980 A.2d 1045 (Del.Fam.Ct. 2009), CS08-02438, Division of Family Services v. A.B.

Docket Nº:CS08-02438.
Citation:980 A.2d 1045
Opinion Judge:HENRISKSEN, J.
Party Name:DIVISION OF FAMILY SERVICES, Petitioner, v. A.B., A.W., Thresholds, Inc., Respondents.
Attorney:Kathryn L. Welch, Esquire, Deputy Attorney General, Georgetown, DE, Attorney for the Petitioner. Ashley M. Oland, Esquire, Law Office Of Edward C. Gill, P.A., Georgetown, DE, Attorney for A.B. Patricia M. O'Neill, Esquire, Law Office of Patricia M. O'Neill, Georgetown, DE, Attorney for A.W. Andre...
Case Date:June 25, 2009
Court:Family Court of Delaware
 
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980 A.2d 1045 (Del.Fam.Ct. 2009)

DIVISION OF FAMILY SERVICES, Petitioner,

v.

A.B., A.W., Thresholds, Inc., Respondents.

No. CS08-02438.

Family Court of Delaware, Sussex.

June 25, 2009

Submitted: Dec. 8, 2008.

Page 1046

Kathryn L. Welch, Esquire, Deputy Attorney General, Georgetown, DE, Attorney for the Petitioner.

Ashley M. Oland, Esquire, Law Office Of Edward C. Gill, P.A., Georgetown, DE, Attorney for A.B.

Patricia M. O'Neill, Esquire, Law Office of Patricia M. O'Neill, Georgetown, DE, Attorney for A.W.

Andre Beauregard, Esquire, Brown, Shiels, & O'Brien, L.L.C., Attorney for Thresholds, Inc.

OPINION

HENRISKSEN, J.

This is the Court's Decision and Order on a Rule to Show Cause petition scheduled sua sponte by the Court against Thresholds, Inc. (Thresholds). Thresholds, a private agency providing patients with drug and alcohol treatment, has failed to come to Court on two occasions despite a subpoena duces tecum having been served upon it at the request of the attorney representing Mother in a child welfare/dependency action.

FACTS

Mother's child (Child) was taken from Mother and placed into the custody and care of the Division of Family Services of the State of Delaware shortly after Child's birth, when it was noted that Mother and Child both tested drug positive at the time of Child's birth. There was also an initial determination against Father that would have made Child dependent in Father's care.1 Mother informed the Court during

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the Preliminary Protective Hearing on July 21, 2008, that she had recently signed up with Thresholds to address possible problems she might be having with substance abuse.2 For purposes of this Decision, the Court is assuming that Thresholds is an agency covered by and subject to the confidentiality requirements of the Drug Abuse Prevention, Treatment and Rehabilitation Act, 42, U.S.C. § 290dd-2 (2005).

The next scheduled hearing in this matter was to occur on Monday, August 11, 2008. On Thursday, August 07, 2008, Mother's attorney requested that this Court issue a subpoena duces tecum to Thresholds to attend the Monday hearing. The subpoena was served on an employee of Thresholds during the late afternoon of Friday, August 08, 2008. Given the considerable lack of timeliness of this subpoena request, the failure of a Thresholds' representative to appear for the hearing is not an issue for the Court, except that it was the first of two occasions, the latter being more serious, when no one from Thresholds appeared in response to the subpoena. Thresholds' attorney, however, sent a courtesy letter to the Court in advance of the hearing objecting to the timeliness of the request, and including a concern that there had been no advance guarantee of payment of expert witness fees.

On July 21, 2008, assumedly while attending the Preliminary Protective Hearing, Mother signed a release form authorizing the release of her records from Thresholds to the Division of Family Services (DFS). Mother's signature appears on a form apparently prepared by DFS. Although the form specifies certain areas to be provided by certain named mental health providers, the form does not include the types of information being requested from Thresholds. 3 The DFS form of release contained a specific date by which Mother's authorization would no longer be valid. The release also contained language which notified Mother that the confidentiality of her records was protected under federal regulations governing confidentiality of alcohol and drug abuse patient records, 42 C.F.R. Part 2, as well as the Health Insurance Portability and Accountability Act (HIPAA) of 1996 (45 C.F.R. Pts. 160 and 164).

Mother later signed two other releases on August 15, 2008. Both releases appear to be on forms prepared by Thresholds. One of the releases authorized Thresholds to disclose information about Mother's presence in treatment to " Family Court" . The release form contained the necessary warnings under the Confidentiality of Alcohol and Drug Abuse Patient Records Act, 42 C.F.R. Part 2, as well as HIPAA. The release indicated that Mother's consent would terminate 90 days past her discharge. Mother's other release, signed on August 15, 2008, authorized the release of her Thresholds' records to her attorney. This form of release contained the same confidentiality warnings and cut-off date as the release Mother signed to the Family Court. Mother's release for her attorney also clearly authorized the release of Mother's results of her screening and assessment, including urine drug screen results, reports of Mother's progress in treatment, including attendance and diagnostic summary, and reports of her discharge

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status and any discharge recommendations.

