Opinion
2 CA-SA 2023-0025
05-17-2023
Nikki Polivka, Petitioner, v. Hon. Patrick K. Gard, Judge of the Superior Court of the State of Arizona, in and for the County of Pinal, Respondent, and Chad Polivka, Real Party in Interest.
ARTEMiS Law Firm, Phoenix By Victoria E. Ames Counsel for Petitioner Kristin K. Mayes, Arizona Attorney General By Eryn M. McCarthy, Assistant Attorney General, Phoenix Counsel for Respondent Law Office of Louis Lombardo PC, Chandler By Louis Lombardo and Michael J. Shew, Ltd., Phoenix By Michael J. Shew Counsel for Real Party in Interest
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Special Action Proceeding Pinal County Cause No. S1100D0202101957
ARTEMiS Law Firm, Phoenix
By Victoria E. Ames
Counsel for Petitioner
Kristin K. Mayes, Arizona Attorney General
By Eryn M. McCarthy, Assistant Attorney General, Phoenix
Counsel for Respondent
Law Office of Louis Lombardo PC, Chandler
By Louis Lombardo
and
Michael J. Shew, Ltd., Phoenix
By Michael J. Shew
Counsel for Real Party in Interest
Presiding Judge Brearcliffe authored the decision of the Court, in which Judge Eckerstrom and Judge Kelly concurred.
MEMORANDUM DECISION
BREARCLIFFE, JUDGE.
¶1 Nikki Polivka seeks relief from the respondent judge's determination in a pending dissolution action that her medical and therapy records are subject to disclosure and his subsequent distribution of those records to others, including the real-party-in-interest, Chad Polivka. Because special action jurisdiction is appropriate to review privilege issues, Heaphy v. Metcalf, 249 Ariz. 210, ¶ 1 (App. 2020), we accept jurisdiction. See also Ariz. R. P. Spec. Act. 1(a). Because Nikki has neither expressly nor impliedly waived the privilege applicable to the records, we grant relief.
¶2 Nikki petitioned to dissolve her marriage to Chad and sought custody-parenting time and legal decision-making-orders concerning the couple's two minor children. During discovery, Chad requested information about Nikki's medical and mental health treatment history and asked that she sign forms authorizing the release of her medical records. Nikki declined, asserting the records are privileged. Chad filed a motion to compel, citing A.R.S. § 25-403(A)(5) for the proposition that Nikki's physical and mental health is "clearly relevant" because child custody is an issue in the dissolution action. He additionally asked for an award of attorney fees. Nikki argued in response that she was presumed under Arizona law to be a fit parent and that there had been no implied waiver of her doctor-patient or therapist-patient privilege.
¶3 At a hearing on the motion to compel, Chad's counsel asserted he was entitled to the records because Nikki had a "dysfunction[al]" relationship with their daughter and had "threatened to kill" one of their children, Chad, and a "female friend" of Chad. He additionally asserted Nikki had severe "mood swings." The respondent judge ordered Nikki to submit her "complete mental health records and physical health records for the last five years" for in camera inspection. He additionally concluded Nikki's position had been "unreasonable" but "reserve[d] the issue of attorney fees" until "the potential final orders of this hearing." The respondent expressly stated that
I have no intention of releasing embarrassing things that are not relevant to the proceedings. If it has no bearing as to the best interest, I'm not going to order it disclosed to the other side.
But if I do find it as potentially even a hint of-that it might have some bearing, I may order it disclosed ....
¶4 When Nikki submitted her records for in camera review, she again asserted the mental health records were not subject to disclosure, not only because of the psychologist-patient privilege, but also because they contained "communications with . . . counsel," purportedly subject to attorney-client privilege. She requested the opportunity to redact to certain sections of the records before production.
¶5 The respondent judge, rather than finding them relevant and unprivileged and ordering Nikki to disclose the records, turned over his copy of Nikki's medical and therapy records to others including Chad without notice and without the requested redactions. Seemingly, as to the requested redactions, the respondent determined that Nikki had waived the attorney-client privilege by speaking to her therapist about her communications with her lawyer. Although Chad has received copies of the records, his attorney requested that he not distribute them further. The respondent denied Nikki's request for a stay.
Because the respondent judge erred in ordering in camera review of Nikki's records, we need not address her argument that the respondent erred by concluding she had waived her attorney-client privilege.
¶6 On review, Nikki reasserts the arguments she made below and argues the respondent judge's "production of [her] medical records and mental healthcare records is a clear violation of the confidential nature" of such records. She asks that we direct the respondent to "retract" all her records, to ensure that any recipients of those records "destroy, disregard, and not further divulge" the records or the information they contain, and to prohibit any recipient "from using such records or the information contained therein in any manner." Although we review a trial court's disclosure orders for an abuse of discretion, we review the application of privilege de novo. See Azore, LLC v. Bassett, 236 Ariz. 424, ¶ 8 (App. 2014).
