Opinion
No. T11-CP04-012123-A
August 25, 2006
MEMORANDUM OF DECISION
This is a decision on two so-called " Romance motions" filed in a termination of parental rights case by petitioner, the Commissioner of the Department of Children and Families ("DCF"), seeking disclosure of certain of the mother's confidential medical and substance abuse treatment information.
DCF's allegations in its termination of parental rights petition and summary of facts:
On February 16, 2006, the Commissioner of the Department of Children and Families ("DCF") filed a petition for the termination of the parental rights of Reginald H. ("Reginald"). (Petition for termination of parental rights, 1.) DCF alleged that it had made reasonable efforts to locate the mother and to reunify Reginald with his biological parents. Id. It further alleged that the mother and the father were unable or unwilling to benefit from reunification efforts. Id. DCF finally alleged that Reginald had been found in a prior proceeding to have been neglected or uncared for and each of the parents had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering Reginald's age and needs, each such parent could assume a responsible position in his life ("Ground B(i)"). Id., 2.
In its "summary of facts to substantiate petition for termination of parental rights" dated February 15, 2006, and filed on February 16, 2006, DCF alleged with respect to the mother that:
1. The mother's whereabouts were unknown;
2. On April 25, 2005, Reginald had been adjudicated neglected and committed to the care and custody of DCF until further order of the court;
3. The "presenting problems with this family were unresolved mental health issues, substance abuse, lengthy and severe history of domestic violence, and unstable housing. Said child was found to be neglected in that child was exposed to violence and substance abuse in the home. Said child was not provided with appropriate medical treatment, mental health treatment and missed numerous days of school as a result . . .";
4. Numerous services were offered to the mother, the father, Reginald and the family;
5. The mother was "unwilling to benefit from reunification services in that she has failed to appropriately address her mental health issues, she has failed to maintain stable housing, and employment, and she continues to engage in criminal activity and substance abuse. Further, Mother has failed to demonstrate an ability to appropriately parent said child and meet said child's day-to-day needs . . .";
6. Prior to February 15, 2006, Reginald had been in the care of DCF for twelve out of the preceding fourteen months;
7. Prior to February 15, 2006, the following of the specific steps ordered by the court on December 29, 2004, had not been complied with:
A. Keep all appointments set by or with DCF. Cooperate with DCF visits, announced or unannounced, and visits by the child's court-appointed attorney and/or guardian ad litem;
B. Keep child's and the mother's whereabouts known to DCF, the mother's and the child's attorney;
C. Participate in parenting and individual counseling and make progress toward the identified treatment goals;
D. Accept and cooperate with in home support services referred by DCF;
E. Obtain and/or cooperate with a restraining/protective order and/or other appropriate safety plan as approved by DCF to avoid further domestic violence incidents;
F. Secure and/or maintain adequate housing and legal income;
G. No substance abuse;
H. Immediately advise DCF of any changes in the composition of the household to ensure that the change does not compromise the health and safety of the child;
I. Cooperate with the child's therapy; and
J. Visit the child as often as DCF permits;.
8. Prior to a reunification with Reginald, the mother failed to keep appointments with DCF. On October 13, 2005, when the mother and the child were at home, the mother refused to allow DCF access to Reginald;
9. At some point after October 13, 2005, the mother was incarcerated. Between February 6, 2006, when she was released from incarceration, and February 15, 2006, the mother failed to contact DCF;
10. The mother has failed consistently to address her mental health issues. In August 2005, she discontinued services, and prior to February 15, 2006, she had not re-engaged in services. In September 2005, the mother reported to DCF that she had ceased her medication for treating her bi-polar disorder. She missed appointments with her psychiatrist. She still had anger issues in front of Reginald, and she had failed to demonstrate improvements in her understanding of Reginald's emotional and developmental needs;
11. The mother was offered a parent aide, but she canceled four appointments in September 2005. When she did meet with the aide, she struggled to apply the teaching and information that was provided;
12. In 2005, the mother obtained a restraining order against the father, and then sought to vacate it. The mother obtained a protective order in connection with the father's arrest for being intoxicated in the home, prohibiting the father, inter alia, from entering the family home. The mother had that order modified so that the father could enter the family home. He was again arrested for being intoxicated in the family home, and the mother paid to bail him out of jail. Despite her knowledge that the continued presence of the father in the home would adversely impact her ability to reunify with Reginald, she continued to allow the father to be present in the home;
13. The mother is unable to maintain legal employment and income;
14. The mother had been unable to refrain from abusing substances. In November 2005, the mother was arrested for possession of cocaine and on February 15, 2006, criminal charges were pending against her;
15. On November 16, 2005, the mother was incarcerated after having been found guilty of the offense of prostitution;
16. The mother did not notify DCF that she had an unidentified male provide overnight childcare for Reginald;
17. The mother did not attend four of five therapy sessions scheduled for Reginald at HVCC. During the one session she did attend, the mother acted inappropriately to address Reginald's negative behavior by threatening to return him to DCF custody;
18. On October 13, 2005, Reginald was returned to DCF custody. The mother missed three subsequent visitation sessions, and she arrived late and left early during the one visitation session she attended;
19. The mother has not changed her circumstances to permit Reginald to be returned to her;
20. The mother had failed to rehabilitate, and she has not demonstrated that she will rehabilitate in the foreseeable future.
The two "Romance motions" filed by DCF:
On June 8, 2006, such petitioner filed two motions: one motion to have disclosed to it the mother's alcohol and drug abuse treatment records; and a second motion to have disclosed to it the mother's mental health, therapy and counseling records; and as part of its requested relief, it sought to be permitted to present subsequent testimony concerning such records.
In each such motion, DCF asserted that because Reginald had been adjudicated neglected, "the Respondent-mother has a limited right to prevent the court from assessing her progress and from determining the child's future." DCF also asserted that the "Respondent-mother has a limited expectation of privacy in that the Court approved and ordered Specific Steps that the Respondent-mother would obtain treatment and would provide releases to the Petitioner so that the Petitioner would receive access to the records. Particularly in light of the nature of the matter before the court, it is apparent that Respondent has a limited expectation of privacy . . . By signing or not objecting to these specific steps, the Respondent has effectively waived any privilege she might claim. Furthermore, the court has continuing authority to assure compliance with its order . . ."
DCF additionally asserted that "[t]he Respondent-mother entered denials to the Petition for Termination of Parental Rights, and in so doing, in light of the petition filed in this case, has introduced claims and/or defenses . . .," respectively, of "alcohol and drug abuse and treatment issues . . ." and "mental health, therapy, and counseling issues . . ."
