§ 1038 — Records and discovery involving abuse and neglect

§ 1038. Records and discovery involving abuse and neglect. (a) Each\nhospital and any other public or private agency having custody of any\nrecords, photographs or other evidence relating to abuse or neglect,\nupon the subpoena of the court, the corporation counsel, county\nattorney, district attorney, counsel for the child, or one of the\nparties to the proceeding, shall be required to send such records,\nphotographs or evidence to the court for use in any proceeding relating\nto abuse or neglect under this article. Notwithstanding any other\nprovision of law to the contrary, service of any such subpoena on a\nhospital may be made by certified mail, return receipt requested, to the\ndirector of the hospital. The court shall establish procedures for the\nreceipt and safeguarding of such records.\n (b) Pursuant to a demand made under rule three thousand one hundred\ntwenty of the civil practice law and rules, a petitioner or social\nservices official shall provide to a respondent or the child's attorney\nany records, photographs or other evidence demanded relevant to the\nproceeding, for inspection and photocopying. The petitioner or social\nservices official may delete the identity of the persons who filed\nreports pursuant to section four hundred fifteen of the social services\nlaw, unless such petitioner or official intends to offer such reports\ninto evidence at a hearing held pursuant to this article. The petitioner\nor social services official may move for a protective order to withhold\nrecords, photographs or evidence which will not be offered into evidence\nand the disclosure of which is likely to endanger the life or health of\nthe child.\n (c) A respondent or the child's attorney may move for an order\ndirecting that any child who is the subject of a proceeding under this\narticle be made available for examination by a physician, psychologist\nor social worker selected by such party or the child's attorney. In\ndetermining the motion, the court shall consider the need of the\nrespondent or child's attorney for such examination to assist in the\npreparation of the case and the potential harm to the child from the\nexamination. Nothing in this section shall preclude the parties from\nagreeing upon a person to conduct such examination without court order.\n Any examination or interview, other than a physical examination, of a\nchild who is the subject of a proceeding under this article, for the\npurposes of offering expert testimony to a court regarding the sexual\nabuse of the child, as such term is defined by section one thousand\ntwelve of this article, may, in the discretion of the court, be\nvideotaped in its entirety with access to be provided to the court, the\nchild's attorney and all parties. In determining whether such\nexamination or interview should be videotaped, the court shall consider\nthe effect of the videotaping on the reliability of the examination, the\neffect of the videotaping on the child and the needs of the parties,\nincluding the attorney for the child, for the videotape. Prior to\nadmitting a videotape of an examination or interview into evidence, the\nperson conducting such examination or the person operating the video\ncamera shall submit to the court a verified statement confirming that\nsuch videotape is a complete and unaltered videographic record of such\nexamination of the child. The proponent of entry of the videotape into\nevidence must establish that the potential prejudicial effect is\nsubstantially outweighed by the probative value of the videotape in\nassessing the reliability of the validator in court. Nothing in this\nsection shall in any way affect the admissibility of such evidence in\nany other court proceeding. The chief administrator of the courts shall\npromulgate regulations protecting the confidentiality and security of\nsuch tapes, and regulating the access thereto, consistent with the\nprovisions of this section.\n (d) Unless otherwise proscribed by this article, the provisions and\nlimitations of article thirty-one of the civil practice law and rules\nshall apply to proceedings under this article. In determining any motion\nfor a protective order, the court shall consider the need of the party\nfor the discovery to assist in the preparation of the case and any\npotential harm to the child from the discovery. The court shall set a\nschedule for discovery to avoid unnecessary delay.\n