Opinion
No. H14-CP04-007786-A
December 11, 2006
MEMORANDUM OF DECISION
This is a termination of parental rights ("TPR") case. At this time, the sole ground alleged by the Commissioner of the Department of Children and Families ("DCF"), the petitioner herein, in the April 19, 2006, TPR petition it filed against each respondent parent is Ground B(i), each parent's failure to rehabilitate.
In motion papers filed on or about October 4, 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 the mother's (1) alcohol and drug treatment records, and (2) mental health, therapy and counseling records. On November 20, 2006, after a hearing, the court denied access to the mother's mental health, therapy and counseling records without prejudice to a determination at trial as to whether the Connecticut General Statutes ("C.G.S.") § 52-146f(5) exemption from confidential and privileged mental health records is applicable or whether there is any other state statutory exemption which in the context of the trial proceedings would enable DCF to have access to such records.
DCF alleged in its ex parte motion for order to subpoena and surrender alcohol and drug abuse and treatment records ("ex parte drug treatment motion") that it sought an order to subpoena such records relating to the mother, and to have such records delivered to the court under seal: "Disclosure of said records to parties appearing in this matter shall be addressed at a subsequent hearing on the corresponding Petitioner's motion to allow disclosure of the confidential records pursuant to 42 U.S.C. [section] 290dd-2 . . ." (Ex parte drug treatment motion, 1.) On October 5, 2006, Judge Taylor granted such motion.
In In re Romance M., 30 Conn.App. 839, 848-49, 622 A.2d 1047 (1993), reversed on other grounds, 229 Conn. 345, 641 A.2d 378 (1994), the Appellate Court noted: "Pursuant to 42 U.S.C. § 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., 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 § 17a-630(c), formerly § 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, or as they may be amended from time to time. The commission shall adopt regulations to protect the confidentiality of information obtained by it.'" (Emphasis supplied.)
The second motion in such package ("motion to disclose drug treatment records") contains DCF allegations that "authority and good cause" exist for the disclosure of the parents' alcohol and drug abuse and treatment records because, inter alia, the petition for termination of parental rights and the "summary of facts to substantiate petition for termination of parental rights" ("Summary") it filed on April 19, 2006, contain allegations of "a history of alcohol and drug abuse and treatment-related issues for the Respondent-mother, which contributed to the removal of the child from parental care and/or continuation in [DCF] custody, giving rise to the pending proceedings." (Motion to disclose drug treatment records, 9.) The Summary is five single-spaced pages in length. In addition, DCF filed a seven-page single-spaced social study in support of such TPR petition, and there are twenty-eight pages of single-spaced reports of court-ordered evaluations of the mother by a psychiatrist and a psychologist, one of which took place and was completed on May 26, 2006, five weeks after DCF filed its TPR petition.
DCF claims in such motion to disclose that "[t]he information sought is necessary for the Court to have available pertinent and current information regarding the Respondent's conditions and courses of treatment when said petition is considered." (Motion to disclose drug treatment records, 10.) The term "necessary" may be less overstated than DCF's former claim in such Romance motions that such information inevitably was "crucial" to its case, see In re Reginald H., Docket No. T11-CP04-012123-A, Superior Court for Juvenile Matters, Child Protection Session at Middletown (Bear, J., August 25, 2006), page 19. As set forth in the TPR petition, Summary, Social Studies and expert evaluations, on April 19, 2006, DCF had in its possession substantial evidence that it intends to utilize to prove the Ground B(i) portion of its case.
If, as indicated to the court, in light of what it believes to be the currently existing circumstances, DCF amends its present TPR petition to add as to each parent Ground A, abandonment, and as to the father Ground D, no parent-child relationship, it's "need" for the requested information may also be eliminated or minimized.
In such motion to disclose drug treatment records, DCF also alleges that (a) on June 4, 2004, Trinity was adjudicated neglected and on May 18, 2005, she was committed to the care, custody and guardianship of DCF, and because of such neglect adjudication, the mother "has a limited right to prevent the court from assessing her progress and from determining the child's future . . ."; (b) the mother has a limited expectation of privacy because the court approved and ordered specific steps providing that the mother "would obtain treatment and would provide releases to the Petitioner so that the Petitioner would receive access to the records"; (c) the mother is contesting the petition "and in so doing, in light of the petitions filed in this case, has introduced claims and/or defenses of alcohol and drug treatment issues . . ."; (d) on September 13, 2006, DCF offered releases for service providers to the mother's attorney but the releases have not been signed, and, DCF does not have current signed releases from the mother, and "[a]t this time, there is no available or effective way, other than an Order of this court, to obtain such information for the purposes of these proceedings . . ."; (e) "[t]he information sought 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 . . ."; (f) DCF has a substantial interest in protecting the child and providing permanency and safety; (g) the child is entitled "to a full, fair and expeditious proceeding . . ."; (h) "[w]ithout this information, the trial court will be significantly hampered in resolving the case . . ."; and (i) "[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 . . ." (Motion to disclose drug treatment records, 9-11.)
This language (excepting the state law exemption "interests of justice" language) presumably is based on 42 U. S. C. section 290dd-2 (and regulations set forth below): 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."
42 C.F.R. section 2.63(a)(3) 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: (A)(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 patient offers testimony or other evidence pertaining to the content of the confidential communications." 42 C.F.R. section 2.64(d) 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." (Emphasis supplied.) The "non-confidential" communications and information sought by DCF, see page 7, infra, are governed by the terms of section 2.64.
The proposed order contains the following proposed findings:
(A) "[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 . . .";
(B) "[t]here is no way, other than an Order of this court, available or effective in obtaining such information . . ."; and
(C) "[t]he disclosure in all other respects complies with federal and state law presented in the motion."
Although on November 20, 2006, the court continued the hearing so that DCF could have additional time to demonstrate to the court that no state law exemptions were applicable to the requested information, on December 5, 2006 DCF did not present any evidence on that issue.
In In re Reginald H., supra, and in In re Eric A., Docket No. H12-CP04-009733-A, Superior Court, Judicial District of Middlesex, Statewide Child Protection Session at Middletown (Bear, J., December 7, 2006) the court at length set forth some of the deficiencies in these allegations as a basis for the relief requested by DCF.
Additionally, in its present form, the motion to disclose drug treatment does not contain the required allegation that the entities' programs utilized by the mother whose records are sought to be subpoenaed are "federally conducted, regulated or supported in a manner which, constitutes Federal assistance under the regulations" and are thus subject to the constraints of 42 U.S.C. section 290dd-2, et al., and the good cause/public interest weighing calculus set forth above in the body of DCF's motion to disclose drug treatment and in paragraph (A) of DCF's proposed findings:
"It is important to note, however, that not every substance abuse treatment programs 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." McCloud v. Board of Directors of Geary Community Hospital, (D.Kan. 2006) (in Loislaw federal district court database). See also In re Reginald H., supra, pages 34-35.
Even if DCF were able to establish that each of the drug treatment providers were treating the mother in "programs which are federally conducted, regulated or supported in a manner which constitutes Federal assistance under the regulations . . .", at the December 5, 2006, hearing the mother objected to the disclosure of her interaction with such providers, as she has done, according to DCF, consistently since April 28, 2006, and DCF did not establish good cause under 42 C.F.R. § 2.64 for disclosure of the mother's "non-confidential communications" contained in each such provider's intake and discharge records, attendance records, drug and alcohol test result records, and records indicating compliance or non-compliance with and progress in treatment.
Therefore, DCF's motion for disclosure as set forth above is hereby denied.