DCF alleged that at a trial management conference, it provided releases directed to the mother's service providers to the mother for her signature, but the mother has not executed such releases. It further alleged that the information sought pursuant to the releases "is necessary for the Court to have available pertinent and current information regarding the Respondent's condition and course of treatment when said petition is considered." DCF additionally alleged that "[w]ithout this information, the trial court will be significantly hampered in resolving the case . . ." and "[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 Respondent and treatment services . . ."
Each proposed order in each motion provides for the court to make the following findings:
"1. The 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 Respondent and treatment services."
"2. There is no way, other than an Order of this court, available or effective in obtaining such information."
"3. The disclosure in all other respects complies with federal and state law presented in the motion."
The proposed order then continues: ". . . having determined that the portions of the record of the treatment facilities listed in the Motion are essential to fulfill the objective of this Order . . ."
The mother's objection:
The mother filed a written objection to the DCF motions. She asserted that DCF's motion, by its own terms, seeks records that are confidential based on state statutory privilege. The mother asserted: "These privileges generally prohibit the nonconsensual disclosure of all communication between patients and treatment providers relating to diagnosis, evaluation or treatment. These privileges contain different (though overlapping) sets of exceptions." Objection, 2. The mother also asserted that the Supreme Court's decision in Falco v. Institute of Living, 254 Conn. 321 (2000) ("Falco"), requires this court narrowly to apply exceptions to state statutes providing for confidentiality of patient interactions with treatment providers such as psychiatrists and other such mental health treatment providers. Id. The mother referred to the Supreme Court's recognition in Falco of the "strong public interest in giving patients `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.' Id. at 328." Id.
The mother also referred the court to the portion of the Falco decision that emphasized that the creation of exceptions to statutorily created privileges is within the province of the General Assembly rather than within the judicial discretion of the court. Id., 2-3. Falco, supra, 254 Conn. at 330 n. 7. The mother then argued that the "good cause" standard for vitiating the mother's confidentiality advanced by DCF is not among the specific statutory exceptions to the state statutory confidentiality privileges. Objection, 3-4.
The mother further asserted that she has not introduced her mental condition as an element of her defense, and thus the exceptions in Connecticut General Statutes sections 52-146f(5), 52-146c(c)(2) and 52-146q(c)(4) are not applicable. Id., 4-5. Additionally, the mother claimed that "a parent who contests a termination-of-parental-rights petition does not voluntarily inject her mental condition into the case at all. Rather, the parent has no choice but to respond to the allegations regarding her mental condition injected into the case by the petitioner, or face the certain loss of her parental rights. It is manifestly unfair (and arguably unconstitutional) to hold that a parent in such a situation waives her privilege." Id., 5.
The mother additionally asserted that DCF's claim that the mother waived any expectation of privacy by signing specific steps while reunification was a priority "is flawed . . . the purpose of the steps is to facilitate reunification. Respondent agreed to provide releases so that petitioner would receive access to records from service providers regarding attendance, cooperation and progress towards identified treatment goals for the purposes of determining reunification. Nowhere in the steps does it say that a parent is ordered to sign releases to permit petitioner to obtain complete records. Moreover, once the petition to terminate parental rights is filed, all bets are off. Parents are under no obligation to voluntarily assist the department in obtaining information that will be used against them to completely sever the rights to their children." Id., 5-6.
The DCF reply to the mother's objection, and the mother's March 17, 2006 releases:
DCF replied to the mother's objection. It noted that the December 23, 2004, preliminary specific steps were made final steps on April 25, 2005, the date of Reginald's commitment to DCF. Reply, 1.
In such reply, DCF set forth the following:
The mother has a "long history of substance abuse, domestic violence, mental illness and criminal activity. Mother is currently incarcerated on a prostitution conviction until December 2006.
"The Respondent mother had a criminal history in Connecticut including prostitution and narcotics possession."
"Moreover, the Respondent mother has an abundant substance abuse history, including but not limited to the abuse of opiates. Despite numerous attempts at treatment, she has been unable to maintain sobriety for any significant length of time . . ." Id., 2.
DCF further alleged that on March 17, 2006, the mother had signed releases proffered by DCF, but that she has refused to sign new releases. Id.
DCF argued that the precedent of In re Romance M., 30 Conn.App. 839, 622 A.2d 1047 (1993), appeal dismissed, 229 Conn. 345, 641 A.2d 378 (1994) (" Romance"), "is the leading child protection case regarding the disclosure of a parent's confidential treatment records." (Reply, 3.) DCF set forth the following language as the crux (for it) of the Romance holding: "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 psychiatri[st] 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 . . . Id. at 852." (Emphasis added by DCF.) Id., 4.
DCF further argued that Falco "does not effectively overrule Romance." Id., 5. Thus, DCF denies that Falco was the end of Romance. DCF continues to assert rights based on Romance as if Falco had not been decided by the Supreme Court.
In its reply, DCF also asserted that " Falco is inapplicable because, by signing specific steps, the mother has unequivocally agreed to release the records by signing the specific steps. Nor did she appeal the order issuing the steps or return to court to have the steps modified." Id.
With its reply DCF submitted a copy of the specific steps ordered by the court on December 29, 2004. Those steps include the following: "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." This language does not limit or prohibit DCF from additionally seeking releases for substantive confidential information if agreed to by a parent.
On March 17, 2006, while she was incarcerated, and seemingly when she was in a holding cell at court waiting for her advisement, the mother signed two "substance abuse authorization(s) for release of information." These releases were admitted as full exhibits. They (1) authorize DCF and the worker to disclose to a corrections facility information about the mother for "case planning" (exhibit 1), and (2) authorize the corrections facility to disclose to the mother information about the mother for case planning (exhibit 2). On each release the worker wrote that the mother's consent was to expire in "6/06." Assuming that the second of these releases was incorrectly completed by the worker, e.g., that instead of what appears on such release, it was intended to permit release of information from the corrections facility to DCF, the mother did provide each such release after the initiation of the TPR case. The DCF worker elected to have the mother's consent expire in June 2006, three months before the scheduled trial dates.
In each release the mother authorized release of her admission summary, discharge summary, dates of admission and discharge, dates of attendance in programs, drug test results, substance abuse evaluations, progress assessments, substance abuse treatment history, physical examinations, medical history, mental health evaluations, psychological testing, psychiatric evaluations, alcohol/drug abuse involvement and legal history. (Exhibits 1, 2.) At argument the mother's attorney stated that such releases were requested by DCF and signed without her knowledge and opportunity to advise the mother. In any event after the termination of rights case was initiated, and while she was incarcerated, the mother was cooperative with DCF and executed releases as requested.
Each release contains the following: "I understand that my records are protected under the federal regulations governing Confidentiality of Alcohol and Drug Abuse Patient Records, 42 CFR Part 2, and cannot be disclosed without my written consent unless otherwise provided in the regulations.
"I also understand that I may revoke this consent at any time, except to the extent that action has been taken in reliance on it and in any event, this consent expires automatically [on] 6/06 . . . [the release] cannot be effective for more than a six (6) month period . . ."
