J-S18037-20

                                           2020 PA Super 159


    C.L.                                             :   IN THE SUPERIOR COURT OF
                                                     :        PENNSYLVANIA
                                                     :
                    v.                               :
                                                     :
                                                     :
    M.P.                                             :
                                                     :
                             Appellant               :   No. 1958 MDA 2019

               Appeal from the Order Entered November 15, 2019
      In the Court of Common Pleas of Lackawanna County Civil Division at
                            No(s): 2019-FC-41210

    C.L.                                             :   IN THE SUPERIOR COURT OF
                                                     :        PENNSYLVANIA
                                                     :
                    v.                               :
                                                     :
                                                     :
    M.P.                                             :
                                                     :
                             Appellant               :   No. 1959 MDA 2019

                Appeal from the Order Entered October 29, 2019
      In the Court of Common Pleas of Lackawanna County Civil Division at
                            No(s): 2019-FC-41210


BEFORE:         KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

DISSENTING OPINION BY KUNSELMAN, J.:                            FILED JULY 08, 2020

           In this custody case, the Majority authorizes the guardian ad litem (GAL)

to access Mother’s mental health records for the last three years. Because I

believe the Mental Health Procedures Act (MHPA) – and Pennsylvania case law

interpreting it – precludes the disclosure of such records in custody

proceedings, I respectfully dissent.

____________________________________________
*   Former Justice specially assigned to the Superior Court.
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      The Majority inexplicably ignores our clear, factually on-point, and

relatively recent custody precedents of M.M. v. L.M., 55 A.3d 1167 (Pa.

Super. 2012) and Gates v. Gates, 967 A.2d 1024 (Pa. Super. 2009), where

this court held that parents do not waive their MHPA privileges, simply because

they are involved in custody litigation.    First, in Gates, we concluded that a

mother did not waive her MHPA privilege, even though, inter alia, she initially

failed to invoke that privilege and she previously agreed to release certain

mental health documents.        967 A.2d at 1030-1032.         Then, in M.M., we

concluded that the father did not waive his MHPA privilege, even though the

mother put his mental health at issue, and even though the father’s personal

mental health ailment was rather severe. 55 A.3d at 1174. In both cases,

we concluded there was no implicit waiver. In reaching those conclusions, we

acknowledged that a “less intrusive means” existed to determine the effect of

a parent’s mental health upon a child’s best interests. See Gates, 967 A.2d

at 1032; see also M.M., 55 A.3d at 1174.             In custody cases, the “less

intrusive means” available is Pennsylvania Rule of Civil Procedure 1915.8

(“Physical and Mental Examination of Person”). Under this Rule, the trial court

may order the child or the parent to submit to and fully participate in a mental

health evaluation by an appropriate expert.

      I believe this is all the trial court needs to order in this custody litigation

to adequately determine the best interest of the child.

      Instead, the Majority relies on the holding in Octave ex rel Octave v.

Walker, 103 A.3d 1255 (Pa. 2014), a unique personal injury case, to allow

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the GAL to have access to Mother’s mental health records. A review of Octave

indicates that it is factually inapposite to the instant case.      There, a wife filed

a personal injury lawsuit, seeking money damages on behalf of herself and

her incapacitated husband, after the husband was struck by a tractor-trailer.

The defendants argued that the husband intentionally caused his own injuries

by attempting suicide.                To defend the case against them, the defendants

requested access to the husband’s mental health records.                The plaintiffs

asserted husband’s privilege under the MHPA.1 Our Supreme Court cited with

approval the following statement made by this Court in Kraus v. Taylor, 710

A.2d 1142 (Pa. Super. 1998):

        We cannot believe that the Pennsylvania General Assembly
        intended to allow a plaintiff to file a lawsuit and then deny a
        defendant relevant evidence, at plaintiff’s ready disposal, which
        mitigates defendant’s liability. Rather[,] the General Assembly
        must have intended the privileges to yield before the state’s
        compelling interest in seeing that truth is ascertained in legal
        proceedings and fairness in the adversary process.

