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In re Jacklyn H.

Appellate Court of Connecticut

February 2, 2016

IN RE JACKLYN H. ET AL. [*]

         Argued September 11, 2015

Page 785

          Petitions by the Commissioner of Children and Families to adjudicate the respondents' minor children neglected, brought to the Superior Court in the judicial district of Litchfield, Juvenile Matters at Torrington, where the Commissioner of Children and Families withdrew one of the petitions; thereafter, the respondents were presented to the court, Ginocchio, J., on pleas of nolo contendere; judgments adjudicating the named minor child et al. neglected and committing the named minor child et al. to the custody of the Commissioner of Children and Families; subsequently, the court denied the respondent father's motion for an order for the return or destruction of a certain psychological evaluation report, and the respondent father appealed to this court; thereafter, this court granted the motion filed by the Judicial Branch to intervene as an appellee.

          Reversed; further proceedings.

          SYLLABUS

         The respondent father, two of whose minor children had been adjudicated neglected and committed to the custody of the Commissioner of Children and Families, appealed to this court from the judgment of the trial court denying his motion for an order for the return or destruction of copies of a certain court-ordered report of a psychological evaluation of the father and members of his family, which had been released to a juvenile probation officer without the father's consent. The trial court had ordered the evaluation on an official Judicial Branch form that stated that the report was confidential and could not be disclosed to persons other than the parties without a court order. During the pendency of the neglect proceedings and after the report had been filed with the court, one of the respondent's minor children was charged with a delinquency offense. The probation officer assigned to the delinquency case thereafter requested a copy of the psychological evaluation report, which a court clerk provided to the probation officer after determining that the release of the report was authorized by the statute (§ 46b-124 [b] [E]) pertaining to the confidentiality of records in juvenile matters. The father claimed that disclosure of the report to the probation officer without prior notice and a hearing violated his and his children's privacy rights. The trial court concluded that § 46b-124 (b) (1) (E) permitted disclosure of the report to the probation officer without the need for a court order. On appeal, the father claimed, inter alia, that § 46b-124 (b) (1) (E), when read in conjunction with certain other statutes, did not provide for unlimited access to the report by the juvenile probation officer without prior notice and a hearing. Held that the trial court erred by not providing the respondent with a hearing on his claim that his and his minor children's privacy interests had been violated by disclosure of the psychological evaluation report to the juvenile probation officer, and by allowing the probation officer to retain the copies of the report that had been provided by the court clerk: although the record was insufficient for this court to determine whether disclosure of the report conflicted with the requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (42 U.S.C. § 1320d et seq.) or any applicable state privilege statutes, the trial court, by virtue of its order prohibiting disclosure of the report to third parties and the narrow exception contained in the psychologist-patient privilege statute (§ 52-146c [c]), which permits certain disclosures of court-ordered psychological evaluation reports, should have conducted a hearing to ascertain the scope of the explanation that had been provided to the father to obtain his informed consent to the evaluation, and whether any releases he had provided to the evaluator for contacting individuals with whom she conferred as part of the evaluation complied with HIPAA and fully informed the father of the potential for unrestricted disclosure of the report, or any part of it, to the juvenile probation officer without further court order; moreover, the exception to the confidentiality requirement contained in § 46b-124 (b) (1) (E), which permits the disclosure of confidential records used by the court in nondelinquency juvenile cases, did not permit disclosure of the report to the probation officer, and other statutes, apart from § 52-146c (c) (1), protect privileged communications that may become part of the court record; furthermore, contrary to the claim by the Judicial Branch, the official Judicial Branch form signed by the trial court here that ordered the evaluation did not exempt from the necessity for a court order the disclosures permitted by § 46b-124 (b) (1) (E), the plain and unambiguous language of the court's order essentially having sealed the evaluation report from dissemination to anyone other than the court and the parties.

         Joshua Michtom, assistant public defender, for the appellant (respondent father).

         Jane R. Rosenberg, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general for the appellee (intervenor Judicial Branch).

         Sheldon, Keller and Sullivan, Js.

          OPINION

Page 786

         [162 Conn.App. 813] KELLER, J.

