Vanessa Cordero CBI-GALP PLAYING WITH A FULL DECK: MOTIONS TO COMPEL - PowerPoint Presentation

Vanessa CorderoCBI-GALP PLAYING WITH A FULL DECK:MOTIONS TO COMPEL

avoid building your case on a house of cards In order to avoid building your case on a house of cards, the Court must be fully apprised of the parent’s compliance with services. Without knowing all of the information regarding case plan tasks, it is impossible to effectively call someone’s bluff or decide if they are coming up trumps. Need all of the information in order to make a rational recommendation and decision

maximize your child advocacy Better information gathering leads to better decision making If you are playing with a few cards short of a deck, the child’s best interest is not being served. A child’s best interest is served when the advocacy team has reviewed all pertinent records regarding a parent’s treatment and progress. The GAL has a right to access all records pertaining to a child’s best interest. §39.822

Gaining Access: The ChallengeDespite the language in §39.822, attaining the records can be difficult when parents claim their right to privacy is being infringed upon, or when the pertinent information is not directly related to case plan tasks.

Will your client please sign these releases of information for providers so we can see the progress records?

Objective Learn to overcome objections regarding confidentiality of recordsLearn to compel recordsCourt ordered tasksRelevant treatment NOT court orderedLearn to respond to motions to compel child records

A Motion to Compel Records is the Ace up your Sleeve!

Motion to Compel Records When a parent is playing their cards close to their chest, there are ways to learn what cards they are holding. Disclosure of records from tasks or services is possible under the law, without the parent’s consent . The GAL has a right to access all records pertaining to a child’s best interest. §39.822

Section 39.822“Upon presentation by a guardian ad litem of a court order appointing the guardian ad litem: (b)A person or organization, other than an agency under paragraph (a), shall allow the guardian ad litem to inspect and copy any records relating to the best interests of the child who is the subject of the appointment….”

What about the parent’s right to privacy?

No Right to Privacy for Case Plan Tasks Disclosure of such records are allowed without the client’s consent under §90.503(4)(b), Florida Statutes (2015), which does not grant communication privilege or expectation of privacy for a court ordered examination of the mental or emotional condition, including alcoholism and other drug addiction, see §90.503(1)(b), Florida Statutes ( 2015), of the patient. Hence, there is no right to privacy for case plan tasks.

Objection: Privilege!!! OVERRULED!!! A Court ordered mental or emotional counseling and examinations have been found to have “ no reasonable expectation of confidentiality ,” which creates a waiver against any related psychotherapist-privileged communication. See Segarra v. Segarra , 932 So. 2d 1159, 1161 (Fla. 3rd DCA 2006); State v. Famiglietti, 817 So. 2d 901, 903 (Fla. 3rd DCA 2002); Hill v. State, 846 So.2d 1208 (Fla. 5th DCA 2003). So, the parents have to show their cards.

Hypothetical: Previous Case Plans Question: In a 2010 Dependency case, a parent is ordered to undergo a CBHA.In 2015, another Dependency case opens with the same parent and different child.Can information the parent shared with a comprehensive behavioral health assessor in 2010 be used in the 2015 case?

Hypothetical Answered Yes, that information can be used!No privilege exists between the parent and the Comprehensive Behavioral Health Assessor. The Comprehensive Behavioral Health Assessment was completed as part of the court ordered case plan in the 2010 dependency case, and was not completed for the purpose of providing the mother medical treatment.

Right to Privacy when NOT court ordered? What about when a task or service was not court ordered, but pertinent to the case? What about the parent’s medical treatment?Example: If a patient goes to a pain management clinic on their own, and years later has an open dependency case; should those records be discoverable? If a patient sees a psychologist on their own, and years later has an open dependency case; can those records be used in court?

The Wild Card This is a wild card because these records are confidential unless there is good cause for the disclosure. Need to show good cause on a case by case basis.

Good Cause, Generally Child abuse is good cause for disclosureCase Law to support is largely from criminal child abuse casesDisclosure of such records are allowed without the client’s consent under 42 USC 290 dd-2(b)(2)(C) and Fla. Stat. 397.501(7) where a court of competent jurisdiction finds good cause for disclosure of. It is a weighing test

The Good Cause Standard Clinical records, defined pursuant to section 394.455(3) as “all medical records, progress notes, charts, admission and discharge data and all other information recorded by a facility which pertains to the patient’s hospitalization and treatment” must be maintained by the provider as confidential unless this privilege of confidentiality of the clinical records is waived by an express and informed consent or a judicial weighing of the harm to the person to whom the information pertains and a determination that there is good cause for the disclosure. §394.4615, Fla. Stat. . In determining if there is good cause for disclosure, the court shall examine whether the public interest and the need for disclosure outweigh the potential injury to the client, to the service provider-client relationship, and to the service provider itself. Id.

