In re B.S.

IN_RE_BS.94-036; 163 Vt 445; 659 A.2d 1137

[Filed 31-Mar-1995]


NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press. 


                                 No. 94-036


In re B.S., Juvenile                              Supreme Court

                                                  On Appeal from
                                                  Chittenden Family Court

                                                  October Term, 1994


Ronald F. Kilburn, J.

Robert Appel, Defender General, and Anna Saxman, Appellate Defender,
 Montpelier, for appellant 

Jeffrey L. Amestoy, Attorney General, Montpelier, and Michael O. Duane,
 Assistant Attorney General, Waterbury, for appellee SRS 

Charles S. Martin of Martin & Paolini, Barre, for appellee juvenile

O. Whitman Smith of Kochman and Smith, Burlington, for amicus curiae
 Champlain Drug and Alcohol Services 


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     DOOLEY, J.   Appellant P.S., mother of juvenile B.S., appeals an order
of the Chittenden Family Court terminating her parental rights.  Appellant
claims that the family court erroneously ordered disclosure of her
confidential communications to an alcohol counselor, and the counselor's
treatment records, in violation of federal law; and that the court's
conclusion that she could not resume her parenting duties within a reasonable
time was error.  She is joined in her claim of violation of federal law by
amicus curiae Champlain Drug and Alcohol Services (CDAS), which runs the
alcohol abuse treatment program in which she participated.  Although we
conclude that it was error to require disclosure of the communications and
records, we affirm the termination of appellant's parental rights. 

     On April 15, 1992, six-month-old B.S. was taken into custody by the
Vermont 

 

Department of Social and Rehabilitation Services (SRS) because on two
occasions appellant left the child with neighbors and returned to retrieve
him several hours late and in an intoxicated condition.  The family court
later found B.S. to be a child in need of care and supervision (CHINS), and
shortly thereafter, SRS filed a petition to terminate appellant's parental
rights. During the termination proceedings, SRS issued a subpoena to CDAS to
compel production of appellant's treatment records, and to compel the
testimony of her alcohol counselor.  CDAS moved to quash the subpoena,
asserting that federal law forbids disclosure of alcohol counseling records
and the testimony of the counselor without the patient's consent, except in
limited circumstances.  The family court's order compelling the disclosure of
appellant's records and the testimony of her alcohol counselor prompted this
appeal. 

     Appellant's appeal is based primarily on federal law, which prohibits
the disclosure of alcohol and drug abuse treatment records and confidential
communications made by patients, where the treatment is "directly or
indirectly assisted by any department or agency of the United States," 42
U.S.C.  290dd-2(a) (1994).  See id.  290dd-2 (FN1); 42 C.F.R. 
2.1-2.67 (1993). It is undisputed that CDAS receives funds from an agency
of the federal government to support its alcohol abuse treatment program and
that appellant was enrolled in this program.  Thus, the disclosure
restrictions of federal law were applicable to this case. 

     The purpose of the federal statute is to encourage patients to seek
treatment for substance abuse by assuring them that their privacy will not be
compromised.  See Whyte v. Connecticut Mutual Life Ins. Co., 818 F.2d 1005,
1010 (1st Cir. 1987) ("[c]onfidentiality is necessary to ensure successful
alcoholism treatment.  Without guarantees of confidentiality, many
individuals with alcohol problems would be reluctant to participate fully in
alcoholism programs."); 

 

Commissioner of Social Services v. David R.S., 436 N.E.2d 451, 454, 451 N.Y.S.2d 1, 4 (N.Y. 1982) ("Broad interpretation furthers the objectives of
the Federal statute . . . by not chilling the willingness or discouraging the
readiness of individuals to come to facilities operated under the statute.").
 The basic confidentiality rule is set forth by statute, 42 U.S.C. 
290dd-2. The statute contains a broad authorization for rule-making.  See id.
 290dd-2(g).  Pursuant to this authorization, the Secretary of Health and
Human Services has adopted comprehensive regulations.  See 42 C.F.R. 
2.1-2.67. 

