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Rejecting arguments that drug program records must remain confidential, a Brooklyn Family Court judge has ordered a drug treatment program to turn over information that could prove whether a mother was using narcotics when her child was in her care. Judge Lee Elkins, presiding over the child neglect case, Maximo M., N19098/99, ordered the Addiction Research and Treatment Corporation to comply with a subpoena for records containing information on the mother’s attendance and results of her drug screens. New York City’s Administration for Children’s Services (ACS) subpoenaed the records in connection with a neglect case in which a mother was accused of using opiates and cocaine while she was enrolled in a drug treatment program. Addiction Research opposed the subpoena, arguing that drug treatment records are confidential under federal and state law. The judge rejected the program’s argument, noting that confidentiality laws provide for exceptions in compelling circumstances, including when the information is necessary to investigate or prosecute child abuse and neglect. “However important a right of confidentiality may be with respect to these types of records, it must yield to the greater right of a child to be free from parental neglect or abuse,” wrote the court. The federal statute has long provided for an exception to confidentiality in cases involving child abuse or neglect. But until last year, New York’s Mental Hygiene Law section 22.05(a), stated that drug treatment records could not be used against the patient “in any action or proceeding in any court.” This provision was repealed in 1999; Elkins found that the New York statute, like the federal statute, now allows disclosure in child protective cases. Noting that drug use by parents is “a recurring factor in child abuse and neglect cases,” the court found compelling reasons to require disclosure of the records. The court made an oral ruling in March, followed by a written decision at the end of June that was only made available last week. Addiction Research and Treatment Corporation was represented by Philip Onorato, a partner in Wood, Rafalsky & Wood in Manhattan. ACS was represented by Tamara Nestle of the Corporation Counsel for the City of New York. The child was represented by Richard Reyes of the Legal Aid Society’s Juvenile Rights Division. Attorneys for the parents did not participate in the arguments, according to Elkins’ court attorney.

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