There is no mention in the release of the mother's right to confidentiality of her mental and physical health records, including psychiatric records.
The court, in In re Na-Shawn J., Docket No. F01-CP04-001726-A, Superior Court for Juvenile Matters, Judicial District of Danbury (Winslow, J., June 29, 2006) ( 41 Conn. L. Rptr. 567) has previously ruled upon DCF's practice of obtaining releases from parents without giving the parents the opportunity to consult with counsel: "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 advice 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." In this case, since the mother's attorney was appointed on March 17, 2006, the date the releases were signed by the mother, it is unclear whether the releases were obtained before the mother was advised of her rights, and before her counsel in the neglect case was appointed as her counsel in the TPR case.
With respect to the DCF claim that the "mother has unequivocally agreed to release the records by signing the specific steps," the court was not provided with a copy of specific steps signed by the mother, but even if the mother did sign such steps, the court has previously analyzed such DCF claim:
"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." 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) ( 40 Conn. L. Rptr. 677).
The second argument advanced by DCF — that the specific steps can be enforced by the court against the mother if the mother fails to comply with the terms and provisions of such steps — is not available to DCF when such steps are no longer applicable because of a change in DCF's approach in the case from reunification to termination. As noted by DCF: "The statutory scheme mandates the issuance of specific steps `which the parent must take to facilitate the return of the child or youth to the custody of such parent.' [Section] 46b-129." Reply, 7.
In its most recent motion, filed November 9, 2005, to review the permanency plan and to maintain the commitment of Reginald, DCF sought a finding, by clear and convincing evidence, that continuing efforts to reunify the mother with Reginald were no longer appropriate. The mother objected to such a finding, and such matter will be heard and decided at the termination of parental rights trial scheduled to begin on September 12, 2006.
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 where such treatment may, for example, have been initiated before DCF became involved with the family, or before DCF initiated neglect proceedings.
DCF also argued that "[c]ompelling public policy reasons" support its request for access to the mother's confidential records: ". . . the child's future is entirely dependent on the court and the court's actions must be guided by the best interest of the child. One critical aspect of protecting the child's interest concerns permanency." Id.
DCF additionally argued that "[t]he state's ability to infringe on a parent's rights in order to protect a child" has been recognized by the Supreme Court in Roth v. Weston, 259 Conn. 202 (2002), and Crockett v. Pastore, 259 Conn. 240 (2002). From these decisions DCF argued that "a parent who has been found unfit has limited constitutional rights . . ." id., 9, and therefore, "it is only reasonable that an unfit parent's statutory privileges may be limited in the face of the state's duty to ensure that children do no[t] languish in foster care. By the same token, a parent's interest in safeguarding their mental health records and information must give way to the court's duty to assess the family and determine whether their child may go home or whether another permanent plan should be implemented for the child. See [section] 46b-129. It would be irresponsible to read the statutory schemes in such a way as to ignore the child's well-recognized need for permanency for the sake of the parent's statutory privilege, particularly when the parent has signed specific steps and therefore has minimal expectation of privacy." Id., 9-10.
Without any discussion or explanation, DCF further argued that Article First Section 10 of the Connecticut Constitution requires that this court "must consider whether the privilege statutes will impede the right of redress of the petitioner, the guardian of the child[,] to take actions to protect the child's interests." Id.
DCF's requested relief was that "the court should find that without the records in question, the agency is severely hampered in presenting its case for termination and there is, in fact, no other way of getting the information. Furthermore, not only the department's right of redress, but the court's authority to determine a child's future is severely hampered by applying the statutory privilege against disclosure. Because time is of the essence in these cases . . . the child's future should not be put on hold because the mother has failed to execute current releases ordered by the court. Thus, although this court may find it unnecessary to address this constitutional issue, the petitioner asserts that the right of redress presents a real impediment to applying the statutory privilege in termination cases.
"In sum, this court should find that Falco has no application to the present case." Id., 10-11.
This court is not persuaded by DCF's ostensible facts or claims.
DCF's failure to disclose to the court Judge Winslow's decision in Na-Shawn J.:
On June 29, 2006, Judge Winslow filed her decision in Na-Shawn J., supra, wherein she specifically wrote: " 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). (Emphasis supplied.) 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 princip[al] 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 psychiatric-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 psychiatric-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) [reversed in part as to other issues, 271 Conn. 165 (2004)] . . .
"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 `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 way be deemed a written waiver of confidentiality of communications in the context of the pending termination proceeding . . .
"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 . . ."
In this case, DCF's counsel did not cite this authority that is directly adverse to DCF's claims and arguments made to the court in the July 21, 2006, written reply and at the July 24, 2006, hearing. On August 23, 2006, the court discovered the existence of the Na-Shawn decision by reading a weekly summary of recent Connecticut decisions that happened to arrive on such day.
Such attorney also did not cite in the "Romance motions" filed on June 8, 2006, or thereafter, this court's February 1, 2006, decision as directly adverse authority to DCF's claims and positions set forth therein (no party knew which Judge sitting on the Statewide Child Protection Session would be assigned to hear the "Romance motions" in this case).
Each further "Romance pleading" filed by DCF in any court should contain appropriate references to this decision, the Ashley W. and Na-Shawn J. decisions and their holdings.
The court's findings concerning the relief requested in the "Romance motions" and a delineation of the applicable law: A. Findings:
1. Both before and after the termination of parental rights case was initiated, the mother signed releases prepared and presented to her by DCF. DCF's representation in its motions that the mother failed to cooperate by signing releases is factually incorrect.
2. Based on the information set forth in documents contained in the case file, both prior to and after the filing of the termination of parental rights petition DCF had a reasonable and sufficient opportunity to seek to obtain, with the mother's cooperation, the mother's confidential records and information, which opportunity DCF may not have acted upon or timely exercised.
3. Based on the information set forth in documents contained in the case file, and also alleged in great detail by DCF, see pages 1-5 above, including but not limited to social studies that are admissible into evidence at trial pursuant to Connecticut Practice Book section 35a-9, DCF has a voluminous amount of information about the mother and her behavioral history. Because of such voluminous information available to DCF prior to the mother's December 2005, incarceration, and because the mother, after such incarceration, signed releases prepared by DCF seemingly intended to allow confidential information to be submitted by the corrections facility to DCF, and by DCF to such facility, the public interest the interest of justice and the need for disclosure of the information does not outweigh any potential injury to the mother and to her relationship with her treatment providers. The absence of such confidential information is not likely to hamper DCF from presenting its case or the court from making a decision after trial. If DCF as alleged, is in fact dependent on the mother's currently confidential information to prove the allegations of its petition by clear and convincing evidence, then perhaps it should not have filed, and/or it should withdraw, such petition.
