Opinion
Nos. H12-CP-08-012016-A, H12-CP-08-012017-A
January 26, 2009
MEMORANDUM OF DECISION ON RESPONDENTS' MOTION FOR DISCOVERY
On July 9, 2008, the petitioner, the commissioner of the department of children and families, ("the department"), filed neglect petitions concerning the two minor children of the respondent parents J.F. and Ma. F. The grounds alleged in both neglect petitions are that the respondents' children are being (1) denied proper care and attention physically, educationally, emotionally or morally; and (2) permitted to live under conditions, circumstances or associations injurious to their well-being. The factual allegations in the petitions and the accompanying summary of facts are that a five-year-old minor child, R., was sexually abused by the respondent father who instructed his son, C.F., to assist him; that C.F. was previously accused of abusing R., that R.'s therapist, who is identified by name in the petitions served on the respondents, reported that R.'s disclosures are "credible," that M.F. is at risk because she resides in the same home with her brother and her father, and that the respondent mother failed to address a previous report that C.F. had abused another child. At the plea hearing on August 21, 2008, the respondent parents entered pro forma denials to all allegations and reported to the court that they had subpoenaed records of the department and the Renbrook School. They demanded that the court order immediate disclosure of the contents. Both the department and an attorney for the Renbrook School posed objections, on the basis that their records contained privileged and/or confidential information concerning R. which was irrelevant, not exculpatory, or otherwise not subject to disclosure. Renbrook also posed an objection to the disclosure of the names of a number of other students mentioned in the records produced in court in response to the subpoena. The department indicated to the court that the records it had produced in response to the subpoena had portions redacted. The court continued the matter for further discussion on the discovery issues, sealed the Renbrook School records that had been filed pursuant to the subpoena and ordered the department to produce unredacted and unexpurgated records, which also would remain under seal until further order of the court.
On oral motion of the attorney for the minor children, the court agreed, due to the very unusual first names of the children and the publicity this case has already received in the media, to refer to the parties and potential witnesses by initials only. Counsel also has been instructed to refer to these persons similarly in any subsequent appellate filings until further order, if any, of the appellate court. See Practice Book Rule 79-3.
At the same time the court was presented with these petitions, the court was advised that J.F. was the defendant in a criminal action filed in the Judicial District of Hartford concerning R.'s allegations. J.F. and Ma.F. also had initiated an administrative neglect substantiation hearing at the department and was demanding similar disclosures which the department had denied. In addition, another matter was pending in this court involving these allegations. R.'s parents, exercising their rights as alleged crime victims in two of these other pending matters, had hired an attorney to represent their interests.
On October 3, 2008, respondent mother and father filed a motion and a memorandum of law seeking discovery of the following categories of documents: (1) the entire unexpurgated and unredacted contents of any department files concerning any contention or allegation of neglect of their children, or any allegation of sexual or physical abuse of or by R.; including but not limited to those documents previously placed under seal with the court; and (2) access to the school records produced under seal by the Renbrook School. Alternatively, the respondent parents requested that the court review these documents in camera and disclose those relevant to any claim or defense in these matters, especially any exculpatory documents.
There were a number of other motions filed, and one still pending is relevant to the discovery requests. The respondents have filed a motion for an evidentiary hearing to ask the court to consider whether the department filed neglect petitions in these cases based upon statements made with a reckless disregard for their truth, under principles announced in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). As noted in this motion, the proof the respondents may offer in support of this motion was, as of the date of its filing, "necessarily limited due to the redactions in the department's reports and the unavailability of other relevant records." These redactions, they claim, prevent them from learning the full circumstances surrounding R.'s allegations or identifying witnesses who may have heard R. make them and also hinder the respondents from learning the full extent of the department's investigation, information it relayed to the police, and information it provided its expert consultants.
The court scheduled the discovery motions for a hearing which was held on October 20, 2008. At that time, exercising an overabundance of caution, and because the disclosure issues in these cases could potentially affect the outcome of future, identical disclosure requests in the other matter then pending in this court, the court suggested that the attorney retained by R.'s parents also be heard on the disclosure issues relative to these neglect proceedings. With the agreement of counsel, the court permitted Attorney Raymond Hassett to attend these proceedings for the limited purpose of being heard on the release of information in the department and Renbrook School records relevant to R. and his family. Similarly, the court had permitted Attorney Elizabeth Stewart to appear for the limited purpose of representing Renbrook's interests relevant to the discovery of the school records. Both of these representatives were permitted to file written objections, motions and/or memoranda of law, which the court has considered.
That matter is no longer pending as of November 4, 2008.
The court has determined that the consent of R. or his parents is not required to allow for either an in camera inspection or disclosure of the redacted department and school records described herein.
Neither R., R.'s parents or the Renbrook School have ever been afforded intervention as parties to this matter, and respectfully, the rights afforded to R. and his parents as alleged victims in criminal and delinquency proceedings do not apply to neglect proceedings. Counsel for the children, their guardians-ad-litem and the respondents have objected to the presence of R.'s parents at these neglect proceedings, and the court, exercising the discretion afforded to it pursuant to General Statutes § 46b-122, has determined that they are not necessary parties and has not permitted it.
