Andrew P. Helbig v. Danielle A. Helbig (2014)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO QUASH

I. Procedural History and Brief Facts

This matter comes before the court on the Defendant's Motion to Quash (# 192) Plaintiff's subpoena to the Stonington Police Department and the Lawrence and Memorial Hospital.¹  The subpoenas were issued relevant to plaintiff's pending Motion for Modification of Custody (# 181).

The parties were divorced on February 14, 2012.   The judgment incorporated the agreement of the parties.   Pursuant to the judgment, the court ordered joint legal custody of the two minor children, with primary residence with the defendant mother.   The Motion for Modification of Custody was filed on December 13, 2013;  a hearing is scheduled for March 5, 2014.   In the Motion for Modification of Custody, the plaintiff asserts that the defendant's physical and mental health have become compromised, requiring the court to modify its earlier order, and order primary residence of the children with the plaintiff.   To substantiate his claim, the plaintiff seeks disclosure of records related to the defendant's mental health.   The defendant alleges that Connecticut General Statutes (CGS) §§ 52–146c and 52–146e prevent disclosure of the records.

A hearing was held on the Motion to Quash, as well as other pending motions, on January 28, 2014.²  Both parties were present and represented by counsel.   At that time, both parties consented to psychological evaluations, and drug and alcohol tests.   On February 10, 2014, a further hearing was held on the Motion to Quash.   Both parties were present and represented by counsel.³  The custodians of the records appeared at the hearing, and the records were filed under seal.   Plaintiff's Exhibit 1–R is the record of the defendant from the Lawrence and Memorial Hospital.   Plaintiff's Exhibit 2–R is the record of the Stonington Police Department regarding an incident with the defendant on December 20, 2013.

II. Discussion

CGS § 52–146c prohibits the disclosure of privileged communications between psychologist and patient in civil actions, unless the person consents to waive the privilege [52–146c(b) ], or the person introduces his psychological condition as an element of his claim or defense [52–146c(2) ].  Section 52–146o prohibits disclosure of patient communication or information by a physician, surgeon or heath care provider in civil actions unless the person consents to such disclosure [52–146o(a) ], or when disclosure is made pursuant to any statute or regulation of any state agency or the rules of court [52–146o(b) ].

(a) Records of the Stonington Police Department

The records contained in the Stonington Police Department, Plaintiff's Exhibit 2–R, are not subject to the psychiatric privilege of CGS § 52–146c.  “The statute provides a privilege for confidential communications so that a patient may safely disclose to his therapist personal information that is necessary for effective treatment or diagnosis.  State v. White, 169 Conn. 223, 234–35, 363 A.2d 399 (1975).   Communications that bear no relationship to the purpose for which the privilege was enacted do not obtain shelter under the statute and are admissible subject to the normal rules of evidence.”  Bieluch v. Bieluch, 190 Conn. 813, 819, 462 A.2d 1060 (1983).   Because no privilege applies, Plaintiff's Exhibit 2–R is ordered unsealed, and the records are admissible, subject to the normal rules of evidence.

(b) Records of the Lawrence and Memorial Hospital

The court finds that pursuant to § 52–146c(2), the defendant put her mental health in issue when she, through her counsel, consented to a psychological evaluation at the hearing on January 28, 2014.   However, “that fact alone would not render the otherwise privileged testimony admissible.   To result in a waiver of the privilege, 52–146c requires that, in addition to a party having put her own mental health in issue, the court must have made a finding that ‘it is more important to the interests of justice that the communications be disclosed than that the relationship between the person and the psychologist be protected.’  “ Cabrera v. Cabrera, 23 Conn.App. 330, 339, 580 A.2d 1227 (1990).  (Internal citations omitted.)

The issue before the court on the Motion for Modification is whether or not there has been a substantial change in circumstances to the extent that the defendant's physical or mental health requires that the primary residence of the children be modified from the defendant to the plaintiff.   At the heart of the question is the best interest of the children.   The court finds that the best interest of the children is more important to the interests of justice than the protection of the privilege.   Therefore, the court finds that the defendant waived the privilege by putting her mental health in issue.

The court further finds that pursuant to § 52–146o(b), the rules of court provide for the disclosure of the privileged information.   In determining modification of child custody, the court must consider the best interests of the child, and the factors set forth in § 46b–56(c).  Hibbard v. Hibbard, 139 Conn.App. 10, 20, 55 A.3d 301 (2012).   Such factors include the capacity and disposition of the parents to understand and meet the needs of the child;  the past and current interaction and relationship of the child with each parent;  the child's siblings and any other person who may significantly affect the best interests of the child;  the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate;  any manipulation or coercive behavior of the parents;  the ability of each parent to be actively involved in the life of the child;  the child's adjustment to his or her home, school and community;  the stability of the child's existing or proposed residences;  and the mental and physical health of all individuals involved.