4. Because both before and after the filing of the termination of the parental rights petition the mother cooperated with DCF in signing requested releases, DCF did have a way, other than through an order of the court at this time, to obtain the confidential information it allegedly deems to be crucial to its case.
5. Falco is applicable to the relief requested in the DCF motions. In In re Ashley W., supra, this court has previously set forth the bases for the applicability of Falco to the motions routinely filed by DCF for access to a parent's confidential records protected by one or more state statutory privileges:
"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.' 1 C. 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 [psychiatrist-patient] 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." In re Ashley W., supra.
B. The state law concerning confidentiality and privilege, and the misapplication by DCF of the applicable federal law to seek to avoid such state law:For several years DCF has relied on the Appellate Court's decision in Romance (the much less cited trial court's decision is found in the Westlaw unreported cases database at 1993 WL 57745) as a basis on which to obtain confidential information relating to respondent parents for use in neglect and termination of parental rights trials.
In the Appellate Court proceedings in Romance, the respondent mother claimed that "the trial court should not have admitted evidence of her treatment at a Connecticut alcohol and drug abuse commission (CADAC) facility in violation of her right to confidentiality under General Statutes 17-155b and 42 U.S.C. [section] 290." Id., 30 Conn.App. at 848. At one hearing. because the mother was intoxicated in the courtroom, she was ordered into a detoxification program. Id. "Pursuant to 42 U.S.C. [section] 290dd-3(b), (c) and (d) and the applicable federal regulations, the trial court held a thorough and lengthy hearing in which it weighed the public interest in favor of disclosure against the potential injury to Gail M. [the mother], to the physician-patient relationship and to the treatment services. After the hearing, the trial court ordered disclosure of some of the records, which Gail M. claims was improper. General Statutes [section] 17a-630(c), formerly [section] 17-155b(b), which addresses the issue of confidentiality of records, prohibits: `disclosure of the identity, diagnosis or treatment of any such patient that would constitute a violation of federal statutes concerning confidentiality of alcohol or drug patient records and any regulations pursuant thereto . . .' " Id.
The Appellate Court decision contains the following explanation of its affirmance of the trial court's decision allowing limited disclosure of confidential documents and information relating to the mother's treatment.
"The applicable federal statute, 42 U.S.C. [section] 290dd-3, sets out only three circumstances under which the records of the identity, diagnosis, prognosis or treatment of any patient that are maintained in connection with the performance of any program or activity relating to alcoholism or alcohol abuse, education, training, treatment rehabilitation or research can be involuntarily disclosed. In all other instances, 42 U.S.C. [section] 290dd-3 mandates that information concerning identity, diagnosis, prognosis, or treatment of any patient must remain confidential." Id., 849. (Emphasis in original.)
"Paragraphs A and B of 42 U.S.C. [section] 290dd-3(b)(2) are inapplicable. The applicable paragraph, paragraph C as hereinafter set forth, requires a finding of good cause: `(C). If authorized by an appropriate order of a court of competent jurisdiction granted after an application showing good cause therefor. In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient to the physician-patient relationship, and to the treatment services. Upon the granting of such order, the court, in determining the extent to which any disclosure of all or part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure.'
"42 C.F.R. [section] 2.63a(a)(2) states that the court may authorize disclosure if it is `necessary to protect against . . . child abuse and neglect . . .'" Id.
The Appellate Court noted that the privilege at issue was a statutory privilege. Id., 850. Therefore, the Appellate Court's scope of review was limited to an abuse of discretion standard. Id. The Appellate Court concluded: "In this case, the trial court admitted only a small part of the Bonecki treatment records after a review of all of the documents in the record. The critical issue in this case is whether Gail M. has failed to achieve such a certain degree of `personal rehabilitation.' Her active alcoholism is a key element. The trial court ruled that Gail M.'s privilege must give way to the best interests of the children. 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 respondent herself raised when she testified that she was capable of responsibly parenting her children. Under the applicable federal regulations, 42 C.F.R. 2.63(a)(3), disclosure is allowed when `the patient offers testimony or other evidence pertaining to the content of the confidential communication.' We do not find that in weighing the relevant statutory criteria and making its determination that there was good cause for limited disclosure of confidential information, the trial court abused its discretion in admitting the evidence of Gail M.'s treatment at the Boneski Treatment Center . . ." Id., 850-51. (Emphasis supplied.) Thus, there was a federal law basis on which to release some of the mother's alcohol abuse treatment program records after the mother put her ability to parent the children in issue.
The Appellate Court then reviewed a claim by the respondent based on state statutory privilege: "In addition, Gail M. claims that General Statutes [sections] 52-146d and 52-146e were violated since she was interviewed at Boneski by a psychiatrist. We find this claim to be without merit. An exception to the confidentiality statute is contained in General Statutes [section] 52-146f(5), which provides that `(5) Communications or records may be disclosed in a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense . . . and the court or the judge finds that it is more important in the interests of justice that the communications be disclosed than that the relationship between patient and psychiatrist be protected.' We conclude that when the mental health of a parent in a termination case is at issue, as it is in this case, 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 `communications and records' are relevant to the issues in the case . . ." Id., 851-52. The Appellate Court thus used the "best interest of the child" language instead of the "interests of justice" language in the specific state statutory exception that it had recognized as applicable.
Notwithstanding the above described language substitution, the Appellate Court applied federal law to its analysis of the trial court's review of and decision upon the mother's alcohol and drug treatment records, and the state law exception in C.G.S. section 52-146f(5) to the mother's claim that her contact with a psychiatrist was privileged. In the Romance trial, the state privilege, confidentiality and waiver issues were raised after the mother had voluntarily testified and raised the issue of her "mental health, an issue that the respondent herself raised when she testified that she was capable of responsibly parenting her children." Id., 850. In this case, the mother has not decided whether she will testify, and what the scope of that testimony will be. Her "pro forma denial" is not a waiver of her right to assert her state statutory privileges. In re Ashley W., supra; In re Na-Shawn J., supra.
Somehow, since Romance, DCF has taken the federal "public interest" standard set forth in 42 U.S.C. [section] 290dd-3(b)(2)(C) that is applicable to alcohol and drug treatment records, and, although such standard is not similarly set forth as an exception in any relevant state privilege and confidentiality statute, DCF mistakenly has turned such public interest standard into the touchstone for its previously successful attempts to overcome the limitations of specific statutory exceptions to statutes providing for privileged communications to and confidentiality of records prepared by medical and mental health professionals. Hopefully DCF will 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 and information shortly before a TPR trial.
