider may deny the request);



úúinformation that the practitioner determines may reasonably be expected to substantially harm the patient or others;



úúsubstance abuse program records and clinical records of facilities licensed or operated by the Office of Mental Health (these records may be disclosed pursuant to a separate process in Section 33.16 of the Mental Hygiene Law);



úúinformation obtained from other examining or treating practitioners which may be requested from the other practitioners directly;



ú when other provisions of law prevent their release. Section 17 of the Public Health Law prohibits the release of records to parents or guardians concerning the treatment of a minor for sexually transmitted disease or for performance of an abortion" (Department of Health Memorandum, Section 18: Access to Patient Information, https://www.health.ny.gov/ professionals/ patients/patient_rights/access_to_patient_information [updated September 2009]; see also Public Health Law § 18 [3])."

Accordingly, Respondent Mother does not have an unfettered right as a parent to access the records of St. Barnabas and Montefiore Hospital Center pertaining to the care and treatment of the child J..

Moreover, federal law, the Health Insurance Portability and Accountability Act (HIPAA) (Pub L 104-191, 110 US Stat 1936 [104th Cong, 2d Sess, Aug. 21, 1996] [codified in titles 18, 26, 29 and 42 of the United States Code]) and regulation, the Privacy Rule (45 CFR parts 160, 164), promulgated by the United States Department of Health, prohibit disclosure of a person's identifiable health information without that person's authorization, subject to certain exceptions (see Matter of Miguel M. [Barron], 17 NY3d 37, 40 [2011] holding that "HIPAA prohibits the disclosure of a patient's medical records to a state agency that requests them for use in a proceeding to compel the patient to accept mental health treatment where the patient has neither authorized the disclosure nor received notice of the agency's request for the records").

The Privacy Rule protects health information concerning deceased persons, such as the child J., for 50 years following death (45 CFR 160.103). Further, "[t]he Privacy Rule authorizes disclosure of health information subject to certain conditions, in the course of any judicial or administrative proceeding,' in response to either an order of a court or administrative tribunal' (45 CFR 164.512 [e] [1] [i]) or a subpoena, discovery request, or other lawful process' (45 CFR 164.512 [e] [1] [ii])" (Matter of Miguel M. [Barron], 17 NY3d at 43). "And the Privacy Rule's exception for subpoenas and the like is conditioned on satisfactory assurance' from the person seeking the information to the entity providing it either that reasonable efforts have been made . . . to ensure that the individual who is the subject of the protected health information . . . has been given notice of the request' (45 CFR 164.512 [e] [1] [ii] [A]), or that an order protecting the confidentiality of the information has been sought (45 CFR 164.512 [e] [1] [ii] [B] " (id. at 44). The Privacy Rule requires that the covered entity disclose only the protected health information expressly authorized by the court's order (45 CFR 164.512 [e] [1]). Civil penalties (HIPAA § 262 [a], adding 42 USC § 1320d-5) can be imposed on covered entities for violations of the Privacy Rule "and, for the knowing and wrongful disclosure of individually identifiable health information, fines and imprisonment (HIPAA § 262 [a], adding 42 USC § 1320d-6)" (id. at 44-45).

Accordingly, the covered entities in this case, St. Barnabus and Montefiore Medical Center, were authorized by the Privacy Rule to disclose the child J.'s protected health information pursuant to subpoenas and orders issued by the family court. The Protective Order issued by this court is a valid and necessary order in accordance with Privacy Rule requirements in that it "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" (45 CFR 164.512 [e] [1] [v] [A]; see also Matter of B Children, 23 Misc 3d 1119 [A], [Fam Ct, Kings County 2009] citing 45 CFR 164.512 [e] [1] [v] [A]; US ex rel. Kaplan v Metropolitan Ambulance & First-Aid Corp., 395 F Supp 2d 1 [EDNY 2005], prohibiting the parties "from using or disclosing the subject child's hospital records for any purpose other than this instant litigation"). Access to the Bronx County Medical Examiner's Autopsy Report

In a report dated November 12, 2014, Petitioner ACS advised court and counsel that it had received via e-mail on October 30, 2014 the autopsy report of the Bronx County Medical Examiner relating to child J. . ACS stated that the Medical Examiner ruled the circumstances surrounding the child's death as a "Homicide (Submerged in Water in Bath Tub)." ACS served counsel with the autopsy report and related photographs taken by the Medical Examiner as part of pre-trial discovery in this Article 10 proceeding.