At the hearing on the discovery motion, the department indicated it had reconsidered its position and admitted that the respondent parents were entitled to full disclosure of its entire file pertaining to these neglect petitions, except for redactions concerning privileged communications with its attorneys. The department agreed to file unredacted and unexpurgated records with a privilege log for claims of attorney client privilege on or before October 24, 2008. Attorney Hassett indicated he would consult with his clients about the possibility of their agreeing to the disclosure of all the records requested. The court indicated it would schedule further hearings if necessary.
Subsequently, counsel requested a status conference with the court on this issue. This was held on October 28, 2008. Proposals for a resolution of the discovery issues were discussed. The Renbrook School indicated it would pose no objection to release of any of the records it had filed under seal as long as its request for a protective order preventing disclosure of the identities of the other students, their parents and relatives were redacted. Counsel for the respondents had agreed to this proposal in a partial objection to Renbrook School's motion filed on October 14, 2008, and the court agreed, if it ultimately ruled in favor of disclosure, to order the redaction of such identifying information and reference to such persons as "Student 1," "Parent(s) of Student 1," and so forth. Attorney Hassett indicated his clients wished to view the records relative to their family in the court file before they finalized their position on disclosure. At the court's request, on December 5, 2008, he provided, via facsimile, written consent from R.'s parents for the court to conduct an in camera review of the records to extract those that pertained to R. or his family.
The court proceeded to conduct its in camera review and subsequently, on December 23, 2008, provided two sets of redacted records to Attorney Hassett for review with his clients. If, upon review of such records with his clients, they had specific objections, he was ordered to lodge them with the court on or before January 15, 2009, as a hearing to further consider the respondents' discovery requests and other motions was scheduled to begin on January 22, 2009. On January 20, 2009, he filed, via facsimile, a "Victim's Objection Log" and an "Ex Parte Motion in Support of Victim's Objection Log," both listing, generically to other counsel and specifically for only the court's review, the information contained in the department records his clients did not wish disclosed. No such objection logs to the disclosure of any information in the Renbrook School records were filed. On or about January 21, 2009, Attorney Hassett called the court services officer and indicated his clients wished to be present and participate in the motions hearing scheduled to begin on January 22, 2009. The court instructed the court service officer to contact other counsel to see if they had any objection. Counsel for all parties and the guardians-ad-litem did object, and the court declined to permit R.'s parents to be present in court except through their counsel.
The redacted sets of records provided to Attorney Hassett have been returned to the court in accordance with its instructions and are in the court file under seal in a marked envelope. In addition, documents provided to the court in accordance with the department's privilege log, and the unredacted and unexpurgated documents filed by the department and Renbrook School in response to the respondent parents' subpoenas which the court reviewed in camera are also in the court file under seal in separate marked envelopes. Finally, a copy of the redacted Renbrook School records the court will be releasing to counsel also will remain in the file under seal in a separate marked envelope.
See attached copy (with redactions) of court's letter to Attorney Hassett dated December 23, 2008.
General Statutes § 46b-122 states, "Any judge hearing a juvenile matter may, during such hearing, exclude from the room in which such hearing is held any person whose presence is, in the court's opinion, not necessary, except that in delinquency proceedings any victim of the delinquent act, the parents or guardian of such victim and any victim advocate appointed pursuant to section 54-221 shall not be excluded unless the judge specifically orders otherwise." (Emphasis added.)
At the beginning of the hearing on January 22, 2009, the court was prepared to address the specific items contained in the objection logs filed by Attorney Hassett on behalf of his clients. However, Attorney Hassett advised the court that his clients were objecting to the release of any information in the department and Renbrook School files pertaining to them with redactions proposed by the court because they had not been permitted to be present during the hearing. Obviously, at this point, the court's effort to resolve the discovery issues in an amicable fashion had failed, and considerable delay in the progression of this case had occurred. The court, at the urging of the parties, determined to immediately hear and address the respondents' discovery claims in accordance with applicable law and abandon any further effort to resolve the situation without the necessity of holding a contested hearing.
The court, at the conclusion of the hearing, found, as a matter of law, that the respondents are entitled to the release of a substantial portion of the requested records, and ordered the release of the department and Renbrook School records filed with the court, with certain redactions, to the department, the respondent parents, counsel for the children and their two guardians-ad-litem. The legal basis for the court's decision and the specific disclosure order as to each set of records are articulated below.
First, the respondent parents' asserted right of access to relevant records implicates their constitutional rights to due process, as our courts have consistently recognized that parents have a fundamental liberty interest in raising and caring for their children. See Fish v. Fish, 285 Conn. 24, 41, 939 A.2d 1040 (2008); Crockett v. Pastore, 259 Conn. 240, 246, 789 A.2d 453 (2002); In re Baby Girl B., 224 Conn. 263, 279-80, 618 A.2d 1 (1992). The United States Supreme Court has reaffirmed that this liberty interest is "perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). "[W]e have recognized the fundamental right of parents to make decisions concerning the care, custody and control of their children." Id. (Citing, inter alia, Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) ("It is plain that the interest of a parent in the companionship, care, custody and management of his or her children comes to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements"); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) ("The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition"); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 551 (1978) ("We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected").
