Rinehart v. Svensson

         On Appeal from Superior Court, Chittenden Unit, Family Division Samuel Hoar, Jr., J.

          Mary G. Kirkpatrick of Kirkpatrick & Goldsborough, PLLC, South Burlington, for Plaintiff-Appellee.

          Matthew J. Buckley, Williston, and Edward P. Sheu of Best & Flanagan LLP, Minneapolis, Minnesota, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          SKOGLUND, J.

         ¶ 1. In this appeal, father claims that, under 15 V.S.A. § 670, he is entitled as a matter of right to his sons' personal records, and specifically, to all of his sons' mental health records. The family court disagreed and denied father access to the requested records based on the best interests of the children. We affirm.

         ¶ 2. This appeal follows our decision in Rinehart v. Svensson, No. 2015-025, 2015 WL 3756802 (Vt. June 1, 2015) (unpub. mem.), https://www.vermontjudiciary.org/sites/default/files/ documents/eo15-025.pdf, a three-justice opinion upholding the family court's denial of father's motion to modify, but remanding in part to address father's arguments based on 15 V.S.A. § 670.

         ¶ 3. The foundational facts remain the same. The parties divorced in 2004 and are parents to two sons, now approximately sixteen and fourteen years old. The parental rights and responsibilities portion of the final divorce order was amended several times and those changes were incorporated in a stipulated agreement approved by the family court in September 2008. Under that agreement, mother has sole physical and legal parental rights and responsibilities. Father has parent-child contact with the children every other week.

         ¶ 4. Since that time, the parties have filed numerous motions to enforce and motions to modify or to clarify the parent-child contact provisions of the order. In August 2014, father filed a motion to enforce the existing order and a motion for modification. Prior to the hearing on this motion, father requested discovery, including "full access to the boys' mental health records, including all therapy sessions in which the boys were participants." He also sought depositions of mother, her husband, and the children's current and former therapists. In conjunction with this discovery request, the family court ordered that mother provide the court with the children's mental health records after January 1, 2013, for in camera review. Father filed a subsequent motion to expand the scope of records requested; this second motion explicitly relied on 15 V.S.A. § 670, which under general circumstances allows a noncustodial parent access to the records of his or her child. The court denied father's request to expand the scope of records under § 670, and after reviewing the records in camera, the court ruled that the records contained no discoverable information, and ordered that they be returned to mother.

         ¶ 5. In the subsequent hearing held on father's motion to modify, the family court determined that father's evidence did not support a finding that there was a substantial and unanticipated change in circumstances warranting a modification of the existing order. As indicated above, a three-justice panel of this Court affirmed the family court's conclusion that father failed to prove a substantial change in circumstances. Rinehart, 2015 WL 3756802, at *3.

         ¶ 6. In the same appeal, father challenged the family court's decision to deny access to his children's mental health records. As he did in the family court, father relied on 15 V.S.A. § 670, which states:

Access to records and information pertaining to a minor child, including but not limited to medical, dental, law enforcement and school records shall not be denied to a parent solely because that parent has not been awarded parental rights and responsibilities. The court may order that access to all or a portion of the records or information shall be denied if access is not in the best interests of the child or if access may cause detriment to the other parent including but not limited to abuse.

         ¶ 7. Father claimed that § 670 entitled him to his sons' mental health records and that he was denied those records. In analyzing father's contention, the three-justice panel first noted that, although father argued on appeal that he was generally being denied access to all of his sons' therapy records, the family court's October 21, 2014 discovery order limited discovery to those records created after January 1, 2013. After that date, the only therapy the boys engaged in was family therapy with mother and her new husband, as opposed to the individual therapy the boys attended prior to 2013. Because father neither challenged the court's discovery order limiting the in camera review to post-January 2013 mental health records nor the court's subsequent order declining to admit those records, the three-justice panel did not review those trial court discovery orders. But the three-justice panel did conclude that the court's discovery orders did not fully address father's November 19, 2014 Motion for Order Compelling Release of Children's Therapy Records; in that motion, father claimed that § 670 provided him with a statutory right to all of his sons' medical records, including their individual therapy records prior to 2013. As a result, the panel remanded to the family court to consider this claim. Rinehart, 2015 WL 3756802, at *3.

         ¶ 8. On remand, the parties filed additional briefing to address whether 15 V.S.A. § 670 gave father a statutory right to the boys' records and, if so, the scope of that right. Father expanded his original claim, contending that § 670 conferred a statutory right of access not only to his sons' mental health records, but also to all information regarding "the boys' activities, schedules, and routines after school as well as during the summer weeks." Father further argued that, in order to deny his access to the requested records, § 670 required the family court to make findings that father's access to the records would be detrimental either to his sons or to their mother. Mother opposed father's claims, arguing that, to the extent father requested psychotherapy notes relating to his sons' individual therapy sessions, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) preempted § 670. Aside from the therapists' notes, mother claimed that father possessed all other records from the individual therapy sessions and it was unclear what additional mental health records father sought beyond ...