Superior Court of Connecticut
August 25, 2006
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 inReginald 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of Falco, the “best interest of the child” rationale for compelling disclosure of otherwise privileged documents was no longer valid.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 (quotingGuste 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.
Filed in Tags: Abuse and Neglect
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