To dismiss the respondents' discovery request, which is supported by all parties to this action, as well as the children's guardians-ad-litem, as merely an attempt to circumvent the criminal rules of discovery to aid J.F.'s criminal defense, trivializes the significant and equally important affected interests of C.F., M.F. and the respondent mother as the result of the initiation of these neglect proceedings. In addition, the respondents do not seek information disclosed to law enforcement officials such as a state's attorney, they are seeking information disclosed to the department. The fact that the department ultimately disclosed some information to the state's attorney or local police, who thereafter commenced their own investigations and proceeding, does not require the applicability of the "privilege upon grounds of public policy" discussed in Seebeck v. State, 246 Conn. 514, 546, 717 A.2d 1161 (1993). It may be that ultimately, the criminal rules of discovery as applied to the pending case of State v. J.F. net J.F. more or less information than what this court determines can properly be disclosed in this matter. However, the more liberal rules of civil, rather than criminal, discovery apply to neglect proceedings, with certain limitations. (See Practice Book Rules 34a-20.) In addition, there are liberal statutory provisions allowing the disclosure of the confidential, but not statutorily privileged records being sought in this case without the consent of any person that negate the necessity of any parallel application of the procedures required in Bruno/Esposito discovery hearings concerning witnesses' privileged records in criminal cases. See State v. Kemah, 289 Conn. 411 (2008); State v. Bruno, 197 Conn. 326, 329, 497 A.2d 758 (1985); State v. Esposito, 192 Conn. 166, 179, 471 A.2d 949 (1984). This court is under no obligation to ensure that the respondents are provided with no more or no less information than J.F. may obtain in his criminal matter. Moreover, although provided with certain releases by R.'s parents, the department never obtained any records from R.'s therapist, only statements which were necessitated by virtue of the fact that his therapist is a mandated reporter who would not have required R.'s or his parents consent to make her report. Her statements, made directly to the department, provided a basis for the department's decision to initiate these neglect proceedings; in fact, they are summarized in the summary of facts.
Although the department did obtain records from Renbrook School, it did not include these in the set of unredacted records it was ordered to file with the court, and only admitted having school records in its possession at the hearing on January 23, 2009. Regardless, out of an abundance of caution, the court is going to proceed to order disclosure of the school records pursuant to the statute which authorizes release of educational records by a court, General Statutes § 10-15b(c), although the court concedes the respondents may have a valid argument that the school records obtained by the department now comprise a part of the department's investigative record, to which they are statutorily entitled. Even if the court's resort to the authority granted to it by § 10-15b(c) be found to be erroneous, the applicability of the statutory provisions relevant to the disclosure of the school records in the department's possession will have to be considered.
The Fourteenth Amendment to the United States Constitution and Article I, § 10 of the Connecticut Constitution support the respondents parents' right to ascertain the information provided to and further developed by the department which forms the factual basis supporting the department's conclusions as to the credibility of R.'s accusations, which have wrought state intrusion into their family life. See Horton v. Meskill, 172 Conn. 615, 641-42, 376 A.2d 359 (1977) (Article I establishes fundamental liberty rights of Connecticut citizens, which may be interpreted by our Supreme Court as more, but never less, protective of individual liberty than United States Constitution, as interpreted by U.S. Supreme Court).
Conn. Const. Art. I., § 10 provides that "[a]ll courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay."
As stated in State v. Harris, 277 Conn. 378, 395-96, 890 A.2d 559 (2006), "[t]he fundamental requisite of due process of law is the opportunity to be heard . . . [which] must be at a meaningful time and in a meaningful manner . . . [T]hese principles require that a [party] have timely and adequate notice detailing the reasons for [the proposed action], and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally." (Citations omitted; internal quotations marks omitted). An etiology of this case, revealing initial disclosures against C.F., (one, apparently, first mentioned to Renbrook School officials that respondent mother is alleged to have done nothing about), inextricably includes events that occurred at the school in the fall of 2007, and the department considered those events during the course of its investigation. Ultimately, it based its decision to file these petitions, in part, on what it learned from the school. The credibility of R. is central to the viability of the department's allegations of neglect and abuse of C.F. and M.F. C.F. and J.F. deny them, there are no other witnesses to them, nor is there any corroborating physical evidence. If R.'s claims of one or more instances of sexual assault by J.F. and/or C.F. are not believable, there is no other basis on which these children can be adjudicated neglected.