Octave, 103 A.3d at 1260 (citing Kraus, 710 A.2d at 1145) (internal citation

omitted). After discussing similar decisions in other jurisdictions, the High

Court then held: “Accordingly, we hold a patient waives his confidentiality

protections under the MHPA where, judged by an objective standard, he knew

or should have known his mental health would be placed directly at issue by

filing the lawsuit. Octave, 103 A.3d at 1262 (footnote omitted).


____________________________________________
1 Notably, the husband later died from his injuries, but neither party asserted
that the death affected the MHPA privilege. Octave ex rel. Octave, 103
A.3d, 1255, 1256, n.2 (Pa. 2014).

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        The Majority interprets this holding to mean that, in the instant case,

the trial court could order Mother’s disclosure of the mental health records,

because Mother had reason to know that her mental health would be at issue

during the custody trial. The Majority explains that trial court employed “less

intrusive means” by limiting the disclosure to only the last three years of

treatment, and by limiting the disclosure to the Child’s GAL. In my view, the

Majority incorrectly applied Octave for two reasons.

        First, when the Court in Octave allowed access to the injured husband’s

mental health records, it explicitly distinguished its facts from those in M.M.

See Octave, 103 A.3d at 1263, n.10. The High Court mentioned M.M. as a

prime example of when discovery of mental health records was inappropriate,

because there were “less intrusive means” of obtaining the same type of

information. Id. (referring to Rule 1915.8, and noting that in Octave, less

intrusive alternatives, such as interrogatories and independent psychological

evaluations, were not available, since the injured husband died from his

injuries).2

        Thus, the Majority ironically relies on Octave – a personal injury case

involving MHPA waiver – to construe its version of “less intrusive means” in


____________________________________________
2 The Majority claims it does not rely on Octave to conclude Mother waived
her confidentiality claim in this custody case, but rather as support for its
decision that turning the records over to the GAL is the “least intrusive means”
to obtain this information. See Majority Opinion at *19, n.11. Our precedent
already established that a Rule 1915.8 evaluation is the “less intrusive means”
of obtaining the same type of information in a custody case. See M.M. v.
L.M. 55 A.3d 1167, 1174 (Pa. Super. 2012).

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J-S18037-20



this custody case, even though Octave cited our previous custody procedure

to explain why “less intrusive means” did not exist in its personal injury case.

        Second, and perhaps more alarming, there is no way for the Majority to

apply Octave to the instant custody case without setting precedent for

disclosure of a parent’s mental health records in every custody case.                   The

Majority suggests that Octave only applies here, because Mother put her own

mental health at issue. See Majority Opinion at *19, n.11. I disagree with

this characterization; according to the trial court, Mother actually put Father’s

mental health at issue. See id. at 3. But it does not make a difference who

put mental health at issue, because the mental health of the parents is directly

at issue in every custody hearing, by virtue of Section 5328(a)(15) of the

Child Custody Act. See 23 Pa.C.S.A. § 5328(a)(15) (The judge must consider

the “mental and physical condition of a party or member of a party’s

household.”). Thus, by the Majority’s logic, all parents risk disclosing their

mental health records anytime they are involved in custody litigation. Even if

the Majority were to reserve disclosure of these records for only those

“venomous3” custody cases involving pointed mental health allegations, all a

parent would need to do is artfully plead such an allegation. At that point,

one parent could force the other parent to disclose his or her mental health

records, which, by their                       very nature,   involve   “one’s most intimate

expressions.” See Octave 103 A.3d at 1260.


____________________________________________
3   M.M. 55 A.3d at 1171 (discussing Gates, 967 A.2d 1024).

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      With due respect to the Majority, I cannot help but envision the

proverbial “parade of horribles” inadvertently unleashed by its decision. In a

custody case, where one parent sees a therapist, I wonder: how often does a

parent discuss the emotional wreckage left in the wake of the relationship with

the former partner? How often does one address one’s own shortcomings as

a newly single parent, or one’s inability to co-parent with an ex? Under the

Majority’s decision, when parents seek professional help for these issues, they

must be careful about what they discuss with their therapists because this

private information may be disclosed in future custody litigation. So what

should parents do? Cease mental health treatment, for fear that the other

parent will use anything they say against them in family court; or, cease

litigating in custody court for what they believe is in their child’s best interests.

