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In re Evan E.

Supreme Court of New York, Third Department

December 26, 2013

In the Matter of EVAN E., a Neglected Child.
SUSAN F., Respondent. (And Three Other Related Proceedings.) ULSTER COUNTY DEPARTMENT OF SOCIAL SERVICES, Appellant; and

Calendar Date: November 19, 2013

Heather D. Harp, Ulster County Department of Social Services, Kingston, for appellant.

Sussman & Watkins, Goshen (Christopher Watkins of counsel), for Ulster County Court Appointed Special Advocate, amicus curiae.

Bond, Schoeneck & King, PLLC, Albany (Arthur J. Siegel of counsel), for Court Appointed Special Advocates of New York State, amicus curiae.

Before: Rose, J.P., Spain, Garry and Egan Jr., JJ.


Appeal, by permission, from an order of the Family Court of Ulster County (McGinty, J.), entered January 28, 2013, which, in four proceedings pursuant to Family Ct Act article 10-A, sua sponte, directed petitioner to, among other things, provide certain information to a Court Appointed Special Advocate regarding the subject children.

The four subject children were removed from the custody of respondent, their mother, and placed in petitioner's care in January 2010. By order of January 11, 2010, Family Court (1) appointed a volunteer from the Ulster County Court Appointed Special Advocate program (hereinafter CASA) to assist the court, (2) authorized the volunteer to review the Family Court case file and "have full access to service providers, " (3) ordered "all individuals, institutions, educational facilities, medical care providers, and others having information about the children [to] release same" to the volunteer without further authorization unless release of such information is protected by state or federal law, and (4) directed that CASA and its volunteer not disclose any information except to the court or counsel. The court further directed the CASA volunteer to "inquire into the facts and circumstances of this case and make a report to the [c]ourt" and counsel, and to "monitor the family situation, report on compliance with any orders issued by this [c]ourt and [to] assist the family in accessing any necessary or recommended services" (see 22 NYCRR 44.1, 117.2). Petitioner did not appeal from that order.

Respondent was found to have neglected the children upon her admissions and the children were continued in petitioner's custody on consent. The CASA volunteer assigned to this case — among other actions — met with the children, the biological and foster parents, education providers and respondent's mental health therapist, and submitted five reports to Family Court. Thereafter, alleging that petitioner was frustrating the CASA volunteer's efforts to assist the court in compliance with its January 2010 order, CASA moved for an order directing petitioner to provide the CASA volunteer access to specific information regarding the children, who were still in petitioner's custody, as well as notice of and access to the children's service plan reviews and visitations with their family; CASA also sought an order directing petitioner to refrain from instructing the children's foster parents and mental health and other providers not to speak with the CASA volunteer. Petitioner opposed that motion, arguing, among other points, that CASA had no standing as a nonparty to seek such relief and that the records and information sought to be disclosed were confidential. Family Court, without a hearing, partially granted the motion and ordered the requested relief except for denying CASA access to visitations between the children and relatives. By permission of this Court, petitioner appeals. [1]

As an initial matter, while the Rules of the Chief Judge recognize the "vital role that [CASA] can perform in aiding Family Court efforts to further the health, safety and well-being of children" (22 NYCRR 44.0), as Family Court here recognizes, CASA "is not a party to the [Family Court] proceeding" (22 NYCRR 44.1; see Matter of Sarah FF., 18 A.D.3d 1072, 1073 [2005]; Matter of Michelle HH., 18 A.D.3d 1075, 1076 [2005]). Neither is CASA entitled to intervene as of right (see CPLR 1012 [a]) or by permission (see CPLR 1013) [2]. As a nonparty, CASA did not have the right or capacity to make a motion seeking this relief (see CPLR 2211; Siegel, NY Prac § 243 at 422 [5th ed 2011]). Family Ct Act § 255, upon which the court relied here in addressing CASA's requests for relief, "authorizes Family Court to direct officers and agencies to render assistance and cooperation which are in the best interest of the child... provided that the ordered assistance and cooperation are within the legal authority of the court and the agency" (Matter of Nathan S., 198 A.D.2d 557, 559 [1993]; see Matter of Michelle HH., 18 A.D.3d at 1076). While that statute allows the court to seek the assistance of a CASA volunteer within the confines of the rules, statutes and case law, it does not authorize the court to entertain a motion by CASA simply based upon that appointment.

