Matter of S.G. v I.B.

[*1] Matter of S.G. v I.B. 2022 NY Slip Op 22188 Decided on June 17, 2022 Family Court, New York County Kingo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on June 17, 2022
Family Court, New York County

In the Matter of a Proceeding Under Article 6 of the Family Court Act
S.G., Petitioner,

against

I.B., Respondent.



Docket Nos. V-05901-21, V-2533-22, V-2534-22



Gillian Gamberdell Esq. for Petitioner; Sanctuary for Families

Jeffrey Schonbrun Esq. for Respondent; Law Office of Jeffrey Schonbrun

Doneth Gale, Lawyers for Children; Attorney for the Child
Hasa A. Kingo, J.

ORDER AND DECISION

ON MOTION

NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE OF MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. The following papers numbered 1 to 7 were read on this motion to quash:

Papers: No(s). Exhibits

Notice of Motion 1
Affirmation of Gillian Gamberdell, Esq. in Support 2-4 1, A-B
Affirmation of Jeffrey Schonbrun, Esq. in Opposition 5
Affirmation of Gillian Gamberdell, Esq. in Reply6-7 A

In this custody and visitation proceeding under Article 6 of the Family Court Act, petitioner S.G. ("Petitioner") moves pursuant to CPLR § 2304 for an order to quash five subpoenas, for an order directing respondent I.B. ("Respondent") to provide certain materials to Petitioner, and that Petitioner be given leave to amend this motion upon receipt of the materials. After review of the matter, including the motion papers and exhibits cited above, procedural history of the case, and the audio recording of an oral argument held on May 23, 2022, the motion is granted.

Background

Petitioner and Respondent are the parents of two children, G.G. (d.o.b. X/XX/2005) and W.G. (d.o.b. XX/XX/2015) (the "subject children"). On November 17, 2021, Petitioner filed a petition for a writ of habeas corpus, seeking return of the subject children from Respondent (Docket Nos. V-05900-21 and V005901-21). As alleged in the petition, the parties moved from Salt Lake City, Utah to New York City in 2014 and Petitioner continues to reside in New York City (id. ¶ 5). Petitioner further alleges that Respondent has a long history of domestic violence, alcohol abuse, temporary orders of protection issued against Respondent and in favor of Petitioner and the subject children, and involvement with child protective services in New York and Utah (id. ¶¶ 6-10). Petitioner states that on or about March 2020, Respondent traveled to Salt Lake City and stayed with his parents (id. ¶ 12). Petitioner also temporarily relocated to Salt Lake City due to concerns regarding the onset of the COVID-19 pandemic in New York City, but returned to New York City in June 2020 (id. ¶¶ 12-13).

Petitioner further alleges that the parties agreed Respondent would take the subject children to Montana and Salt Lake City for their summer vacation from June 27, 2021 to July 18, 2021, and then return them to New York (id. ¶ 14). The children left with Respondent on or about June 27, 2021 (id. ¶ 14). On July 4th, 2021, Petitioner, who is in recovery from alcoholism, relapsed and drank alcohol (id. ¶ 15). The next day, Petitioner "decided to go to a 28-day rehabilitation program while the children were on vacation so that she could be healthy and sober by the time her children returned from their [Respondent's] home" (id.). However, while Petitioner was in the rehabilitation program, Respondent informed Petitioner's mother that he would not return the children as planned and would instead move back with them to Utah (id. ¶ 16). Petitioner left the rehabilitation program on July 19, 2021, but the children were not returned to New York, leading her to file the petition for a writ of habeas corpus on November 17, 2021 (id. ¶¶ 17-20). The writ was not signed as to either child. After G.G. expressed a desire to continue living in Utah, the petition pertaining to him (Docket No. V-05900-21) was dismissed as withdrawn on April 6, 2022. The petition pertaining to W.G. (Docket No. V-05901-21) remains pending before the court.

