HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/JANICE.ASC

Text File | 1993-01-14 | 4KB | 97 lines

/* This case is reported at 524 N.Y.S. 2d 267) In this case
a parent was charged with neglect for apparently not sending
a child to school. When she didn't appear, the Sheriff was
sent to bring her to court. She bit the officer. The family
court then ordered an HIV test. The Court found that since
there was no showing of the need for the test (that is there
was record indications that the defendant was HIV positive)
that the lower court order was insufficient. This case is
precedent for the need to strictly follow any statutes
permitting involuntary testing. */
In the Matter of the DEPARTMENT OF SOCIAL  SERVICES  on

Behalf of TROY C. (Anonymous), Respondent,

v.

JANICE T. (Anonymous), Appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 1, 1988.





MEMORANDUM BY THE COURT.

In a neglect proceeding pursuant to Family Court Act article
10, the appeal is from an order of the Family Court, Nassau
County, (Capilli, J.), dated October 5, 1987, which directed
the appellant to undergo an examination for Acquired Immune
Deficiency Syndrome (hereinafter AIDS).


ORDERED that on the court's own motion, the appellant's
notice of appeal is treated as an application for leave to
appeal, that application is referred to Justice Brown, and
leave to appeal is granted by Justice Brown, and it is
further,


ORDERED that the order is reversed insofar as appealed from,
on the law, without costs or disbursements, and the
provision directing the appellant to undergo an examination
for AIDS is deleted.


Following the appellant's failure to appear during a child
neglect proceeding in which it was alleged that the child in
appellant's custody was not attending school on a regular
basis, a warrant was issued for her arrest.  When a Deputy
Sheriff attempted to execute the warrant, the appellant bit
him on his wrist causing puncture wounds.  The appellant was
subsequently charged with assault in the second degree.


Under the circumstances of this case, we find that the
Family Court abused its discretion in directing that the
appellant undergo testing for AIDS. Family Court Act  1038a
upon which the court purportedly relied, as well as Family
Court Act  251 pursuant to which it ordered a physical,
psychiatric and psychological examination of the appellant
authorizes such examinations when the results of the testing
are reasonably related to establishing the allegations
contained in the petition before the Family Court.  In the
instant case, as the court itself stated, "[t]he AIDS test *
* * has nothing to do with the child.  [It is being ordered
because] at the time the [appellant] was apprehended she bit
an officer carrying out his duties * * * and based on that,
I am ordering the AIDS test".


The record is devoid of any evidence whatever that the
appellant had or was suspected of having AIDS. In the
recently released
"Guidelines for the Handling of a Court Appearance Involving
a Person Afflicted with an Infectious Disease", the Office
of Court Administration has suggested that "In any case in
which a person believed to have AIDS, the AIDS virus, or any
infectious disease is due to appear in court, the judge
presiding should inquire as to the basis on which it is
believed that the person is so infected * * * And the
judge's findings should be conveyed to counsel and court
personnel" (NYU, Jan. 14, 1988, p 3, col 2-3).

Since it made no inquiry as to the basis on which it was
suspected that the appellant had AIDS, if indeed there
existed any such suspicion, and since the results of the
testing were unrelated to the pending neglect petition, the
Family Court should not have directed the appellant to
undergo testing for AIDS.