DCF understands that the documents and information it seeks in its Romance motions are privileged, confidential and legally protected under federal law unless there is good cause and it is in the public interest to have disclosure: CT Page 16230 DCF assumes and acknowledges that the documents and information it seeks are confidential or otherwise legally protected. If they were not confidential or otherwise legally protected, the state could issue a subpoena for such documents or for testimony about such information without the necessity of prior court approval.In seeking such documents and information, as it has in this case, generally DCF alleges that respondent has a history of substance abuse and/or mental health issues that contributed to the removal of the children or to the filing of a TPR petition, that the respondent has denied the allegations of the petition, that "the information sought is necessary for the Court to have available pertinent and current information regarding the Respondent's conditions and courses of treatment when the petition is considered . . .," that the respondent has a limited expectation of privacy because of the prior approval of specific steps, 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 . . .," without the information "the trial court will be significantly hampered in resolving the case . . .," and the "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 physician-patient relationship. The potential for injury to the patient or treatment facility is insignificant, given the very confidential nature of the proceedings at hand . . ."
Possible authority for a portion of the state's " Romance motions" is found in Practice Book section 32a-8:
"(a) Upon a determination by the judicial authority that good cause exists pursuant to federal law and regulations, the judicial authority may admit evidence of any party's alcohol or drug treatment by a facility subject to said regulations.
(b) A party seeking to introduce substance abuse treatment records shall submit a motion to the judicial authority requesting permission to subpoena such records and explaining the need for them, and shall also file a motion to disclose such confidential records and permit testimony regarding them. The motion for permission to subpoena such records may be signed ex parte by the judicial authority. If the judicial authority approves the motion, such records may be subpoenaed and submitted to the court under seal, and the judicial authority shall set a date for the parties and service providers to be heard on the motion to disclose confidential alcohol or drug abuse treatment records."
On its face, Practice Book section 32a-8 is limited to "confidential alcohol or drug abuse treatment records . . ." and does not include any reference to "mental health records." As noted in Romance, the "good cause . . . pursuant to federal law and regulations" requirement has been interpreted to be a reference to:
1. 42 U.S.C. section 290dd-2, which is part of The Alcohol, Drug Abuse and Mental Health Administration Act, 42 U.S.C. Sections 290aa- 290ff. Section 290dd-2(a) provides:
"(a) . . . Records of the identity, prognosis, or treatment of any patient . . . shall, except as provided in subsection (e) of this section, be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section.
In subsection (b)(1), disclosure is permitted if the patient provides "prior written consent . . . but only to such extent under such circumstances, and for such purposes as may be allowed under regulations prescribed pursuant to subsection (g) of this section."
In subsection (b)(2), whether or not the patient consents, disclosure is permitted in certain circumstances, including: "(C) If authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor, including the need to avert a substantial risk of death or serious bodily harm. In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services. Upon the granting of such order, the court, in determining the extent to which any disclosure of all or any part is necessary, shall impose appropriate safeguards against unauthorized disclosure."
In subsection (c), it is provided that no record described in subsection (a) "may be used to initiate or substantiate any criminal charges against a patient or to conduct any investigation of a patient."
In subsection (d), it is provided that the "prohibitions of this section continue to apply to records concerning any individual who has been a patient irrespective of whether or when such individual ceases to be a patient."
In subsection (e), it is provided that "the prohibitions of this section do not apply to the reporting under State law of incidents of suspected child abuse and neglect to the appropriate State or local authorities."
2. 42 C.F.R. Section 2.63 ("Confidential Communications"), which is in Part 2 ("Confidentiality of Alcohol And Drug Abuse Patient Records"), Subpart E ("Court Orders Authorizing Disclosure and Use") of Chapter I ("Public Health Service, Department of Health and Human Services"), Subchapter A ("General Provisions") of Title 42 C.F.R. ("Public Health"), provides: "A court order under these regulations may authorize disclosure of confidential communications made by a patient to a program in the course of diagnosis, treatment or referral for treatment only if:
(1) The disclosure is necessary to protect against an existing threat to life or of serious bodily injury, including circumstances which constitute suspected child abuse and neglect and verbal threats against third parties;
(2) The disclosure is necessary in connection with investigation or prosecution of an extremely serious crime, such as one which directly threatens loss of life or serious bodily injury, including . . . child abuse and neglect; or
(3) The disclosure is in connection with litigation or an administrative proceeding in which the plaintiff offers testimony or other evidence pertaining to the content of the confidential communications."
3. 42 C.F.R. section 2.64(d), which sets forth requirements that must be met before an order of disclosure may be entered: "An order under this section may be entered only if the court determines that good cause exists. To make this determination the court must find that:
(1) Other ways of obtaining the information are not available or would not be effective; and
(2) The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services."
4. 45 C.F.R. section 164.512, which sets forth when a "covered entity" may use or disclose "protected health information to the extent that such use or disclosure is required by law . . . and is limited to the relevant requirements of such law."
In subsection (b)(ii), it is provided that a covered entity may disclose protected health information to "a public health authority or other appropriate government authority authorized by law to receive reports of child abuse or neglect . . ."
In subsection (c), it is provided that "a covered entity may disclose protected health information about an individual whom the covered entity reasonably believes to be a victim of abuse, neglect, or domestic violence to a government authority . . . authorized by law to receive reports of such abuse, neglect, or domestic violence . . ."
"(i) To the extent the disclosure is required by law and the disclosure complies with and is limited to the relevant requirements of such law;
(ii) If the individual agrees to the disclosure; or
(iii) To the extent the disclosure is expressly authorized by statute or regulation and:
(A) The covered entity, in the exercise of professional judgment, believes the disclosure is necessary to prevent serious harm to the individual or other potential victims; or
(B) If the individual is unable to agree because of incapacity, a law enforcement or other public official authorized to receive the report represents that the protected health information . . . is not intended to be used against the individual and that an immediate enforcement activity that depends upon the disclosure would be materially and adversely affected by waiting until the individual is able to agree to the disclosure."
In subsection (d), it is provided that: "A covered entity may disclose protected health information to a health oversight agency for . . . civil, administrative or criminal proceedings or actions . . ."
In subsection (e)(1), it is provided that: "A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:
(i) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order; or
(ii) In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal, if . . ." certain specific requirements are satisfied.
What constitutes "good cause" pursuant to 42 U.S.C. section 290dd-2(b)(2)(C) and 42 C.F.R. section 2.64(d) has been discussed in federal cases:
In Conway v. Icahn Co., Inc., 16 F.3d 504, 510 (2nd Cir. 1994), the Court of Appeals determined that "[i]n making available to counsel for Icahn the 1987 admission records [pertaining to alcohol abuse] and in receiving in evidence the portions of those records specified by counsel, the district court did not abuse its discretion. Obviously, the court found `good cause' to reveal the 1987 records to counsel, since the hospital admission came at the end of the period when Icahn claims that Conway sustained his losses by reason of inability to manage his financial affairs. It was Conway's conduct at the time immediately prior to that hospitalization that was critical to the point Icahn was trying to make . . ."