On April 7, 2022, Petitioner filed the present petition for custody of both children (Docket Nos. V-02533-22 and V-02533-22). On April 1, 2022, in advance of a fact-finding hearing scheduled for May 23, 2022, the undersigned signed five subpoenas duces tecum submitted by Respondent. The subpoenas were directed to Dr. Amy Skaria, M.D., Resource Recovery Center of Orange County, Mount Saini Morningside, Parallax Treatment Center, and [*2]Samantha Rae Benigno, MA, MS, CACAS, RYT, and each seeks "all medical records, notes, testing results, records, reports, files, email, correspondence, or other documentation related to the above-named Petition" (Gamberdell aff in support, Exhibit A). The subpoenas were also submitted to the court with a cover letter directed to the court that indicates copies of it and the proposed subpoenas were provided to counsel for Petitioner and the attorney for the child. Each subpoena was also submitted with a cover letter that purports to give notice to the health care providers that the subpoenas will be presented to the court for signature within 24 hours of receipt of the letter. These letters also indicate that copies were served on counsel to Petitioner and the attorney for the child. Petitioner now moves to quash the subpoenas, for an order directing Respondent to provide copies of all materials submitted to the court in connection with the request for the subpoenas, and that Petitioner be given leave to amend this motion upon receipt of the materials. Respondent has since provided copies of the materials submitted to the court and that portion of the motion is now moot.

Petitioner argues that an order to quash the subpoenas should be issued because Respondent did not comply with notice of evidentiary requirements of the requirements of 42 CFR § 2.64 and CPLR § 2303, and further did not comply with the confidentiality requirements of CPLR §§ 4504, 4507, 4508, HIPAA, Mental Hygiene Law § 33.13, and 42 CFR § 2.2. Petitioner also argues that the court should not re-issue the subpoenas because Respondent has not established good cause to permit the release Petitioner's entire medical record, including confidential communications. Respondent opposes and contends that Petitioner has placed her mental health and substance abuse treatment in controversy by filing a custody and visitation petition, and that Petitioner placed her mental health and substance abuse in dispute by testifying regarding these matters on the record in court appearances held on May 23, 2022 and April 6, 2022. Respondent also contends that he complied with 42 CFR § 2.64 and CPLR § 2303 because there was sufficient testimony at the May 23, 2022 and April 6, 2022 appearances for the court to make the necessary findings under these statutes. Finally, Respondent asserts that the records are necessary to determine whether Petitioner has relapsed since the July 4, 2021 incident and subsequent treatment.

Discussion

Generally, CPLR § 3101(a) provides that "[t]here shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action." "New York strongly encourages open and full disclosure as a matter of policy" (MSCI Inc. v Jacob, 120 AD3d 1072, 1075 [1st Dept 2014]), and the words "material and necessary" are to be interpreted liberally and require disclosure of material related to the dispute that may help in preparing for trial (Allen v Crowell-Collier Publ. Co., 21 NY2d 403 [1968]; Roman Catholic Church of the Good Shepherd v Tempco Sys., 202 AD2d 257 [1st Dept 1994]; Johnson v Natl. R.R. Passenger Corp, 83 AD2d 916 [1st Dept 1981]). "An application to quash a subpoena should be granted only where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry" (Anheuser-Busch, Inc. v Abrams, 71 NY2d 327, 331-332 [1988]). The Appellate Division, First Department has further noted that "[a] subpoena duces tecum for use at a trial or hearing, and the denial of a motion to quash such subpoena duces tecum are not the equivalent of an order of disclosure. The subpoena merely [*3]directs the subpoenaed party to have the documents in court so the court may make appropriate direction with respect to the use of such documents" (State ex rel. Hickox v Hickox, 64 AD2d 412, 413-414 [1st Dept 1978]). Additional considerations must be taken when the information sought by subpoena includes records relating to substance abuse treatment because such records evoke various privileges and protections under various state and federal laws, including CPLR § 4504 (doctor-patient), CPLR § 4507 (psychologist-patient), CPLR § 4508 (social worker-client), HIPAA, Mental Hygiene Law § 33.13, and 42 CFR § 2.2.

Turning first to the issue of privilege under the CPLR, it is generally well-settled law in New York that the privilege is waived by a party "actively contesting custody, thereby putting his mental and emotional well-being into issue" (Baecher v Baecher, 58 AD2d 821, 821 [2nd Dept 1977]), or that even when not waived, the privilege is not absolute "that where it is demonstrated that invasion of protected communications between a party and a physician, psychologist or social worker is necessary and material to a determination of custody the rule of privilege protecting such communications must yield to the dominant . . . duty of the court to guard the welfare of its wards" (Perry v Fiumano, 61 AD2d 512 [4th Dept 1978]). It is also well-settled that "[t]here first must be a showing beyond mere conclusory statements that resolution of the custody issue requires revelation of the protected material" (McDonald v McDonald, 196 AD2d 7 [2 Dept 1994], citing Perry v Fiumano, 61 AD2d 512 [4th Dept 1978]). Additionally, the First Department has outlined a more measured approach to waiver of privilege in custody proceedings. Noting that automatic waiver of the privilege may have a chilling effect on parents who need to seek "psychiatric or other help out of fear that confidences will later be unfairly and unnecessarily revealed through the animus act of a present or former spouse" (Hickox, 64 AD2d at 415), the First Department directed that "that these privileges may not cavalierly be ignored or lightly cast aside" and "there first must be a showing beyond mere conclusory statements that resolution of the custody issue requires revelation of the protected material" (id.). The First Department further directed that where records are produced, they be produced to the court only, and the court may thereafter consider whether disclosure of the records is appropriate in light of the circumstances of the case, any testimony offered regarding treatment, whether the records are material and necessary for the purpose of determining custody, and whether the court and the parties have sufficient information to determine future custody without such disclosure, or "perhaps even preliminary examination by the [judge]" (id. at 415-416).

