People in Interest of R.D.H., 96CA0106

• Court: Court of Appeals of Colorado
• Citation: 944 P.2d 660
• Docket Number: No. 96CA0106,96CA0106
• Parties: 21 Colorado Journal 731 The PEOPLE of the State of Colorado Through the DENVER DEPARTMENT OF SOCIAL SERVICES, In the Interest of R.D.H. and P.H., Children, Upon the Petition of the Denver County Department of Social Services, Petitioner-Appellee, and Concerning K.L.H., Respondent-Appellant. . II
• Decision Date: 29 May 1997

Page 660

944 P.2d 660 21 Colorado Journal 731 The PEOPLE of the State of Colorado Through the DENVER
DEPARTMENT OF SOCIAL SERVICES, In the Interest of R.D.H. and
P.H., Children, Upon the Petition of the Denver County
Department of Social Services, Petitioner-Appellee,
and Concerning K.L.H., Respondent-Appellant. No. 96CA0106. Colorado Court of Appeals,
Div. II. May 29, 1997.
Rehearing Denied June 26, 1997.
Certiorari Denied Oct. 20, 1997.

Page 662

Daniel E. Muse, City Attorney, Elizabeth Adams, Assistant City Attorney, Denver, for Petitioner-Appellee.

Allen B. Alderman, Guardian Ad Litem, for R.D.H. and P.H.

Cynthia M. Mardian, Denver, for Respondent-Appellant.

Opinion by Judge PLANK.

In this parental rights termination case, K.L.H. (mother) appeals the judgment terminating the legal parent-child relationship between her and her children, R.D.H. and P.H. Mother claims that the trial court erred in allowing the testimony of two substance abuse counselors and in admitting certain exhibits. We affirm.

After mother abandoned her newborn son and there were indications she was using crack cocaine and was homeless, the Denver Department of Social Services (DDSS) filed a petition in dependency and neglect. Mother subsequently underwent a drug evaluation in which she indicated that she had been using crack cocaine for several years and had experienced increased tolerance, withdrawal symptoms, and financial problems. The evaluation recommended several months of drug therapy which mother started but did not complete.

Upon mother's admission, the children were adjudicated dependent and neglected and a treatment plan was adopted. The treatment plan required mother to receive a drug evaluation and treatment, obtain housing and submit a financial budget, complete parenting classes, insure that the children received medical care, cooperate with paternity testing for P.H., and cooperate with the DDSS.

Mother did not take advantage of DDSS referrals to several substance abuse treatment facilities that would have allowed her to have her children with her. She entered a detoxification program at Arapahoe House but left before her treatment was completed to enter the Brandon House shelter. She was admitted to outpatient group counseling at one facility but was discharged because she failed to attend the program in any meaningful manner. Mother completed a 21-day residential treatment program at Arapahoe House but failed to participate in outpatient aftercare or submit to urine analysis. Based on mother's continued substance abuse problems, DDSS filed motions to terminate her parental rights.

At the termination hearing, a counselor from Arapahoe House testified and asserted that information sought in this case was confidential pursuant to federal regulations prohibiting federally funded substance abuse treatment facilities from releasing patients' treatment records. Upon the objection of mother's counsel to that counselor's testimony, the trial court ruled that, although the federal confidentiality statute, 42 U.S.C. § 290dd-2 (1994), is controlling, the disclosure of the information was appropriate because the court-ordered treatment plan required mother to participate in substance abuse treatment and the testimony was relevant to the issues before the court.

The counselor who asserted confidentiality then testified regarding the chronology of mother's substance abuse treatment and mother's admission to a two-year problem with cocaine, and gave her opinion that without continued treatment mother's substance

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abuse problem would continue. Mother asserts that the trial court erred in allowing this testimony.

I.

The federal confidentiality statute, 42 U.S.C. § 290dd-2(1994), provides that, absent patient consent, records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States, shall be confidential and disclosed only under certain circumstances. The statute further provides that, regardless of whether the patient has consented, the content of the records described above may be disclosed, as relevant here, if authorized by an appropriate court order after a showing of good cause. 42 U.S.C. § 290dd-2(b)(2)(C) (1994).

Comprehensive regulations codified at 42 C.F.R. §§ 2.61 to 2.67 provide procedures that must be followed for a court-ordered disclosure of patient records. In civil litigation, where it appears that the records are needed as evidence, the regulations require the filing of an application for a court order, notice to the patient and the person holding the records, and, if required, an in camera hearing. 42 C.F.R. § 2.64(a to c). The order authorizing disclosure of the records must contain certain safeguards limiting the disclosure. 42 C.F.R. § 2.64(e).

Mother claims that the court did not comply with these regulations in ordering the Arapahoe House counselor...