The statutory framework that authorizes the Office of Chief Medical Examiner (OCME) to conduct autopsies in the City of New York is "carefully and rigidly circumscribed" (Kellogg v Office of Chief Med. Examiner of City of NY, 189 Misc 2d 756, 763 [Sup Court, Bronx County 2001]; see also Public Health Law § 4210, the New York City Charter § 557 and the Administrative Code of the City of New York §§ 17-202; 17-203). The OCME investigates the death of a person in the following circumstances:

"(f) (1) The chief medical examiner shall have such powers and duties as may be provided by law in respect to bodies of person dying from criminal violence, by accident, by suicide, suddenly when in apparent health, when unattended by a physician, in a correctional facility or in any suspicious or unusual manner or where an application is made pursuant to law for a permit to cremate a body of a person" (New York City Charter § 557 [f] [1]).

The New York City Charter § 557 provides that autopsy reports and records of the OCME in which there are indicators of criminality are not open to public inspection, as follows:

"(g) The chief medical examiner shall keep full and complete records in such form as may be provided by law. The chief medical examiner shall promptly deliver to the appropriate district attorney copies of all records relating to every death as to which there is, in the judgment of the medical examiner in charge, any indication of criminality. Such records shall not be open to public inspection" ( id. at § 557 [g]).

Records of the OCME with indicia of criminality are exempt from public inspection even to "someone involved in a criminal action that may be affected by the contents of the records and, thus, has a substantial interest in them" (Matter of Mitchell v Borakove, 225 AD2d 435, 437 [1st Dept 1996], appeal dismissed 88 NY2d 987 [1996]). In Matter of Mitchell v Borakove, the appellate court reversed New York County Supreme Court's order pursuant to CPLR article 78 directing the OCME to turn over to the petitioner certain autopsy worksheets and audiotape based on the standard set forth in County Law § 677 (3) (b), "which provides in pertinent part, that: Such records shall be open to inspection by the district attorney of the county. . . . Upon proper application of any person who is or may be affected in a civil or criminal action by the contents of the record . . . or upon the application of any person having a substantial interest therein, an order may be made by a court of record . . . that the record of that investigation be made available for his inspection" ( id.) (emphasis added). The appellate court held that County Law § 677 (3) (b) did not apply in New York City and pursuant to New York City Charter § 557 (g) records of the OCME, which have an indication of criminality, are exempt from disclosure. Constitutional challenges to the Charter's exemption of OCMS records, which have indicators of criminality, from public inspection, on the ground that this provision imposes greater restrictions on the disclosure of the records of Medical Examiners in New York City than in other parts of New York State, have been rejected by the appellate courts ( Matter of Johnson v Kelly, 116 AD3d 605 [1st Dept 2014], lv denied 24 NY3d 901 citing Matter of Lovacco v Hirsch , 250 AD2d 416 [1998], lv denied 92 NY2d 810 [1998]; Gardner v Michigan , 199 US 325, 334 [1905]). Thus, the autopsy report of the Bronx County Medical Examiner alleging that J.'s death was a "homicide" has indicators of criminality and, therefore, the autopsy report and related photographs are not subject to public inspection and may not be re-disclosed for any purpose other than this child abuse and neglect proceeding, absent express statutory authorization. Neither case law nor statute supports Respondent Mother's claim of an independent right to turn over Article 10 discovery to counsel not assigned to this proceeding

Respondent Mother's right to disclose the information provided in the confidential records and documents received through discovery in this proceeding is limited by state and federal statute and regulation. To the extent Respondent Mother has an independent right to obtain these confidential documents outside of this proceeding, this Protective Order does not prohibit her. However, state and federal law and regulation do not authorize re-disclosure of these confidential documents, and she has no independent right to turn over these documents to other persons, including counsel. Respondent Mother relied on the holding in Shaffer v Defense Intelligence Agency (601 F Supp 2d 16, 27 [DDC 2009]) as authority entitling her to re-disclose confidential discovery documents received in this Article 10 proceeding to her criminal defense attorney. In that case, Plaintiff Shaffer worked as a civilian employee of the US Defense Intelligence Agency (DIA) with a high security clearance, and gathered classified information as part of his job in a special military intelligence program. He filed an action against DIA, Department of Defense and Department of the Army alleging improper handling of classified information that was gathered by the program during his employment. The program identified four members of the Al Queda who were linked to the 1993 bombing of the World Trade Center and who later were learned to be the terrorists who hijacked the four commercial planes that were flown into the World Trade Center towers, the Pentagon, and one that crashed in Pennsylvania on September 11, 2001. The Department of Defense ended the intelligence program in 2001 sometime prior to September 11. The DIA destroyed files maintained by Plaintiff Shaffer, revoked his security clearance, and prohibited him from disclosing classified information that he had gained during his employment in the program.

