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In this
superior court decision, the trial court denied the State's request
that a mother's confidential mental health and substance abuse treatment
records be disclosed for purposes of a termination of parental rights
("TPR") trial. The State argued that the mother had a limited right
to privacy because she was bound by the previously court ordered
"Specific Steps", which required her to sign releases and allow
DCF to communicate with her service providers. Additionally, the
State argued, pursuant to In re Romance, 30 Conn. App. 839
(1993), that the mother's records should be disclosed because it
was in the best interests of the child that all records relevant
to the TPR proceeding be available for review.
The mother
objected, noting that records of communications between a psychiatrist
and patient are confidential and that applicable state and federal
statutory laws do not provide for a general "best interest of the
child" exception to the rule that certain medical records are confidential.
The
trial court, citing the Connecticut Supreme Court's decision in
Falco v. Institute of Living ("Falco"), denied the State's
request that the mother's confidential mental health treatment records
be disclosed. In Falco¸ the Court held that the psychiatrist-patient
privilege may be overridden only by legislatively enacted exceptions
and that such exceptions should be narrowly construed. 254 Conn.
321 (2000). The Falco Court concluded that courts were not
permitted to make case-by-case determinations of when privilege
may be overridden. The trial court in Reginald H. therefore
determined that in the wake of Falco, the "best interest of the
child" rationale for compelling disclosure of otherwise privileged
documents was no longer valid.
The trial
court noted that C.G.S. 52-146f(5)-protecting psychiatric records
from disclosure, and the statute at issue in Falco-does not
list "best interest of the child" as a statutory exception to privilege.
However, the statute does provide that the "psychiatrist-patient"
privilege may be overridden where the patient introduces his mental
condition as an element of his claim or defense, as was the case
in In re Romance. The Reginald H. court, citing other
superior court opinions and treatises, reasoned that a parent does
not raise her mental health simply by defending herself against
the State's TPR petition. The court noted that it remained to be
seen whether Reginald's mother chose to testify and what the scope
of her testimony would be.
The court
further held that the "Specific Steps" did not provide the State
the means to compel the disclosure of records because the "Specific
Steps" are binding only in so far as the State's goal is to reunify
the family. Once the State files a TPR petition, a new proceeding
begins, and the "Specific Steps" are no longer binding on the parent.
The court cited two recent superior court decisions, In re Ashley
W. 2006 WL 361814, Conn. Super. Ct., J.D. Middlesex (Bear J.,
Feb. 1, 2006) and In re Na-Shawn J., 2006 WL 2002913 Conn.
Super. Ct., J.D. Danbury (Winslow, J., June 29, 2006), that contained
similar conclusions regarding the role of the "Specific Steps" and
the impact of Falco on Romance motions. Additionally,
the court pointedly noted that the State failed to identify either
case in its written or oral argument. The court's memorandum declared
that all future Romance motions should cite those superior
court opinions.
The court
also denied the second part of the State's Romance Motion,
its request that the mother's substance abuse treatment records
be disclosed. The court first noted that pursuant to the applicable
federal standard such records may be revealed only if there is an
appropriate showing that "good cause" compels disclosure. 42 U.S.C.
[section] 290. Under the corresponding regulations, disclosure may
be allowed when the patient "offers testimony or other evidence
pertaining to the content of the confidential communication." 42
C.F.R. 2.63(a)(3). In Romance, the privilege and waiver issues
arose after the mother testified and voluntarily raised issues regarding
her mental health. In the present case, the court held, the mother's
"pro forma denial" did not constitute a waiver of her right to assert
statutory privileges. Id. at * 25 (citing In re Ashley W.,
supra; In re Na-Shawn J., supra).
The trial
court held that the State did not meet its burden under the federal
"public interest" standard, noting that that "[t]he [federal] good
cause showing is not a low burden to meet. … [I]t will be the exceptional
case that meets the good cause requirements …". Id. at * 32 (quoting
Guste v. Pep Boys-Manny, Moe and Jack, Inc.¸(E.D. La., Oct.
14, 2003.) The court also quoted federal case law for the proposition
that an order for disclosure is "a unique kind of court order and
that there is a "strong presumption against disclosing records ..
and the privilege afforded them should not be abrogated lightly."
Id. at * 35 (citing Fannon v. Johnson, 88 F.Supp.2d
753, 758 (E.D. Mich. 2000). The court ultimately concluded that
the State had not made a sufficient demonstration, concluding that
"good cause is more than a statement that the confidential documents
and information are necessary for the upcoming trial." Id. at *
36.
In the
future, the court warned, the state must do the following, at minimum,
to meet the federal standard:
"(1)
specify for the court in the context of a Romance motion,
its efforts to obtain confidential, privileged documents and information
prior to and after its filing of a termination of parental rights
petition, including its efforts to obtain releases for such documents
and information, (2) to provide to the court copies of each release
signed by a parent and to specify and describe each document and
the information received pursuant to each such release, and (3)
to explain why in the context of the particular case, instead
of by general theories and claims, and in light of all of the
evidence available to DCF concerning the specific case, that there
is good cause to apply such public interest standard in favor
of DCF. DCF … thus should be prepared to explain to the court
why the years of its work with the family, each individual member
thereof, family relatives and others that occurs prior to the
trial of TPR cases has not provided it with sufficient information
to avoid its need for records and information protected by federal
and state law." Id. at * 37.
In this
case, the court reasoned that DCF had spent years working with the
family and had ample opportunity to learn virtually everything about
the family members. Furthermore, DCF had opportunities when the
"Specific Steps" were still binding to access the mother's medical
and substance abuse treatment records. The court observed that if,
at this stage of the proceedings, the State was truly dependent
on the contents of the mother's confidential records in order to
prove the allegations of its TPR petition, then "perhaps it should
not have filed, and/or it should withdraw, such petition." Id.
at * 19.
Finally,
the court questioned the State's routine practice of importing the
federal "public interest/good cause" standard applicable to alcohol
and drug treatment records into its requests for other types of
medical records, protected by specific state statutory provisions.
Id. The court cautioned that the State should "now recognize that
it is time for it to rethink, clarify and limit its previous approach
in seeking discovery of protected privileged and confidential records
[before TPR trials.]" Id. at * 26.
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