Law v. Developmental Child Care Inc.

• Decision Date: 16 December 1986
• Citation: 523 A.2d 557
• Parties: Paula G. LAW, mother, and E. Howard Johnson, III, father, next friends and guardians, ad litem, of Saskia Johnson, a minor child and Paula G. Law and E. Howard Johnson, III, Plaintiffs, v. DEVELOPMENTAL CHILD CARE INC., a corporation of the State of Delaware, and Wilhelmina Bateman, Defendants. . Submitted:
• Court: Delaware Superior Court

Page 557

523 A.2d 557

Paula G. LAW, mother, and E. Howard Johnson, III, father next friends and guardians, ad litem, of Saskia Johnson, a minor child and Paula G. Law and E. Howard Johnson, III, Plaintiffs, v. DEVELOPMENTAL CHILD CARE INC., a corporation of the State of Delaware, and Wilhelmina Bateman, Defendants.

Superior Court of Delaware New Castle County.

Submitted: Dec. 16, 1986.

Decided: Jan. 29, 1987.

Motion for a Protective Order and Motion to Quash Subpoena--GRANTED.

Rory C. Godowski, of Green, Green & Godowski, Wilmington, for Paula G. Law and E. Howard Johnson, III.

Ellen S. Meyer, Wilmington, for Suzanna, Priscilla and Amanda Wright.

Wayne N. Elliott, Prickett, Jones, Elliott, Kristol and Schnee, Wilmington, for Developmental Child Care, Inc.

George E. Evans, Wilmington, for Wilhelmina Bateman.

Janice R. Tigani, Deputy Atty. Gen. of the Atty. Gen. Office for Division of Child Protective Services.

Susan Kirk-Ryan, Deputy Atty. Gen. of the Attorney Gen. Office for the Mental Hygiene Clinic.

POPPITI, Judge.

On October 15, 1986, the Division of Child Protective Services [hereinafter "Division"] filed a motion to quash the subpoena issued by defendants Developmental Child Care, Inc. and Wilhelmina Bateman to the Division for the medical records of Suzanna Wright and her daughters Priscilla and Amanda. On the same day, the Wrights filed a motion for a protective order to prevent the disclosure of this same information. The Wrights are not parties to the captioned action. The information sought is allegedly of a highly personal nature, and affidavits have been filed by the treating professionals to the effect that disclosure of these records could cause severe psychological and emotional damage to the Wrights. This is the Court's decision on these motions.

The Division is a State agency authorized by the provisions of 16 Del.C. ch. 9 to receive and investigate allegations of child abuse or neglect. It is the recipient of federal funds under the Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5101, et seq.

Under the provisions of this federal statute, in order for the Division to qualify for such assistance, the State must "provide for methods to preserve the confidentiality of all records in order to protect the rights of the child, and the child's parents or guardians." 42 U.S.C. § 5103(b)(2)(E). Likewise, federal regulations require the State to "provide by statute that all records concerning reports and reports of child abuse and neglect are confidential and that their unauthorized disclosure is a criminal offense." 45 C.F.R. § 1340.14(i)(1). The regulations, however, do permit the State to authorize such disclosures to certain persons or agencies under limitations and procedures determined by the State, including disclosure to a court. 45 C.F.R. 1340.14(i)(2)(ii).

Delaware provides by statute that the Division shall establish a registry of information concerning each case of abuse or neglect required to be reported. The statute further provides that the "files shall be confidential subject to the rules and regulations adopted by the Division." 16 Del.C. § 905(b). The Division, in its Manual, provides that the "use and disclosure of all information and records is limited to purposes directly connected with the delivery of Child Welfare Services." Division Program Manual § 202.2. The Manual also acknowledges that "actions are often initiated in Family Court that necessitate the revealing of confidential information in order to protect the best interests of a child and/or his family." Division Program Manual § 202.4.

The underlying action here is a tort suit for money damages for alleged child abuse. As noted above, the Wrights are not parties to this suit. While I certainly start from the premise that the phrase "directly connected with the delivery of Child Welfare Services" should be read as broadly as possible consistent with the enabling legislation of the Department of Services for Children, Youth and their Families, 29 Del.C. § 9001, et seq. I am satisfied that the phrase does not contemplate a private citizen's right to seek money damages for alleged child abuse. In my view there is simply no connection direct or otherwise to the provision of services to children as contemplated by the statutory scheme. 29 Del.C. § 9003.

Delaware also provides for the non-disclosure of such confidential information as the Wright reports elsewhere in the Delaware Code. Under the rules of evidence, a patient "has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition ... among himself, his ... psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the ... psychotherapist." D.R.E. 503(b). While no such privilege exists under this rule as to a communication relevant to "the physical, mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense," D.R.E. 503(d)(3), this exception clearly does not apply here. The Wrights are not party to the underlying proceeding and thus, ipso facto, they are not relying on their "physical, mental or emotional condition" as an element of any claim or defense. That the plaintiff in the underlying action may be so relying is irrelevant. The exception speaks only to the patient's reliance.

Finally, under Delaware law no licensed clinical social worker may disclose any information acquired from persons consulting him in a professional capacity, except with the person's consent, or when the communication reveals the prior commission or contemplation of a violent crime or harmful act, or when the person brings charges against the social worker, or when the person is a minor and the information received indicates that the minor was a victim or subject of a crime. 24 Del.C. § 3913. Under this last exception, the social worker "may disclose" the information when the social worker is "required to testify fully in any examination, trial or other proceeding in which the commission of such a crime is the subject of inquiry." 24 Del.C. § 3913(3). To the extent that this exception may be applicable here, I am...