Jill Rinehart, M.D.
Appeal from Superior Court, Chittenden Unit, Family Division
Samuel Hoar, Jr., J.
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
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
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.),
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
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 ...