Family Court, Onondaga County, March 28, 2018

Hiscock Legal Aid Society, Syracuse (Amanda McHenry of counsel), for T.R., respondent mother.

Maggie Seikaly for Onondaga County Department of Children and Family Services.

Kristin B. Greeley, Syracuse, for paternal uncle.

Tylyn L. Bozeman, Syracuse, for respondent father.

Lisa Sapino Cuomo, Syracuse, Attorney for the Children.

David S. Tamber, Syracuse, for nonparty foster parents.

On February 13, 2018, the attorney for the respondent, T.R. (hereinafter referred to as the mother), filed a "Notice of Motion for Access to Family Court Records" based upon Family Court Act § 166 as well as a request for a judicial subpoena duces tecum. An attorney affirmation in support of such requests, seeking "any and all petitions, evidence, orders, photographs, statements made, transcripts including audio CD of the Court appearances" regarding the foster parents with whom the children reside was also submitted.

The attorney for the mother states within her affirmation that disclosure and access to Family Court records involving the foster parents is crucial to allow counsel the opportunity to conduct a proper cross-examination of the foster parents during the upcoming dispositional hearing and for the court to make the required determinations as to the children's best interest.

On February 21, 2018, the attorney for the foster parents filed an affirmation opposing the motion, arguing that Family Court records are private in nature and neither the mother nor her counsel are entitled to access records pursuant to Family Court Act § 166 and that the request for a judicial subpoena duces tecum should also be denied.{**60 Misc 3d at 198}

The court entertained oral argument, with all counsel present on February 22nd, wherein the attorney for the Onondaga County Department of Children and Family Services (hereinafter referred to as the County) also opposed the relief requested and argued that records pertaining to the foster parents are not subject to disclosure as the foster parents are not a party to the underlying proceeding. The County further argued that during the dispositional phase of a [*2]termination of parental rights proceeding the scope of inquiry is limited. The County states that based upon relevant case law, the court is to determine whether or not a termination of parental rights is in the children's best interests and not whether the children are in the best possible foster home.

The attorney for the mother argued that disclosure of the foster parent's Family Court records and child protective records are material and relevant to the proceedings before the court and that the foster parents have previously participated in Onondaga County Family Court proceedings. Counsel further argued that access to the foster parents' court records would be appropriate as they were present for and are represented by an attorney for the upcoming dispositional hearing.

At oral argument, the attorney representing the children's paternal uncle and his copetitioner, who have jointly filed a petition seeking custody of the children, supported the motion as did the attorney for the father.

The Attorney for the Children opposed the mother's request and asserted that as the children have been placed in their care in excess of 12 months the foster parents are permitted to participate in the dispositional hearing pursuant to Social Services Law § 383 (3). However, they are not parties to the proceeding and therefore disclosure of any Family Court records is not appropriate.

Upon the conclusion of oral argument the court reserved decision.

In this case of apparent first impression, the court has before it a motion to review and obtain Family Court and Department of Children and Family Services records of foster parents prior to the commencement of a dispositional hearing in a termination of parental rights proceeding.

On February 6, 2018, the court found that the County demonstrated by clear and convincing evidence that despite diligent{**60 Misc 3d at 199} efforts the parents failed for a period of more than one year following the time the children were placed in foster care, to plan for the future of the children although able to do so. The court further found the children to be permanently neglected by the parents as the mother had not sufficiently progressed or benefitted from the services provided to her and the father had not developed a meaningful alternative plan for the children's future besides foster care. Based upon its permanent neglect findings the court scheduled a dispositional hearing. The attorney for the mother subsequently filed her motion which the court hereby addresses.

Family Court Act § 166

Family Court Act § 166 states:

"The records of any proceeding in the family court shall not be open to indiscriminate public inspection. However, the court in its discretion in any case may permit the inspection of any papers or records. Any duly authorized agency, association, society or institution to which a child is committed may cause an inspection of the record of investigation to be had and may in the discretion of the court obtain a copy of the whole or part of such record."

