Nos. H12-CP04-009733-A, H12-CP04-009734-A, H12-CP04-009735-A.
December 7, 2006.
Opinion Title: MEMORANDUM OF DECISION
These are termination of parental rights ("TPR") cases. The sole ground alleged by the Commissioner of the Department of Children and Family Services ("DCF'), the petitioner herein, in the May 15, 2006 TPR petitions it filed against each respondent parent are Ground B(i), each parent's failure to rehabilitate.
In two separate sets of motion papers filed on September 22, 2006, DCF moved (a) for the right to obtain by subpoena delivery to the court of, and (b) for the ultimate disclosure to it, of each parent's (1) alcohol and drug treatment records, and (2) mental health, therapy and counseling records. On September 22, 2006, this court denied such motions without prejudice to re-file for failure to comply with this court's rulings In re Reginald H., No. T11-CP04-012123-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., Sept. 6, 2006). On November 22, 2006, DCF again moved to disclose "identified mental health, therapy and counseling records concerning [the mother]." Prior to such hearing, the father consented to the termination of his parental rights. In its November 22, 2006, motion to disclose DCF alleged, inter alia, the following:
(1) in the TPR petitions, DCF alleged a "history of mental health problems and concerns . . . which contributed to the removal of the children from parental care and their continued placement with [DCF] . . .";
(2) on April 19, 2006, the children were adjudicated neglected and committed to the care, custody and guardianship of DCF; and
(3) the respondent mother has a "limited expectation of privacy" because on February 8 and April 19, 2005, the court approved and ordered specific steps "requiring that the mother would engage in treatment and provide release to [DCF] so that [DCF] would receive and review records of and be able to confer with these mental health professionals providing treatment to the respondent-mother."
What DCF consistently leaves out of its form motion is that:
(1) the specific steps were ordered in the context of a permanency plan of reunification of the children with the mother;
(2) the specific steps were ordered prior to the change in the permanency plan from reunification to termination of parental rights;
(3) such a change in the permanency plan occurred, as it had to, before DCF filed the TPR petitions;
(4) there was a substantial period of time where DCF received documents and information from the mother's providers pursuant to the terms and conditions of the releases it presented to and were executed by the mother; and
(5) DCF has accumulated records and information of the type it seeks in its motion.
When DCF, acting in what it believes to be the best interest of the children, amends the permanency plans from reunification of the children with a parent to termination of that parent's parental rights, and when thereafter it files TPR petitions, it eliminates any further incentive for that parent to cooperate with DCF by continuing to allow access to his or her statutorily privileged, confidential mental health treatment records. As this court has previously stated:
"`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.' In re Ashley W., Docket No. F04-CP02-005515-A, Superior Court for Juvenile Matters, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., February 1, 2006)." In re Reginald H., supra. 11-12. The court recognizes that the Specific Steps are orders, but a usual component of DCF's proof at trial of a parent's failure to rehabilitate is such parent's non-compliance with such steps "aimed at facilitating reunification":
"Although the respondent complied with some of the steps, she failed to comply with many others." In re Jonathan C., 86 Conn.App. 169, 172, 175 (2004).
DCF continues to cite State v. White, 169 Conn. 223 (1975) in support of its position that "[p]articularly in light of the nature of the matter before this court, it is apparent that respondent-mother has a limited expectation of privacy." This court suggests that in fact the opposite of DCF's position is the correct position: in light of the sensitive issues in TPR cases, every effort must be made to respect and to protect the rights of parents/respondents who are facing such termination of their parental rights. See. e.g., In re Christina M., 280 Conn. 474, 484-85 (2006):
This court, in Reginald H, has noted the inapplicability of State v. White:
"DCF also asserted that the specific steps were similar to probation requirements, and it cited State v. White, 169 Conn. 223 (1975). Reply, 8. In this case, however, DCF is not seeking to obtain, inter alia, disclosure of a court-ordered psychological evaluation, where the parent is told in advance that there is no confidentiality with respect to any contact with or disclosure to a court-appointed evaluator. Based on what DCF has asserted in this case, the court is not persuaded of any similarity between contact and disclosure by a person on probation to a treatment provider after the person on probation has been given notice, and thus knows, that there will be no such confidentiality, and a parent's contact with and disclosure to a treatment provider . . ."