In the neglect trial, the respondents may never have an opportunity to actually confront and cross examine R. on the witness stand. Instead, they may be restricted to confronting only adult witnesses providing second hand accounts. The department has objected to the respondents' pending motion for permission to call R. as a witness. See also In re Tayler F., 111 Conn.App. 28 (2008) cert granted, 290 Conn. 901 (2009) (trial court, in terminating parental rights, relied on uncorroborated claims of child sexual abuse presented through expert and other adult witnesses as evidence under the residual exception to the hearsay rule and did not allow respondent to call children as witnesses). The ability of the department to present evidence of sexual abuse through the hearsay testimony of adults, without the necessity of calling the child as a witness, fails to provide parents in neglect or termination of parental rights proceedings the kind of balanced protection afforded defendants in criminal cases. A crime victim who fails to consent to the disclosure of privileged records deemed material to the defense after an in camera review usually has his testimony stricken. If the respondents cannot access the information sought here, what semblance of due process is afforded to them should department present its case in the manner allowed by the trial court in In re Tayler F.?
A. The Records of the Department of Children and Families
Department records are subject to a qualified privilege pursuant to the confidentiality provisions of General Statutes § 17a-28. The statute provides in relevant part:
In addition, relevant to the substantiation review initiated by the respondents at the administrative level, Section 17a-101k(c) provides, in relevant part, that "prior to the [substantiation] review, the commissioner shall provide the individual access to all relevant documents in the possession of the commissioner regarding the finding of responsibility for abuse or neglect of a child, as provided in subsection (m) of section 17a-28." Initially, the department, rather than providing this information to the respondents, forced them to issue a subpoena, which it moved to quash.
(a) As used in this section: (1) "Person" means (A) any individual named in a record, maintained by the department, who (iii) is presently or was at any prior time the subject of an investigation by the department . . . (B) the parent of a person as defined in subparagraph (A) of this subdivision, if such person is a minor;
(b) . . . records maintained by the department shall be confidential and shall not be disclosed. Such records of any person may only be disclosed, in whole or in part, to any individual . . . with the consent of the person or as provided in this section . . .
(f) The commissioner . . . shall, upon request, promptly provide copies of records, without the consent of a person to . . . (9) a party in a custody proceedings under . . . [General Statutes] section 46b-129 [neglect], in the Superior Court where such records concern a child who is the subject of the proceeding or the parent of such child.
(I) Notwithstanding the provisions of subsection (f) and (l) of this section, the name of an individual reporting child abuse or neglect shall not be disclosed without his written consent except to . . . (5) a judge of the Superior Court and all necessary parties in a court proceeding pursuant to section 46b-129, or a criminal prosecution involving child abuse or neglect.
(m) . . . any person, regardless of age, his authorized representative or attorney shall have the right of access to any records made, maintained or kept on file by the department . . ., when those records pertain to or contain information or materials concerning the person seeking access thereto, including but not limited to records concerning investigations, reports, or medical, psychological or psychiatric examinations of the person seeking access thereto provided that (1) information identifying an individual who reported abuse or neglect of a person . . . shall not be released unless, upon application to the Superior Court by such person and served Commissioner . . . a judge determines, after in camera inspection of relevant records and a hearing, that there is reasonable cause to believe the reporter made a false report or that other interests of justice require such release . . .
Pursuant to subsection (m), the respondents and the department reached an agreement to disclose to the respondents the audiotape of a certain person's initial call to the department's hotline alleging the abuse of R. By agreement, the name of the caller was redacted, but the respondents indicated they may seek the person's identity pursuant to subsection (i).
Pursuant to subsection (m), the respondents and the department reached an agreement to disclose to the respondents the audiotape of a certain person's initial call to the department's hotline alleging the abuse of R. By agreement, the name of the caller was redacted, but the respondents indicated they may seek the person's identity pursuant to subsection (i).
As noted earlier, the department no longer contests the respondents' claim that they are entitled to contents of the department file which pertain to these petitions and reference R., and it admits that the initial redacting of a significant portions of the facts developed during its investigation was unduly constrained. (According to the respondents, the department redacted every reference to R., effectively redacting anything to do with the sole basis for the allegations in the petitions.) Undoubtedly, the accusations contained in these records "pertain to or contain information or materials concerning the person seeking access thereto," as provided in subsection (m). The statute does not permit the redaction of all references to R. because he is not a member of the F. family. The references to R. and his allegations most definitely pertain to and concern the respondent parents and their children and threaten the continued integrity of their family.
Practice Book Rule 34a-20(a), provides that "Access to the records of the department of children and families shall be permitted in accordance with General Statutes § 17a-28 and other applicable provisions of law." The court seldom encounters discovery conflicts relative to the department's investigative and treatment records. In most instances, the parents, through counsel, are afforded immediate access and the department rarely moves to protect the identity, of the witnesses, let alone the facts alleged by them. This broad and liberal interpretation of the exceptions to statutory confidentiality of the department records serves the juvenile court well, as protecting and securing permanency for children should be conducted on an expedient basis and not become mired in the seemingly endless discovery disputes that occur in other civil cases.
