Opinion
12036/12
03-25-2021
MICHAEL S.W., Plaintiff, v. SHELLI A.W., Defendant.
Kaman, Berlove, Marafioti, Jacobstein & Goldman, LLP, Margaret McMullen Reston, Esq., Attorney for Plaintiff, Rochester, New York 14623 Paul B. Watkins, Esq., Law Offices of Paul B. Watkins, Attorney for Defendant, Fairport, NY 14450 Fauna M. Pappalardo, Esq., Attorney for Intervenor Child, Fairport, New York 14450
Kaman, Berlove, Marafioti, Jacobstein & Goldman, LLP, Margaret McMullen Reston, Esq., Attorney for Plaintiff, Rochester, New York 14623
Paul B. Watkins, Esq., Law Offices of Paul B. Watkins, Attorney for Defendant, Fairport, NY 14450
Fauna M. Pappalardo, Esq., Attorney for Intervenor Child, Fairport, New York 14450
Richard A. Dollinger, J.
Sometimes, a trial judge becomes the 21st century avatar of the famed adventurer and journalist Henry Stanley, as the judge ventures into heretofore dark recesses of the case books, seeking the legal research equivalent of elusive "Dr. Livingstone," or, in this case, whether a father has a right to access mental health records involving his son after the son is no longer covered by a custody order.
Stanley, hired by a New York newspaper, sought to find the explorer Dr. David Livingstone in uncharted Africa, near the source of Nile River, in 1871. He found him, after a six-month search across hundreds of miles of African wilderness. His famous introduction — "Dr. Livingstone, I presume" — lingers as part of the yellow journalism myth of African exploration in the 19th century. Stanley Meets Livingstone , SMITHSONIAN MAGAZINE, October, 2003
The venture becomes even a bit more opaque when the Court seeks records of therapy sessions between the father, the mother and son — and a therapist — and the therapist's notes and emails that date back almost a decade.
In this matter, a father seeks to discontinue his support obligations for his child under a theory of alienation by his former spouse or constructive emancipation by the child through his own conduct. In detailing the allegations to support his complaints, the father alleges that the mother engaged in a longstanding series of endeavors to alienate her children from him. At the time of the divorce in 2011, there was no provision for therapeutic visitation. In 2013, the couple, after court proceedings, stipulated to a settlement that allowed the father therapeutic visitation with his son. There was no explicit provision for extended therapy with any other family members but the couple agreed that if the therapist required individual therapy sessions with either parent, the selected parent would pay for that session. Based on the record before this Court, it is impossible to determine what therapy occurred and whether either of the parents participated in any sessions.
According to father, the therapy may have involved a variety of types of sessions with the same therapist: the son, then 12-years old, visited the therapist by himself. The father also attended sessions with the son. The father alleges that the mother attended sessions with the son. It is unclear whether the father, mother and son attended sessions together. The father and the mother may have attended separate sessions. It is virtually undisputed that the therapy apparently produced some results involving the relationship between the father and his son. The undisputed evidence is that the son visited with and had a relationship with his father through at least 2017 and perhaps into 2018, almost half a decade after the therapy occurred.
Fast forward to 2020: the father, facing college support costs and other costs for his maturing children, filed an application to discontinue his support obligations. As part of the allegations regarding the alienating conduct of the mother, the husband brought an application to obtain a judicial subpoena for the records of the therapist who counseled his son and the family in 2013-2014. In the subpoena the husband sought the "counseling treatment" records for himself, his son and his ex-wife. The husband sought the "counseling records, evaluations, tests, and any case notes, correspondence and email" related to the treatments. In the affirmation accompanying the application, the husband's counsel included an email exchange between his ex-wife and the therapist, dating from February and April 2014. In the first email, the mother complained that the therapist had told her son that the mother "was sabotaging his relationship with his father." In a curious comment, the mother in a responding email said: "regardless even if there was merit from such an accusation, that is not something a therapist says to his 12-year-old client." The mother suggested that the therapy be terminated and commented that the interactions between her and the father "seems to have only gotten worse." The father was copied on this email. The therapist responded, refusing to terminate the sessions, commenting that "the son gets a great deal out of our sessions." The therapist said he would no longer meet with the mother and be "involved in the hate mail you send back and forth with your ex-husband." The therapist concluded:
This comment in the therapist's note to the parents suggests that the therapist had, at that time, copies of other emails exchanged between the mother and father.