     Two aspects of the confidentiality requirements are relevant to this
appeal.  The first involves the patient records maintained by CDAS on
appellant. (FN2) These records are not subject to subpoena unless the court
finds good cause for disclosure.  See 42 U.S.C.  290dd- 2(b)(2)(C); 42
C.F.R.  2.64(d).  Appellant and amicus argue that the court failed to
follow proper procedures in determining whether good cause was present, and
erred in finding good cause.  Thus, appellant and amicus assert the court
erred in requiring the records to be produced and used in the proceeding. 

     The regulations describe the procedures and criteria that a court must
employ before authorizing a disclosure of patient records.  See 42 C.F.R. 
2.64 (1993).  First, the party seeking the information must file an
application for a production order with the court, using a fictitious name to
identify the patient.  See id.  2.64(a).  The court must provide adequate
notice to the patient and the person possessing the records at issue, id. 
2.64(b)(1), and must give an opportunity for these persons to respond either
in writing or at a hearing, id.  2.64(b)(2).  Normally, this means the
court must conduct a hearing on the application.  All of 

 

these procedures must be conducted in a manner that protects the patient's
privacy.  Id.  2.64(a), (c). 

     A disclosure order may be entered only if the court determines that good
cause exists. See 42 U.S.C.  290dd-2(b)(2)(C); 42 C.F.R.  2.64(d).  This
determination is to be made only upon a finding that alternative means of
obtaining the information are not available, and that the interest in
disclosure outweighs "the potential injury to the patient, the
physician-patient relationship and the treatment services."  42 C.F.R. 
2.64(d)(2).   Even if disclosure is authorized, the court must limit the
order's scope of disclosure to minimize the impact on the patient's privacy. 
Id.  2.64(e). 

     It is undisputed that SRS failed to use the procedure in the
regulations.  It began by issuing a subpoena to the CDAS alcohol counselor
instead of to appellant.  As such, the hearing came on CDAS's motion to
quash. (FN3) As discussed below, the court did not view the records in camera
before ruling on whether disclosure would be ordered. 

     The court's good cause determination rests on two findings: (1) SRS "has
no other means of obtaining the information contained in the . . . treatment
files" because appellant has not consented to disclosure; and (2) the "public
interest in production is great, and far exceeds the minor threat of
embarrassment to" appellant.  In making the latter finding, the court was
heavily influenced by the fact that the juvenile hearing in which the files
would be used is not a public proceeding. 

     The record production order was "limited to those parts of the records .
. . which are essential to determine whether [appellant's] parental rights
should be terminated" and required the file to be sealed to limit disclosure.
 In fact, the entire file was produced by the counselor, and no attempt was
made to redact extraneous matter to comply with the order.  It is unclear

 

whether SRS or others used the records.(FN4) At one point during his
testimony, the counselor did use the records to refresh his recollection. 

     We agree with appellant and amicus that the family court misapplied the
good cause requirements in two important respects.   First, the court could
find good cause for production of the patient records only if an alternative
means of obtaining the information contained within them was not available. 
Good cause cannot be demonstrated when production of the records is merely
cumulative.  See, e.g., United States v. Smith, 789 F.2d 196, 205-06 (3d
Cir. 1986) (disclosure request denied because other sources of competent
evidence available); Bell v. State, 385 So. 2d 78, 81 (Ala. Ct. Crim. App.
1980); David R.S., 436 N.E.2d  at 455, 451 N.Y.S.2d  at 5 (disclosure order
reversed because other proof readily available through witness testimony).
The family court misconstrued the regulation as allowing disclosure if the
party seeking the records had no alternative method of obtaining the records,
as opposed to the information within the records. 

     This was more than a technical error.  By the time the court issued the
order requiring production of the records,  extensive testimony about
appellant's alcohol abuse had come from her SRS social worker and probation
officer.  The testimony of the SRS worker was a substitute for much of what
was in the records because appellant had waived confidentiality with respect
to the SRS worker, and the CDAS counselor and the SRS worker spoke frequently
about appellant's diagnosis and treatment.(FN5) The SRS worker recounted the
substance of many of these 

 

conversations.  Although we cannot make a definitive assessment because
neither the trial court nor this Court has seen the records in dispute, we
consider it highly likely that the records were cumulative and their
disclosure was unnecessary. 