In Whyte v. Connecticut Mutual Life Ins. Co., 818 F.2d 1005, 1010 (1st Cir. 1987), The court of Appeals did not find a defendant's need for "key issue" evidence to satisfy the "good cause" standard.
"Notwithstanding Connecticut Mutual's assertion that Mr. Whyte's statements during treatment provided needed evidence on a key issue, the regulations place the confidentiality necessary to ensure the success of alcoholism treatment programs above that need, and we must respect that decision.
"The good cause showing is not a low burden to meet. The Court in Fannon stated that `. . . it will be the exceptional case that meets the good cause requirements of 42 U.S.C. [section] 290dd-2(b)(2)(C) and 42 C.F.R. [section] 2.64(d).' 88 F.Sup.2d at 766." Guste v. Pep Boys-Manny, Moe and Jack Inc., E.D. La. (October 14, 2003), in Loislaw Federal District Court Opinions database.
In U.S. ex rel. Chandler v. Hektoen Institute for Medical Research, N.D. Ill., (October 1, 2003), in Loislaw Federal District Opinions database, the court explained: "Absent patient consent, the court may order disclosure of the records on a showing of good cause. 42 U.S.C. [section] 290dd-2(b)(1). To determine good cause under such statute, the court must `weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services.'" Id.
Looking at the regulations, the court noted that 42 C.F.R. section 2.64(d) also set forth two standards that must be met before there can be a finding of good cause: "1.) there are no other available or effective ways to obtain the information, and 2.) `[t]he public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services. 42 C.F.R. [section] 2.64(d). The order itself must limit disclosure of confidential records to those parts of the record which are essential to fulfill the objectives of the order. 42 C.F.R. [section] 2.64(e)(1). The good cause requirement applies to all information protected by the statute (confidential communications and everything that is not confidential communications). [Section] 290dd-2(b)(2)(C)." Id.
The court noted that it could "order disclosure of a patient's confidential communications only if one of the three exceptions" in 42 C.F.R. section 2.63 applied. Id. See Romance, 30 Conn.App. at 849. In Mosier v. American Home Patient Inc., N.D. Fl. (November 1, 2001), in Loislaw Federal District Court Opinions database, no good cause was found to release plaintiff's records relating to a course of alcoholism treatment six years before his employment with defendant: ". . . on this record it would appear that the defense that Plaintiff's work performance was impaired by alcoholism is not now of sufficient significance to warrant setting aside the privilege." Additionally, in a deposition plaintiff conceded he had struggled with substance abuse issues since 1993. Id.
In a criminal proceeding, the court did not find that the government had satisfied the burden of demonstrating that the public interest in disclosure outweighed the potential injury to the defendant, to the physician-patient relationship and to the ability of the drug treatment programs to provide services to other patients. U.S. v. Hughes, 95 F.Sup.2d 49, 60 (D.Mass. 2000).
A recent case, McCloud v. Board of Directors of Geary Community Hospital, (D. Kan. 2006) (in Loislaw federal district court database) contains an extensive analysis of 42 U.S.C. 290dd-2 and the concept of "good cause."
"Under 42 U.S.C. § 290dd-2, records of the identity, diagnosis, prognosis or treatment of any patient which are maintained in connection with any program relating to substance abuse education, prevention, training, treatment, rehabilitation or research, which are conducted, regulated, or directly or indirectly assisted by any department or agency of the United States, shall be confidential, and shall be disclosed only as provided in the statute and implementing regulations. One method for obtaining such records is to obtain authorization by an appropriate order of a court of competent jurisdiction, upon a showing of good cause.
42 U.S.C. § 290dd-2(b)(2)(C). The statute further directs that in assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services. Upon the granting of such order, the court, in determining the extent to which any disclosure of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure. 42 U.S.C. § 290dd-2(b)(2)(C). See also Mosier v. American Home Patient, 170 F.Sup.2d 1211, 1213-15 (N.D.Fla. 2001) (discussing what may constitute a finding of "good cause" under the regulations). Subpart E of the regulations enacted pursuant to this statute set out the requirements and procedures for entry of an order authorizing disclosure of patient substance abuse records in a pending civil action where it appears that the records are need[ed] to provide evidence. See 42 C.F.R. § 2.63 and 2.64. These orders are "a unique kind of court order." See 42 C.F.R. § 2.61. Courts applying these statutes and regulations have noted that there is a strong presumption against disclosing records of the kind covered by the statute and regulations, and the privilege afforded to them should not be abrogated lightly. Fannon v. Johnson, 88 F.Sup.2d 753, 758 (E.D.Mich. 2000); Guste v. The Pep Boys-Manny, Moe Jack, Inc., 2003 WL 22384947 at *3 (E.D.La. 2003).
"It is important to note, however, that not every substance abuse treatment program's records will be covered by the statute and regulation. The statute and regulations apply only to records of programs which are federally conducted, regulated or supported in a manner which constitutes Federal assistance under the regulations. See 42 C.F.R. § 2.12(a)(2); Beard v. City of Chicago, 2005 WL 66074 at *4 (N.D. Ill. 2005) (Section 290dd-2 does not create a privilege that covers any and all records of substance abuse treatment but only those records of programs which are conducted, regulated or directly or indirectly assisted by an agency of the United States). See also, Center for Legal Advocacy v. Earnest, 320 F.3d 1107 (10th Cir. 2003) (holding as a matter of law that a specific hospital's emergency department does not qualify as an alcohol or drug abuse "program" under the Part 2 regulations and therefore the hospital could not refuse production of the records in reliance on the statute and regulations).
"After reviewing 42 U.S.C. 290dd-2, the regulations in 42 C.F.R. § 2.1. et. seq., and the cases cited above, the Court cannot conclude based on the present record that the motion and proposed Orders in this case would satisfy the statutory and regulatory requirements for production of information regarding diagnosis and treatment of alcoholism or drug dependency pursuant to 42 C.F.R. Part 2. See 42 C.F.R. §§ 2.63 and 2.64. See e.g., U.S. ex. rel. Chandler v. Cook County, Ill., 277 F.3d 969, 982-83 (7th Cir. 2002) (finding that the district court's discovery order violated the provisions of the regulations). In fact, the Court is not in a position to determine whether any such records actually exist, or if they do exist, whether they are records of a "program" that is federally directed or assisted in the manner required by 42 C.F.R. part 2. Therefore, the Court is not in a position to include in the present Orders any authorization to produce records that are governed by 42 U.S.C. § 290dd-2 and 42 C.F.R., Part 2."
These cases illustrate that in the federal context good cause is more than a statement that the confidential documents and information are necessary for the upcoming trial. Based on such standard, DCF, inter alia, is at a minimum required (1) to 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, inter alia, 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.