Good Cause Continued Additionally, records concerning treatment for substance abuse are confidential. §397.501(7). The Court must weigh the need for the information to be disclosed against the possible harm to the person to whom such information pertains and determine there is good cause for disclosure. Id. In determining if there is good cause for disclosure, the court shall examine whether the public interest and the need for disclosure outweigh the potential injury to the client, to the service provider-client relationship, and to the service provider itself. Id. While Florida courts have not spoken directly on waiver of the psychotherapist-patient privilege by a parent in a child abuse proceeding pursuant to Chapter 39, child abuse or neglect proceedings and the Court’s duty to prevent harm have been found to be good cause for the releases of such records in other jurisdictions. See Matter of Dwayne G ., 411 N.Y.S. 2d 180, (1978) & Matter of Doe Children 402 N.Y.S. 2d 958 (1978).

Good Cause… Child Abuse Pursuant to section 39.204, Florida Statutes, “The privileged quality of communication between husband and wife and between any professional person and his or her patient or client, and any other privileged communication except that between attorney and client or the privilege provided in s. 90.505 , as such communication relates both to the competency of the witness and to the exclusion of confidential communications, shall not apply to any communication involving the perpetrator or alleged perpetrator in any situation involving known or suspected child abuse, abandonment, or neglect.” C.f. Jett v. State, 605 So. 2d 926 (Fla. 5 th DCA 1992) (interpreting section 415.512, renumbered and amended in 1998 as 39.204 in the context of a criminal prosecution, to waive the psychotherapist-patient privilege of the victim and perpetrator in cases of child abuse) and C arson v. Jackson, 466 So.2d 1188 (Fla. 4th DCA 1985) (where the court considered, in a civil context, whether the privilege was waived as to a treating psychologist's communication with the perpetrator of child abuse post the reporting of the abuse. While acknowledging the purpose of the privilege is to encourage those needing treatment to seek it out; the court, nevertheless, found the intent of the legislature was to favor discovering child abuse over the perpetrator's need for counseling and held the waiver effective ).

If parent’s assert the GAL limited by case law: How to respond? The State Constitution affords every person irrespective of age the right of privacy. S.C. v. Guardian ad Litem , 845 So. 2d 953 (Fla. 4 th DCA 2003). A mature minor has the right to assert the psychotherapist-patient privilege in a dependency proceeding. Id. Where invasion of a minor's psychotherapist-patient privilege in a dependency proceeding is necessary to protect the minor, the court’s exercise must, at minimum, include notice to the minor and opportunity to be heard. Id. That case held that in a dependency proceeding, a juvenile "has a right to assert" the psychotherapist/patient privilege pursuant to section90.503, Florida Statutes (2002), to prevent a court-appointed guardian ad litem from having access to records covered by the privilege. S.C. identified the problem with the form order there at issue; it "allow[ ed ] the guardian unrestricted access to the minor's most private communications with her therapist." 845 So.2d at 960.

Statute 39.822 Trumps S.C. (3) Upon presentation by a guardian ad litem of a court order appointing the guardian ad litem: (a) An agency, as defined in chapter 119, shall allow the guardian ad litem to inspect and copy records related to the best interests of the child who is the subject of the appointment, including, but not limited to, records made confidential or exempt from s. 119.07(1) or s. 24(a), Art. I of the State Constitution. The guardian ad litem shall maintain the confidential or exempt status of any records shared by an agency under this paragraph. (b) A person or organization, other than an agency under paragraph (a), shall allow the guardian ad litem to inspect and copy any records related to the best interests of the child who is the subject of the appointment, including, but not limited to, confidential records. For the purposes of this subsection, the term “records related to the best interests of the child” includes, but is not limited to, medical, mental health, substance abuse, child care, education, law enforcement, court, social services, and financial records. **** 39.822 was effective July 1 st 2005, while the holding in S.C. was in 2003

Still hitting a wall? If run into situation where the judge will not release the treatment records, options are:ask for progress reports; orask for in camera review and only allow disclosure of what is relevant.

Limit to what is relevant to case See also Doherty v. State, 957 So.2d 1267 (Fla. 4th DCA 2007) the trial court was directed to hold in camera inspection to determine which portions constitute communications involving Doherty in any situation involving known or suspected child abuse, abrogating the privilege only to the extent of such communications .