     Second, the court failed to consider the potential injury to the
physician-patient relationship and to treatment services in balancing the
relevant interests.  See 42 C.F.R.  2.64(d)(2); David R.S., 436 N.E.2d  at
455-56, 451 N.Y.S.2d  at 5-6.  The court looked solely at the
embarrassment to appellant from disclosure in light of the non-public nature
of juvenile proceedings.  See V.S.A. 33  5523(c).  Although we agree that
it is relevant that juvenile proceedings are not public, the court's inquiry
was far too narrow and omitted any consideration of appellant's willingness
to participate in treatment if she knew that her diagnosis and treatment
information could be used to terminate her parental rights.  Again, this was
not a theoretical issue because appellant had expressed concern about the
confidentiality of the CDAS information and had revoked her consent to make
it available to others. 

     We also agree with appellant and amicus that the procedures employed by
the court were inadequate to ensure a thorough good cause determination.  If
the court was concerned that the information in the records was unobtainable
elsewhere, it should have first conducted an in camera 

 

review of the records to determine whether they revealed any unique and
relevant information. Indeed, we are uncertain how a court can make a good
cause determination without first examining the records to see what they
contain.  See State v. Harger, 804 S.W.2d 35, 37-38 (Mo. Ct. App. 1991)
(trial court must make in camera inspection of records); Jane H. v. Rothe,
488 N.W.2d 879, 883 (N.D. 1992) (good cause determination requires in camera
inspection to assess information contained in records). 

     Finally, we agree that the family court's order was not properly limited
to protect against unnecessary disclosure pursuant to  2.64(e).  On its
face, the order appeared to comply with 2.64(e): disclosure was limited to
the parties in the proceeding, the case file was sealed, and disclosure was
limited to only those parts of appellant's records and communications which
were essential to determine whether her parental rights should be terminated.
 The court failed, however, to evaluate the records to determine what
information within them complied with the order, and the entirety of the
records were produced in response to the subpoena.  Apparently, the court
intended to edit the records if they were offered in evidence, and this never
occurred. The court's approach gave SRS access to the records, however, in
violation of the confidentiality restrictions.  The regulations clearly
intend that any redaction occurs earlier, in defining what records must be
produced in response to the subpoena, to avoid unnecessary breaches of
confidentiality. 

     The other part of the disclosure restrictions applicable to this case
cover "confidential communications" where "made by a patient to a program in
the course of diagnosis, treatment, or referral for treatment." 42 C.F.R. 
2.63(a).  These restrictions apply both to confidential communications found
in the CDAS records on appellant, as well as confidential communications to
which the CDAS counselor might testify.(FN6) Such communications may not be
disclosed unless they fit within at least one of three exceptions.  See id.  
Only one of the exceptions arguably applies here; it allows disclosure if
"necessary to protect against an existing threat to life or of serious bodily
injury, including circumstances which constitute suspected child abuse and
neglect 

 

and verbal threats against third parties."  Id.  2.63(a)(1).   The
family court concluded that this exception applies because this proceeding
involves child abuse and neglect. 

     We are unable to concur with the family court's interpretation of the
regulations.  There was no showing that disclosure was necessary to protect
B.S. against "an existing threat to life or of serious bodily injury."(FN7)
The reference to child abuse and neglect proceedings is clearly limited to
instances where such threat exists.  This threat may have been present
earlier in the juvenile proceedings, but custody by P.S. was no longer in
issue.  Even if the threat were present, there is no indication that
disclosure of P.S.'s confidential communications to CDAS was necessary to
obviate it. 

