Opinion
Nos. FO4-CP02-005515-A, FO4-CP02-005516-A
February 1, 2006
MEMORANDUM OF DECISION
Introduction:
On December 14, 2005, the commissioner of the department of children and families ("DCF") filed a Motion to Disclose Confidential Records Pursuant to Qualified Protective Order and to Permit Subsequent Testimony ("the Motion"). The motion was filed "[p]ursuant to Conn. Gen. Stat. [sections] 52-146f, 52-146c, 52-146q, 52-146k, 52-146p and 17-688; 42 U.S.C. [section] 290dd-2; 42 C.F.R. [section] 2.64, Subpart E; the Health Insurance Portability and Accountability Act of 1996 (HIPAA) 45 C.F.R. [sections] 164.512(e)(1)(iv) and 164.512(e)(1)(v); and the authority of State v. Rollinson, 203 Conn. 641, 652-59 (1987), In re Romance M., 30 Conn.App. 839 (1993), In re Marvin M., 48 Conn.App. 563 (1998) and In re William B., CP97-009510-12, October 2, 2000 (Frazzini, J.)." Although DCF cited fourteen statutes, regulations and cases in support of its motion, it did not file a brief or other document discussing their applicability to the entities subpoenaed and to the mother's contact or involvement with such entities.
DCF alleged good cause for the disclosure (and presumably the testimony at trial) as follows:
1. The February 24, 2005, petitions for termination of parental rights ("TPR") allege that the mother has a history of substance abuse and mental health issues that contributed to the removal of the children from the care of the mother and that also led to the present TPR proceedings;
2. On February 25, 2004, the children were adjudicated neglected and were committed to DCF;
3. At the TPR trial, the information is necessary so the court can have available pertinent and current information about the mother's conditions and courses of treatment;
4. The mother has a limited expectation of privacy because the court approved and ordered specific steps that the mother would obtain treatment and would provide releases to DCF;
5. Although DCF gave the mother release forms, the mother has not signed and returned them, and DCF alleges that there is no other available or effective way, other than an order of the court giving DCF access to the information and permission to use it at trial, for DCF to obtain and use the information;
6. DCF has a substantial interest in protecting the children, and providing the children with a permanent, nurturing and safe environment. "The requested releases are in the best interest of the children . . .";
7. Without the information, the trial court would be significantly hampered in resolving the case;
8. "[T]he public interest, the interest of justice and the need for disclosure of the information, in the context of the proceedings at hand, outweigh any potential injury to the patient and/or the physician patient relationship. The potential for injury to the patient is insignificant, given the very confidential nature of the proceedings at hand."
On December 19, 2005, this court entered an ex parte order authorizing, inter alia, a subpoena to a battered women's shelter (the "Center") and the surrender under seal to the court of records relating to the mother as follows:
(1) intake and discharge records;
(2) attendance records;
(3) drug and alcohol test results; and
(4) records indicating compliance or noncompliance with and progress in treatment (the "Ex Parte Order").
In the Ex Parte Order, the Center was given notice that on January 30, 2006, at 2 p.m., it would have an opportunity to be heard on the Motion. On January 25, 2006, the Center filed an Opposition to Petitioner's Motion To Disclose Confidential Records Pursuant to Qualified Protective Order and To Permit Subsequent Testimony (the "Opposition"). In such Opposition, the Center alleged that it was a "battered women's center" as that term is defined in Connecticut General Statutes ("CGS") section 52-146k(a)(1). The Center further alleged that its records concerning the mother should not be unsealed because CGS section 52-146k(b) prohibits the Center from disclosing any confidential communications with its patient, the mother. As used in the relevant statutes, "confidential communications," as defined in CGS 52-146k(a)(3), means "information transmitted between a victim of a battering or a sexual assault and a battered women's counselor or sexual assault counselor in the course of that relationship and in confidence . . . and includes all information received by, and any advice, report or working paper given or made by . . . such counselor in the course of the relationship with the victim."
The Center alleged that the exceptions to the statutory privilege are:
(1) the victim's consent to release; and
(2) as set forth in CGS section 52-146k(e):
(A) in matters of proof concerning chain of custody of evidence;
(B) in matters of proof concerning the physical appearance of the victim at the time of the injury; or
(C) where the battered women's counselor or sexual assault counselor has knowledge that the victim has given perjured testimony and the defendant or the state has made an offer of proof that perjury may have been committed.
The Center alleged that the mother did not give her consent and that it, therefore, was prohibited from disclosing the file to DCF. In addition, the Center alleged that the Appellate Court's holding in In re Romance M., 30 Conn.App. 839 (1993) was not applicable. It asserted that the General Assembly, in CGS section CT Page 2242 52-146f(5), explicitly had set forth an exception to the patient/psychiatrist privilege that did not exist in CGS section 52-146k.
DCF has not disputed that the Center is a battered women's shelter.
Relevant statutes and case law:
CGS section 52-146k(a) defines, inter alia, a "battered women's center," "battered women's counselor," "confidential communication" and "victim." CGS section 53-146k(b) provides in part that "a battered women's counselor . . . shall not disclose any confidential communications made to such counselor at any time by a victim . . . unless the victim making the confidential communications waives the privilege . . ." As set forth above, CGS section 52-146k(e) provides that the privilege of confidentiality also shall not apply "(1) In matters of proof concerning chain of custody of evidence; (2) in matters of proof concerning the physical appearance of the victim at the time of the injury; or (3) where the battered women's counselor . . . has knowledge that the victim has given perjured testimony and the defendant or the state has made an offer of proof that perjury has been committed."
