Second Department Holds That it Is Only Appropriate for an Attorney for a Child to Form an Opinion as to What Would Be in the Child's Best Interest, after Gathering Evidence and Making a Complete Investigation.

In Matter of Brown v Simon,--- N.Y.S.2d ----, 2014 WL 7392499 (N.Y.A.D. 2 Dept.),
the parties entered into an agreement to share joint custody of the child, with the mother to have residential custody, which was  embodied in an order entered on consent of the parties. Shortly after the agreement was entered into, the child's day care provider reported to the father that the child was not allowing herself to be cleaned when her diaper was being changed, and her resistance had gotten worse. Although an examination of the child by her pediatrician revealed no physical evidence of sexual abuse, the day care provider reported her concerns to the Office of Child Protective Services (CPS). The father and mother each filed a petition seeking sole custody of the child.   Before a hearing on the petitions was held, the attorney for the  child, based on the out-of-court statements of the day care provider, made an application for the father to be awarded temporary custody of the child. The Family Court granted that application. The Appellate Division pointed out that such an award was improper, as it was based on the disputed hearsay allegations ( Matter of  Swinson v. Brewington, 84 AD3d 1251).  

The Appellate Division held that during the hearing on the petitions, the Family Court erred in permitting the father to testify that the child told him that the mother's other daughter "did it." The father's testimony was intended to show that the mother's other daughter might have sexually abused the subject child. The statement was inadmissible hearsay, and did not qualify as either prompt outcry evidence, or as a spontaneous declaration. The admission of this hearsay statement could not be deemed to be harmless, as this hearsay statement was the only evidence presented to support the allegations that the child had been sexually assaulted and that the sexual assault was committed by the child's older sibling.  Both CPS and the Administration for Children's Services investigated the allegations and concluded that the allegations were unfounded, and an expert in the area of child abuse concluded that there was no evidence that the child had been physically or sexually abused. 

The Appellate Division held that Family Court also erred in overruling the mother's objection to the testimony of her other daughter's treating physician about his treatment of that child on the ground that the Privacy Rule standard of the Health Insurance Portability and Accountability Act of 1996 ( HIPAA) for disclosure of her other daughter's medical information was not met (45 CFR 164.512 [e][1][i], [ii] ). The mother's other daughter was not a party to the proceeding, and permitting her treating physician to testify in violation of HIPAA directly impaired the interest protected by the HIPAA Privacy Rule of keeping one's own medical records private. As such, the Family Court should have sustained the mother's objection to this testimony, This error could not be deemed harmless, as the physician's testimony was used by the father and the attorney for the subject child to portray the mother's other daughter as seriously disturbed.

  Significantly, the Second Department held that an attorney for the child should not have a particular position or decision in mind at the outset of the case before the gathering of evidence (citing Matter of  Carballeira v. Shumway, 273 A.D.2d 753, 756 where the Third Department said that: “A Law Guardian should not have a particular position or decision in mind at the outset of the case before the gathering of evidence.”) It is only appropriate for an attorney for a child to form an opinion as to what would be in the child's best interest, after such inquiry. Here, it was inappropriate for the attorney for the child to have advocated for a temporary change in custody without having conducted a complete investigation. The attorney for the child acknowledged that his application was based solely on his discussion with the father and the child's day care provider, which was located near the father's residence, and that he did not speak to the mother or the child's other day care provider closer to the mother's residence.

It remitted the matter to the Family Court for a de novo hearing and directed  the Family Court to appoint a new attorney for the child.