The Office of the Inspector General (OIG) initiated an investigation as to Plaintiff Shaffer's allegations that government officials improperly acted upon intelligence information gathered by the special intelligence program as well as his charge of retaliation by the DIA. The district court made a finding of necessity that "Plaintiff Shaffer has a compelling interest in obtaining the most fully informed and knowledgeable representation possible during the OIG investigation," and a "fully candid and comprehensive discussion with his attorney" was essential to that representation (id. at 20-21).

In this case, Respondent Mother has already obtained documents through discovery in this Article 10 proceeding, the only proceeding pending. The ruling in Shaffer is therefore not applicable here as Respondent Mother's counsel already has, through the discovery process, the documents needed in order to have a full and candid discussion with Respondent Mother and mount a defense in this action. The Protective Order issued by this court did not and does not interfere with or inhibit the attorney-client relationship in this proceeding.

Respondent Mother also has presented argument that the Protective Order is overly broad and restrictive, thwarting her ability to consult with counsel who do not represent her in this proceeding and benefit from the interdisciplinary practice model of The Bronx Defenders. However, the Protective Order issued in this matter places no restrictions on Respondent Mother's right to consult with other counsel of The Bronx Defenders as well as those assigned to represent her in this Article 10 proceeding nor does it restrict consultation between Family Court counsel and other attorneys. The Protective Order bars unrestricted ex parte re-disclosure of pre-trial discovery records and documents for use outside this proceeding and it is a valid order under the law.

Nor has Respondent Mother cited any authority to support her contention that the instant Protective Order infringes upon the attorney-client relationship. In Matter of Wendy P. and Valeria S.(2014 NY Slip Op 85220 [U] [1st Dept, October 2, 2014]), the Respondent Father/Person Legally Responsible for the Child (PLR) sought a stay in the Appellate Division, First Judicial Department, of this court's issuance of a protective order, which was almost identical to the one issued by the family court in this matter. In that case, as in this one, the court's protective order barred unrestricted re-disclosure of confidential discovery documents and records to any persons other than those directly involved in the Article 10 proceeding in which the discovery was received. In Matter of Wendy P. and Valeria S., on August 13, 2014, Honorable Paul Feinman granted limited interim relief staying the Protective Order of July 21, 2014 "only to the limited extent that such order may be read as prohibiting criminal defense counsel from consulting with Family Court counsel, and otherwise denied without prejudice to determination by a full bench upon submission of any answering and reply papers." In motion papers submitted to court and counsel in Matter of W. and V., Docket Number NA XXXXX/13, dated April 21, 2015, ACS stated that on September 17, 2014, Respondent/PLR's counsel attempted to file a motion seeking clarification of the Order of August 13, 2014. ACS stated that Respondent Father/PLR's counsel was advised by staff of the Appellate Division, First Department, that the Order of August 13, 2014 did not allow criminal defense counsel to review Article 10 discovery and that the motion for clarification was not accepted because the matter was already under litigation. On October 2, 2014, a three-judge panel issued a decision on the motion to stay the Protective Order of July 21, 2014. It stated: "Interim relief granted by an order of a Justice of this Court, dated August 13, 2014, continued, as indicated. Motion otherwise denied." On March 30, 2015, Respondent Father/PLR's counsel advised the court that he would withdraw the appeal of this court's Protective Order of July 21, 2014.

