J.B. v. State
| Decision Date | 05 July 2018 |
| Docket Number | No. 3D18–256,3D18–256 |
| Parties | J.B., a Minor, and the Guardian ad Litem Program, Petitioners, v. The STATE of Florida and Carmen Barahona, Respondents. |
| Court | Florida District Court of Appeals |
Baker & McKenzie LLP, and Angela C. Vigil, for petitioner J.B., a minor; Thomasina F. Moore (Sanford), for petitioner Guardian ad Litem Program.
Eugene Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Philip L. Reizenstein, Assistant Regional Counsel, for respondent Carmen Barahona; Pamela Jo Bondi, Attorney General, and Melissa Roca Shaw and Brian H. Zack, Assistant Attorneys General, for respondent The State of Florida.
Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
J.B., a minor, and the Guardian ad Litem ("GAL") (collectively, "the Petitioners"), petition this Court for a writ of certiorari1 seeking to quash the trial court's order compelling the release of J.B.'s mental health records for use by the Respondent, Carmen Barahona ("Barahona"), in her death penalty trial. Although the State of Florida took no position in the lower court, it now joins the Petitioners in seeking quashal of the trial court's order.
This matter arises from the criminal prosecution of J.B.'s adoptive parents, Barahona and her husband, Jorge Barahona (collectively "the Barahonas"). On, or about, March 23, 2011, the Barahonas were charged with numerous counts, including the first degree murder of their adopted child, N.B., and the child abuse of their adopted child, V.B., who is N.B.'s twin brother.
Although J.B. lived in the Barahona home with the child victims, J.B. is not listed as a victim in the indictment. Prior to the charged offenses, N.B., V.B., and J.B. received psychological treatment at Citrus Health Network ("Citrus")—a non-profit community mental health center that serves mentally ill persons and their families. J.B. continued to receive psychological treatment at Citrus after the death of N.B. and the abuse of V.B. J.B. was approximately six or seven years old at the time.
On December 13, 2017, Barahona filed a motion to compel production of J.B.'s psychological records. In the motion, she contends that J.B. is an eyewitness to the events in question and may have evidence relevant to her defense. Importantly, neither the State nor the defense have listed J.B. as a witness. Further, there has been no attempt to depose J.B. during the seven years that this prosecution has been pending. Both J.B. and the GAL opposed Barahona's motion.
The trial court conducted a hearing on Barahona's motion on February 7, 2018. At the conclusion of the hearing, the trial court announced that it was going to grant the motion and order production of the records. The following day, prior to the issuance of a written order, J.B. filed an emergency motion for a stay. Prior to addressing J.B.'s motion for a stay, the trial court issued its order on Barahona's motion to compel production on February 9, 2018.
In its order, the trial court made the following findings: (1) J.B. was an eyewitness to many, if not all, of the events listed in the indictment; (2) the State and the defense need to review the records in order to adequately prepare for trial; (3) the need for the information outweighs any possible harm of disclosure; (4) the court has been "made generally aware" of J.B.'s mental and psychological fragility and, therefore; (5) disclosure of the "potentially relevant " records will "potentially safeguard " her from the trauma of a competency hearing, deposition, and testifying. (emphasis added). Ultimately, the trial court concluded that prohibiting disclosure would actually harm J.B. because the parties would then attempt to depose her and/or subject her to a competency hearing. The trial court therefore concluded that there was "a legitimate and appropriate interest in the parties having access to [J.B.'s] mental health treatment record...."
The order requires production under seal to both the State and the defense but prohibits disclosure to third parties, except for expert witnesses and legal staff. Later that same day, the trial court granted J.B.'s emergency motion and stayed the disclosure pending review by this Court. The instant petition followed.
As a preliminary matter, we address the Petitioners' request for a writ of prohibition. Writs of prohibition are narrow in scope, preventative in nature, and meant to be utilized with great caution. English v. McCrary, 348 So.2d 293, 296 (Fla. 1977). Such relief may only be granted when a lower court lacks jurisdiction or is attempting to exceed its jurisdiction. Id. Here, the record is devoid of any such showing. Therefore, prohibition is not an available remedy to address the trial court's discovery order.
Although a writ of certiorari is an extraordinary relief that is granted in very limited circumstances, see Lee v. Condell, 208 So.3d 253, 256 (Fla. 3d DCA 2016) (citing Rousso v. Hannon, 146 So.3d 66, 69 (Fla. 3d DCA 2014) ), it is the proper vehicle to review discovery orders compelling the production of information that is protected by the statutory psychotherapist-patient privilege ("the privilege"). Cruz–Govin v. Torres, 29 So.3d 393, 395 (Fla. 3d DCA 2010). In order to warrant relief, however, the order must depart from the essential requirements of law, causing material injury to the petitioner throughout the remainder of the proceedings below, leaving him/her without an adequate remedy on appeal. Martin–Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla. 1987), superseded by statute on other grounds, as stated in Williams v. Oken, 62 So.3d 1129, 1134 (Fla. 2011). The latter requirements constitute irreparable harm, a condition precedent to invoking certiorari jurisdiction, which should be considered first. Lee, 208 So.3d at 256.
We conclude that the trial court has departed from the essential requirements of law by ordering production of J.B.'s mental health records without first finding that an exception to the privilege applies. Section 90.503, Florida Statutes (2017), which codifies the privilege, specifically provides as follows:
(2) A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient's mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.
In defining the scope of the privilege, section 90.503(4) lists three exceptions to the privilege: (a) involuntary commitment proceedings; (b) court-ordered mental examinations; and (c) where the patient raises his or her own mental condition during the litigation. Importantly, however, the last exception applies when the patient , not the party seeking the information, places his or her mental health at issue. Cruz–Govin, 29 So.3d at 396. In other words, the moving party cannot "pierce the privilege" by simply lodging a claim that raises an issue regarding the patient's mental health. Id. (citing Viveiros v. Cooper, 832 So.2d 868, 869 (Fla. 4th DCA 2002) ).
Because Barahona seeks to pierce J.B.'s statutory privilege regarding her psychological records, she has the burden of demonstrating that one or more of the enumerated exceptions apply. See Brown v. Montanez, 90 So.3d 982, 986 (Fla. 4th DCA 2012) (). Barahona, however, has not raised any of the enumerated exceptions, and none apply here. Because she has failed to raise or prove any exception, J.B. has the right to prevent disclosure of her records, and thus, the trial court departed from the essential requirements of law by ordering disclosure. See State v. Famiglietti, 817 So.2d 901, 903–04 (Fla. 3d DCA 2002).
Although, Barahona failed to raise any of the exceptions listed in section 90.503(4), she argues that she is nevertheless entitled to the records under sections 456.057 and 395.3025, Florida Statutes (2017), both of which she claims are exceptions to section 90.503. The former governs general medical records. The latter governs patient and personnel records. Based on our review of sections 395.3025, 456.057, and 90.503, and the relevant case law, we reject this argument.
First, subparagraph (2) of section 395.3025 explicitly states that section 395.3025"does not apply to records maintained at any licensed facility the primary function of which is to provide psychiatric care to its patients, or to records of treatment for any mental or emotional condition at any other licensed facility...." (emphasis added). Here, Citrus' own website describes its primary function as providing "psychiatric care" to its patients. See http://www.citrushealth.org/about. Additionally, subparagraph (4) of section 395.3025 provides:
(emphasis added).
Section 456.057, which deals with general medical records, contains similar language. Specifically, subparagraph (7)(a) 3. precludes disclosure without a written authorization, except under certain listed circumstances, including the following:
In any civil or criminal action, unless otherwise prohibited by...
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