      The Majority opens the door to a “new…and dangerous tactic in heated

custody disputes.” See In re Adoption of L.J.B., 18 A.3d 1098, 1110 (Pa.

2011) (discussing the potential for parental misuse of a statutory exception

to the Adoption Act, 23 Pa.C.S.A. § 2101 et seq.). Their decision today further

brings to fruition the “chilling effect,” as foretold by M.M., 55 A.3d at 1175.

      I recognize that the Majority believes the trial court correctly applied the

“less intrusive means” analysis, because it is only authorized the disclosure of

Mother’s mental health records for the last three years and, restricted access

to those records to the Child’s GAL, not Father. Nevertheless, I believe this is

a misapplication of the “less intrusive means” analysis for several reasons.




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J-S18037-20



      First, the “less intrusive means,” already approved in custody cases, is

the evaluation provided in Rule 1915.8. See M.M., 55 A.3d at 1174; see also

Octave 103 A.3d at 1263, n.10 (citing M.M., 55 A.3d 1167). Nothing more

is needed.

      Second, the privilege in the MHPA protects any disclosure of the records;

the privilege is not waived by limiting who receives the disclosed information.

The disclosure itself sounds alarm bells.

      Third, the Majority and the trial court must assume that giving Mother’s

mental health records to Child (by way of the GAL) is less intrusive than giving

the records to Father.      The court simply treats the GAL as less of an

“opponent” to a parent’s position than the opposing parent, without any

explanation or authority.     According to the trial court, one reason for

compelling disclosure of these records was an allegation by Father regarding

Mother’s drug and alcohol abuse.      Once again, an evaluation under Rule

1915.8 is available to the court to address this concern. This Rule authorizes

the court to order both mental health and drug and alcohol evaluations. See

id. Explanatory Comment – 2007. I do not believe the Child or GAL is any

more entitled to the mental health records than the opposing parent is.

      Finally, I do not construe this case as a battle between the provisions of

the Child Custody Act, (23 Pa.C.S.A. § 5334) and the Mental Health

Procedures Act (50 P.S. § 7111). Section 5334 of the Custody Act authorizes

the GAL to have access to “reports of examination of the parents or other

custodian of the child and medical, psychological and school records.”

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J-S18037-20



Breaking down this provision, I believe the “reports of examination of the

parents of other custodian of the child” refers to the mental health reports, if

any, created under Rule 1915.8. These “reports” are not meant to include a

parent’s mental health records. Moreover, I believe it self-evident that the

second part of this provision – “and medical, psychological and school records”

– refers exclusively to the records of the child, not the parents. Surely, the

Child Custody Act does not intend to give the GAL access to a parent’s college

transcript.

      In sum, I believe Mother’s mental health records are absolutely

privileged under the mandates of the MHPA. 50 P.S. §7111. Section 7111(a)

requires a patient’s “written consent” before those records are released or

disclosed, except under limited circumstances inapplicable here.        Although

our Supreme Court found implicit waiver of the privilege under the unusual

facts of Octave, in doing so it expressly noted, “we utilize our authority in this

area carefully and urge courts to use great caution in accepting this form

of implicit waiver.” Octave, 103 A.3d at 1263 (emphasis added).

      In custody cases, such as this one, this Court has already determined

that the same information may be gleaned from a Rule 1915.8 evaluation;

i.e., a less intrusive means. Thus, I believe we should follow our precedent in

M.M. and Gates, and reverse the order of the trial court. The MHPA and our

precedents do not allow the disclosure of Mother’s mental health records in

this custody case, even if limited to three years, and even if limited to access

by the Child’s GAL. For these reasons, I respectfully dissent.

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