Your behavior while I was away on vacation was manipulative, diminishing, rude, abusive, nasty, self-absorbed, entitled and altogether on becoming. I have told the both of you and any number of occasions your continued fighting traps [your son] in the middle and is bad for him. While your ex-husband's difficulties are and have been very clear he has made a concerted effort to change his behavior, take responsibility for his behavior, and is responsive when I make recommendations to him. While it has been slow going with him he has and continues to make slow but steady progress. You on the other hand take no responsibility for your behavior or the impact that you have on either the situation or on [your son].
While not yet admitted as a document before this Court, neither the mother nor the son has objected to this email as anything other than an email from the therapist to the mother and copied to the father.
The mother responded and requested of summary of the therapist's "current therapeutic goals" and the mother removed her consent to any further visits with the therapist. The therapist's comments—read at face value and ascribing the weight that such statements merit at this stage of the litigation—suggest that the mother's behavior had caused or contributed to a disruption in the child's relationship with his father. In order to support his claims and citing the therapist's emails, the father sought the judicial subpoena to the therapist to obtain the therapy records.
It is unknown whether the mother had the power to "remove her consent." The stipulation, which created the therapeutic visitation, makes no reference to the mother's right to terminate the therapy.
The mother, in her response, opposed the production, arguing that the nearly decade-old records were irrelevant by the passage of time and were also protected by the son's therapy privilege. In addition, the mother argued that the child, now age 20, should be notified that his father was seeking the therapy records and be given a chance to object to their production. The Court required the father's attorney to send the subpoena to the son and advise him of his opportunity to be heard. The son was granted intervenor status, retained counsel and submitted an affidavit in opposition, arguing that he regarded his father conduct as the sole reason for any estrangement. He said his father was abusive to him and his sister and their mother and said his father never accepted responsibility for his abusive behaviors. The mother sides with her son, arguing that the son's affidavit establishes that any estrangement is solely the product of the father's conduct and no evidence of interference on her part.
The father's counsel also suggests that the child, at age 20, lacks standing to object to the production of these records and that his attorney may be conflicted because the young man obtained information about the status of this matter from the mother's counsel. Neither objection defeats the son's participation in this proceeding, as it applies to his therapy records. The Court also declines to draw any adverse inference from the son's participation: his attempt to shield his therapy records from his father is not evidence of an "aggressive" response to the father's inquriy or his father's posture in this litigation.
The general rule in New York is that "parents, being the natural guardians, and so the guardians of the person, can make the waiver" of the child's medical privilege. Corey v Bolton , 31 Misc 138, 143 (App Term 1900) ; see Scharlack v Richmond Mem. Hosp. , 102 AD2d 886, 888 (2d Dept 1984) (mother, as "parent and natural guardian" of minor, ordered to execute release of medical records of child). The federal Health Insurance Portability and Accountability Act (HIPAA) regulations generally assume that the parents of a child under 18 will be the caretakers of their medical records. 45 CFR 164.502 (g). The New York courts have added a gloss of precaution to such inquiries because in a custody case, if the parents themselves have an interest in the litigation, the parent's right to waive the privilege on behalf of their children may be lost. In addition, once a person reaches age 18, they control access to their medical records, regardless what period the records pertain to under HIPAA. See Atwell, Rethinking the Childhood-Adult Divide: Meeting the Mental Health Needs of Emerging Adults , 25 Alb LJ Sci. & Tech 1, 26 (2015) ("The Privacy Rule requires ... consent on the part of a patient before his or her PHI [i.e. medical records] can be released to a family member. This applies to anyone over the age of eighteen ..."]).
To respect these principles, the New York courts have generally denied parents access to their children's medical records, if the parent has an interest potentially contrary to that of the child. In Matter of Kayla S., 46 Misc 3d 747 (Fam Ct 2014) a child's medical records, including mental health records, were released to the court and parties in a neglect proceeding against the father. The Family Court ordered that the child's records not be disclosed in the concomitant criminal proceeding. With respect to the fact that the respondent was the child's father, the Court said
This was appropriate in the neglect proceeding, because Article 10 of the Family Court Act contains an express override of the physician-patient privilege solely for purposes of such proceedings (see Family Ct Act §§ 1038 [a] ; 1046 [a] [vii]).
"the privacy interest in these records belongs to the child, not to the respondent. The child did not consent to production or use of these records, and the Family Court Act's authority to use them in the article 10 case does not give the respondent, his attorney, or anyone else the right to use them in other proceedings. Indeed, even if the attorneys in this case already possess the records and knowledge of the information contained therein, there has been no consent or legal permission to make use of that information in any other context or proceeding. The Family Court Act's provisions exist to protect children and provide respondents with a full and fair article 10 proceeding, not to serve as a windfall to litigants who might stand to benefit in other arenas from the possession of confidential and intimate materials"
Kayla S., 46 Misc 3d at 752-53. See also Matter of Dean T. , 117 AD3d 492 (1st Dept 2014) (also implicitly rejects the notion that a parent in a neglect proceeding automatically has access to a child's mental health records).
