In re Lucas H.

Decision Date26 May 2021
Docket NumberNo. W2020-00122-COA-R3-JV,W2020-00122-COA-R3-JV
Citation634 S.W.3d 1
Parties IN RE LUCAS H.
CourtTennessee Court of Appeals

Larry Rice and Erin O'Dea, Memphis, Tennessee, for the appellant, Rachel K. D.

Matthew R. Macaw, Memphis, Tennessee and Mitzi Johnson, Collierville, Tennessee, for the appellee, Daniel T. H.

Laura L. English, Memphis, Tennessee, Guardian Ad Litem.

Arnold B. Goldin, J., delivered the opinion of the Court, in which John W. McClarty and Kenny Armstrong, JJ., joined.

Arnold B. Goldin, J.

This is an appeal from a denial of relief pursuant to a common law writ of certiorari arising out of a dependency and neglect case brought by Father against Mother in the juvenile court. The Guardian ad Litem appointed in the dependency and neglect case filed a motion to compel Mother to release copies of her mental health records, arguing that she is entitled to them under Tennessee Supreme Court Rule 40 and Tennessee Code Annotated section 37-1-411. In turn, Mother objected, arguing that her records are privileged, that she had not waived her privilege, and that the Guardian ad Litem was not otherwise entitled to the records. The juvenile court issued an order compelling Mother to release copies of her mental health records to the Guardian ad Litem. Mother thereafter filed a petition for writ of certiorari with the circuit court, seeking review of the juvenile court's interlocutory order. The circuit court found the juvenile court's actions proper under the writ of certiorari standard and granted Mother no relief. For the reasons contained herein, we reverse the decision of the circuit court and find that Mother is entitled to the relief sought under the common law writ of certiorari.

BACKGROUND AND PROCEDURAL HISTORY

Rachel K. D. ("Mother") and Daniel T. H. ("Father") were never married and share one minor child together, Lucas H.1 ("Child"), who was born on October 26, 2016. The parties initially met in Alcoholics Anonymous and are now in recovery. In late 2017, after almost five years of sobriety, Mother relapsed for a short period of time. During Mother's relapse, the parties’ relationship ended.

On January 9, 2018, Father filed a petition in the Juvenile Court of Shelby County, Tennessee ("Original Petition"), which included, among other matters, a request that Child be found dependent and neglected. At the time of filing, Mother was the sole custodial parent of Child. Father's Original Petition sought a finding of dependency and neglect on the part of Mother due to her alleged drug use. At no point in Father's Original Petition did he present any instances or allegations specifically implicating harm to Child.

On Monday, January 15, 2018, prior to being served with Father's Original Petition, Mother voluntarily checked herself into Bradford Health Services in Pulaski, Tennessee for treatment. Child was placed in Father's care while Mother was in treatment. Mother remained there until January 21, 2018, at which time she transferred to Bradford Health Services in Madison, Alabama to continue her in-patient treatment. Mother was released from care on February 1, 2018, and thereafter obtained a police escort to accompany her to Father's home to get Child. Once Mother arrived at Father's home, Father refused to return Child to Mother. Ultimately, Child's paternal grandmother brought Child out to Mother. After Mother left Father's residence with Child, Father contacted the Shelby County Sheriff's Office, requesting a welfare check of Child at Mother's home, after which Child was determined to be in good health.

On February 7, 2018, the parties appeared for a hearing on Father's Original Petition. An agreed order on visitation was entered, providing Mother with four days of overnight parenting time every week, with the maternal grandmother serving as supervisor. Father was permitted three days of unsupervised overnight parenting time. Per the order, Mother also agreed to submit to random urinalysis drug screening, which Father would be permitted to request weekly.2

The previously appointed Guardian ad Litem ("GAL") conducted a home visit with Mother and Child on March 26, 2018. Following the GAL's visit, Mother's counsel offered the GAL the opportunity to request random urinalysis drug screens from Mother at any time. The Department of Children's Services ("DCS") also initiated an investigation, appearing at Mother's residence the same day as the GAL and administering a random mouth swab drug screen, which Mother passed. DCS ultimately closed its investigation after a follow up visit to Mother's home and Mother passing the earlier drug screen. Shortly thereafter, the GAL requested that Mother release all of her rehabilitation records to the GAL for her review. In addition to other information, the requested records would have included Mother's privileged psychotherapy notes. In response to the GAL's request, Mother asserted her statutory privilege to the treatment records due to the psychotherapy notes. The GAL then filed a motion for release of the records on April 2, 2018, requesting that the juvenile court order Mother to release her privileged records.