"Indeed, it is beyond dispute that, `the interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme Court].' Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); see Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (liberty protected by due process clause includes right of parents to establish home and bring up children and to control education of their own); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (liberty of parents and guardians includes right `to direct the upbringing and education of children under their control'); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944) ('[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder'); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) ([i]t is plain that the interest of a parent in the companionship, care, custody, and management of his or her children `come[s] to this [c]ourt with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'"); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (`The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.'); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) (`[w]e have recognized on numerous occasions that the relationship between parent and child is constitutionally protected'); Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) ('Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course.'); Santosky v. Kramer, supra, 455 U.S. 753 (discussing `[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child') . . ."
In its motion DCF admits that the mother "signed a DCF release on November 17, 2005, for [one provider] . . . DCF had conversations with this provider and obtained limited records . . . as a result of this release. The release is limited in that it only authorizes DCF to communicate with [such provider] to monitor the respondent-mother's progress in treatment. However, the release has expired and it did not authorize any disclosure to the Office of the Attorney General or provide for subsequent testimony at future court proceedings."
With respect to such first mental health services provider: "On July 13, 2006, the respondent-mother signed an agency specific release for [such provider] . . . This agency specific release . . . is still valid; however, the respondent-mother asked her therapist to limit conversations to DCF when providing information. Additionally, the agency release does not provide for the disclosure of information or records to the Office of the Attorney General or for subsequent testimony at any future court proceedings."
This date is after the date of the filing of the TPR petition.
With respect to the second mental health services provider, in its motion DCF admits that
"[o]n April 28, 2005, the respondent-mother signed releases for [the second mental health services provider] . . . Said release has expired. DCF was in verbal contact with therapists from [such second provider] as a result of the release but no records were provided. The signed release was limited in that it only authorized DCF to communicate with [such second provider] in order to monitor the respondent-mother's progress in treatment and did not provide for any disclosure to the Office of the Attorney General or for subsequent testimony from the agency at a court proceeding."
With respect to a third mental health and visitation services provider, in its motion DCF admits that "[o]n November 7, 2005, the respondent-mother signed a DCF release for [such third provider] . . . DCF received written records and verbally communicated with [such third provider's] therapists, however, said release has subsequently expired. The signed release was limited in that it only authorized DCF to communicate with [such third provider] in order to monitor the respondent-mother's progress in treatment. The release does not provide for any records disclosure to the Office of the Attorney General or for subsequent testimony from the agency at a court proceeding."
In its motion DCF states that the three providers "have indicated that they will not provide any records or testimony related to those periods in which the releases were valid because of the limiting language in the releases and due to the releases being expired. Said agencies are requiring either a court order authorizing such records disclosure and allowing subsequent testimony, or a new release signed by the respondent-mother authorizing such."
In its efforts to avoid the barriers to disclosure of the mother's privileged and confidential mental health records and information erected by the General Assembly in Connecticut General Statutes sections 52-146c et seq., and by the Supreme Court decisions in Falco v. Institute of Living, 254 Conn. 321, 328, 757 A.2d 571 (2000) ( "Falco"), and State v. Jenkins ("Jenkins"), 271 Conn. 165, 180-82, 856 A.2d 383 (2004), DCF, inter alia, advanced two arguments:
"`As we have previously observed, [t]he people of this state enjoy a broad privilege in the confidentiality of their psychiatric communications and records; State v. D'Ambrosio, 212 Conn. 50, 55, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S.Ct. 880, 107 L.Ed.2d 963 (1990); and the principal 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 the embarrassment and invasion of privacy which could result from a doctor's testimony. State v. White, 169 Conn. 223, 234-35, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). Accordingly, the exceptions to the general rule of nondisclosure of communications between psychiatrist and patient were drafted narrowly to ensure that the confidentiality of such communications would be protected unless important countervailing considerations required their disclosure . . .'"
"`Connecticut has a broad psychiatrist-patient privilege that protects the confidential communications or records of a patient seeking diagnosis and treatment. [General Statutes] §§ 52-146d, 52-146e; see State v. Toste, 178 Conn. 626, 629, 424 A.2d 293 (1979); State v. White, 169 Conn. 223, 234, 363 A.2d 143, cert. denied, 423 U.S. 1025 [ 96 S.Ct. 469, 46 L.Ed.2d 399] (1975). The privilege covers not only communications between the patient and psychiatrist, but also all communications relating to the patient's mental condition between the patient's family and the psychiatrist and his staff and employees, as well as records and communications prepared at mental health facilities. [General Statutes] § 52-146d.' (Internal quotation marks omitted.) State v. Kelly, 208 Conn. 365, 379, 545 A.2d 1048 (1988). Our statutory scheme prohibits the disclosure of any covered records or communications without the written consent of the patient or his authorized representative. General Statutes § 52-146e(a).
