Opinion
No. F01-CP04-001726 A
June 29, 2006
MEMORANDUM OF DECISION
The petitioner, Commissioner of the Department of Children and Families (DCF), moves for disclosure of the health care, therapy and counseling records of the respondents, the natural parents of the minor child, Na-Shawn J. DCF also seeks permission to bring the service providers and preparers of those records to testify at the trial on the termination of parental rights. The trial is scheduled to begin July 19, 2006. The respondents object to the disclosures. The court has received briefs and heard argument from all parties on June 21, and June 28, 2006.
The minor child is two years old. DCF assumed temporary custody of the child on September 28, 2004, when the court signed an ex parte order and set forth preliminary steps to be followed by the respondents. The respondents signed their agreement to the preliminary steps and signed general authorizations for release of medical and counseling records. DCF filed a neglect petition. The DCF petition alleged that the respondents' mental health issues and substance abuse contributed to the neglect of the child. There has been no claim that the child has been physically abused. On later dates, the respondents agreed to the sustaining of the order of temporary custody. Specific steps for reunification were issued to the respondent mother. On April 11, 2005, the child was adjudicated uncared for (homeless) and committed to the custody of DCF until further court order. The petition to terminate parental rights followed on September 19, 2005.
Upon the filing of the petition to terminate parental rights, DCF approached the respondents with releases to sign to allow DCF to obtain medical, counseling and therapeutic records. In this adversarial proceeding, the releases would authorize the disclosure of complete records and information from some of the service providers for DCF to use against the respondents at trial. In particular, DCF wishes to obtain records as to participation of the respondents and services rendered to the respondents after the initiation of the juvenile court proceedings on September 28, 2004. DCF feels that the records will bear out its claim that the respondents' participation has been sporadic and the mental and physical health problems of the respondents are chronic so as to make reunification of the family a poor prospect. Although the respondents signed the releases, all parties acknowledge that the respondents' attorneys in this proceeding were not yet in place and/or were not made aware of the approaches to their clients. Upon the obtaining of legal advise and counsel, both respondents now repudiate their signings of releases and vigorously oppose the release of privileged information. This court determines that the signings of the releases by the respondents subsequent to the filing of the petition to terminate parental rights were not knowing and voluntary on the part of the respondents.
DCF seeks the release of information pursuant to the statutory authority of General Statutes §§ 52-146c, 52-146e and 52-146f (communications between psychologist and patient); § 52-146o (patient communication or information with a physician, surgeon or health care provider); § 52-146p (communications between a marital and family therapist and a person consulting such a therapist); § 52-146q (communications between a social worker and a person consulting such social worker); and § 52-146s (information passing between a professional counselor and a person consulting such professional counselor). All of the named statutes explicitly bar the disclosure of confidential communications and records unless the recipient of the services gives consent to the disclosure. As defined in each statute, such consent must be in writing. Each statute sets forth exceptions to the rules of non-disclosure.
Section 52-146c(b) states: "Except as provided in subsection (c) of this section, in civil and criminal actions, in juvenile, probate, commitment and arbitration proceedings, in proceedings preliminary to such actions or proceedings, and in legislative and administrative proceedings, all communications shall be privileged and a psychologist shall not disclose any such communications unless the person or his authorized representative consents to waive the privilege and allow such disclosure. The person or his authorized representative may withdraw any consent given under the provisions of this section at any time in a writing addressed to the individual with whom or the office in which the original consent was filed. The withdrawal of consent shall not affect communications disclosed prior to notice of the withdrawal." Section 52-146c(c) sets forth circumstances in which consent is not needed: "Consent of the person shall not be required for the disclosure of such person's communications: (1) If a judge finds that any person after having been informed that the communications would not be privileged, has made the communications to a psychologist in the course of a psychological examination ordered by the court, provided the communications shall be admissible only on issues involving the person's psychological condition; (2) If, in a civil proceeding, a person introduces his psychological condition as an element of his claim or defense or, after a person's death, his condition is introduced by a party claiming or defending through or as a beneficiary of the person, and the judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between the person and psychologist be protected; (3) If the psychologist believes in good faith that there is risk of imminent personal injury to the person or to other individuals or risk of imminent injury to the property of other individuals; (4) If child abuse, abuse of an elderly individual or abuse of an individual who is disabled or incompetent is known or in good faith suspected." DCF is not claiming that exceptions (1), (3) or (4) apply.
Exceptions (5) and (6) relate to fee collection actions by a psychologist and homicides. General Statutes § 52-146c(c)(5), (6).