Several Superior Court cases have addressed the application of § 17a-28 to civil actions other than neglect matters. In Madden v. Ragaglia, Superior Court, judicial district of Windham at Putnam, Docket No. FA 01 0066524 (February 7, 2002, Potter, J.) ( 31 Conn. L. Rptr. 452), the court addressed the scope of subsection (m) in the context of a matter that is factually similar to the present case. In that case, the plaintiffs were under investigation by the department for their alleged abuse and neglect of their children, and the father had been arrested and charged with sexual assault premised on allegations made by an unnamed person. The parents brought an action against the department to obtain access to the department's records. (No neglect petition had been filed against them.) They stated that the department gave them some records in which it had redacted information as to the identity of and statements made by the persons who made the allegations against them. They alleged that they had reasonable cause to believe that the allegations were false and that the interest of justice required that they be given access to all of the department's records regarding its investigation. They specifically referred to their due process rights to respond to the allegations of abuse and their right to exculpatory information. They sought an in camera inspection of the records, a hearing and the disclosure of information as to the identities of those who reported them, as well as statements that were relevant to the allegations against them or to the father's defense in the criminal action. The department moved to dismiss the action on the ground that the court lacked jurisdiction to grant the relief sought by the plaintiffs. While the court agreed with the defendant that some of the plaintiffs' requests were overly broad, it "[disagreed] with the Commissioner that the court lacks jurisdiction under the statute. The defendant has cited no legal authority for her claim that the superior court lacks jurisdiction to compel her compliance with a statute which mandates her to provide `the right of access to any records made, maintained or kept on file' by her, to any person about whom such records `pertain' or `contain information . . . concerning the person seeking access thereto . . .' provided the requirements of an in camera review and hearing are met." (Emphasis added.)
The court further noted, "As to the plaintiff [father's] right to access, the defendant argues that a criminal case pending in this district relative to the same apparent subject matter as the DCF investigation should be the forum where his right to access is argued, rather than under . . . § 17a-28(m). The two cases cited, State v. Leduc . . . and State v. Kulmac, do not discuss this argument. No case or statute on point has been cited to deprive the plaintiff of his right to access under . . . § 17a-28(m)." Madden v. Ragaglia, supra, 31 Conn. L. Rptr. 452. Accordingly, the court denied the motion to dismiss. Id.
In Doe v. Julia Day Nursey, Inc., Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 98 0062198 (February 5, 2001, Arnold, J.) ( 29 Conn. L. Rptr. 281), two children and their parents brought an action against the children's former day care center alleging that the center filed a complaint with the department in which it falsely accused the parents of abusing their children, resulting in a department investigation of the family which continued until the department decided that the accusations were unsubstantiated and closed its file. (Again, no neglect petitions were ever filed.) Both parties sought the disclosure of the department's file pertaining to its investigation. The plaintiffs filed a motion for a protective order to prevent the defendants from obtaining the file on the basis that it was privileged and "innocent third parties would be affected by the disclosure of such records." Id. The defendant objected to the plaintiff's motion, and asked the court to conduct an in camera review of the file to determine whether the documents were relevant to the action. The court conducted an in camera inspection pursuant to § 17a-28(m) and concluded, "the D.C.F. records and investigation reports regarding the subject matter is warranted and requires release in the interests of justice, especially in light of the allegations that the mandatory reported knowingly made a false report to the D.C.F. Accordingly, both the plaintiff and the defendant shall be entitled to information contained in said D.C.F. reports with the necessary redactions which the court has made as a result of its in camera review. Said information, in its redacted form, shall contain the identity of the individual who reported the alleged abuse or neglect of the minor child[ren] who are also plaintiffs in this matter." Doe v. Julia Day Nursery, Inc., supra, 29 Conn. L. Rptr. 281. See also Torres v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 05 4000278 (October 15, 2007, Dos Santos, J.) ( 44 Conn. L. Rptr. 290) (in habeas action premised on ineffective assistance of counsel and actual innocence, defendant entitled to in camera review of department documents of victim and other child, the latter as to evidence of third-party culpability); In re Kristy L., 47 Conn.Sup. 273, 787 A.2d 679 (1999) [ 30 Conn. L. Rptr. 397] (grandparents who petitioned for custody of minor grandchild not entitled to all of child's department records, but would be entitled to department records "concerning the petitioners themselves" under § 17a-28).
The crucial distinction between the above two cases and the instant one is that these respondents are further entitled to disclosure under the clear exceptions to confidentiality contained in §§ 17a-28(f) and (I) because they have neglect proceedings pending against them.
Cases where civil courts did not permit disclosure of department records containing information about witnesses can be distinguished because, unlike the parties who sought disclosure of department records in those cases, the respondents in this matter are seeking records that directly pertain to the allegations that they have neglected their children. See Giesing v. Blefeld, Superior Court, judicial district of New London, Docket No. CV 054307, (January 4, 2001, Hendel, J.) ( 28 Conn. L. Rptr. 581); Travelers Insurance Co. v. Department of Children and Youth Services, Superior Court, judicial district o Hartford-New Britain at Hartford, Docket No. 704571 (February 4, 1991, O'Neill, J.); In re James T., Superior Court, Child Protection Session at Middletown (August 18, 1997, Foley, J.) 20 Conn. L. Rptr. 386.