         This appeal requires us to wander into the thicket of statutory provisions affecting the disclosure of privileged medical communications and records, particularly those pertaining to an individual's mental health. On May 15, 2014, the Commissioner of Children and Families (petitioner) filed neglect petitions on behalf of the minor children of the respondent father, Thomas H. (respondent). Two of his children, Jacklyn H. and Jillian H., were adjudicated neglected after both of the respondent parents pleaded nolo contendere to one of the grounds alleged for neglect. Thereafter, the children were committed to the custody of the petitioner on February 25, 2015. The respondent appeals from a postjudgment order of the trial court, Ginocchio, J., denying his revised motion for order seeking the return or destruction of copies of a court-ordered psychological evaluation report that the Judicial Branch released to a juvenile probation officer in response to her e-mail request, after the clerk of the court determined the release was authorized by General Statutes § 46b-124 (b) (1) (E).[1] On appeal, the respondent makes the following claims: (1) the trial court's [162 Conn.App. 814] application of § 46b-124 (b) (1) (E) was erroneous because it violated the constitutional privacy rights of the respondent and his children; and (2) the trial court's application of § 46b-124 (b) (1) (E) was erroneous because the statute, when read in conjunction with other statutes, does not provide for unlimited

Page 787

access to a court-ordered psychological evaluation report by an employee of the juvenile probation department without prior notice and a hearing. We agree with the respondent's second claim. This conclusion renders it unnecessary to reach the first claim. Accordingly, we reverse the judgment of the trial court and remand the case for a hearing consistent with this opinion on the respondent's revised motion for order.

         The following procedural history is relevant to the present appeal. On May 15, 2014, pursuant to General Statutes § 46b-129, the petitioner filed neglect petitions on behalf of three of the respondent's minor children: Jacklyn, Jillian, and Joshua.[2] In the petitions on behalf of Jacklyn and Jillian, then aged eight and nine, respectively, the petitioner claimed that the minor children were being denied proper care and attention physically, educationally, emotionally, or morally, and that they were being permitted to live under conditions, circumstances, or associations that were injurious to their well-being. Further, the petitioner alleged that the respondent mother and father both had mental health issues that they were not addressing, which contributed to the alleged neglect of their minor children.[3] On July [162 Conn.App. 815] 16, 2014, the court, Gallagher, J., granted the petitioner's motion to consolidate the May 15, 2014 child neglect proceedings with all " child custody matters" arising from the respondent parents' pending dissolution action.[4] On that same date, the court issued a bench order of temporary custody for both Jacklyn and Jillian. On July 22, 2014, the court sustained the order of temporary custody.

         On July 16, 2014, the court, Gallagher, J., pursuant to its authority under General Statutes § § 46b-129 (i) and 46b-129a, as well as Practice Book § 34a-21, granted the oral motions of the petitioner and the children's guardian ad litem for a psychological evaluation. On October 7, 2014, the court, Ginocchio, J., supplemented Judge Gallagher's order and issued a more detailed written order for a psychological evaluation of the respondent mother, the respondent, Jacklyn, Jillian, and the respondents' two sons, Joshua and

Page 788

Justin.[5] The [162 Conn.App. 816] court indicated in its written order that the evaluation report was to include information pertaining to: (1) the current psychological functioning of each child and any emotional, cognitive, or social problems that should be addressed through treatment; (2) the current psychological functioning of each parent, including whether they required treatment for substance abuse, domestic violence, or mental illness; (3) the nature of the relationship between the children and each individual parent; (4) the capacity of each parent to understand and meet each child's needs; (5) the psychologist's recommendations as to permanent placement options and assistance with co-parenting; and (6) the nature of the relationship between each parent and the effect that it had on the children.

         The court also ordered that, " [t]o request education, medical, mental health or other relevant information the parent or guardian must complete the Authorization for Release of Information form (JD-CL-46).[6] The completed authorization must be attached to this referral." [162 Conn.App. 817] (Footnote added.) At the bottom of the second page of the psychological evaluation order, above where the judge placed his signature, the order stated, " Copies of the evaluation report shall be distributed upon receipt to all parties. Any communication to the evaluator(s) before the completion and filing of the evaluation report must be in accordance with Section 34a-21 of the Connecticut Practice Book. Evaluation reports and portions of the reports are confidential and may not be further disclosed without a Court Order." Above this statement on the form that was completed in the present case, proposed contacts from an educational setting, mental health providers, and medical providers were listed with their contact information. Specifically, the names of a school social worker and a school principal, three therapists, a pediatrician, and an obstetrician were listed there.

         Pursuant to the court's order, a licensed clinical psychologist, Suzanne Ciaramella (evaluator), conducted a psychological evaluation over a four day period and compiled

Page 789

the results in a seventy-nine page report. The evaluation report was filed with the trial court on December 3, 2014. Prior to the commencement of her evaluation, the evaluator noted in her report that " Mother and father gave their informed consent for this court-ordered evaluation after the evaluator and parents reviewed reasons for the ordered evaluation, their understanding of the reasons for the evaluation, the role of the evaluator, the limits of confidentiality and ultimately, their choice to either consent or refuse participation. Parents also gave their informed consent for the children to participate and although Joshua and Justin were requested to participate, they did not, save for Joshua participating in the interactional assessment with mother. Parents were also made aware that results of this evaluation will be used to guide the Superior Court for Juvenile Matters in Torrington, CT, in assisting [162 Conn.App. 818] the entire family with any identified needs and determining what would be in the best interests of the children."

