In re Ashley

Connecticut Superior Court

2006 Ct. Sup. 2239 (J.D. of Middlesex)

Feb. 1, 2006


In this superior court decision, the trial court denied the State’s motion to compel a battered women’s shelter to disclose the mother’s health records. The State argued that the “Specific Steps” required the mother to sign releases and allow DCF to communicate with her service providers. Accordingly, the mother did not have an expectation of privacy as to these health records. The State cited In re Romance, theoretically for the proposition that the public interest and best interest of the child required the disclosure of these records. (The State did not file a brief outlining their Romance argument.)

The superior court initially granted an ex parte order mandating the Shelter disclose the mother’s records. The Shelter objected. They noted that CGS 52-146k states that communications between a battered women’s shelter counselor and victim are privileged and that there was no “best interest” exception in the statute.

The Shelter further argued that the Romance holding discussing a “best interest of the child” exception to statutory privilege was abrogated by the Supreme Court’s decision in Falco v. Institute of Living. In Falco, the Court held that the “psychiatrist-patient privilege may be overridden only by legislatively enacted exceptions.” The Court reasoned that it was contrary to the language of the statute and the intent of the legislature for courts to make discretionary case-by-case determinations of when the privilege may be overridden. Accordingly, only the statutory exceptions to the privilege applied.

The Superior Court decided in favor of the Shelter and denied the State’s Motion to Disclose. Although the privilege at issue in Falco was the psychiatrist-patient privilege, the Superior Court held that the principal applied to all statutory privileges. The Superior Court concluded that the “Best interests of the child” justification for overriding privilege ceased to exist after Falco. The Court cited to the author’s note in Tait’s Handbook of Connecticut Evidence § 1:15.2 (3d Ed. 2001) for confirmation of this conclusion.

The Court further held that while, pursuant to C.G.S. 52-146f(5), the “psychiatrist-patient” privilege may be overridden where the patient introduces his mental condition as an element of his claim or defense, this exception was not delineated in C.G.S. 52-146k, the statute conferring privilege between a battered women’s or sexual assault counselor and victim.

Lastly, the Court stated that the “specific steps” were a pathway towards reunification. Once the State filed a TPR petition, the “steps” were no longer binding on the parent. Therefore, the State was left with no argument in favor of mandatory disclosure.

In dicta, the Court also noted that it was arguable whether at the TPR stage, a parent could be deemed to have raised their mental health as an element of their defense sufficient to breach even the psychiatrist-patient privilege. (Again, citing to Tait’s Handbook of Connecticut Evidence, § 5.46.5, pg. 347.)

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