Obtaining Information from Child Abuse Investigation
by Gary Muldoon
Muldoon & Getz
Rochester, New York
In the area of sexual conduct and criminal law, a variety of mechanisms restrict disclosure of information. These include the Rape Shield Law, social worker privilege, restrictions on identifying the complainant, and in some instances, courtroom closure during the testimony of certain witnesses.
With child abuse investigations, the Social Services Law contains other significant restrictions on disclosure. See, e.g., Soc Serv L § 420.
A report of child abuse or maltreatment, after investigation, may ultimately be determined to be either "indicated" or "unfounded." (One difficulty is the proof required for a report to be indicated: the burden at an initial investigation stage is "some credible evidence," while disclosure requires a higher standard, namely a preponderance of the evidence. See Matter of Lee TT, 87 NY2d 699, 642 NYS2d 181 (1996); Valmonte v Bane, 18 F3d 992 (2d Cir 1994)).
Disclosure in civil proceedings
Obviously, any report, whether indicated or unfounded, is hearsay. Thus, an "unfounded" report of child abuse or maltreatment is inadmissible in evidence. Soc Serv L § 422(5). One exception provided for in the Social Services Law is limited to civil proceedings: an unfounded report is admissible "by the subject of the report where such subject . . . is a plaintiff or petitioner in a civil action or proceeding alleging the false reporting of child abuse or maltreatment," Soc Serv L § 422(5)(b)(ii). See Youngok Lim v Sangbom Lyi, 299 AD2d 763 (3d Dept 2002); J.H. v K.H., 7 Misc3d 1030(A) (Fam 2005).
Any court-ordered subpoena (CPLR 2307) for CPS records should contain language that the court has found disclosure necessary. See Soc Serv L § 422(4)(A)(e).
Disclosure in criminal proceedings
Apart from restrictions in the Social Services Law is the discovery procedure for criminal actions, which is governed by the Criminal Procedure Law as well as constitutional imperatives. See People v Walden, 236 AD2d 779 (4th Dept 1997) (in camera review); see also, Pennsylvania v Ritchie, 480 US 39 (1987). A defendant may be entitled to information from prior unfounded CPS reports or other information if this would aid in the defense. See Matter of Danielle G., 155 AD2d 731 (3d Dept 1989) (child abuse proceeding); see also, Matter of Damien H., 268 AD2d 475 (2d Dept 2000) (in camera review of unfounded reports in juvenile delinquency proceeding). Cf. People v McFadden, 178 Misc2d 343 (Sup 1998); see also, People v LV, 182 Misc2d 912 (City Ct 1999) (prosecution not entitled to disclosure of unfounded report).
Increasingly, a multidisciplinary approach is used in child abuse cases. See Social Serv L §§ 423(6), 424(5-a), (5-b). Information obtained by such a group may require disclosure in a criminal case. See People v Greene, 306 AD2d 639 (3d Dept 2003); see also, People v Wilhelm, 34 AD3d 40 (3d Dept 2006) (CPL 710.30 notice).
© 2012 by Gary Muldoon. www.muldoongetz.com