         The evaluator interviewed the respondents and each of the girls extensively, and conducted psychological testing on all of them. She also contacted numerous individuals who had provided educational, mental health, and other services to the family, including a school principal, a person identified as Jillian's therapist, the respondent's therapist, two parenting educators, one of whom the evaluator referred to as a clinician, and a member of a caregiver support team working with the two girls and their grandparents, who had not been ordered to participate in the evaluation. The evaluator's communications with these contact persons were discussed at great length in the evaluation report. The evaluator indicated that she was unable to contact the pediatrician or the respondent mother's gynecologist, as well as one of the persons listed as a collateral contact on the court's order. Four of the persons whom the evaluator contacted and from whom she obtained detailed information set forth in the evaluation report were not on the list of contacts contained in the court order for the evaluation. At the end of the evaluation report, the evaluator answered the court's specific referral questions and opined on whether proposed beneficial services should be utilized, including further mental health treatment.

Page 790

         During the pendency of the child neglect proceedings and after the evaluation report had been filed with the court, Jacklyn was charged with a delinquency offense. On January 15, 2015, after Jacklyn's delinquency case was referred to the office of juvenile probation for nonjudicial handling, [7] the juvenile probation officer who [162 Conn.App. 819] was assigned to the case requested the evaluation report by sending an e-mail to the clerk of the court.[8] Relying on § 46b-124 (b) (1) (E), the clerk provided copies of the evaluation report to the juvenile probation officer [162 Conn.App. 820] on the same day. The clerk thereafter sent an e-mail to all counsel of record in the neglect proceedings, notifying them of the completed disclosure. Upon learning of the clerk's disclosure of the evaluation report, counsel for the respondent filed a motion for order with the court on January 22, 2015, claiming that both the respondent's interests and his minor children's interests had been harmed by the disclosure.

         In addition to requesting a hearing with regard to the respondent's motion, counsel for the respondent " move[d] [the] court to order the office of probation to return or destroy all copies of [the] . . . evaluation [report] that [were] provided to them from the court file . . . ." On January 29, 2015, counsel for the respondent filed a revised motion for order and a memorandum of law in support of the motion. In this revised motion, the respondent sought " a hearing on [his] claims, injunctive relief in the form of destruction and/or return of the records at issue, and a declaratory judgment that child protection records generated in this case shall be released to nonparties only . . . upon order of the court upon a demonstration of necessity."

         On February 4, 2015, the court, Ginocchio, J., held a hearing on the respondent's motion. At the hearing, counsel for the respondent, counsel for the respondent mother, and counsel for the minor children argued, inter alia, that the disclosure of the evaluation report to the juvenile probation officer without prior notice and a hearing had violated the respondents' and the children's constitutional and statutory rights to privacy. The court denied the respondent's motion from the bench and concluded that § 46b-124 (b) (1) (E) permitted the clerk's disclosure of the evaluation report to the juvenile probation officer without the need for a

Page 791

court order.[9]

          [162 Conn.App. 821] In issuing its ruling from the bench, the court stated the following as its reasoning in denying the respondent's motion with respect to § 46b-124 (b) (1) (E): " [T]here's nothing in the statute that says that you can--once the evaluation is done, it doesn't give the court the right to start sorting out different sections and saying that this should go or should not go to the appropriate agency. . . . If they're ordered by the court and they applied to the children, those exams, they're subject to the statutory scheme as stated in § 46b-124, so I think it gets turned over to the various agencies. There's nothing in that statute that says--what would be the reason for not turning it over to the appropriate agency according to the statutory scheme? There would be none. . . . [I]mplicit in [the office of juvenile probation's] request is that they required it for some reason. . . . They don't have to show good cause or anything more than that . . . ." This appeal followed.[10] Additional facts and procedural history will be set forth as necessary.

          [162 Conn.App. 822] We begin our analysis by setting forth the appropriate standard of review. The issue before us is whether the respondent, on behalf of himself and his children, waived the statutorily protected confidentiality of their mental health records under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. § 1320d et seq., or Connecticut privilege statutes such that the trial court had no gatekeeping function prior to disclosing the evaluation report to the juvenile probation officer as a court record pursuant to § 46b-124 (b) (1) (E).[11] Our review of the court's interpretation of ยง 46b-124, its application to the facts of this case, and its interrelation with federal and state statutes ...


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