ALBANY – The activities of volunteers tapped by Family Court judges to advocate for foster children are significantly restricted by confidentiality requirements, a state appeals court ruled.
The Appellate Division, Third Department, decided that a Court Appointed Special Advocate (CASA) in Ulster County may not gain access to either the state’s registry of abused or neglected children or to information about the mental-health services received by the children in the course of the CASA’s monitoring of a foster-care case involving four children.
The court said in Matter of Evan E., 516055, that in the absence of consent by the children, the attorney for the children and the parents, giving the CASA access to the mental-health information violates the Health Insurance Portability and Accountability Act (HIPAA) and state Mental Hygiene Law §33.13(c), which generally prohibits the release of mental-health information contained in foster-care records.
Furthermore, CASA volunteers are not among the individuals, agencies or courts who have access to child-abuse registry information under Social Services Law §422[A], the court ruled.
Family Court judges also cannot order that a CASA be allowed to attend the family service plan meetings that track a foster child’s progress toward permanent placement, the Third Department decided.
“The reviews will often entail in-depth sharing, discussion and consideration of confidential information, such as medical and mental health information of the children or parents and reports of abuse and maltreatment,” the court said in a ruling by Justice Edward Spain (See Profile).
The head of the statewide advocacy group for CASAs, Court Appointed Special Advocates of New York State, said the Dec. 26 ruling might prompt his group to seek legislation to codify the authority of CASAs.
“The court, by making it more difficult for CASA volunteers to participate in discussions with care-givers and professionals, neglected to consider that CASA volunteers are provided with mandated confidentiality training before being authorized to work in the courts, and then take an oath to maintain confidentiality when sworn in by the Family Court judge,” said Arthur Siegel, a partner at Bond, Schoeneck & King in Albany and president of the CASA group.
Another member of the statewide group’s board, Barbara Morgen, said the Third Department’s “disappointing” ruling “creates barriers to the information-gathering process that could cause delays, especially if court hearings were to become required on a frequent basis.”
“The last thing we need is to inject more litigiousness—and potentially more court delays— into the very difficult process of figuring out what is in the best interests of a child who has been a victim of abuse or neglect,” Morgen said
CASAs serve about 2,700 foster children, about half of them in New York City (NYLJ, Jan. 30, 2013). They are assigned by judges to monitor certain cases involving foster children in the 31 counties and New York City where CASA programs exist.
According to Siegel’s group, of the 103 Family Court judges who handle abuse and neglect proceedings, 94 judges—or 91 percent—assigned CASA volunteers on some of their cases in 2012.
CASAs work with local social-services departments and child-welfare agencies to help coordinate schooling, health care and other services, and report back to judges and the parties in their cases on the well-being of foster children.
“We exist in New York state because judges wanted us to be around,” said Barb Benedict, interim coordinator of the statewide CASA association. “We respond to what judges want us to provide them in terms of information so they can make good decisions. We are another set of eyes and ears for the judge.”
Unlike the attorney for the children, a CASA does not have legal standing to intervene in a case or is even authorized to bring a motion before a court.
The Rules of the Chief Judge are the primary source of authority for CASAs. Under 22 NYCRR 44.1, CASAs are directed “to provide assistance to the court in cases regarding children in or at risk of out-of-home placement…[by] providing thorough information about the health, safety, well-being and permanency plans of children and their families to the court.”
The Third Department said that while a CASA is not entitled to be heard on the merits of a case, it specifically granted the Ulster County Court Appointed Special Advocate and Siegel’s statewide group amicus curiae status to present arguments about what Spain called the “important issues” of the reach of a CASA’s authority presented by the case (See Amicus Brief).
According to the Third Department, the CASA in Evan E. was appointed by Judge Anthony McGinty (See Profile) in Ulster County to advocate on behalf of four children after their mother was found to be neglectful in January 2010.
The CASA met with the children, their biological and foster parents, education providers and the county social-services department’s mental-health therapist, the Third Department said.
The CASA filed five reports with the court but sought the intervention of McGinty after complaining that the county’s social-services agency was instructing the children’s foster parents and mental-health providers not to speak to the CASA.
The Third Department ruled that McGinty was within his authority to order the agency and foster parents to cooperate with the CASA. But, the court held, the judge acted without authority when he directed that the CASA have access to the child-abuse registry information, the family service plan meetings and records of the mental-health providers who treated the children.
“We are persuaded by petitioner’s assertion that the court’s order…would require petitioner [the Ulster County Social Services Department] 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,” Spain wrote.
Siegel said his group was reviewing the ruling to see if it has standing to appeal.
Heather Harp of the Ulster County Department of Social Services represented her agency.
Christopher Watkins of Sussman & Watkins in Goshen appeared for Ulster County Court Appointed Special Advocate.
Andrew Gilday, the attorney for the child appointed for Evan E. and his siblings, took no position in the dispute, according to the Third Department’s ruling.
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