     In its opinion, the court relied in part on  2.12(c)(6), which
provides that the disclosure restrictions do not apply to State laws that
mandate reporting of suspected child abuse; the regulation also provides,
however, that the restrictions continue to apply throughout civil or criminal
proceedings which may arise out of the reported abuse.(FN8)  We do not find
this 

 

regulatory provision helpful; it merely clarifies that mandatory reporting of
child abuse is not barred by the confidentiality provisions, and it expressly
provides that the disclosure restrictions continue to apply in any case
growing out of the original mandatory reporting exception.  If anything, this
additional section of the regulations supports the conclusion we have reac
hed.  Having concluded that the family court's disclosure order was
improperly entered, we turn now to the impact this error had on the
termination proceedings.  Appellant argues that the nature of the court's
error warrants an automatic reversal. 

     The erroneous admission of evidence is grounds for reversal only if a
substantial right of the party is affected.  See V.R.C.P. 61 (error in
admission of evidence is grounds for new hearing only if "refusal to take
such action appears to the court inconsistent with substantial justice")
(applicable in juvenile proceedings by V.R.F.P. 2(a)).  We applied this
standard in In re R.M., 150 Vt. 59, 65, 549 A.2d 1050, 1054 (1988), where the
family court erred in admitting and relying on certain hearsay evidence. 
Noting that the burden "is on the excepting party to demonstrate that the
error resulted in prejudice," id., we considered the effect of the improper
testimony on the court's decision.  We concluded that reversal was
appropriate only if the findings of the court, apart from the findings based
on the improper evidence, did not support the court's conclusions.  Id. at
66, 549 A.2d  at 1055; see also In re M.B., 158 Vt. 63, 69-70, 605 A.2d 515, 518-19 (1992) (no reversible error where trial court's conclusion
based on testimony properly in evidence).  We have applied a similar analysis
to unsupported findings of fact in juvenile proceedings.  See In re A.F., 160
Vt. 175, 178-79, 624 A.2d 867, 869 (1993); In re C.M., 157 Vt. 100, 103,
595 A.2d 293, 294 (1991). 

     Appellant has made no showing here that the family court's use of
information it erroneously obtained from the counselor was prejudicial. 
Because the counselor was in regular contact with the SRS worker, and the SRS
worker testified to these conversations without objection, there was little
additional relevant evidence supplied by the counselor.  To the extent the
records were used, we cannot find that they added any relevant evidence. 

 

     A review of the alcohol counselor's testimony also shows a sensitivity
to unnecessary disclosure of appellant's confidential communications.  The
counselor opined that more was behind appellant's behavior than alcohol
abuse.  When asked to explain what other conditions were involved, the
counselor declined to answer, and the SRS attorney did not pursue the matter.
 Thus, to the extent appellant had made disclosures to the counselor
additional to those shown in the testimony of the SRS worker or the probation
officer, these disclosures did not get into evidence. 

     Without the testimony of the alcohol counselor, there was sufficient
evidence for the court to conclude that appellant's parental rights should be
terminated.  In its final order, the court made almost forty separate
findings in support of its decision, and few of these reveal any reliance on
the improperly obtained CDAS information.  The vast majority of the findings
regarding the nature of appellant's alcoholism are grounded in testimony from
others.   For example, appellant's probation officer provided evidence
relating to appellant's frequent relapses and the criminal behavior that
resulted from these episodes.  In addition, the SRS social worker testified
that appellant's alcoholism caused the agency to remove another son from her
custody almost ten years earlier. 

     Indeed, the court's key finding regarding appellant's alcoholism was
that she needed to attend a residential treatment program of six months to
one year in duration, and this duration was inconsistent with a conclusion
that resumption of parental responsibilities could occur within a reasonable
period of time.  Significantly, the alcohol counselor's testimony on this
point favored appellant.  He testified that he did not recommend long-term
care, but instead recommended a short-term community-based approach to
treatment.  Because this testimony benefitted appellant, it can not be
considered unfairly prejudicial.  See United States v. Donovan, 984 F.2d 507,
511 (1st Cir. 1993) (evidentiary rule that court erroneously used to admit
evidence was more restrictive than appropriate rule; hence, error favored
defendant and was not prejudicial) judgment vacated on other grounds, ___
U.S. ___, ___, 114 S. Ct. 873 (1994). 