Under Mental Hygiene Law § 33.13, substance abuse treatment records may only be released "pursuant to an order of a court of record requiring disclosure upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality."

The confidentiality of patient records relating to substance abuse treatment is further regulated pursuant to federal law (see, CFR § Title 42, Ch I, Subch A, Pt 2, Confidentiality of Substance Use Disorder Patient Records), and is applicable in Family Court proceedings. Such regulations are applicable to records which, inter alia, "[w]ould identify a patient as having or having had a substance abuse treatment either directly, by reference to publicly available information, or through verification of such identification by another person" (42 CFR § 2.12 [a] [1] [ii]). Section 2.64 of 42 sets forth relevant procedures and criteria for orders authorizing disclosures of patient records for purposes other than criminal investigation or prosecution. The [*4]statute sets forth the following requirement for notice:

(b) Notice. The patient and the person holding the records from whom disclosure is sought must be provided: (1) Adequate notice in a manner which does not disclose patient identifying information to other persons; and (2) An opportunity to file a written response to the application, or to appear in person, for the limited purpose of providing evidence on the statutory and regulatory criteria for the issuance of the court order as described in § 2.64(d).

(42 CFR § 2.64 [b] [1]-[2]). Under 42 CFR § 2.64 (d), a court may issue an order for disclosure of applicable records only if the court determines that good cause exists and the court must find that "(1) Other ways of obtaining the information are not available or would not be effective; and (2) The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services" (42 CFR § 2.64 [d] [1]-[2]). The Court of Appeals has noted that "the strictest adherence" should be afforded to the confidentiality requirements for substance abuse treatment facility records (Comm'r of Soc. Servs. of City of New York v David R. S., 55 NY2d 588, 593, order recalled on other grounds, 56 NY2d 985 [1982], citing HR Rep No 92—920, 92d Cong., 2d Sess., at 33 [in US Code Cong. & Admin News, 1972, p. 2072] ["The conferees wish to stress their conviction that the strictest adherence to the provisions of this section is absolutely essential to the success of all drug abuse prevention programs. Every patient and former patient must be assured that his right to privacy will be protected. Without that assurance, fear of public disclosure of drug abuse or of records that will attach for life will discourage thousands from seeking the treatment they must have if this tragic national problem is to be overcome."]).

In this matter, Petitioner not only seeks full custody of the subject child W.G., she also stated in her custody petition that she is in recovery from alcoholism and had a relapse in July 2021, which led to a stay in a rehabilitation facility. These details are sufficient to put her mental health and substance abuse treatment at issue as it pertains to custody. However, this does not call for an automatic and blanket disclosure of all treatment records and communications for an unlimited time frame. Citing a law office failure, Respondent concedes that notice was not provided to Petitioner in advance of his submission of the subpoenas to the court. Neither has Respondent made a showing that notice was provided to treatment providers in compliance with 42 CFR § 2.64 [b] [1]-[2]. Moreover, although Petitioner represented that she received substance abuse treatment at one facility, there is no record that she received treatment from the remaining treatment providers and Respondent has not articulated to the court the basis of his belief that she received treatment from these providers. The court, therefore, lacks information necessary to make a determination pursuant to 42 CFR § 2.64 [d] [1]-[2] and Mental Hygiene Law § 33.13. Additionally, the temporal scope of the subpoenas is unlimited, which suggests they are overbroad. Therefore, the motion is granted, but Respondent is given leave to provide notice to Petitioner and the treatment providers pursuant to 42 CFR § 2.64 [b] [1]-[2] and thereafter re-submit revised subpoenas to the court for consideration.

This constitutes the order and decision of the court.

Dated: June 17, 2022
New York, New York
Hon. Hasa A. Kingo, J.F.C.