Disclosure of such records may be appropriate; however, those instances are to be [*3]determined on "case-by-case" basis inquiry by the court as to the underlying purpose for such a request.

It is well established that the privacy of Family Court proceedings and the documents submitted during the course of such proceedings is a consideration of utmost importance. However, confidentiality is not "blanket confidentiality and privacy, but rather one that is discretionary in every case." It is in the discretion of the court to determine "the purpose and use of such confidentiality and privacy." Furthermore, it has long been recognized that the purpose of having Family Court records and proceedings kept private is to encourage litigants to resolve issues through the legal process. (Department of Social Servs. v Land, 110 Misc 2d 665 [1981].)

Prior to granting an application permitting the inspection of Family Court records an inquiry into, and consideration of, various relevant factors needs to be made including the following: the person or entity making the request, the purpose for{**60 Misc 3d at 200} which the information will be utilized, and whether there is a likely probability the information will be improperly utilized. There is an intrinsic difference between an application filed by a respondent or party to a proceeding and that of a third party, which requires greater scrutiny. (Matter of J. Children, 101 Misc 2d 479 [1979].)

Family Court Act § 166 authorizes the court in its discretion to permit the inspection of any "papers or records"; however, such records are limited to "pleadings, legal papers formally filed in a proceeding, findings, decisions and orders and, subject to the provisions of CPLR 8002, transcribed minutes of any hearing held in the proceeding" (Uniform Rules for Fam Ct [22 NYCRR] § 205.5).

The case law interpreting Family Court Act § 166 is limited in nature and fact specific. Inspection of Family Court records pertaining to an individual's financial assets was granted where the individual was a defendant subject to criminal prosecution for alleged fraudulent financial activity. (People v Malaty, 4 Misc 3d 525 [2004].)

In contrast, reliance upon Family Court Act § 166 was not a basis to release to a third party confidential foster care records held by a petitioning agency in a Family Court neglect proceeding. The Appellate Division, Third Department, held that Family Court's authority to direct any release was limited by Social Services Law § 422. (Matter of Sarah FF., 18 AD3d 1072 [2005].)

Department of Children and Family Services Records—Social Services Law § 422

As set forth in Social Services Law § 422 (4) (A) child protective reports as well as other information obtained in a child protective proceeding "shall be confidential" and made available only under limited circumstances as enumerated in the statute. An enumerated exception is contained in subparagraph (e), whereby the court finds that such "information in the record is necessary for the determination of an issue before the court" (Social Services Law § 422 [4] [A] [e]). Absent such a determination, it is error to direct the release of such records. (Catherine C. v Albany County Dept. of Social Servs., 38 AD3d 959 [2007].)

Family Court Act § 166 does not negate the specific provisions of Social Services Law § 422. Records retained by the commissioner of social services are "to be kept strictly confidential except as expressly permitted by statute," even {**60 Misc 3d at 201}under circumstances in which the result was "arguably . . . harsh." (Lamot v City of New York, 297 AD2d 527, 527, 528 [2002].) Providing such information that may exist absent authorization provided by statute or found in case law is [*4]unwarranted. (Angela N. v Suhr, 71 AD3d 1489 [2010].)

The court will further note that it has long been held that Family Court Act § 166 does not allow for, or permit the court, to grant access to records protected and defined by Social Services Law § 422. (Matter of Michelle HH., 18 AD3d 1075 [2005].) Therefore, authorization by the court to permit access to such records pursuant to section 166 would be improper.

Person or Entity Requesting Family Court Records

As set forth in the statute, Family Court records shall not be "open to indiscriminate public inspection." 22 NYCRR 205.5 (a) states:

"Subject to limitations and procedures set by statute and case law, the following shall be permitted access to the pleadings, legal papers formally filed in a proceeding, findings, decisions and orders and, subject to the provisions of CPLR 8002, transcribed minutes of any hearing held in the proceeding:

"(a) the petitioner, presentment agency and adult respondent in the Family Court proceeding and their attorneys."