The fact that Respondent Mother may face a potential criminal proceeding arising from the same set of circumstances that are before this family court does not create an independent right, in and of itself, entitling Respondent Mother to turn over confidential discovery records disclosed expressly for use in this Article 10 proceeding to any counsel not assigned to represent Respondent Mother in this Article 10 proceeding or any other persons she deems necessary. To obtain the child protective records, hospital records, and Medical Examiner's autopsy report submitted in this matter, Respondent Mother's potential defense counsel must comply with statutory procedures for proper disclosure in a criminal proceeding (see Criminal Procedure Law § 240.40; People v Thurston, 209 AD2d 976, 977 [4th Dept 1994], lv denied 85 NY2d 915 [1995], citing Matter of Terry D., 81 NY2d 1042, 1044 [1993] holding that "[a]lthough a subpoena duces tecum may not be used to ascertain the existence of evidence, it is permissible to compel production of specific documents that are relevant and material to issues in a pending judicial proceeding"). The " separate and civil' nature of an article 10 proceeding is indelibly clear from its provisions" (People v Roselle, 84 NY2d 350, 355 [1994] quoting People v Smith, 62 NY2d 306, 311 [1984] holding that the doctrine of collateral estoppel did not preclude the criminal prosecution of a defendant for the same incident that resulted in a neglect finding in the Article 10 proceeding). The Court distinguished the nature and purpose of an Article 10 proceeding, stating as follows:

"While an article 10 petition may identify the perpetrator of enumerated abusive acts, the real subject of the petition is the child, whose welfare and safety are at the heart of a proceeding designed to expeditiously determine the most suitable environment for the child and institute corrective measures for the benefit of both the child and the parents.

Notwithstanding that the same set of facts is in issue, defendant misapprehends the nature of the article 10 proceeding by arguing that the identical legal issue is the subject of this criminal action" (People v Roselle, 84 NY2d at 357 [internal citations omitted]).

The paramount concern in this Article 10 proceeding is protection of children from harm, including any potential harm from the discovery process (see Family Court Act §§ 1011, 1038 [d]). In keeping with the special nature and purpose of an Article 10 proceeding, the parties have received broad and liberal discovery of confidential records and documents not available in a criminal court proceeding (see Family Court Act § 1046 [vii] abrogating the privilege attaching to confidential communications between husband and wife, physician-patient, psychologist- patient, social worker-client, and rape counselor-client as grounds for excluding evidence in an Article 10 proceeding which otherwise would be admissible; see also Matter of Tricia K., 160 Misc 2d 935, 936 [Fam Ct, Kings County 1994]; Matter of Commissioner of Social Servs., 170 Misc 2d 126, 129 [Fam Ct, Kings County 1996]; Matter of Nicole V., 71 NY2d 112 [1987]).

In contrast, a criminal action has a narrow standard for the admission of confidential information. "Where confidential information is sought in a criminal action, the applicant must demonstrate in good faith some factual predicate which would make it reasonably likely that the information sought would establish the unreliability of the complaining witness" (People v Davis, 203 AD2d 300 [2d Dept 1994] [internal citations omitted]; see also People v Arredondo, 226 AD2d 322 [1st Dept 1996], citing People v Lussier, 205 AD2d 910, 911 [3d Dept 1994], lv denied 83 NY2d 1005 [1994], cert denied 513 US 1078 [1995], holding that the trial court properly exercised its discretion in denying "defendant's request for disclosure of the psychological records of the complainant since he failed to sustain his burden of showing a factual predicate that the records could establish the unreliability of the victim or provide a motive to falsify"; People v Gutkaiss, 206 AD2d 628, 630 [3d Dept 1994] finding that the trial court acted properly in denying defendant "access to the victims' school, counseling and medical records and the medical records pertaining to the suicide of the victims' father. Inasmuch as defendant sought these records merely in the hope of discovering material to impeach the victims' credibility"; People v Tissois, 72 NY2d 75, 78-79 [1988] affirming the trial court's ruling that the defendant was not entitled to subpoena the notes of a registered social worker who conducted a pre-trial interview with three young children who accused the defendant of raping and sexually abusing them. The defendant argued that the notes were necessary to present his defense that the father of the children coerced them into making the accusations and to facilitate cross-examination of the children. The appellate court held that CPLR 4508 [social worker-client privilege] prohibited disclosure of the notes to the defendant and defendant had failed to present a valid basis to overcome the statutory barrier to disclosure of the confidential information). Moreover, a criminal defendant cannot use the civil discovery process to obtain documents that he is prohibited from obtaining through criminal discovery:

"A litigant should not be allowed to make use of the liberal discovery procedures applicable to a civil suit as a dodge to avoid the restrictions on criminal discovery and thereby obtain documents he would not otherwise be entitled to for use in his criminal suit" ( Campbell v Eastland, 307 F2d, 478, 487 [5th Cir 1962], cert denied 371 US 955 [1963]).