¶7 The respondent judge apparently based his decision on § 25- 403(A)(5), which requires the court to evaluate "[t]he mental and physical health of all individuals involved" when determining legal decisionmaking and parenting time. A parent's medical and therapy records would seem relevant to that inquiry. But medical communications and records are privileged, as are therapy communications and records. See A.R.S. §§ 122235 (doctor-patient relationship privileged), 12-2234 (attorney-client relationship privileged), 12-2292 (medical records confidential), 32-3283 (relationship between client and behavioral health licensee is privileged "the same as between an attorney and a client"), 32-3311 (behavioral health licensing for "marriage and family" therapists).
¶8 Thus, the materials at issue here are subject to disclosure only if Nikki expressly waived her privilege by testifying about the confidential matter, A.R.S. § 12-2236, or if she impliedly waived the privilege either by placing a particular medical or psychological condition at issue, see Heaphy, 249 Ariz. 210, ¶ 4, or by advancing a claim based on otherwise privileged information, see Burch &Cracchiolo, P.A. v. Myers, 237 Ariz. 369, ¶ 20 (App. 2015). A party puts privileged communications at issue when it "has interjected the issue . . . into the litigation to the extent that recognition of the privilege would deny the opposing party access to proof without which it would be impossible for the factfinder to fairly determine the very issue raised by that party." State Farm Mut. Auto. Ins. Co. v. Lee, 199 Ariz. 52, ¶ 28 (2000).
¶9 We are required to construe privilege narrowly. Blazek v. Superior Court, 177 Ariz. 535, 537 (App. 1994). Even so, "merely placing one's general health at issue is insufficient to waive the medical privilege. Instead, the privilege holder must make an assertion about or present evidence about a particular condition before waiver may be implied." Heaphy, 249 Ariz. 210, ¶ 6. This court has recently observed there is a "tension between Arizona child custody laws, which hinge on a child's best interest, and a parent's privacy interest under the psychologist-patient privilege." J.F. v. Como, 253 Ariz. 400, ¶ 27 (App. 2022). Thus, "[w]hen a parent's privacy interest squarely conflicts with a child's best interest, the child wins." Id. ¶ 28. Despite this tension, however, "[p]arents do not forfeit their psychologist-patient privilege by requesting parenting time in a divorce or custody action." Id. ¶ 26.
¶10 Chad acknowledges he has not identified any specific medical or psychological condition at issue in this case, much less one that Nikki has placed at issue. Citing J.F., he asserts disclosure was nonetheless appropriate due to the "litany of abusive and bizarre behaviors by [Nikki] that [Chad] had observed, and which would lead any reasonable person to question the state of her mental health." But, although the court in J.F. found a parent had impliedly waived the psychologist-patient privilege, its reasoning does not support Chad's apparent position that he can force Nikki to waive her therapist-patient privilege by merely asserting she has a mental health condition.
Chad also argues Nikki could have protected her privacy interest by withholding her records, thereby permitting the respondent judge to "draw a negative inference" based on her refusal. He cites authority concluding such an inference is appropriate when a parent in a custody proceeding invokes the Fifth Amendment right against self-incrimination. See Montoya v. Superior Court, 173 Ariz. 129, 131 (App. 1992). We see no parallel between that situation, where a parent seeks to conceal evidence of a crime, and this one, where a parent seeks to protect privileged medical information.
¶11 In J.F., we concluded that the trial court did not err in requiring a father to disclose his alcohol-abuse counseling records when considering his request to modify the temporary parenting time order. Id. ¶ 1. The father had conceded during the temporary orders proceeding that he suffered from an alcohol use disorder, and the court entered custody orders conditioning his parenting time on several requirements meant to enforce his sobriety, including therapy. Id. ¶¶ 4, 7. He later moved to modify those orders, citing his continued sobriety and participation in treatment. Id. ¶ 8. He refused, however, to disclose his substance-abuse counseling records in support of that claim. Id. ¶ 9. After the court ordered disclosure of the records, the father sought special action relief. Id. ¶ 11.
¶12 We determined the father had waived the psychologist patient privilege as to his counseling records because he had "thrust [them] . . . to the fore in this child custody dispute" by seeking custody, unsupervised parenting time, and a reduced alcohol testing requirement. Id. ¶ 32. We reasoned that he had done "more than parenthetically acknowledge his path to treatment; he wielded that path as affirmative evidence to prove that he presents no danger to the children." Id. "Having brandished that sword," we noted, he could not "turn around and hide behind the privilege, depriving the court of material[s] it reasonably concluded were necessary to protect the children's safety and welfare." Id.