More to the point perhaps is Liberatore v Liberatore , 37 Misc 3d 1034, 1035 (Sup Ct Monroe Cty 2012) (Fisher, J.), a divorce action involving custody in which the father sought to introduce records obtained from one of the children's clinical psychologists. The records were obtained by the father's attorney by the father simply executing a HIPAA release on behalf of the child. The Court rejected this as a proper procedure, holding that:
"[i]n the context of a child custody proceeding within a matrimonial action, communications between an unemancipated minor and her therapist may not be disclosed to the parties or counsel in the absence of judicial process sufficient to afford the court opportunity to exercise its obligation to determine ‘the bests interests of the child’ in its role ‘as parens patriae in determining the custody of a minor child.’ "
Id. The Court reasoned that "[i]n the context of a custody dispute, it is patent that [a] custodial parent has a conflict of interest in acting on behalf of the child in asserting or waiving the privilege of nondisclosure." Id. at 1038 [internal quotation marks omitted]. The Court ultimately held that disclosure was not in the child's best interest and ordered the records returned and/or destroyed.
The Liberatore court cited two out-of-state cases that appear to be among the leading cases on the issue In re Berg , 886 A2d 980, 987 (N.H.2005) and Nagle v Hooks, 460 A2d 49, 51 (Md. 1983). In Berg , the father in a custody dispute argued that parents alone have the authority to raise—and waive—a child's medical privilege. Rejecting that argument, the Court initially "agree[d] that a natural parent or parent who has legal custody of a child would qualify as the child's guardian, and thus could claim or waive the privilege on behalf of the child." In re Berg , 886 A2d at 985. However:
"[w]here, as here, a parent is waiving or claiming the privilege on behalf of his or her child in the context of a child custody dispute, there is a distinct possibility that one, or even both, of the parents will exercise the power to waive or assert the child's privilege ‘for reasons unconnected to the polestar rule of’ the best interests of the child. Where the privilege is claimed on behalf of the parent rather than that of the child, or where the welfare and interest of the minor will not be protected, a parent should not be permitted to either claim the privilege or, for that matter, to waive it."
Id.
The Berg court asserted that "[t]he weight of authority in other jurisdictions supports protection for the therapy records of children who are at the center of a custody dispute or whose interests may be in conflict with those of their natural guardians." Id. at 986-87. See Bond v Bond , 887 SW2d 558, 560 (Ky. Ct. App. 1994) ; see also Attorney ad Litem for D.K. v Parents of D.K. , 780 So 2d 301, 306-08 (Fla. Dist Ct App 2001) ("Other courts have agreed that where the parents are involved in litigation themselves in which the child's mental state may be relevant, such as in a custody battle, the parents are not proper persons to assert or waive the privilege on behalf of the child"); Evans v Hess, 2013-CA-002072-ME, 2016 WL 1389799, at *7-8 (Ky Ct App Apr. 8, 2016) [op not to be published] ("There is also a near consensus among the other states which have examined this issue that parents may not waive the privilege of their children in custody proceedings"); PO v JS , 377 P3d 50, 57-59 (Haw Ct App 2016) (the court held that neither parent may assert or waive the psychologist-patient privilege and remanded the matter to the family court with instructions to determine whether asserting or waiving the privilege is in the best interests of the child).
In contrast to this string of authority that weighs against release of any records regarding the therapy, the father cites Matter ofElliot P.N.G. (Jonathan H.G.), 181 AD3d 961 (2d Dept 2020). There, the appeals court, citing the broad disclosure requirements of CPLR Article 31, held that when a parent asserts that another parent has "influenced children to make false allegations" against him, the records are "material to his defense, as they bear on the truth or falsity of the allegations against him and the nature of the mother's interactions with the children." In deciding that disclosure of the child's therapy records was inappropriate, the Court, citing the provisions of the Mental Hygiene Law § 33.13(c)(1), concluded that the fact that the child had an on-going therapeutic relationship with the provider "requires confidentiality." Id. at 964.