Strict compliance with procedural rules is required in obtaining and safeguarding discovery

In this proceeding, Family Court Act § 1038 sets out the procedures necessary to obtain discovery as follows:

"(a) Each hospital and any other public or private agency having custody of any records, photographs or other evidence relating to abuse or neglect, upon the subpoena of the court, the corporation counsel, county attorney, district attorney, counsel for the child, or one of the parties to the proceeding, shall be required to send such records, photographs or evidence to the court for use in any proceeding relating to abuse or neglect under this article. Notwithstanding any other provision of law to the contrary, service of any such subpoena on a hospital may be made by certified mail return receipt requested, to the director of the hospital. The court shall establish procedures for the receipt and safeguarding of such records" (Family Court Act § 1038 [a]).

Pursuant to these provisions, notice of the discovery demand was served on the parties and persons having custody of the requested records and documents and the court made specific findings and issued orders directing public and private agencies to produce confidential documents and records and deliver them to the clerk of the court for safeguarding in accordance with statutory mandates (see Family Court Act § 153 [subpoena, warrant and other process to compel attendance]; CPLR 2306 [hospital records]; CPLR 2307 [records of municipal corporation]; CPLR 3120 [discovery and production of documents]; Social Services Law § 422 [4] [A] [e] [child protective investigative records]; see also 45 CFR 164.512 [e] [protected health information]). Strict compliance with procedural rules in obtaining and safeguarding discovery records and documents is required by the courts and sanctions for violation of these procedural rules can be severe.

In Matter of LaBella (265 AD2d 117, 119 [2d Dept 2000]), among the reasons cited by the Second Judicial Department for disbarring an attorney was that he caused a subpoena duces tecum for Sullivan County Sheriff's Department records to be presented "without the required motion on one day's notice to the People and to the Sheriff, in violation of CPL 610.20 and CPLR 2307" and he made a judicial subpoena returnable to his office rather than to the clerk of the court in which the action was to be tried, in violation of CPLR 2306 and CPL 610.25. Accordingly, statutory requirements and case law make it clear that neither parties nor counsel have an independent right to obtain or re-disclose confidential discovery documents as they see fit. The Protective Order does not infringe on Respondent Mother's Sixth Amendment rights In Pennsylvania v Ritchie (480 US 39 [1987]), the United States Supreme Court considered the question of whether the Sixth Amendment requires as a pre-trial obligation the disclosure of confidential child protective records to a criminal defendant who was charged by the prosecution with rape and sexual abuse of his minor daughter, the same allegations investigated by child protective services in the State of Pennsylvania. The Court held as follows:

"A defendant's right to discover exculpatory evidence does not include the unsupervised authority to search through the Commonwealth's files . . . Although the eye of an advocate may be helpful to a defendant in ferreting out information . . . this Court has never held — even in the absence of a statute restricting disclosure — that a defendant alone may make the determination as to the materiality of the information" ( Pennsylvania v Ritchie, 480 US at 59 [internal citations omitted]).

The Court concluded that the defendant's right to a fair trial "can be protected fully by requiring that the CYS [child protective] files be submitted only to the trial court for in camera review" (id. at 60). The Court noted that this rule denies the defendant "the benefits of an advocate's eye' " but found that the interests of the State in maintaining the confidentiality of child protective records were compelling:

"To allow full disclosure to defense counsel in this type of case would sacrifice unnecessarily the Commonwealth's compelling interest in protecting its child-abuse information. If the CYS [child protective] records were made available to defendants, even through counsel, it could have a seriously adverse effect on Pennsylvania's efforts to uncover and treat abuse. Child abuse is one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim. A child's feelings of vulnerability and guilt and his or her unwillingness to come forward are particularly acute when the abuser is a parent. It therefore is essential that the child have

a state-designated person to whom he may turn, and to do so with the assurance of confidentiality" ( id.).