¶13 The facts before us do not resemble the facts in J.F. In that case, the father was seeking to modify an existing custody order based on the trial court's factual findings due to particular changed circumstances- circumstances that could either be confirmed or undermined by the subject records. Nikki has done nothing more than ask the respondent judge to address custody and legal decision-making in the first instance-a scenario we specifically stated, standing alone, would not constitute implied waiver. Id. ¶ 26.
We do not and cannot resolve on this record whether, in the absence of either express or implied waiver, other evidence before the respondent could justify invasion of the privilege. We merely conclude that, absent such waiver, invasion of the privilege is not justified by § 25-403 alone.
¶14 We also find unavailing Chad's reliance on In re Marriage of Gove, 117 Ariz. 324 (App. 1977). There, we concluded a parent could not refuse to submit to a mental examination on free exercise grounds. Id. at 327-28. Citing the predecessor statute to § 25-403, we observed that "[t]he legislature has provided that the mental health of all individuals involved in a custody proceeding is a relevant factor for the court to consider." Id. at 328. Thus, we concluded, the parent had "placed her mental condition at issue" by seeking custody. Id.
Former A.R.S. § 25-332. See 1973 Ariz. Sess. Laws, ch. 139, § 2; 1996 Ariz. Sess. Laws, ch. 192, § 31.
¶15 But Gove does not address implied waiver of a privilege. It instead addressed government regulation of the free exercise of religion. We determined only that the government's compelling interest in a child's best interests could trump the parent's religious objection to a mental health examination. Id. at 327-28. Reading Gove to support implied waiver in the privilege context would conflict with our more-recent statement in J.F. that a parent does not waive a privilege simply by seeking custody. 253 Ariz. 400, ¶ 26. Indeed, we expressly rejected that reading of Gove in J.F. Id. ¶¶ 25-26.
¶16 In any event, Gove is otherwise distinguishable-a psychiatrist who had treated the parent had already disclosed, apparently without objection, that the parent might be "suffering from a manic depressive reaction" and "further evaluation was needed to rule out paranoic schizophrenic possibilities." 117 Ariz. at 326. No such evidence exists here. Instead, Chad's request was grounded in as-yet unsubstantiated statements by Chad's counsel.
We do not suggest that a parent who has a specific physical or mental health condition waives an applicable privilege merely by requesting custody or legal decision-making. A trial court concerned about how such a condition might affect its evaluation under § 25-403(A)(5) may order an evaluation under Rule 63, Ariz. R. Fam. Law P.
¶17 Chad also asserts, citing Rule 49(d)(2), Ariz. R. Fam. Law P., that the "legislature" must have intended disclosure of psychiatric records. See Lear v. Fields, 226 Ariz. 226, ¶¶ 7-8 (App. 2011) (Arizona Supreme Court promulgates procedural rules). That rule requires a parent seeking legal decision-making or parenting time to provide the name and address of treatment providers "for psychiatric or psychological issues, anger management, substance abuse, or domestic violence, occurring within 5 years before the petition's filing." But the limited scope of required disclosure belies Chad's position; had our supreme court intended that a parent seeking custody waives medical and mental health privileges as a matter of law, it could have so provided by requiring automatic disclosure of those records, or minimally, specific details about treatment sought and received, not just the names and addresses of treatment providers.
¶18 Chad further suggests any concerns can be alleviated with a protective order under Rule 53, Ariz. R. Fam. Law P., thus restricting access to the records to his counsel. This argument misses the point-the respondent judge erred by ordering in camera review in the first place because Nikki has not placed a medical or mental condition at issue. Chad's related assertion that the respondent has not yet determined the records are admissible also provides no basis to deny relief. Neither Chad, his counsel, nor the respondent have demonstrated a right to review Nikki's privileged medical and therapy records.
For this reason, we also reject Chad's argument the issue is moot because Nikki has already surrendered the records. There is ongoing harm from her privileged records being in the hands of those with no right to possess them.
¶19 In sum, the respondent judge erred both by ordering Nikki to submit her medical and mental health records for in camera review and by subsequently releasing those records. He additionally erred by finding that Nikki took an unreasonable position below.
¶20 Both parties request attorney fees pursuant to A.R.S. § 25- 324(A), describing the other party's position as unreasonable. We deny the parties' requests for attorney fees.
¶21 We accept special action jurisdiction and grant relief. We vacate the respondent judge's order requiring Nikki to submit her medical and mental health records for in camera review and his finding that Nikki took an unreasonable position litigating this issue below. Additionally, we direct the respondent to ensure that all privileged records Nikki submitted pursuant to his order are returned to Nikki (or, if in digital form, are deleted or otherwise destroyed), including records in his possession, the possession of Chad or his counsel, or the possession of any other party to which they may subsequently have been disseminated.