Practice Book section 34a-20(d) concerning discovery of confidential information:
Practice Book section 34a-20(d) provides: "If the judicial authority permits discovery, the provisions of Sections 13-1 through 13-11 inclusive, 13-14, 13-16, 13-21 through 13-32 inclusive may be incorporated in the discovery order in the discretion of the judicial authority. Motions for discovery or disclosure of confidential records should not be filed unless the moving party has attempted unsuccessfully to obtain an appropriate release or agreement to disclose from the party or person whose records are being sought." The court does not decide in this decision whether an unsuccessful DCF attempt, after the filing of the TPR petition, "to obtain an appropriate release or agreement" meets the "attempted unsuccessfully" language of such Practice Book section.
State statutes providing protection for confidential communications, and exceptions thereto:
There are several Connecticut statutes providing protection for confidential communications, and setting forth exceptions to such protection:
1. Connecticut General Statutes ("CGS") section 52-146b provides that a "clergyman . . . shall not disclose confidential communications made to him in his professional capacity . . . unless the person making the confidential communication waives such privilege . . .";
2. CGS section 52-146c provides: "Except as provided in subsection (c) of this section . . . 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 . . ." Exceptions in addition to the person's consent are set forth in section 52-146c(c):
(1) prior notice that the communication will not be treated as privileged;
(2) [i]f, 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 that the relationship between the person and psychologist be protected;
(3) [i]f 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) [i]f child abuse, abuse of an elderly individual or abuse of an individual who is disabled or incompetent is known or in good faith suspected;
(5) in certain circumstances relating to fee claims; and
(6) in certain circumstances to the immediate family of a homicide victim.
3. CGS sections 52-146d, 52-146e, 52-146f, 52-146g, 52-146h, 52-146i and 52-146j pertain to the psychiatrist-patient privilege. CGS 52-146e(a) provides: "All communications and records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sections 52-146f to 52-146i, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or government agency without the consent of the patient or his authorized representative.
"(b) Any consent given to waive the confidentiality shall specify to what person or agency the information is to be disclosed and to what use it will be put. Each patient shall be informed that his refusal to grant consent will not jeopardize his right to obtain present or future treatment except where disclosure of the communications and records is necessary for the treatment.
"(c) The patient or his authorized representative may withdraw any consent given under the provisions of this section at any time . . ."
In addition to written consent provided in section 52-146e, other exceptions to non-disclosure are set forth in sections 52-146f(1) through (8), 52-146g((9) below), and 52-146h((10) below):
(1) ". . . if the psychiatrist in possession of the communications or records determines that the disclosure or transmission is needed to accomplish the objectives of diagnosis or treatment . . .," "[c]ommunications or records may be disclosed to other persons engaged in the diagnosis or treatment of the patient or may be transmitted to another mental health facility . . ."
(2) "[c]ommunications or records may be disclosed when the psychiatrist determines that there is a substantial risk of imminent physical injury by the patient to himself or others or when a psychiatrist . . . finds it necessary to disclose the communications or records for the purpose of placing the patient in a mental health facility . . . provided that the provisions of sections 52-146d to 52-146j, inclusive, shall continue in effect after the patient is in the facility . . .;
(3) for collection purposes, the "name, address and fees for psychiatric services . . ." may be disclosed;
(4) ". . . provided the court finds that the patient has been informed before making the communications that any communications will not be confidential and provided the communications shall be admissible only on issues involving the patient's mental condition . . .," under enumerated circumstances such communications are not within the privilege;
(5) "[c]ommunications or records may be disclosed in a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense . . . and the court or judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between patient and psychiatrist be protected . . ." (this is the state law exception applied by the Appellate Court in Romance);
(6) ". . . in connection with any inspection, investigation or examination of an institution . . .
(7) ". . . to a member of the immediate family . . ." in connection with a homicide under certain circumstances;
(8) to the Department of Mental Health and Addiction Services in connection with fee requests by a provider of behavioral health services;
(9) to certain researchers; and
(10) by contractors to the Commissioner of Mental Health and Addiction Services.
4. CGS section 52-146k provides for a privilege for confidential communications between a battered women's or sexual assault counselor and a victim: "(b) . . . a battered women's counselor or a sexual assault counselor shall not disclose any confidential communications made to such counselor at any time by a victim . . . unless the victim . . . waives the privilege . . ."
In addition, the privilege "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 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." There is no provision for an exception similar to that in C.G.S. 52-146f(5) (seepage 36, supra). See In re Ashley W., supra.
5. "[U]nless the person making the confidential communication waives such privilege . . .," CGS section 52-146l provides that an interpreter shall not disclose any confidential communication that is privileged under any provision of the general statutes or the common law, and section 52-146m provides that certain communications by or to a deaf or hearing-impaired person shall not be disclosed.
6. "[U]nless the employee making the confidential communication waives the privilege . . .," CGS section 52-146n(b) provides that no judicial department employee assistance counselor "shall disclose any confidential communications to any third person, other than a person to whom such disclosure is reasonably necessary . . ."
7. "[U]nless the patient or his authorized representative explicitly consents to such disclosure . . .," CGS section 52-146o(a) provides that "[e]xcept as provided in sections 52-146c to 52-146j, inclusive, and subsection (b) of this section . . . a physician or surgeon . . . shall not disclose . . ." any communication made by a patient or information obtained from a patient, or any information obtained by personal examination of a patient. CGS 52-146o(b) contains exceptions as follows: "Consent of the patient or his authorized representative shall not be required for the disclosure of such communication or information (1) pursuant to any statute or regulation of any state agency or rules of court, (2) by a physician, surgeon or other licensed health provider against whom a claim is made . . . for use in the defense of such action or proceeding, (3) to the Commissioner of Public Health . . . in connection with the investigation of a complaint, if such records are related to the complaint or (4) if child abuse, abuse of an elderly individual who is physically disabled or incompetent or abuse of an individual with mental retardation is known or in good faith suspected."
8. CGS section 52-146p protects disclosure of communications to a marital and family therapist: "(b) Except as provided in subsection (c) of this section, all communications shall be privileged and a marital and family therapist shall not disclose any such communications unless the person or his authorized representative consents to waive the privilege and allow such disclosure. In circumstances where more than one person in a family is receiving therapy, each such family member shall consent to the waiver . . ."
In addition to the written waiver of confidentiality and consent, CGS section 52-146p(c) sets forth circumstances where consent is not required for disclosure of a person's communications:
(1) Where mandated by any other provision of the general statutes;
(2) Where a marital and family therapist believes in good faith that the failure to disclose such communications presents a clear and present danger to the health or safety of any individual"; and
(3) concerning collection of fees.