 

     The court also made findings concerning appellant's apparent apathy
towards her relationship with B.S.  For example, the court found that
appellant chose to visit B.S. once instead of four times per week, and that
she regularly missed about one visit per month.  In addition, the court found
that appellant occasionally left the visits with B.S. early because she was
frustrated that the child did not acknowledge her as his mother. 

     Based on all of this evidence, exclusive of appellant's alcohol
counselor's testimony and her treatment records, the family court's
conclusion that appellant could not resume her parenting duties within a
reasonable time is fully supported.   This determination also answers
appellant's argument that the family court erred in reaching this conclusion.
 Accordingly, the court's decision to terminate her parental rights was not
premature. 

     Affirmed. 

                              FOR THE COURT:



                              _______________________________________
                              Associate  Justice
  

-----------------------------------------------------------------------------
                              Footnotes

FN1.  The federal requirements were formerly set out in two separate
statutes, one covering alcohol abuse treatment records and the other covering
drug abuse treatment records.  They were consolidated into the current 42
U.S.C.  290dd-2, covering substance abuse, by Pub. L. No. 102-321,  131,
106 Stat. 323, 368-70 (1992). 

FN2.  This requirement relates to patient records, but not the confidential
communications made by the patient to the program even if contained in the
records.  See 42 C.F.R.  2.63(a).  An earlier version of the regulations
limited disclosure to objective data, to express a similar distinction.  See
52 Fed. Reg. 21796, 21808 (June 9, 1987) (explaining 1987 amendments to
regulations). 

FN3.  Appellant and amicus have not argued that this deviation from the
regulations is ground for relief on appeal.  We agree.  See Matter of Baby X,
293 N.W.2d 736, 741 (Mich. Ct. App. 1980). 

FN4.  The attorney for SRS, who was also present in the family court, asserts
that he never read the records.  The transcript indicates that the records
were present in the court and were handled by the SRS attorney.  They were
not introduced into evidence.  It is impossible to tell from the record
whether the SRS attorney actually read any part of the records. 

FN5.  SRS relied upon a waiver theory below, but the family court did not
explicitly rule upon it, and SRS has not relied upon waiver in this Court. 
In making its waiver argument, SRS relied heavily upon In re M.M., 153 Vt.
102, 106, 569 A.2d 463, 465 (1989), in which this Court held that a parent
waived her patient privilege by placing her mental health in issue in
contesting termination of parental rights.  Appellant and amicus argue that
the theory of M.M. is not applicable to this privilege, and, in any event,
appellant's consent for the disclosure of information was explicitly for
purposes of treatment only.  We do not have to evaluate these claims.  We
note, however, that the SRS worker testified to information provided by the
alcohol counselor without objection and never received notice that the
federal privilege bound him.  See 42 C.F.R.  2.12(d)(2)(iii), 2.32
(person who receives notice specified in regulation that information is
privileged is bound by disclosure restrictions of regulations). 

FN6.  The parties have assumed that this regulation restricts access to the
testimony of the counselor, even if not based on the records.  Although this
assumption is logical to protect the confidentiality of the patient in the
diagnosis and treatment process, we note that the statute relates only to
records, 42 U.S.C.  290dd-2(a), and the regulations appear to be
inconsistent in their coverage, see 42 C.F.R.  2.3(a) ("these regulations
impose restrictions upon the disclosure and use of alcohol and drug abuse
patient records"). 

FN7.  We have found one decision that appears to support the family court's
interpretation of  2.63(a), In re Romance M, 622 A.2d 1047, 1052 (Conn. Ct.
App. 1993), a termination of parental rights proceeding.  This decision is
explicitly based on the rationale that the regulation authorizes any
disclosure "`necessary to protect against . . . child abuse and neglect . . .
.'" Id.  This quotation of the regulation omits words that are critical to
its meaning, undermining the court's interpretation.  There is no other
rationale in the decision, and we decline to follow it. 