Procedure File a Motion to Compel, using the appropriate standardNo privacy when court orderedGood cause when NOT court orderedPresent to court at motion hearingJudge may do an in camera review NOTE – all of the records are provided directly to the court for review!!! Magistrate Review Option Judge may ask Magistrate to review which records meet the good cause standard

How to protect children What about when the parents want to see their children’s records?

Children’s Records versus Parent’s Records Children receive services to address their respective issues and traumas resulting from the abuse, abandonment, and neglect sufferedThe children open up to treatment/service providers about their issues and traumasWhat happens when a party wants to compel the children’s records for the purpose of court hearings? Are parents entitled to all of their children’s records, if their rights as parents are intact? Do children have a right to privacy or confidentiality in privileged conversations?

Example Child is seen by the Child Protection Team (CPT) after allegations of physical abuse by parents. Law enforcement is investigating the case, which can lead to criminal arrests.Do the parents have a right to see all of the information disclosed by the child to CPT?

Things that make you go, “Hmm.” Things to consider:If a parent goes to jail as a result of what the child says, how will the parents treat the child?If a parent is afraid of criminal involvement or how it will affect family dynamics, how will visits be affected? Will providing these records affect the child’s safety or sense of safety? Will the child stop participating in treatment if they know what they say is not confidential? Will it affect truthfulness and/or treatment ?

The Flip Side – Hiding those cards - Motions for Protective OrderDepositions for purpose of discoveryFlorida Rules of Juvenile Procedure 8.245(i) lists the rules governing depositions of children under sixteen. Pursuant to the rule, the Court can preclude the deposition of the child, or impose limitations such as the place, duration, and persons in attendance at the deposition. Records Good Cause Protections of Privilege

What if parties try to get the children’s records from the GAL, instead of providers NO!Section 39.0132(4)(a)2, Florida Statutes (2015) specifically provides that information held by the guardian ad litem is confidential if it is “[m] edical , mental health, substance abuse, child care, education, court, social services, and financial records…” and “[a] ny information maintained by a guardian ad litem which is identified as confidential information under this chapter…” This confidential information is exempt from disclosure to anyone other than authorized personnel of the court, the Department of Children and Families, correctional probation officers, law enforcement agents, guardians ad litem and others entitled under Chapter 39, Florida Statutes, to receive this information. Therefore, the GAL is prohibited by statute from complying with the interrogatories without a court order.

Court is required to protect children Support for Florida v. Patterson:This Court has not only authority to protect these children, but also the duty to do the right thing for them.  In Simms v. Dep’t of Health & Rehab. Servs ., 641 So.2d 957, 961 (Fla. 3 rd DCA 1994), the Third District Court of Appeal affirmed that “Historically, the courts have possessed inherent and statutory authority to protect children.  The circuit court inherited the common law jurisdiction of the courts of chancery in which minors were wards of the court and the court had inherent power to protect them.”  See also B.Y. v. Dep’t of Children & Fams., 887 So.2d 1253, 1256 (Fla. 2004)(finding “The courts are charged with the duty of ensuring that the best interests of the children are advanced [and] the court has ‘inherent and continuing jurisdiction to entertain matters pertaining to child custody and to enter any order appropriate to a child’s welfare’.”  C.f.   I.B. v. Dep’t of Children & Fams . , 876 So.2d 581, 586 (Fla. 5 th DCA 2004)(finding “the best interest of the child should govern and be of foremost concern in the court’s determination” and “[w]e also note that trial courts have inherent power when determining issues relating to children to consider the child’s best interests.”)

Children - Privacy In prosecution for sexual battery on child and committing lewd, lascivious or indecent act on child, the Circuit Court, Brevard County, Charles M. Holcomb, J., ordered that communications between victim and her psychotherapist were subject to discovery by defendant. State petitioned for writ of certiorari. The District Court of Appeal, Goshorn, J., held that statute did not abrogate privilege extending to communications between victim and psychotherapist, but rather, waived privilege only for communications in which perpetrator is participant . State of Florida v. Patterson , 694 So.2d 55 (Fla. 5 th DCA 1997)

Motion for Protection Explain to the court how the child’s need for confidentiality outweighs the cause for discovering recordsDetails not necessaryDisrupt treatmentFurther traumatize childLead to further abuse

Overview Motions to Compel Parent’s RecordsCourt ordered versus NOT court orderedMotions to Protect ChildrenDepositionRecords

Q & A