In Falco v. Institute of Living, 254 Conn. 321, 330-31, 757 A.2d 571 (2000), the Connecticut Supreme Court held that it was the province of the General Assembly, and not the courts, to determine exceptions to statutory privileges: "Therefore, we conclude that it is contrary to the language of the statute and the intent of the legislature for courts to make discretionary case-by-case determinations of when the privilege may be overridden." At page 330, fn. 7, the Supreme Court further explained: "The `important countervailing considerations' that we noted in Home Ins. Co. v. Aetna Life Casualty Co., supra, 235 Conn. at 195, 663 A.2d 1001, referred to the considerations underlying those exceptions enacted by the legislature. It was not intended as an invitation to courts to determine, independent of statutory enactment, when the privilege should be overridden. This court has never indicated, and explicitly rejects the suggestion, that it is the function of the judiciary to balance these considerations . . ."
Nothing in our decision today contradicts our prior observation that the broad psychiatrist-patient privilege may be subject to exceptions other than those enumerated in [section] 52-146f . . . As we also have noted, the creation of those [additional] exceptions is within the province of the legislature, not the discretion of the courts."
In Falco, as in In re Romance M., 30 Conn.App. 839, 622 A.2d 1047 (1993), appeal dismissed, 229 Conn. 345, 641 A.2d 378 (1994), the patient-psychiatrist privilege was at issue. The Supreme Court's holding, however, seemingly applies to all statutory privileges, including the privilege established in CGS section 52-146k: "The psychiatrist-patient privilege merely restricts the discovery and the availability of evidence — in this case, the communications and records held by the defendant. In this respect, the psychiatrist-patient privilege is no different from other common privileges such as the attorney-client or spousal privileges. Evidentiary privileges exist `for the protection of interests and relationships which, rightly or wrongly, are regarded as of sufficient social importance to justify some sacrifice of availability of evidence relevant to the administration of justice.' 1C. McCormick, Evidence (4th Ed. 1992), [section] 72, page 269 . . .
"We therefore conclude that the psychiatrist-patient privilege may be overridden only by legislatively enacted exceptions . . ." Id., 332-33.
Thus, the "best interests of the child" justification for overriding the privilege in In re Romance, which was not enacted by the legislature as an exception, does not exist after Falco. See Tait's Handbook of Connecticut Evidence (3d Ed. 2001), section 1:15.2, page 50: "The Connecticut Supreme Court, however, appears to have closed the door on an exception based on the best interests of the child. In Falco . . . the court held that it was limited to the exceptions set forth in a statute and that it had no discretion to override the privilege for any other reason than those stated . . . Falco would appear to vitiate the reasoning underlying the opinion in In re Romance . . ."
Professor Tait also questioned, explained and opined as follows: "In a termination of parental rights case, the mental health of the parent is at issue, but has it been `introduced' by the parent as an element of his or her defense sufficient to breach the privilege? In termination cases, the Appellate Court has permitted disclosure, not because of the statutory exception, but because the mental health of the parent was in issue, and it was in the best interests of the child to require that the privilege give way. In re Romance . . . However, the Supreme Court's opinion in Falco . . . casts serious doubt on the validity of the Appellate Court's non-statutory exception based on the `best interests of the child.'" Id., section 5.46.5, page 347.
In its Motion, DCF does not cite or otherwise refer to Falco or Tait's Handbook on Connecticut Evidence.
With respect to the mother's release in the Specific Steps referred to by DCF in its Motion, such release language is as follows: "Sign releases authorizing DCF to communicate with service providers to monitor attendance, cooperation and progress toward identified goals, and for use in further proceedings before this Court." Mother's Specific Steps, signed May 7, 2003. Such release language, and presumably the releases prepared pursuant thereto, authorizes and provides for communication by DCF. Such language does not give a respondent notice that DCF intends or expects to receive documents from the service providers. Additionally, the Specific Steps set forth what must be done before a parent can be reunified with a child, or before protective supervision can be ended, as in this case. They are signed by the parent, and approved and ordered by the court in that context. When DCF starts a TPR proceeding, it has determined that reunification, at least from its perspective, is not possible. When a TPR proceeding is filed, although the docket number of the case does not change, it is treated by the court as a new proceeding. The TPR papers are served on the respondents. A new arraignment and advisement of rights is required. Each respondent, inter alia, is advised of his or her right to remain silent, to deny the allegations and to have a trial. Whether a respondent is entitled, or still entitled, to appointed counsel is determined on the date of such arraignment. The Specific Steps, including but not limited to any release language, agreed to, approved and ordered in the context of reunification or completion of protective supervision, are no longer applicable when those circumstances no longer exist.
Conclusion and Order
For the foregoing reasons, as to the Center, the DCF Motion is denied and the Center's Opposition, treated as an objection, is sustained. The documents submitted by the Center shall remain under seal until either returned to the Center, destroyed or further order of the court.