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IN THIS SEXUAL ABUSE CASE, THE CHILD’S MENTAL HEALTH RECORDS SHOULD BE REVIEWED BY THE JUDGE IN CAMERA TO DETERMINE WHETHER ANY RECORDS ARE RELEVANT TO THE RESPONDENT’S CLAIM THE CHILD FABRICATED THE SEXUAL ABUSE ALLEGATIONS; FAMILY COURT PROPERLY DENIED RESPONDENT’S REQUEST FOR DISCOVERY OF THE RECORDS (FIRST DEPT). ​

The First Department, reversing (modifying) Family Court, held the judge properly denied discovery of the child’s mental health records in this sexual abuse proceeding, but the judge should review the records in camera to determine if any records support respondent’s position that the child fabricated the sexual abuse allegations:

Confidential mental health records may only be disclosed upon a finding by a court that “the interests of justice significantly outweigh the need for confidentiality” (Mental Hygiene Law § 33.13[c][1]). Pursuant to Family Court Act § 1038(d), the court must conduct a balancing test to weigh “the need of the [moving] party for the discovery to assist in the preparation of the case” against “any potential harm to the child [arising] from the discovery” … .

… [G]iven respondent’s need to prepare his defense, his right to impeach the child’s credibility as she is likely to be a witness, and the child’s diminished interest in the confidentiality of older records from an institution that is not currently providing services to her, we find that an in camera review of the … records is warranted … . …

… [W]e find that the Family Court properly denied his request for those records … . Were a court to grant such a request on the sparse showing in this case, virtually every child’s therapy records would be subject to exposure. Matter of Briany T. (Justino G.), 2022 NY Slip Op 00629, First Dept 2-1-22

 

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