9. CGS section 52-146q protects confidential communications between a social worker and a client. Disclosure can be made after written consent of the person. Pursuant to 52-146q(c), consent is not necessary for disclosure as follows:
(1) under certain circumstances to others providing "diagnosis or treatment";
(2) . . . when there is a substantial risk of imminent physical injury . . . or when disclosure is otherwise mandated by any provision of the general statutes . . .;
(3) if the person is informed before making communications, in connection with a court ordered evaluation, "provided . . . that communications and records shall be admissible only on issues involving the person's mental condition . . .
(4) . . . in a civil proceeding in which the person introduces his mental condition as an element of his claim or defense . . . For any disclosure under this subdivision, the court shall find that it is more important to the interests of justice that the communications and records shall be disclosed than that the relationship between the person and the social worker be protected.
(5) relating to collection of fees.
10. CGS section 52-146r relates to the prohibition of disclosure of confidential communications between government attorneys and a public official or an employee of a public agency, "unless an authorized representative of the public agency consents to waive the privilege and allow such disclosure." This statute "merely codifies the common-law attorney-client privilege." Maxwell v. Freedom of Information Commission, 260 Conn. 143, 149 (2002).
11. CGS section 52-146s(b) protects the confidentiality of communications between a person and a professional counselor, "unless the person or the authorized representative of such person consents to waive the privilege and allow such disclosure." Section 52-146s(c) sets forth those circumstances where consent is not required:
(1) communications to a professional counselor after being informed that the communications would not be privileged," in the course of a mental health assessment ordered by the court, provided the communications shall be admissible only on issues involving the person's mental health condition";
(2) in a civil proceeding, if "a person introduces such mental health condition as an element of the 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 professional counselor be protected";
(3) where "mandated by any other provision of the general statutes";
(4) where "the professional counselor believes in good faith that the failure to disclose such communication presents a clear and present danger to the health or safety of any individual";
(5) if there is "a risk of imminent personal injury to the person . . . or . . . property . . .";
(6) "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"; or
(7) relating to collection of fees.
12. CGS section 46b-137 provides: "Any confession, admission or statement, written or oral, made by the parent or parents or guardian of the child or youth after the filing of a petition alleging such child or youth to be neglected, uncared-for or dependent, shall be inadmissible in any proceeding held upon such petition against the person making such admission or statement unless such person shall have been advised of his right to retain counsel, and that if he is unable to afford counsel, counsel will be appointed to represent him, that he has a right to refuse to make any statement and that any statements he makes may be introduced in evidence against him." See also Practice Book section 32a-1(e). Although this section is not specifically applicable to TPR proceedings, it should be applied to them because they are subject to a higher standard of proof ("clear and convincing" instead of "a fair preponderance") than neglect, uncared for or dependency proceedings, and there is no obvious reason, other than oversight for TPR proceedings not to have been included. Tait, 2006 Cumulative Supplement to Handbook of Connecticut Evidence, 6.
13. CGS section 10-154a(b) provides that any "professional employee shall not be required to disclose any information acquired through a professional communication with a student [of an elementary or secondary school], when such information concerns alcohol or drug abuse or any alcoholic or drug problem . . ."
14. CGS section 17a-693 provides that a person charged with or convicted of an offense but not yet sentenced to be examined to determine if that person is alcohol or drug dependent and eligible for treatment. Reports of the examination are "confidential and shall not be admitted in evidence on `the issue of guilt in a criminal proceeding concerning the person.' C.G.S. [section] 17a-694(d)." Tait's Handbook of Connecticut Evidence (Third Edition), section 5.50.2, page 353 ("Tait"). For further discussion of the privileges set forth above, see Tait, section 5, Privileges, pages 295-70.
15. CGS section 17a-688 provides: "(a) All records maintained by the court of cases coming before it under the provisions of sections 17a-465a, 17a-673 and 17a-680 to 17a-690, inclusive, shall be sealed and available only to the respondent or the respondent's counsel unless the court after hearing held with notice to the respondent, determines such record should be disclosed for cause shown . . .
(c) "No person, hospital or treatment facility may disclose or permit the disclosure of, nor may any department disclose or permit the disclosure of, the identity, diagnosis, prognosis or treatment of any such patient that would constitute a violation of federal statutes concerning confidentiality of alcohol or drug patient records and any regulations pursuant thereto, as such federal statutes and regulations may be amended from time to time. The department [DMHAS] shall adopt regulations . . . to protect the confidentiality of any such information that is obtained by the department . . .
(e) "The commissioner may use or make available to authorized persons information from patients' records for purposes of conducting scientific research, management audits, financial audits or program evaluation, provided such information shall not be utilized in a manner that discloses a patient's name or other identifying information."
Common law privileges:
There are also some additional common law and other statutory privileges that generally are not implicated when the state seeks disclosure of documents and information relating to a respondent's substance abuse and mental health issues:
1. the attorney-client privilege;
2. the marital communications privilege, codified at CGS section 54-84a, relating to a criminal proceeding;
3. the common law marital communications privilege, that "permits an individual to prevent a spouse or former spouse from testifying, as to any confidential communication made by the individual to the spouse during their marriage." State v. Christian, 267 Conn. 710, 731, 841 A.2d 1158 (2004).
Other possible bases for the exercise of privilege:
There are constitutional rights and privileges that could be implicated depending on the nature of the information being sought. These include the Fifth Amendment privilege against self-incrimination and the Fourteenth Amendment rights to procedural and substantive due process. CGS section 52-199 also provides: "In any hearing or trial, a party interrogated shall not be obliged to answer a question or produce a document the answering or producing of which would tend to incriminate him . . ."
CONCLUSION:
Given the type and number of the protections provided both by federal law relating to alcohol and drug abuse services and by state law for a variety of mental and physical health and related services, and given the carefully crafted and delineated federal and state law exceptions to disclosure of such confidential documents and information, neither DCF nor anyone other than Congress or the General Assembly, including but not limited to this court, are authorized to create exceptions in addition to those specifically provided in federal and state law. Since the positions advanced by DCF to this court for access to such confidential documents and information, including (1) the best interest of the child, (2) the need for current, pertinent information about the mother, (3) the mother's so-called limited expectation of privacy, (4) the state's substantial interest in protecting children, (5) the state's substantial interest in providing children with a permanent, nurturing and safe environment, (6) DCF allegedly being "severely hampered in presenting its case for termination," (7) "the court's authority to determine a child's future [being] severely hampered by applying the statutory privilege against disclosure," (8) insignificant "potential for injury to the patient and/or physician/patient relationship," and (9) the mother's pro forma denial after being served with the TPR petition and other papers, are not set forth as exceptions to disclosure in the applicable federal law or regulations, or the applicable state law and regulations, they are not available to DCF as a basis to obtain disclosure in this case of the mother's legally protected confidential and privileged documents and information. For all the reasons set forth in this decision, the DCF " Romance motions" seeking disclosure of the documents and information in the documents produced to the court are denied.