The court finds that the statutory factors, particularly the mental and physical health of all individuals involved, provide for the disclosure of privileged records where such records are relevant and material to the issue of the best interest of the children.   The court must balance the privacy interest of the defendant against the best interest of the children.   The court has reviewed the medical records in camera and has determined that the records are relevant and material to the issue of the best interest of the children.   The court has weighed the privacy interest of the defendant against the best interest of the children and concludes that the best interest of the children is more important to the interests of justice than the protection of the privilege.

III. Conclusion

The court has reviewed in camera the records contained in Plaintiff's Exhibit 1–R and 2–R, which were admitted under seal at a hearing on February 10, 2014.   The court has carefully considered the arguments and memoranda of counsel, and the applicable statutes and law, and orders the following:

1. The court's prior order sealing Exhibit 2–R is vacated;  the records contained therein are admissible subject to the normal rules of evidence.   Copies of the record shall be provided to counsel for the sole purpose of use and preparation for the Motion to Modify, and shall not be copied or disseminated.

2. The court's prior order sealing Exhibit 1–R pursuant to Practice Book 29–59A is vacated;  the court orders Exhibit 1–R to remain under seal pursuant to Practice Book 7–18.   The records contained therein are admissible, subject to the normal rules of evidence.   Copies of the records shall be provided to counsel for the sole purpose of use and preparation for the Motion to Modify, and shall not be copied or disseminated.

Goodrow, J.

FOOTNOTES

FN1. At the time that pleading # 192 was filed, the plaintiff had not yet subpoenaed the defendant's hospital records.   Pursuant to Connecticut Practice Book § 1–8, and the understanding of the parties, the court construes Defendant's Motion to Quash to encompass the defendant's hospital records as well..  FN1. At the time that pleading # 192 was filed, the plaintiff had not yet subpoenaed the defendant's hospital records.   Pursuant to Connecticut Practice Book § 1–8, and the understanding of the parties, the court construes Defendant's Motion to Quash to encompass the defendant's hospital records as well.

FN2. Attorney Sandra Moore represented the defendant at the January 28, 2014 hearing.   At the end of the hearing, Attorney Moore's Motion to Withdraw as Counsel was granted.   On the same day, the defendant filed an appearance as a self-represented party with the court..  FN2. Attorney Sandra Moore represented the defendant at the January 28, 2014 hearing.   At the end of the hearing, Attorney Moore's Motion to Withdraw as Counsel was granted.   On the same day, the defendant filed an appearance as a self-represented party with the court.

FN3. On February 10, 2014, Attorney Thomas Benneche filed his appearance on behalf of the defendant, along with a Memorandum in Opposition to Production of [Defendant's] Medical Records.   In essence, counsel argues in his memorandum that the defendant has not authorized the release of her records, and that 52–146o(b)(1) does not apply.  CGS § 52–146o(b)(1) allows for disclosure of patient communication or records pursuant to any statute or regulation of any state agency, or the rules of court.   On February 14, 2014, the plaintiff filed Plaintiff's Objection to Defendant's Opposition to Production of Medical Records.   Counsel asserts in her objection that CGS § 52–146o(b)(1) applies in that Practice Book sections 13–9(f) and 13–11 permit production of the records if the judicial authority finds good cause.   She argues further that medical records relating to the defendant's mental health are admissible because the defendant has introduced her mental or physical condition as her defense or claim..  FN3. On February 10, 2014, Attorney Thomas Benneche filed his appearance on behalf of the defendant, along with a Memorandum in Opposition to Production of [Defendant's] Medical Records.   In essence, counsel argues in his memorandum that the defendant has not authorized the release of her records, and that 52–146o(b)(1) does not apply.  CGS § 52–146o(b)(1) allows for disclosure of patient communication or records pursuant to any statute or regulation of any state agency, or the rules of court.   On February 14, 2014, the plaintiff filed Plaintiff's Objection to Defendant's Opposition to Production of Medical Records.   Counsel asserts in her objection that CGS § 52–146o(b)(1) applies in that Practice Book sections 13–9(f) and 13–11 permit production of the records if the judicial authority finds good cause.   She argues further that medical records relating to the defendant's mental health are admissible because the defendant has introduced her mental or physical condition as her defense or claim.

Goodrow, Karen, J.