On August 12, 2008, the Attorney Guardian Ad Litem (AGAL) for Child filed a motion, including a Notice of Motion to Thresholds. The AGAL's motion was requesting a Good Cause Order authorizing the release of Mother's Thresholds' records to the AGAL along with a mandate to do so. The Notice of Motion attached to the AGAL's motion notified the parties, as well as Thresholds, that the motion would be presented to the Court for consideration " at the Court's earliest convenience." The AGAL's Notice of Motion did not set a time period in which any of the parties, or Thresholds, could file a response.4 Unaware of the possible notice deficiencies in the AGAL's motion, noted in footnote number 4, the Court signed an Order on August 13, 2008, acknowledging that good cause had been shown by the AGAL for the disclosure of treatment services provided by Thresholds to Mother. The Court's Order also mandated that Thresholds produce its records regarding evaluation, treatment and discharge of Mother within 20 days to the AGAL and DFS. For reasons that the Court does not understand, and which gives the Court concern, the Order was not mailed until September 03, 2008. Again for reasons that the Court does not understand, it appears that copies of the Order were only sent to the attorney for DFS, the AGAL, and Father's attorney. A copy of the Order was not sent, at least by the Court, to Thresholds or to Mother's attorney.

On August 15, 2008, DFS filed a motion also seeking to have the Court determine that there was good cause to direct Thresholds to release Mother's records and to mandate the release of those records. Although the DFS motion, in paragraph 3, indicated that DFS had not received from Mother a release sufficient for the disclosure of the information to DFS, which may be correct due to a deficiency identified in footnote 3, Mother had in fact signed a form of release, perhaps not adequate, to DFS on July 21, 2008. The DFS motion was accompanied by a Notice of Motion to all parties, as well as certain other agencies, including Thresholds. The DFS Notice of Motion specifically indicated " If you are opposed to this motion, you must file a written response with the Court within 10 days of the service of this motion. If no response is timely filed, the motion may be decided without further opportunity to be heard on the matter." Given that the Court had already signed the prior Order to the AGAL's motion on August 13, 2008, which included authorizing the release of information also to DFS, it is likely that the Court did not sign any additional Order as to this particular DFS motion.

Contained in the legal memorandum filed by the AGAL, the Court learned that the AGAL forwarded a copy of the August 13th Order to Thresholds on September 03, 2008, along with a request that Thresholds forward to the AGAL the Court ordered documents. Thresholds' director, Bruce Lorenz, responded with an original letter to the Court and a copy to the AGAL, which indicated, in pertinent part, that Thresholds would comply with the Order [releasing records] since it met the requirements outlined in the Federal Confidentiality

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statute. Unfortunately, the AGAL's memorandum goes on to indicate that the AGAL did not receive the Court ordered records from Thresholds within 20 days from the date of the Order, which the AGAL interpreted to be the mailing date of September 03, 2008. Having received no response from Thresholds, the AGAL had to make an additional effort to contact Thresholds during the first week of October, 2008, to set up a meeting with Director Lorenz to discuss the reasons for Thresholds' delay in releasing the documents to the AGAL. That meeting did not occur until October 23, 2008, three days after the Adjudicatory Hearing in the dependency case.

Last, but not least, and coming to the very crux of the issue of this Decision, this Court issued a subpoena duces tecum at Mother's attorney's request for a representative from Thresholds to appear and bring records with him or her at the Adjudicatory Dependency Hearing scheduled October 20, 2008. The subpoena was served on Thresholds' worker Sue Harris on August 13, 2008, more than two months in advance of the Adjudicatory Hearing. Recall that Mother had executed an appropriate release to her attorney for these records on August 15, 2008. Despite the appropriately executed release signed by Mother to her attorney, and despite the Order issued by this Court on August 13, 2008, requiring Thresholds to disclose its records to the AGAL and to DFS within 20 days, neither Mother's attorney, the AGAL, nor DFS had these records in time for the Adjudicatory Hearing on October 20, 2008. Furthermore, the Thresholds' representative failed to appear at the Adjudicatory Hearing. Even more, at no time did Thresholds file any objection with the Court to the issuance of its Order of August 13, 2008, nor did it attempt to quash the subpoena duces tecum requested by Mother's attorney and served on Thresholds on August 13, 2008.

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