Pursuant to Social Services Law § 383 (3) foster parents may participate in the dispositional phase of a termination of parental rights proceeding that was commenced pursuant to section 384-b of the Social Services Law if the foster parents have continuously cared for the child in excess of 12 months, which is the case here.

However, the foster parents' meeting the statutory provision to participate in a dispositional hearing does not constitute them being a "party" to the proceeding. While the foster parent(s) and their attorney were present during portions of the fact-finding hearing, their presence was voluntary and not required. Neither the foster parents nor their attorney participated in the fact-finding portion of the petition heard by this court. (Matter of Marina S., 111 Misc 2d 898 [1981].)

Therefore, the records being sought by the mother are those of individuals, not a party, and "utmost scrutiny" must be utilized upon further inquiry into other relevant factors.{**60 Misc 3d at 202}

Purpose for Which Information is Being Sought

The mother's basis for requesting access and review of Family Court records is upon the belief that the pre-adoptive foster parents, who have been approved by the Onondaga County Department of Children and Family Services, have a prior history involving the Department of Children and Family Services.

The court finds access to such Family Court records for the dispositional phase of this proceeding is not warranted.

It has long been held that the "termination of parental rights does not hinge upon a comparison of the relative benefits offered a child by his [biological] family to those offered by the foster family." (Matter of Leon RR, 48 NY2d 117, 124 [1979].)

While the court's decision at disposition shall consider the children's progress in foster care, the ultimate inquiry is not "whether the [child was] in the best possible foster placement" but "whether [his] best interests required termination of the mother's parental rights." (Matter of Michael JJ. [Gerald JJ.], 101 AD3d 1288, 1293 [2012].)

The Appellate Division, Fourth Department has also recently addressed the scope of inquiry in a dispositional hearing under Social Services Law § 384-b and found that "Family Court did not abuse its discretion in limiting the evidence concerning whether the subject child's foster parents were qualified to adopt him" (Matter of James P. [Tiffany H.], 148 AD3d 1526, 1526 [2017]).

Limiting the evidence as to the qualifications of a potential adoptive foster parent is [*5]appropriate during a dispositional hearing as the question before the court is whether termination of the parents' rights is in the child's best interest, not whether the children are in "the best possible foster placement." (Matter of Michael JJ. [Gerald JJ.], 101 AD3d 1288, 1293 [2012].)

Possibility of Improper Dissemination of Records

Prior to granting an application for access to Family Court records the court must also consider the future potential use of those documents, and to what extent they may be utilized outside the instant proceeding. An overriding concern is the disclosure of Family Court records of someone who is not a party to the underlying proceeding which may result in possible intentional or inadvertent breaches of confidentiality.

The court is not unmindful of the need for continuous oversight of foster care parents and placements in order to{**60 Misc 3d at 203} ensure that children are in a safe and appropriate setting. The court's decision regarding the pending motion addresses the factual and procedural issues present in this proceeding.

Conclusion—Access to Records Pursuant to Family Court Act § 166

Applying a balancing test of various factors as set forth previously herein, the court denies the mother's motion to inspect or direct release of any Family Court records of the children's foster parents pursuant to Family Court Act § 166. The court also finds that the mother's reliance in her motion on section 4 of the Judiciary Law and 22 NYCRR 205.4 as a basis to grant inspection or release is not applicable nor analogous.

Conclusion—Social Services Law § 422

The court also denies that portion of the motion that seeks an issuance of a judicial subpoena duces tecum directing the release of records by the Department of Children and Family Services regarding the foster parents.

Now, after hearing oral argument from counsel and upon due deliberation of the submitted motion and responses before the court, it is hereby adjudged that the respondent's motion and applications for access to Family Court records or records of the Department of Children and Family Services pursuant to Family Court Act § 166 and Social Services Law § 422 is and are hereby denied; and it is further ordered that the motion filed herein is denied.