A hearing on the GAL's motion was conducted on May 24, 2018, during which the GAL acknowledged that she had "no issues with [Mother's] home and her interactions with her child." Instead, relying on both Tennessee Code Annotated section 37-1-411 and Supreme Court Rule 40, the GAL contended that she was legally entitled to Mother's medical records. Furthermore, as to Mother's drug screens, the GAL noted that these screens "were not as random as [she] would have liked," despite the fact that the GAL herself had been given the opportunity to request random tests from Mother but had failed to do so. In support of her request for Mother's records, the GAL maintained that she wanted to review the records in order "to verify that Mother did go to these facilities; that she followed the recommendations; that she completed the programs and moving forward what would be the recommendations." In response to the GAL's alleged basis for requesting Mother's privileged medical records, Mother's counsel offered to provide the requested information through affidavits from the facilities Mother had attended for treatment without waiving Mother's privilege to her psychotherapy records. The GAL declined Mother's counsel's offer, arguing that these affidavits would not provide her with the appropriate information.

On May 25, 2018, the juvenile court entered an order granting the GAL's motion. Subsequently, on May 31, 2018, the juvenile court entered a revised order, requiring Mother to sign a release to allow the GAL to review all of her treatment records. However, Mother refused to sign a release based on her intention to appeal the May 31st order. The GAL filed a motion to compel on June 19, 2018, seeking an order from the court compelling Mother to sign the medical release. Mother subsequently filed a motion for a Rule 9 appeal on June 22, 2018, seeking an interlocutory appeal and a stay of the juvenile court's order. A hearing on both motions was held on June 27, 2018. At the hearing, the GAL argued that obtaining Mother's privileged medical records was "standard practice," while Mother argued that the juvenile court should grant her requested interlocutory appeal to prevent an irreparable injury. The juvenile court denied Mother's request for a Rule 9 appeal, however, it did agree to continue the trial to allow Mother to seek a Rule 10 appeal.

Mother subsequently filed an application for a Rule 10 appeal and a motion to stay with this Court. In so filing, she argued that the juvenile court improperly relied on Rule 40 and Tennessee Code Annotated section 37-1-411. In response, this Court issued an order dismissing Mother's Rule 10 appeal, holding that the proper method for an interlocutory review of the juvenile court's order was to file a petition for common law writ of certiorari to the circuit court. Thereafter, Mother filed her petition for writ of certiorari in the Circuit Court of Shelby County.

In her petition to the circuit court, Mother argued that her treatment records were protected by the psychologist-patient privilege and there existed no exception either under the law or the facts of this case. Furthermore, Mother contended that Rule 40 does not entitle the GAL to the records, nor does it state that the mere filing of a dependency and neglect petition automatically abrogate the privilege at issue. Mother further argued that in order to pierce the psychologist-patient privilege that exists under Tennessee Code Annotated section 63-11-213, there must be an allegation of harm to the child who is the subject of the dependency and neglect proceeding. Here, Mother argued that Father made no allegation that the child was harmed due to Mother's relapse, and that the privilege can only be pierced in the most compelling circumstances.

On May 10, 2019, the Shelby County Circuit Court ruled that the juvenile court "has not conducted these proceedings in any way without jurisdiction or unlawfully up to this point, and the Juvenile Court's Interlocutory Order should be followed in its entirety." This appeal eventually ensued.3

ISSUES PRESENTED

Mother, Father, and the GAL4 each filed their own respective appellate briefs, presenting several issues for our review on appeal. In the interest of clarity, we have determined the issues to be as follows:

1. Whether the circuit court erred in denying Mother relief in her petition for common law writ of certiorari.
2. Whether Mother is entitled to an award of attorney's fees on appeal.
3. Whether Father is entitled to an award of attorney's fees on appeal.
DISCUSSION
Whether the Order Being Appealed is Final Pursuant to the Tennessee Rules of Appellate Procedure

Initially, we find it pertinent to address the requirement of finality of judgments as it relates to the present matter. Tennessee Rule of Appellate Procedure 3(a)...

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