Against this backdrop, the Court must proceed with caution in considering the father's subpoena to obtain the records of the child's confidential interactions with the therapist. The son has asserted his HIPAA or other privacy protection and the father would appear to be unable to invade it. However, one fact causes this Court to pause: the mother, in an email presented to the Court from 2014, requested the therapist provide the therapist's "current therapeutic goals" with her son. Based on that email alone, the Court cannot determine whether the mother, at the time, invaded her son's privacy and therapy records. She clearly intended to obtain some records of her son's interactions with the therapist. If the therapist sent those records to the mother, then the mother, at the time, waived her son's confidentiality in the records. If the mother waived her son's confidentiality in 2014 by seeking those records — and the requested records were sent to the mother — then the divulged records would no longer be considered private or confidential and fairness would dictate their disclosure to the father as well. Given those facts, this Court cannot, at this stage, determine whether the son's confidentiality or privacy concerns remain in tact. The only reasonable step to make that determination is to require production of the records for an in camera inspection by this Court. Therefore, the Court will grant the subpoena for the son's records for an in camera inspection.
However, another vexing question remains: can the Court order production of the therapist's records that relate to the therapy with the father and son in which the father and son were present before the therapist, the mother's therapy with the therapist and the therapist's emails and communications? In those instances involving the father and son, the son — regardless of his age — had no expectation of privacy. His father was present in the room. For that reason, the request for the therapist's records when the father was present can be distinguished from the litany of cases cited above that restrict a parent's access to their child's records. The policy rational which the New York courts have employed to restrict the parent's right of access are also not implicated in this request. There is no danger that access to these records of the father and son therapy would discourage the child from engaging in therapy; the therapy has long since ended. There is also no best interests analysis: the child is 20 and an adult. He can define — and by opposing release of his records — has defined his own best interests. In scrutinizing the son's affidavit, it appears there is little likelihood that disclosure of the therapy records when his father was present would have any impact on his state of mind or disposition in this matter.
Regarding the passage of time between the therapy and the father's request for records, the Court acknowledges that the correlation between the therapy sessions in 2013-14 and the current estrangement dating from sometime in 2018 and the current pending application is attenuated. However, under the broad disclosure provisions of the CPLR, a litigant is entitled to any material that would be "material and necessary" to any disputed issue. CPLR 3101(a) ; Matter of Elliot P.N.G. (Jonathan H.G.), 181 AD3d at 963 (if there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or for cross-examination or in rebuttal, it should be considered material). The father should have the chance to consider evidence that might demonstrate that the mother's conduct, when the son was 12 years old, planted the seeds of an eventual estrangement and permit the father to trace the pattern of such conduct over the intervening years. Finally, with respect to therapy records of the father's interactions with his son, the interests of justice outweigh the need for confidentiality by either the father or the son. See Mental Hygiene Law § 33.13(c)(1) ; Mental Hygiene Law § 33.13(f) (any information disclosed must be limited to "that information necessary and required in light of the reason for disclosure.")
A different calculation applies regarding the records of any treatment by the therapist involving the mother and the child. First, because the matter involves an issue related to custody or visitation, both parents have effectively waived their privilege regarding each other's access to such information. Matter of Frierson v Goldston , 9 AD3d 612, 614-15 (3d Dept 2004) ; Anonymous v Anonymous , 5 AD3d 516, 517 (2d Dept 2004) (it is a generally accepted principle that parties to a contested custody proceeding place their physical and mental conditions in issue). See also Matter of Shepard v. Roll , 278 AD2d 755, 757 (3d Dept 2000) (Family Court did not err by permitting respondent's psychologist to testify in contravention of the psychologist-patient privilege (see, CPLR 4507 ) as that privilege has been held to have been waived by a party actively contesting the issue of custody); Ace v. State of New York , 207 AD2d 813, 814 (2d Dept 1994), affd. 87 NY2d 993 (1996) ; S.C. v H.B. , 9 Misc 3d 1110(A) (Fam Ct 2005) (it is well settled that by actively contesting custody, a litigant puts his or her mental and/or physical well being into issue, and thus waives the physician-patient privilege thereby rendering any written waiver or consent unnecessary).
Under these circumstances, the therapist's records which involve a joint therapy between the mother and son are subject to disclosure. The mother and son consultations are not privileged, as they were not confidential In addition, the mother's therapeutic records from the same therapist are also available for disclosure. While the passage of time may create a relevance issue at trial, this Court declines to prohibit disclosure at this time. The father agues before this Court that the mother's conduct — starting both before and immediately after the divorce in 2001 — was designed to fracture the father-son relationship. This father should be given a chance to explore the nature of the mother's conduct, even back in 2013-2014 when both parents acknowledged, through a consent order requiring therapy, that the father-son relationship was on the rocks.
For all these reasons, the records of the son's visits with the therapist shall be provided to the Court and reviewed in camera. The records of the therapy with the father and son, the mother and son and all three together will be produced pursuant to the Court's subpoena. When appropriate subpoenas, conforming to the Court's direction, are submitted, the Court will sign them and the hearing will proceed.