Decisions of Interest

In 2010, ACS transferred the right to consent to the child's adoption to L&W. The girl's foster mother then applied to adopt the child, as did the girl's maternal aunt. L&W moved to dismiss the aunt's petition, asserting that, in accordance with Domestic Relations Law (DRL) ' 112, adoption by that aunt could go forward only if L&W consented ' and it would not consent. Denying that motion, Bronx Family Court Judge Carol Sherman declared that she had the authority to consider the applications of both potential adoptive parents to determine which was in the child's best interests.

The First Department disagreed with Family Court on this issue, pointing out that, under New York law, private placement adoptions require the consent of the parents, while adoptions through foster care agencies require the consent of the agency. As the child in question in this matter was already in the care of L&W, that agency's consent must be obtained before adoption by the aunt, or anyone else, could be considered. Lacking such consent, Family Court did not have jurisdiction to weigh whether placement with the foster mother or the aunt was in the child's best interests. “The agency's consent would not automatically confer on the aunt the right to become the child's adoptive parent,” the First Department concluded, “but its absence precludes the court from granting her petition. (The aunt is not without options, however; a prospective parent whose request for adoptive consent from a foster care agency has been denied can request a fair hearing on the matter. If the result is adverse to the potential adoptive parent, he or she can challenge that ruling in a CPLR article 78 proceeding.)

During Custody Battle, Court Must Assent to Access to Child's Mental Health Records

Supreme Court, Monroe County, has ordered a father to return his daughter's mental health records to her psychiatrist because he obtained them without a court order. Liberatore v. Liberatore, 2012 NY Slip Op 22302 (Sup.Ct., Monroe Cty. 10/18/12) (Fisher, J.).

The parties, parents of a nine-year-old daughter, are in the process of divorce and are contesting the issue of custody. Their daughter has seen a psychiatrist. The father informed the attorney for the child that he planned to use the child's mental health records in preparing his custody case. When the attorney for the child failed to object, the father signed a parental release in accordance with the federal Health Insurance Portability and Accountability Act (HIPAA) and requested the files. The psychiatrist was reluctant to turn over the records, fearing that she would be in breach of her duty to preserve her patient's confidences, but her professional association's lawyer advised her that she had to give the requested materials to a parent who had signed a HIPAA release. The psychiatrist therefore released the records to the father's counsel and also sent additional copies to the mother's attorney and to the attorney for the child.

When the court discovered the records had been thus released, it ordered that they not be used in the custody proceedings. Stated the court, “In the context of [a] child custody proceeding within a matrimonial action, communications between an unemancipated minor and her therapist may not be disclosed to the parties or counsel in the absence of judicial process sufficient to afford the court opportunity to exercise its obligation to determine” the best interests of the child and custody arrangements. The court added that “unfettered access to a minor child's protected therapy and psychiatric records may not be had by the simple expedient of a parent's HIPAA release proffered in the midst of a contested custody proceeding.”

Court Lacks Jurisdiction to Weigh Child's Best Interests

The Appellate Division, First Department, has concluded that when a child has no living parent who can consent to her adoption, the foster care agency in charge of the child must grant its consent before a court can entertain a potential parent's adoption petition. In re Yary, 2012 NY Slip Op 6858 (1st Dept. 10/12/12) (Saxe, J.P., Catterson, Acosta, DeGrasse and Richter, JJ).

The six-year-old child in question was taken from her mother soon after birth and placed by New York City's Administration for Children's Services (ACS) in the custody of foster care agency Leake and Watts Services (L&W). L&W then placed her in a foster home. Before the issue of the mother's continued parental rights could be adjudicated, the mother died. As the father had never been involved with the child in any way, she was now considered an orphan in the eyes of the law.

In 2010, ACS transferred the right to consent to the child's adoption to L&W. The girl's foster mother then applied to adopt the child, as did the girl's maternal aunt. L&W moved to dismiss the aunt's petition, asserting that, in accordance with Domestic Relations Law (DRL) ' 112, adoption by that aunt could go forward only if L&W consented ' and it would not consent. Denying that motion, Bronx Family Court Judge Carol Sherman declared that she had the authority to consider the applications of both potential adoptive parents to determine which was in the child's best interests.

The First Department disagreed with Family Court on this issue, pointing out that, under New York law, private placement adoptions require the consent of the parents, while adoptions through foster care agencies require the consent of the agency. As the child in question in this matter was already in the care of L&W, that agency's consent must be obtained before adoption by the aunt, or anyone else, could be considered. Lacking such consent, Family Court did not have jurisdiction to weigh whether placement with the foster mother or the aunt was in the child's best interests. “The agency's consent would not automatically confer on the aunt the right to become the child's adoptive parent,” the First Department concluded, “but its absence precludes the court from granting her petition. (The aunt is not without options, however; a prospective parent whose request for adoptive consent from a foster care agency has been denied can request a fair hearing on the matter. If the result is adverse to the potential adoptive parent, he or she can challenge that ruling in a CPLR article 78 proceeding.)

During Custody Battle, Court Must Assent to Access to Child's Mental Health Records

Supreme Court, Monroe County, has ordered a father to return his daughter's mental health records to her psychiatrist because he obtained them without a court order. Liberatore v. Liberatore , 2012 NY Slip Op 22302 (Sup.Ct., Monroe Cty. 10/18/12) (Fisher, J.).

The parties, parents of a nine-year-old daughter, are in the process of divorce and are contesting the issue of custody. Their daughter has seen a psychiatrist. The father informed the attorney for the child that he planned to use the child's mental health records in preparing his custody case. When the attorney for the child failed to object, the father signed a parental release in accordance with the federal Health Insurance Portability and Accountability Act (HIPAA) and requested the files. The psychiatrist was reluctant to turn over the records, fearing that she would be in breach of her duty to preserve her patient's confidences, but her professional association's lawyer advised her that she had to give the requested materials to a parent who had signed a HIPAA release. The psychiatrist therefore released the records to the father's counsel and also sent additional copies to the mother's attorney and to the attorney for the child.

When the court discovered the records had been thus released, it ordered that they not be used in the custody proceedings. Stated the court, “In the context of [a] child custody proceeding within a matrimonial action, communications between an unemancipated minor and her therapist may not be disclosed to the parties or counsel in the absence of judicial process sufficient to afford the court opportunity to exercise its obligation to determine” the best interests of the child and custody arrangements. The court added that “unfettered access to a minor child's protected therapy and psychiatric records may not be had by the simple expedient of a parent's HIPAA release proffered in the midst of a contested custody proceeding.”