In re Wendy W.
| Decision Date | 24 March 2022 |
| Docket Number | 1-20-1000 |
| Citation | 2022 IL App (1st) 201000,202 N.E.3d 1034,461 Ill.Dec. 37 |
| Parties | IN RE MARRIAGE OF WENDY W., Petitioner-Appellee, and JAMES W., Respondent-Appellant. |
| Court | United States Appellate Court of Illinois |
Amy L. Jonaitis, of Boike Jonaitis Law LLC, of Chicago, for appellant.
Arin Fife and Samantha Ungruh of Family Law Solutions P.C., of Chicago, for appellee.
Stuart G. Gelfman of Birnbaum, Haddon, Gelfman & Arnoux LLC, of Chicago, for Minor-Child.
¶ 1 In a post dissolution of marriage proceeding, the petitioner mother sought to restrict the respondent father's parenting time with their minor child based on allegations that the father would continue to interfere with the medical services necessary for the child's mental health. The father moved for production of the child's medical, psychiatric, psychological, and school records, and the mother objected based on the child's statutory privilege to keep the requested records confidential and objection to the disclosure of the records to his father. The trial court denied the father's entire request for production of the child's records.
¶ 2 Thereafter, the trial court granted the father's request to certify for permissive interlocutory appeal, pursuant to Illinois Supreme Court Rule 308 (eff. Oct. 1, 2019), the following questions:
This court granted the father's application for leave to appeal. Id.
¶ 3 On appeal, the father argues that the trial court cannot deny him access to the requested records based on the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act) ( 740 ILCS 110/1 et seq. (West 2018)) because it is not applicable here. In the alternative, the father argues that, if the Confidentiality Act is applicable, it is not a basis to deny him access to the requested records because the mother placed the child's mental health at issue, the trial court failed to review the requested records in camera , fundamental fairness necessitates the release of the records to the father, and the evidence of the child's objection to disclosure of the records was insufficient. The father also argues that he has a right to the documents under the broad scope of discovery, he cannot be denied access to the records based on a best interests of the child standard or any statutory provision, and the trial court's ruling improperly modified the provisions of the parties’ allocation judgment without the filing of the requisite pleading. This court notes that the father's arguments on appeal raise several issues that exceed the parameters of the certified questions and, thus, will not be addressed by this court.
¶ 4 The mother and the child's representative argue that all the requested records are subject to the patient-therapist privilege and should not be disclosed.
¶ 5 As framed, the certified questions are overbroad (e.g. , vague references to the discovery of "otherwise relevant evidence" and the failure to limit the questions to the patient-therapist privilege at issue in this case). Answering the certified questions as framed would necessarily bear on situations not before this court and would therefore result in an improper advisory opinion. This court, however, may modify the certified questions to correct any impropriety. See Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994) ("In all appeals the reviewing court may, in its discretion, and on such terms as it deems just, *** enter any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief *** that the case may require."); De Bouse v. Bayer AG , 235 Ill. 2d 544, 556-67, 337 Ill.Dec. 186, 922 N.E.2d 309 (2009) (). Here, the interests of judicial economy favor modification of the certified questions.
¶ 6 Consequently, this court, in the exercise of caution, has modified the certified questions as follows for conciseness and to correct for overbreadth: May a trial court, in a proceeding relating to a petition to restrict parenting time pursuant to section 603.10 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) ( 750 ILCS 5/603.10 (West 2018) ), where the allegations involve the mental health of a child who is at least 12 but under 18 years old, deny a parent based on the provisions of the Confidentiality Act ( 740 ILCS 110/1 et seq. (West 2018)) and the best interests of the child (1) the ability to discover otherwise relevant evidence concerning the child's mental health and therapeutic school records on the ground that the child in question does not want said evidence disclosed to that one parent; (2) the ability to discover the child's medical records concerning the child's mental health and school records from a therapeutic school even though those records are relevant to the proceedings and the parent is entitled to have access to those records pursuant to the parties’ parental allocation judgment; and/or (3) access to the child's mental health and therapeutic school records that the child's representative has reviewed?
¶ 7 For the reasons that follow, we answer the modified certified questions as follows. As to question 1, we answer yes regarding the mental health medical records except for limited information regarding the child's current physical and mental condition, diagnosis, treatment needs, services provided, and services needed and no regarding the nonprivileged and nonconfidential school records. As to question 2, we answer yes regarding the mental health medical records, except for limited information regarding the child's current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, and no regarding the nonprivileged and nonconfidential school records. As to question 3, we answer yes regarding the mental health medical records except for limited information regarding the child's current physical and mental condition, diagnosis, treatment needs, services provided and services needed, and no regarding the nonprivileged and nonconfidential school records. We remand the cause to the circuit court for further proceedings.1
¶ 9 Wendy and James W. were married in 1996 and have two children. Their emancipated child was born in 2001, and their minor child was born in 2006. Wendy filed a petition for dissolution of marriage in 2011, and the court appointed Stuart Gelfman as the children's representative.
¶ 10 In 2016, the court entered a judgment of dissolution of marriage and an allocation judgment regarding the allocation of parenting responsibilities and the parenting plan. The allocation judgment provided that the "parents shall be entitled to duplicate originals of the children's school records (including but not limited to grade reports)" and if the children's schools do not cooperate in this regard, then the parents shall timely provide these materials to the other except in cases of emergency. The allocation judgment also provides that "[e]ach parent shall have access to [the children's] health care providers and medical and dental records, and each parent will provide the other with the names, addresses and telephone numbers, and any other relevant information necessary to access the providers of any health, psychological, dental or other care to their children."
¶ 11 On July 1, 2019, Wendy filed an emergency petition to resume supervised parenting time concerning the minor child and for other relief. Wendy asked the court to either suspend James's parenting time with the child or have that parenting time be supervised, restrict James's contact with the child, order James not to interfere with the mental health care of the child, and require James to surrender any firearm owner identification card and guns. Wendy stated that James had supervised visitation with the children until about May 2019 and there was currently an emergency order of protection in place protecting her from James. Wendy alleged that (1) the minor child suffered from extreme anxiety and depression, was under the care of a psychiatrist and therapist, and had been prescribed...
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