FN8.  The exact language of  2.12(c)(6) is as follows:

Reports of suspected child abuse and neglect.  The restrictions on disclosure
and use in these regulations do not apply to the reporting under State law of
incidents of suspected child abuse and neglect to the appropriate State or
local authorities.  However, the restrictions continue to apply to the
original alcohol or drug abuse patient records maintained by the program
including their disclosure and use for civil or criminal proceedings which
may arise out of the report of suspected child abuse and neglect. 

42 C.F.R.  2.12(c)(6).


-----------------------------------------------------------------------------
                               Concurring

 

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press. 


                                 No. 94-036


In re B.S., Juvenile                              Supreme Court

                                                  On Appeal from
                                                   Chittenden Family Court

                                                  October Term, 1994


Ronald F. Kilburn, J.

Robert Appel, Defender General, and Anna Saxman, Appellate Defender,
Montpelier, for appellant 

Jeffrey L. Amestoy, Attorney General, Montpelier, and Michael O. Duane,
Assistant Attorney   General, Waterbury, for appellee SRS 

Charles S. Martin of Martin & Paolini, Barre, for appellee juvenile

O. Whitman Smith of Kochman and Smith, Burlington, for amicus curiae
Champlain Drug and   Alcohol Services 


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     MORSE, J., concurring.   The Court, in my opinion, blames the family
court unnecessarily for perceived errors that did not "affect the substantial
rights of the parties." V.R.C.P. 61 (harmless error).  Ordinarily, we would
not go to such lengths to criticize a trial judge when no harm was done. 

     The focus of the Court's opinion is wholly academic.  While an order
issued denying the mother's motion to quash the subpoena for the patient
records, the records were not ultimately disclosed and thus were not
introduced into evidence.  This Court concludes the records' "disclosure was
unnecessary," assuming a disclosure even though the records were not actually
disclosed.  The Court even assumes that the SRS attorney had read them, when
in fact he "assert[ed] that he never read the records."  In fact, the records
were ordered sealed, the 

 

disclosure of any records or communications prohibited upon further showing
of need, and if disclosure were to be allowed, it would be only to the
parties and their counsel.  Thus, today's decision is an advisory opinion. 

     This Court may be forgiven for issuing dictum when the advice may help
settle future controversy.  In this case, however, I believe most of the
dicta is ill-advised. 

     The Court finds "it highly likely that the records were cumulative,"
thereby not satisfying a "good cause" element for production.  Since the
contents of the records are not of record, this is a surprising finding,
unnecessary to decide this case, and puts the family court in error before it
had a chance to review the records and decide whether they were cumulative or
not.  The same may be said of the second "good cause" element of balancing
the relevant interests of the public and the patient.  It was premature for
the court to review the records to balance the relevant interests because the
records were not yet offered in evidence.  I also believe that the
confidential nature of juvenile proceedings is a relevant consideration, if,
and when, balancing of these interests are undertaken. 

     The Court faults the family court for not conducting an in-camera review
of the records and would require in-camera review in every case.  Yet,
federal regulations make in-camera review discretionary in both civil and
criminal cases.  The trial court did not abuse its discretion here because
the need to review the records never arose.  It would have been a waste of
judicial resources to do so.  While it may have been wrong to allow
disclosure to SRS as a party without an in-camera inspection, it certainly
was not error to permit counsel for either party to review the records. 
Counsel are officers of the court subject to the same ethical restraints with
regard to in-camera inspection as the court, and counsel's inspection is
necessary under the standards of adversarial due process to advocate what, if
any, portion of the records should, or should not, be disclosed. 

     I also disagree with the Court's parsimonious reading of 42 C.F.R. 
2.63(a)(1) ("necessary to protect against an existing threat to life or of
serious bodily injury, including 

 

circumstances which constitute suspected child abuse and neglect and verbal
threats against third parties").  The Court interprets "existing threat"
literally, that is, no "existing threat" is shown if the child is not in the
threatening parent's custody at the moment.  A "threat," however, does
"exist" if it may be carried out at some time in the future.  Under the
Court's view,  2.63(a)(1) would never be a ground for disclosure. 

     I would affirm in an opinion deleting the dicta.



                              _________________________________
                              James L. Morse, Associate Justice