Even if subsections (f) and (I) of § 17a-28 did not provide the respondents with greater access and only subsection (m) applies, as was the case in Madden v. Ragaglia and Doe v. Julia Day Nursery, Inc., during the course of the hearings on their discovery motion, the respondents made a plausible record of how the information in the department files would be both material and potentially favorable to their defense, which justified this court's in camera review. The respondents indicated their own investigation revealed good cause to believe that the department's files may contain information that potentially calls into question the accuracy of R.s' reports. (See also Respondents' Motion For Discovery, pp. 12-14.) There is no other way the respondents can obtain access to the information sought at this time. Although these records have been requested in the criminal matter, a decision on that request probably won't occur until just prior to trial, many months away. The expressed concerns about identifying the persons who made reports is also a red herring, as R.'s identity, and the identities of the persons making the reports of abuse to R. have been known to all concerned since the inception of the problems at the Renbrook School and the identity of one reporter is stated in the summary of facts annexed to each of the neglect petitions. Furthermore, this disclosure will not involve any potential for a broad disclosure of the identity or irrelevant past of an alleged victim of sexual assault. What is disclosed here is highly relevant information in a proceeding that is not open to the public, and the parties will be bound by an order strictly restricting further disclosure and use of this information. The interests of justice require the release of the department records.
Although judges in civil cases involving sexual assault have been protective of the identity of alleged victims of sexual assault, in recognition of the public policy set forth in General Statutes § 54-86f, (the rape shield statute), no authority mandating the application of that statute to civil matters has been cited. (See Vargas v. Doe, 96 Conn.App. 399, 411-23, 900 A.2d 525 (2006); Doe v. The Roman Catholic Diocesan Corporation, Superior Court, Complex Litigation Docket at Waterbury, Docket No. X10-UWY-07-5006716-S (April 2, 2008, Scholl, J.) [ 45 Conn. L. Rptr. 317]; C.C.E. § 4-11; Tait, Handbook of Connecticut Evidence, § 4.29). Although the goal of shielding victims from undue harassment and embarrassment, encouraging reports of sexual assault, avoiding prejudice to the victim and a waste of time on collateral matters, subdivision (4) of § 54-86f codifies the constitutional mandate that the state's interest must yield to that of the defendant where the proffered evidence is "so relevant and material to a critical issue in the case that excluding it would violate the defendant's constitutional rights."
Accordingly, the department is ordered to provide counsel for the respondents, counsel for the children, and the children's guardians-ad-litem copies of the following documents subject to the redactions, where noted, for entries that consist of privileged attorney-client communications or personal, unnecessary information pertaining to R.'s family:
Although Attorney Elizabeth Borrino, guardian-ad-litem for C.F., informed the court she previously obtained a copy of department records, to which she would be entitled pursuant to § 17a-28(f)(5), it also contained redactions. One redaction described to the court deleted almost an entire page except this conclusion: "father apparently has a drinking problem." In addition, the attorney for the children is entitled to this information pursuant to subdivision (f)(3) of the same statute.
(1) Connecticut DCF SDM Safety Assessment dated 4/25/08 (3 pages)
(2) Connecticut DCF SDM Family Risk Assessment of Abuse/Neglect (2 pages)
(3) Family Treatment Plan 8/8/08 (5 pages)
(4) Connecticut DCF SDM Safety Assessment 8/8/08 (3 pages)
(5) Connecticut DCF SDM Family Strength and Needs Assessment/Reassessment 8/8/08 (6 pages)
(6) Running Narrative Document From 4/18/08 to 12/10/08 (23 pages) with following redactions:
(a) 6/10/08 — 9:36 AM entry, portion under "Legal"
(b) 6/20/08 — 11:48 AM entry redact in Section 7, phrase beginning with "protocol indicates," line beginning with "Legal/Criminal," and two lines beginning with "Consults,"
(c) 7/2/08 — 1:47 PM entry, all of first paragraph, second sentence in second paragraph, third paragraph consisting of one sentence.
(d) 7/25/08 — 9:35 AM entry, delete entire entry (2 paragraphs)
(e) 8/15/08 — 12:30 PM entry, delete entire entry (2 paragraphs)
However, the department has agreed to release the report of Dr. Hobson referenced in this entry, which it never filed with the court.
However, the department has agreed to release the report of Dr. Hobson referenced in this entry, which it never filed with the court.
(f) 8/21/08 — 12:30 PM entry, delete entire two paragraphs
(g) 9/17/08 — 2:31 PM entry, redact entire paragraph
(h) 10/8/08 — 1:47 PM entry, delete entire paragraph
(7) DCF CPS Report Narrative (1 page)
(8) CPS Report Protocol (2 pages)
(9) Investigation Protocol (19 pages) with following redactions:
(a) Data Collection Reporting Form, page 1, redact phone number of R.'s mother, L.