"General Statutes § 52-146f lists the limited exceptions to the general rule of nondisclosure. As we previously have recognized, `no exception is available beyond those contained in § 52-146f.' Falco v. Institute of Living, 254 Conn. 321, 330, 757 A.2d 571 (2000). In drafting the exceptions to the psychiatrist-patient privilege, the legislature sought to strike a balance between the importance of promoting frank and open communications between psychiatrists and their patients, on the one hand, and the truth-seeking function of judicial proceedings, on the other. To that end, the legislature provided two exceptions relevant to such proceedings. First, a patient's consent is not required prior to the disclosure of records or communications made in connection with a court-ordered psychiatric examination provided that (1) the patient is informed prior to the examination that any communications will not be protected by the privilege, and (2) the communications are admitted only on issues relating to the patient's mental condition. General Statutes § 52-146f (4). Second, a patient's consent is not required prior to the disclosure of records or communications in a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense. General Statutes § 52-146f (5)." (Footnotes omitted.)
Whether there is an applicable statutory exception if a parent testifies in a TPR proceeding may depend on whether such proceeding is a "civil action" or a "juvenile proceeding." See, eg. § 52-146c: "(b) 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.
"(c) Consent of the person shall not be required for the disclosure of such persons communications: . . . (2) If, in a civil proceeding, a person introduces his psychological condition as an element of his claim or defense . . . 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 . . ." (Emphasis added.)
(1) because the mother "entered denials to the termination of parental rights petitions . . . [such mother] has introduced claims and/or defenses of mental health, therapy, and counseling issues . . .", and
"The defendant further claims that Abernathy's testimony was inadmissible because it was admitted in violation of General Statutes § 52-146b, which provides: `A clergyman, priest, minister, rabbi or practitioner of any religious denomination accredited by the religious body to which he belongs who is settled in the work of the ministry shall not disclose confidential communications made to him in his professional capacity in any civil or criminal case or proceedings preliminary thereto, or in any legislative or administrative proceeding, unless the person making the confidential communication waives such privilege herein provided.' In order to establish a foundation for a privilege claim under § 52-146b, a defendant must show that: (1) there was a communication; (2) the communication was privileged; (3) it was made to a clergyman within the meaning of the statute; (4) the communication was made to the clergyman in his professional capacity; (5) the disclosure was sought as part of a criminal or civil case; and (6) the defendant did not waive the privilege. This issue cannot be resolved on the current record because it is unclear whether the defendant had established a foundation for his privilege claim. Specifically, it is not clear whether Abernathy was there in his professional capacity. It is also unclear precisely what formed the basis of Abernathy's conclusion. The defendant maintains that it was based on communications that he made to Abernathy. Therefore, we do not reach the issue of whether the testimony violated the defendant's privilege under § 52-146b."
