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IN THIS CHILD VICTIMS ACT SUIT ALLEGING ABUSE BY AN EMPLOYEE OF A GROUP FOSTER HOME, THE JUDGE SHOULD HAVE HELD A DISCOVERABILITY HEARING BEFORE DETERMINING WHICH FOSTER-CARE RECORDS WERE DISCOVERABLE (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the judge should have held a discoverability hearing before which foster-care records could be released to the plaintiff. Plaintiff alleged he was abused in 1991 and 1992 by an employee of a group foster home (Little Flower):

Social Services Law § 372(3) requires “authorized agenc[ies],” including Little Flower, to “generate and keep records of those [children] who are placed in [their] care” … . Foster care records are deemed confidential (see Social Services Law § 372[3]), “considering that they must contain individualized and often highly personal information about the [children]” … . The confidential nature of such records serves “[t]o safeguard both the child and [his or her] natural parents” … , as well as others who may be “the subjects of such records” … . Although foster care records are entitled to a presumption of confidentiality, they may nonetheless be deemed discoverable pursuant to the provisions of CPLR article 31 … . Moreover, since “[the] statutory confidentiality requirement is intended [in part] to protect the privacy of children in foster care,” it should not be used “to prevent former foster children from obtaining access to their own records” … , although this does not mean that they are always entitled to unfettered disclosure thereof. Even when considering a request for disclosure from a former foster child, “[a]n agency [may] move for a protective order where some part of the record should not be produced” … . * * *

Supreme Court improvidently exercised its discretion when it declined to conduct a discoverability hearing before deciding that branch of Little Flower’s motion which sought a protective order regarding the purportedly confidential portions of the records. We therefore remit the matter to the Supreme Court, Nassau County, to conduct such a hearing and to “clearly specify the grounds for its denial or approval of disclosure with respect to each document or category of documents” … .  Cowan v Nassau County Dept. of Social Servs., 2022 NY Slip Op 05989, Second Dept 10-26-22

Practice Point: Here, in this Child Victims Act suit, the judge should have held a discoverability hearing before deciding which foster-care records could be released to plaintiff. Plaintiff alleged he was abused in 1991 and 1992 by an employee of a group foster home.

 

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THE CITY’S COMPLAINT ALLEGED A CAUSE OF ACTION FOR PUBLIC NUISANCE BASED... PLAINTIFF, IN THIS CHILD VICTIMS ACT SUIT, ALLEGED HE WAS ABUSED BY AN EMPLOYEE...