Accordingly, Respondent Mother does not have a constitutional right to provide Article 10 discovery to any counsel with whom she wishes to consult to obtain "the benefits of an advocate eye' " (id.). CONCLUSION

In summary, the Protective Order issued in this matter does not infringe on Respondent Mother's ability or that of Petitioner ACS or the Attorney for the Child to obtain expert consultation or opinion to prepare for trial in this Article 10 proceeding. Nor does the Protective Order in any way negatively impact Respondent Mother's ability to obtain relevant and material documents for use in a criminal court or any other civil court proceeding, which, as noted previously, her counsel may seek in any one of those proceedings, in accordance with criminal or civil procedure law. Nor does it prevent Respondent Mother from consulting with any other counsel or expert retained for representation in this Article 10 proceeding. The Protective Order bars Respondent Mother and the other parties and counsel from turning over confidential records and documents obtained during discovery to any persons, other than those directly involved in the representation of the parties and in trial preparation in this Article 10 proceeding.

Moreover, the Protective Order prevents the potential for harm to the child G. and the deceased child J. from unauthorized disclosure and distribution of confidential records and documents submitted in this proceeding in pre-trial discovery and the likely risk of impeding the investigative work of child protective services if disclosure of subpoenaed hospital records, the Medical Examiner's autopsy report, and reports of suspected child abuse and maltreatment, child protective investigative notes, is left to the unrestricted discretion of counsel and the parties (see Matter of Crystal AA., 271 AD2d 771, 772 [3d Dept 2000], lv denied 95 NY2d 903 [2000] stating that "[i]n recognition of the emotional trauma or embarrassment that a child may experience in the discovery climate," Family Court § 1038 [d] authorizes the court to issue a protective order).

Most importantly, extensive statutory mandates require that this court safeguard confidential records and documents received in discovery that were submitted expressly for use in this Article 10 proceeding. This court has found that the issuance of a Protective Order in this case is necessary and in accordance with these statutory mandates. Accordingly, the court denies Respondent Mother's motion to dismiss and/or to vacate or modify the Qualified Protective Order. The court grants the cross-motion of the Attorney for the Child as to a finding that the Protective Order is a valid order under the applicable law.

In compliance with federal, state and local law and regulation, the court enters the following Qualified Protective Order, which modifies and supersedes the Protective Order issued in this matter on April 17, 2014, and modifications made on June 25, 2014, and it is hereby:

ORDERED pursuant to provisions of the Family Court Act, Social Services Law, Public Health Law, New York City Charter, the Administrative Code of the City of New York, and federal privacy law requirements of HIPAA as to protected health information, and confidentiality requirements in corresponding regulations that apply to the information, documents and records submitted for use in this proceeding by Petitioner Administration for Children's Services as part of discovery and pursuant to judicial subpoenas issued by this court, that such information, documents and records are not to be re-disclosed to any persons, other than those directly and solely involved in the representation of the parties and directly and solely involved in trial preparation in this Family Court Act article 10 proceeding, and it is further

ORDERED that if any counsel wishes to provide copies of any information, documents and records submitted for use in this proceeding to an expert retained by him or her to assist in trial preparation for this Family Court proceeding only, counsel may do so but that expert may not make additional copies of such information, documents or records nor re-disclose nor distribute them to any persons other than those directly involved in this proceeding, and it is further

ORDERED that parties and counsel are to safeguard and not re-disclose confidential discovery information, documents and records (including all copies made) and return them to the family court after the completion of this Article 10 proceeding and appeal, if any.

The court enters this superseding Qualified Protective Order in accordance with the requirements of federal, state and local law to bar the unrestricted use, disclosure, and distribution of confidential records and documents, reports of suspected child abuse and maltreatment and child protective investigative records, hospital records, the Medical Examiner's autopsy report, and related information and documents obtained pursuant to court orders and judicial subpoenas exclusively for this Article 10 proceeding and provided through the pre-trial discovery process pursuant to Family Court Act § 1038. The Protective Order provides the parties and counsel in this proceeding with full access to discovery and protects the children G. and J. from any potential harm from discovery that would arise from the uncontrolled and unauthorized re-disclosure and distribution of confidential discovery documents and records.

This constitutes the decision and order of the court.

Notify counsel and the parties.

ENTER: Dated: Bronx, New York

May 4, 2015 ______________________________ Carol R. Sherman, Judge Family Court, Bronx County