This court previously has rejected DCF's position that a parent's pro forma denial of the allegations of the TPR petitions is a knowing, voluntary and intelligent waiver of his or her statutory mental health privileges. See In re Ashley W. and In re Reginald H., supra. There is no requirement in C.G.S. § 46b-129, in Practice Book § 32a-1 or elsewhere in the statutes or Practice Book that the court advise a respondent parent that such a waiver occurs upon the entry of a pro forma denial, and generally there is no obvious relation between a parent's pro forma denial of termination of parental rights allegations and a waiver of statutorily-created mental health privileges. Compare In re Samantha C., 268 Conn. 614, 666 (2004):
"We now turn to the respondents final claim, namely, that, even if an adverse inference may permissibly have been drawn against them in the present case, the trial court was required to have given prior notice of its intent to do so. We agree, and conclude that the language of Practice Book, 2001, § 34-1(a), which stated that the judicial authority must `advise and explain' to the parents their right to silence at the commencement of any proceeding, coupled with the trial court's repeated affirmation of that right throughout the various proceedings underlying this appeal, would have led a reasonable person to believe that such a right was, in fact, unqualified. Consequently, the respondents were entitled to be notified by the court of the prospect that an adverse inference might be drawn from their silence. Put another way, if a trial court is inclined to draw an adverse inference against a parent for his or her failure to testify in a termination proceeding, it is incumbent upon the court to advise the parent accordingly." With respect to DCF's argument that State v. Rizzo places the burden of proving to the court the factors set forth in such decision before the clear language of the various mental health privilege and confidentiality statutes can be applied, this court concludes that, unlike in Rizzo, where the state disputed the claims of the defendant about the credentials of the clergyman and the nature of defendant's communications to such person, in this case DCF knew and knows the qualifications of the mental health agencies and professionals whose records and information it seeks because (1) DCF selected such agencies and referred the mother thereto and (2) DCF obtained releases from the mother and received reports concerning the mother from such agencies. Additionally, DCF's motion papers refer to General Statutes §§ 52-146c, 52-146e, 52-146f, 52-146o, 52-146p, 52-146q and 52-146s, and, as set forth above, DCF seeks the mother's "identified mental health, therapy and counseling records." Based on the provisions of such statutes, and on the Falco and Jenkins decisions, at this time DCF is not entitled to access such "identified mental health, therapy and counseling records," and its motion to subpoena such records is therefore denied.
As in Christina M., supra, in Samantha C., supra, 268 Conn. at 672-74, the Supreme Court emphasized the importance of respecting and protecting parental rights in the context of TPR cases:
"We also note that our conclusion that the trial court was required to have given the respondents prior notice of its intent to draw an adverse inference is not based on due process grounds, as was the Supreme Court's holding in Doyle v. Ohio, supra, 426 U.S. 618; rather, our conclusion represents what we perceive to be the most plausible reading of the procedures required in order to administer effectively chapter 34 of the Practice Book. As previously discussed in part III F of this opinion, our statutes pertaining to juvenile matters already provide parents with greater protections than are constitutionally required. Bearing in mind that these rules of practice are designed to implement the statutes from which they were derived, chapter 34 of the Practice Book merely helped to delineate, as a matter of procedure, our prophylactic body of juvenile law. As previously discussed in part III A of this opinion, the trier of fact ordinarily may draw an adverse inference when a witness invokes a nonconstitutional privilege, and a party to a noncriminal proceeding ordinarily may be called as a witness; yet, although termination of parental rights proceedings are noncriminal in nature, parents in termination proceedings, like criminal defendants, cannot be called as witnesses. Compare General Statutes § 46b-137(b) and Practice Book, 2001, § 34-1(f) with General Statutes § 54-84(a). This evinces an intent to provide parents with additional procedural safeguards in termination proceedings, although not quite to the same level as juveniles in delinquency proceedings. Moreover, an adverse inference cannot be drawn against a criminal defendant for an election not to testify; General Statutes § 54-84(b); and, so far as we know, no trial court had, at the time of the proceedings underlying this appeal, expressly drawn an adverse inference against a parent in a termination proceeding. Thus, it was not unreasonable for the respondents to be taken aback by the trial court's decision to draw an adverse inference, nor can it be said that chapter 34 of the Practice Book clearly articulated to the parties the proper procedures to be employed in this area.
Nevertheless, a central purpose behind chapter 34, especially Practice Book, 2001, § 34-1(a), was to enable parents in termination proceedings to make informed choices in structuring their defense. With those principles in mind, we conclude that requiring the court to notify parents in the event that it may be inclined to draw an adverse inference is the most plausible procedural solution.
"Moreover, we see no persuasive reasons against requiring a court, should it be inclined to draw an adverse inference, to notify a parent accordingly. First because such notice will be required only if a court is inclined to draw such an inference, it will not unduly burden the court with excessive procedure. Second, considering that parental rights are `far more precious than any property right'; Santosky v. Kramer, supra, 455 U.S. 758-59; an additional layer of prophylaxis is not inappropriate." (Emphasis supplied; footnote omitted.)
DCF's position that a parent's pro forma denial, at the initial advisement of rights, of the allegations of the TPR petitions is a waiver of his or her "broad privilege in the confidentiality of their psychiatric communications and records . . .," Falco, supra, 254 Conn. at 328, see fn3 supra, page 7, denies "parents in termination proceedings [their opportunity] to make informed choices in structuring their defense[s] . . ." Samantha C., supra, 268 Conn. at 673.