Remarks made to healthcare providers by a third party are admissible hearsay in child neglect proceedings, a Bronx Family Court judge has held.
Judge Robert Hettleman found that comments to physicians, social workers and mental health professionals are inherently reliable and therefore qualify for an exception to the hearsay rule, even if the remarks were made not by the patient but by someone else.
“Statements made by a third person providing health-related information for the purpose of treatment are intrinsically reliable for purposes of [the] hearsay exception,” Hettleman wrote. “This is true whether the declarant is a family member, an acquaintance, a case worker, another treatment provider, or even a person on the street who might have observed something relevant to a patient’s condition, so long as the statement is made directly to a medical provider in response to questions about the patient’s condition.”
Hettleman’s holding in Matter of A.M., NN-13027-31/13, appears to expand on a Court of Appeals decision four years ago. In People v. Ortega, 15 NY3d 610 (2010) the high court said statements made by an individual in regard to his or her medical treatment qualify for a hearsay exception since “only a foolish person would lie to his or her own doctor when seeking medical help.”
The Family Court decision arose from a neglect petition filed by the city Administration for Children’s Services (ACS) against a man identified as Gene M., who has a lengthy history of mental illness, domestic violence and drug use.
Last year, ACS brought a petition alleging that Gene had an extensive history of mental illness, including a diagnosis of schizophrenia; was previously found by a Brooklyn judge of neglecting his children due to his mental illness; had neglected to pursue mental health treatment, as ordered by the court; regularly used marijuana; frequently hit the children’s mother; and failed to provide adequate guardianship and education for the children.
At a fact-finding hearing, ACS offered evidence of Gene’s in-patient mental health treatment, records which are routinely admitted as business records. But here, the records contained numerous hearsay comments by third parties, including the children’s mother, the respondent’s parents and outside treatment providers.
Hettleman found that statements made directly to a healthcare provider that responded to questions from the provider and concerned the patient’s care and treatment are inherently reliable and admissible.
“If a stranger observed a person running naked through the street screaming about aliens, the stranger’s description to a responding health care worker would be extremely pertinent to the diagnosis and treatment of that person,” the judge wrote. “Of course, it can always be argued that a particular declarant might have a motive to fabricate a statement, even one made to a medical provider.”
Here, Hettleman said, the mother’s statements about domestic violence could be “fabricated or exaggerated in order to advance her own agenda,” particularly those made to police rather than a treatment provider.
“But the statements made about [Gene's] mental health condition, made directly to a health care provider, are unlikely to serve any such ulterior motive,” he wrote.
Hettleman said that while “it remains an open question as to whether statements made by a third party can fall within [the] exception,” other trial courts have found that they do (see: Matter of Dolan, 35 Misc 3d 781, Nassau County Supreme Court, 2012; Feinstein v. Goebel, 144 Misc 2d 462, Queens Supreme Court, 1989; and 20-22 Prince LLC v. Tsue Kwai Yen, 32 Misc 3d 1224A, Manhattan Supreme Court, 2011). He joined those courts with his decision in Matter of A.M.
The court found that Gene M. had neglected the five subject children through repeated acts of domestic violence against their mother, “as well as having a significant mental illness and failing to participate or follow through with treatment and medication in a manner sufficient to be able to take care of the children.” However, Hettleman said ACS failed to prove its allegations of educational neglect or that Gene’s marijuana use impacted the children.
Gene was not represented and did not appear, and Hettleman drew “a strong negative inference” from his failure to testify.
Tuozhi Lorna Zhen of Bronx Family Court Legal Services appeared for ACS. Melissa Baumgartner of the Legal Aid Society’s juvenile rights practice represented the children. The mother was represented by Rebecca Oyama, a staff attorney with the family defense practice of the Bronx Defenders.