Section 52-146c(c)(2) is limited in application to civil proceedings. Section 52-146c(b) distinguishes juvenile proceedings from civil proceedings. On its face, therefore, the exception in subsection (2) does not apply to juvenile proceedings. DCF asserts, nevertheless, that the respondents' denials of the termination of parental rights petition have introduced their psychological conditions as elements of their claims or defenses. DCF cites In re Romance M., 30 Conn.App. 839, 622 A.2d 1047 (1993), appeal dismissed, 229 Conn. 345, 641 A.2d 378 (1994), wherein the issue was the patient-psychiatrist privilege. The parties concede that the issues and arguments relating to the confidentiality statutes for psychiatric records are essentially the same across the board for the psychologist, physician, family therapist, social worker and professional counselor records. In the case of In re Romance M., the Appellate Court approved the approach of the trial court, which "weighed the public interest in favor of disclosure against the potential injury to [the parent]." In re Romance M., supra, 848. The Appellate Court noted that the trial court "determined that there was good cause for disclosure of the treatment information and that it was highly relevant to the issue of the respondent's mental health, an issue that the respondent herself raised when she testified that she was capable of responsibly parenting her children." In re Romance M., supra, 850. The Appellate Court further concluded that "when the mental health of a parent in a termination of parental rights case is an issue, . . . the best interest of the child requires that the privilege between psychiatrist and patient give way once it is shown to the trier of fact that the `communications and records' are relevant to the issues in the case." In re Romance M., supra, 852. In re Romance M. thus creates by judicial gloss three additional exceptions to the confidentiality statute for psychiatrist and patient: (1) Weighing of the public interest; (2) Good cause/relevance; and (3) Best interest of the child.
The holdings of In re Romance M. have been superseded by the declarations of the Supreme Court in Falco v. Institute of Living, 254 Conn. 321, 757 A.2d 571 (2000). In Falco, a civil action, the plaintiff wanted disclosure of the identity of a patient, who had allegedly committed an assault upon the plaintiff. The Supreme Court noted that "the people of this state enjoy a broad privilege in the confidentiality of their psychiatric communications and records, and the principle purpose of that privilege is to give the patient an incentive to make full disclosure to a physician in order to obtain effective treatment free from a doctor's testimony." (Citations omitted; internal quotation marks omitted.) Falco v. Institute of Living, supra, 328. The Court rejected the plaintiff's argument that the trial court could exercise its discretion to override the psychiatrist-patient privilege where the court discerned compelling countervailing interests not explicitly recognized by the legislature. Falco v. Institute of Living, supra, 325. The trial court may not balance competing interests. "[E]xceptions to statutes are to be strictly construed with doubts resolved in favor of the general rule rather than the exception. Where express exceptions are made, the legal presumption is that the legislature did not intend to save other cases from the operation of the statute." Falco v. Institute of Living, supra, 330. The Supreme Court "explicitly rejects the suggestion, that it is the function of the judiciary to balance these considerations." Falco v. Institute of Living, supra, 328 n. 7. The Supreme Court recognizes that it is the legislature that weighs the protection of competing public policies and decides which interests will be sacrificed. "The psychiatrist-patient privilege merely restricts the discovery and the availability of evidence . . . 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." (Citation omitted; internal quotation marks omitted.) Falco v. Institute of Living, supra, 332. The Appellate Court recognizes the supremacy of Falco, in the context of the psychiatrist-patient privilege statute, in the matter of State v. Jenkins, 73 Conn.App. 150, 807 A.2d 485 (2002). In that case, the Appellate Court cites Falco and states: "The statute must be narrowly construed to protect the privilege, without allowing exceptions not enacted by the legislature." State v. Jenkins, supra, 161.
DCF asserts that the respondents' signing off on the specific steps to be followed by them for reunification with the children is effectively a waiver of protected privileges. The court notes that the record does not show that the respondent father in this case ever signed any specific steps document. The "specific steps" set forth the obligations to be met by the parents to facilitate reunification with the child, or to end the alienation of custody. They are approved by the court as part of the plan for reunification. When DCF commences a proceeding for termination of parental rights, it is stopping efforts at reunification. The termination procedure is a new petition, involving a new set of rights for the respondents and new pleadings. The specific steps no longer apply because the state is no longer seeking or advancing the cause of reunification. The signing of the specific steps document by the respondent mother on October 14, 2004, cannot in any reasonable way be deemed a written waiver of confidentiality of communications in the context of the pending termination proceeding.
This court will not explore the question of permissible disclosures under the Federal Health Insurance Portability and Accountability Act of 1996. DCF has not advanced a statutory exception to General Statutes § 52-146o that would permit disclosure of physician, surgeon or health care provider information. That statute bars the disclosure.
For the foregoing reasons, the DCF motion for disclosure of alcohol and drug abuse and treatment records, to obtain a qualified protective order, and to permit subsequent testimony is denied. The respondents' objections to the motion are sustained. Documents submitted under seal pursuant to the ex parte order of the court shall remain under seal until returned to the senders, destroyed or further order of the court. This order shall not apply to communications and records previously submitted at the time of the issuance of preliminary steps, and prior to written revocation of such releases.