(b) Page 8, redact phone number of R.'s parents in 3rd paragraph
(c) Page 13, redact last paragraph
(d) Page 14, redact first paragraph on top of page
(e) Page 16, redact section captioned "Results of Legal Consult"
(10) 3 child's drawings
(11) Medical questionnaire for M.F., (Blank) (2 pages)
(12) Medical questionnaire for M.F., (Completed) (2 pages)
CT Page 2388
(13) Medical questionnaire for C.F., (Blank) (2 pages)
(14) Medical questionnaire for C.F. (Completed) (2 pages)
(15) Early Learning Nursery School Report 3/08 (2 pages)
(16) DCF Request to Renbrook School regarding M.F. (Blank) (1 page)
(17) DCF Request to Renbrook School regarding C.F. (Blank) (1 page)
(18) DCF Request to Renbrook School regarding M.F. (Complete) (1 page)
(19) DCF Request to Renbrook School regarding C.F. (Complete) (1 page)
(20) Facsimile from Camilla St. Andrew to Sgt. Eisele 4/23/08 (1 page)
(21) 3/27/08 story by R. and his therapist (1 page)
(22) Notification to Police of Suspected Abuse 4/23/08 (2 pages), redact R.'s parents' phone numbers
(23) 5/27/08 letter to J.F. (1 page)
(24) Correspondence between St. Andrew and Muhammed 4/27/08 (2 pages)
(25) Notice of Privacy Practices to Ma.F. 4/18/08 (1 page)
(26) 4 releases signed by Ma.F. 4/18/08 (4 pages)
(27) Releases signed by R.s' mother (3 pages)
(28) Request for Criminal Records Search, 4/17/08 and 4/28/08 (2 pages)
(29) Responses to Criminal Records Search Request (8 pages)
The department also is ordered to release Dr. Hobson's report to counsel for the respondents, counsel for the children and the children's guardians-ad-litem.
B. The Records of Renbrook School
School records are subject to the confidential provisions of General Statutes § 10-15b, which provides in relevant part:
(a) Either parent or legal guardian of a minor student shall, upon written request to a local or regional board of education and within a reasonable time, be entitled to knowledge of and access to all educational, medical, or similar records maintained in such student's cumulative record . . .
(c) If any private or public school is served with a subpoena issued by competent authority directing the production of school or student records in connection with any proceeding in any court, the school . . . may deliver such records . . . to the clerk of such court . . . No such record shall be open to inspection by any person except upon order of a judge of the court concerned, and any such records . . . shall at all times be subject to the order of such judges.
The respondents are clearly entitled to access to their own children's school records and such records have been provided to them. Some of those records reference R., since the school conducted an inquiry after R. claimed an incident of abuse by C.F. took place at school, which included discussions with Ma.F.
In at least two civil cases in which one party has sought access to the school records of another party or witness, the trial court considered whether the records were shielded from disclosure pursuant to the federal Family Educational Rights Privacy Act (FERPA), 20 U.S.C. § 1232g. See Orefice v. Secondino, Superior Court, judicial district of New Haven, Docket No. CV 04 0486287 (April 7, 2006, Thompson, J.) and Romero v. Casinelli, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 93 0135012 (June 27, 2003, Karazin, J.). FERPA provides in relevant part: "No [federal] funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the releasing, or providing access to, any personally identifiable information in education records . . . unless . . . (A) there is written consent from the student's parents specifying records to be released, the reasons for such release, and to whom . . . or . . . such information is furnished in compliance with judicial order, or pursuant to any lawfully issued subpoena, upon condition that parents and the students are notified of all such orders or subpoenas in advance of the compliance therewith by the educational institution or agency." 20 U.S.C. § 1232g.
In State v. Kulmac, 230 Conn. 43, 59, 644 A.2d 887 (1994), the Supreme Court, citing State v. James, 211 Conn. 555, 560 A.2d 426 (1989), noted that school records, although not afforded the same statutory shield of confidentiality as other confidential and privileged records, should not be subject to disclosure without a preliminary showing of cause and an in camera review by the court presiding over the matter in which such records are subpoenaed pursuant to § 10-15b(c).
A federal district court recently explained that "FERPA does not provide a privilege that prevents the disclosure of student records . . . Rather, by threatening federal sanctions, it seeks to deter schools from adopting policies of releasing student records . . . Under the provisions of the statute, a school would not be subject to sanctions for disclosure of education records covered by FERPA when such disclosure was made pursuant to a judicial order . . . The inquiry, however, does not end there because the privacy violations that result from any disclosure of FERPA-protected education records are no less objectionable simply because release of the records is obtained pursuant to judicial approval, unless, before approval is given, the party seeking disclosure is required to demonstrate a genuine need for the information that outweighs the privacy interests of the students . . ." Board of Trustees, Cut Bank Public School v. Cut Bank Pioneer Press, 160 P.3d 482, 487 (Mont. 2007).