Given the foregoing, we will construe CASA's application as a report to Family Court pursuant to its January 2010 order of appointment, which the court considered and, sua sponte, issued the subject order [3] directing petitioner's cooperation with CASA, as specified (see CPLR 5701 [a] [2]; [c]). Further, as CASA is not a party entitled to be heard on the merits of this appeal by petitioner, and in view of the important issues presented and the particular circumstances of this case, we will, sua sponte, grant CASA amicus curiae status so as to allow consideration of its brief and arguments on this appeal (see 22 NYCRR 500.23 [a] [4] [iii]; 8 Davies, Stecich and Gold, NY Practice Series — NY Civil Appellate Practice § 8:4; see also Hope v Perales, 82 N.Y.2d 680, 681 [1993]; British Am. Dev. Corp v Schodak Exit Ten, LLC, 83 A.D.3d 1247, 1248, 1248 n [2011]).

Addressing the merits of petitioner's challenge to Family Court's order, we find that the court acted within its authority in directing petitioner to cease directing the children's foster care parents not to speak to the CASA volunteer, but that the court otherwise exceeded its authority in several respects. We are persuaded by petitioner's assertion that the court's order on appeal, as well as the January 2010 order, would require petitioner to violate the statutory confidentiality protections afforded to foster care records and information, expose it to liability for such disclosure, and exceeded the court's authority. "Social Services Law § 372... protects the confidentiality of all of [petitioner's] records. While this protection is not always sacrosanct, and upon the basis of a proper showing... may be released upon court order after an in camera inspection, the statutory confidentiality accorded to these records will be safeguarded until after a hearing is held... with 'all interested persons'" (Catherine C. v Albany County Dept. of Social Servs., 38 A.D.3d 959, 960-961 [2007], quoting Social Services Law § 372 [4] [a] [internal quotation marks and citation omitted]). Thus, "[t]he legal authority for petitioner to provide access to its confidential foster care records is provided in and limited by Social Services Law § 372 (4) (a)" (Matter of Michelle HH., 18 A.D.3d at 1076). That statute provides that foster care records maintained by petitioner "shall be deemed confidential and shall be safeguarded from coming to the knowledge of and from inspection or examination by any person other than one authorized, by [petitioner], ... or by a judge of the family court when such records are required for the trial of a proceeding in such court, after a notice to all interested persons and a hearing" (Social Services Law § 372 [4] [a] [emphasis added]; see Matter of Michelle HH., 18 A.D.3d at 1076). Disclosure is "'limited to what is shown to be necessary and should be accompanied by adequate safeguards to limit as much as possible the unnecessary loss of confidentiality'" (Matter of Michelle HH., 18 A.D.3d at 1076, quoting Matter of Carla L., 45 A.D.2d 375, 382 [1974]).

Similarly, confidential central register reports of abuse or maltreatment, and "any other information obtained" pertaining to such reports, "shall be confidential" (Social Services Law § 422 [4] [A]); they shall be made available only to a number of specifically enumerated individuals, agencies, the court and other entities, and "CASA volunteers are not included within the list" (Matter of Sarah FF., 18 A.D.3d at 1074). While Family Court is permitted access to this material for its own use to make a determination, it cannot "expand the carefully crafted statutory and exclusive list of those to whom access is authorized" (id.). This statute precludes the court from ordering, and petitioner from allowing, a CASA volunteer access to this confidential material in any format or setting, and any prior or future order requiring disclosure to or access by a CASA volunteer should reflect this significant limitation.

Here, no hearing was held, no in camera inspection is apparent, and no safeguards were employed to limit the unnecessary disclosure of confidential information in either the order on appeal or the underlying January 2010 order. Family Court's conclusion that it could issue these orders without the required hearing or the foregoing inquiry, based — as to the order on appeal — upon the fact that petitioner did not controvert CASA's factual allegations, is incorrect, as this did not obviate the need for the court's scrupulous inquiry of the specific and limited matters to be disclosed in whatever form (written or verbal), their necessity, and the need for safeguards. Indeed, the court never — in either order — articulated "any findings as to why, in this ...

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