The respondents have shown sufficient foundation to indicate a reasonable likelihood that the school records contain material relevant to their case and potentially useful for impeachment purposes. On October 20, 2008 and again on January 23, 2009, the respondents made an offer of proof indicating that R. had been the subject of complaints by other students about certain behaviors. Subsequently, respondents claim, these behaviors were causally attributed to alleged earlier victimization of R., first by C.F. and later by R.F. and C.F. Thus, respondents claim the timing of some of R.'s behaviors toward other students is important to ascertain. In addition, the school failed to confirm at least one incident alleged by R. against C.F. Respondents claim the events at the school may raise questions about the veracity of the accusations leading to the instant allegations of neglect. (See also respondents' Motion for Discovery, pp. 12-14 and Partial Objection to Renbrook School's Motion for Protective Order Re Certain School Records, pp. 2-4).
Having concluded that the respondents demonstrate a genuine need for the information contained in the school records, the court has conducted two in camera reviews of the school records, the first with the consent of R.'s parents in early December, and the second subsequent to the hearing on January 22.
The court finds the disclosure of material and relevant portions of the school records, subject to certain redactions set forth below, is necessary to the respondents' exercise of their constitutional right to confrontation and this need outweighs the privacy interests of R. By agreement, the court is granting, in part, the Renbrook School's motion for a protective order by concealing personally identifying information of students, parents and relatives, other than R., C.F. and M.F. and their parents. See Ragusa v. Malverne Union Free School District, United States District Court, Docket No. CV06-4905 (E.D.N.Y. February 19, 2008).
Nevertheless, the respondents reserve their right, if deemed necessary, to seek disclosure of the other students' and parents' identities.
The court has allowed the attorney for the school to review the records previously filed under seal, which the court orders unsealed for view by counsel for the department, the respondents, the children and the children's guardians-ad-litem subject to redactions made by the court as to the identifying information noted above and as to items noted below which the court deems either privileged, irrelevant or unnecessary:
(1) The personal email addresses, addresses and telephone numbers of R.'s family;
(2) Several references to discussions between school officials and two parents whose child was never the subject of any of the acts alleged;
(3) Reports from R.'s therapist relaying privileged communications between her and R., dated 2/28/08, as well as references to such communications in a letter dated 12/17/07 from an attorney representing R.'s parents to the school's attorney;
(4) References to R.'s progress at a subsequent school;
(5) References to R.'s sister's status at school;
(6) 6/2/2008 letter from R.'s parents requesting records; and
(7) 12/6/2007 letter to the school from a psychologist regarding his assessment of one of the unidentified students.
Final Disclosure Order
The contents of all documents ordered disclosed to counsel may further be copied and/or orally disclosed to experts retained by the parties, but no further disclosures to any other persons not legally in possession of such documents may be made without the approval of the court. A copy of this final disclosure order shall be annexed to any copies provided to experts and the copies shall be stamped "Confidential and Not For Further Disclosure." In the case where the disclosure is made orally, the individual disclosing the information shall inform the recipient that such information is governed by the terms of this order.
The records shall be used only for purposes directly relevant to the proceedings concerning these pending neglect petitions. Any of the records resubmitted to the court in connection with pleadings, correspondence or otherwise shall contain the redactions ordered by the court and referenced in this decision.
At the conclusion of these proceedings, whether by settlement, trial court decision or appeal, the documents, except those directly held by the department or the school, shall be destroyed or returned to the department or the school. If destroyed, counsel shall so certify to counsel for the school or the department by letter. It shall be the responsibility of counsel to ensure that any other persons to whom they provide copies of these documents are shown are advised to return the documents to counsel after use.
In addition, the court reminds the department of its continuing obligation to disclose any further information created in its file pertaining to the F. family in accordance with Practice Book Rule 34a-20(a) and this decision, subject to appropriate redactions for privileged attorney-client communications or other information.
Re: In re F.
Dear Attorney Hassett:
I have completed my in camera review of the DCF and Renbrook School records subpoenaed by the respondent parents, the "F.'s", which were ordered filed in this court under seal.
Enclosed please find, only for your review with R. parents, copies of all DCF and Renbrook records which I deem relevant and potentially disclosable to the other parties. These materials, some of which you may claim are confidential, reference information about R. that was provided to Renbrook by his parents, teachers and other Renbrook staff, other students or their parents, (who are identified numerically — Student #1, etc.) and several treatment providers, including R.'s therapist. Also included is information about R. in the DCF file that was provided by R's parents, Renbrook staff, St. Francis, the Hartford police department and several treatment providers, including R.'s therapist. Information derived from the "F.'s", or derived by DCF or Renbrook about the "F.'s" or their two children has been redacted and is not being forwarded to you. I also have redacted portions of the DCF records which I have concluded are privileged as attorney-client communications. Those are marked "privileged."
I would appreciate your reviewing these items with your clients and returning the copies to me, marking, where appropriate, any items you feel should not be disclosed and stating your reasons. I must specifically order that you NOT make copies of these materials. Absent a court order, they are for use only in these neglect proceedings and not for to be further disclosed to anyone.
Please complete your review at least one week before the next hearing date, which is January 22, 2009. If your clients have no objection to any of these enclosed materials being disclosed to the other parties, please provide me with an original written release stating so, signed by them, when you return the copies to me. I will hear further arguments on any portions to which you decide to object, on January 22 or January 23.
Thank you for your anticipated cooperation.