Shipman v. Division of Social Services
| Decision Date | 19 May 1981 |
| Citation | 442 A.2d 101 |
| Parties | Betty Jo and Roy SHIPMAN, * Petitioners, v. DIVISION OF SOCIAL SERVICES, and Children's Bureau of Delaware, Inc., Respondents. In the Matter of Sheila Margaret SHIPMAN, a minor child. |
| Court | Delaware Family Court |
Frederick S. Kessler, Wilmington, for petitioners.
L. Susan Faw, Wilmington, for respondent Children's Bureau, Inc.
Timothy A. Casey and Carol S. Widing, Wilmington, for respondent Division of Social Services.
Two petitions are before the court. First, a petition by the Shipmans (parents) against the Division of Social Services (DSS) and Children's Bureau, as intervenor, for the establishment of visitation privileges with their child, Sheila, presently in custody of DSS. Second, a petition by Children's Bureau against parents for termination of their parental rights. The positions of Children's Bureau and DSS are in tandem.
The following issues must be resolved on the motion of DSS for production of parents' medical records: 1
a. Are those records relevant in these proceedings?
b. If they are relevant, are they admissible in evidence on claim of privilege?
c. If the records are privileged, has there been actual or statutory waiver of the privilege in these proceedings?
Sheila was born on July 30, 1970. In May 1975, she was adopted by parents. Four years later she began exhibiting severe emotional problems. In June 1979, parents consented to DSS having custody of Sheila, and that consent resulted in an order of this court dated July 11, 1979, granting custody of Sheila to DSS. Under a purchase of services agreement, Sheila was transferred for care in July 1979 to the Children's Bureau by DSS who placed Sheila in a foster home. Children's Bureau claims that Sheila has progressed remarkably since that placement.
In August 1980, parents, ages 59 and 57, petitioned this court for specific visitation privileges with Sheila naming DSS as respondent. They allege that DSS has refused all visitation and contact by them with Sheila.
On January 5, 1981, this court granted the motion of Children's Bureau for leave to intervene in the visitation proceeding.
On February 9, 1981, Children's Bureau filed a petition with the court for termination of parents' parental rights over Sheila. The petition alleges that parents "are not able and have failed to plan adequately for the child's mental and emotional health and development."
Children's Bureau has moved for production of parents' medical records. Parents resisted production claiming that the records are privileged and are not, therefore, admissible in evidence.
On April 24, 1981, I ruled, over parents' objection, that Children's Bureau might subpoena the medical records of Kurt Anstreicher, M.D., the Delaware State Hospital, the Wilmington Medical Center and the Mental Hygiene Clinic. I also ruled that if, after examining the records, Mr. Kessler claimed privilege for petitioners, the records were to be sealed and not be opened without further court order.
Are the medical records relevant to these proceedings?
With respect to the petition for visitation, the records are certainly relevant. 13 Del.C. § 727(a) reads as follows:
"A parent not granted custody of the child is entitled to reasonable visitation privileges unless the Court finds, after a hearing, that visitation by the parent would endanger the child's physical health or significantly impair his emotional development."
While the parties concede that this statute is relevant to the visitation issue, I am not sure that it is. This court recently held that chapter 7 only applies to proceedings between parents of a child. 2 That holding is consistent with my holding here. Further it is my view that once custody of a child is removed from the parents under 10 Del.C. § 937, even by consent, that visitation privileges, if any, are entirely up to the new custodian or the court and are not dependent upon the peculiar provisions of section 727(a). It may well be that factors much less serious then those that would endanger the child's physical health or emotional development would justify denial of visitation where a new custodian takes control of the child under title 10. For present purposes there is no difficulty because we are faced with allegations of danger to the child's mental health and emotional development.
Children's Bureau claims that if Sheila visits her parents, her emotional development will be impaired. It is averred that parents have a long history of emotional problems which have not been resolved. Assuming that the proof at the trial will support these allegations, I conclude that the court might well deny the petition for visitation since parents' mental and emotional problems are equally if not more significant than the child's emotional or mental problems. If parents are suffering from problems of that kind their contacts with Sheila could visit the same problems upon her. Sheila has had difficulties in the past of an emotional nature so that the risk of increasing her burden might well be impermissible.
With respect to the termination proceedings, Children's Bureau concedes that it must demonstrate not only that the parents have failed or are unable to plan adequately for Sheila's emotional development, but that Sheila has been in its care and that there is a history of parental neglect or abuse.
The termination of parental rights statute does not define "neglect" or "abuse." Under 16 Del.C. § 902, "child abuse and neglect" includes not only physical injury by other than accidental means, but also "... injury resulting in a mental or emotional condition which is a result of abuse or neglect, negligent treatment, sexual abuse, maltreatment, mistreatment, nontreatment, exploitation or abandonment ..." Thus, parents' mental and emotional condition and history of neglect or abuse of Sheila, are relevant in determining whether their parental rights should be terminated. I flatly reject the suggestion advanced by parents that the court must focus attention strictly on Sheila's emotional and mental condition and not consider their emotional and mental condition. The medical records have definite significance and relevance in both the visitation and termination proceedings and must be made available to Children's Bureau unless they are protected by privilege.
Parents rely on 24 Del.C. § 1703(g) and D.R.E. 503 as creating a privilege which protects their medical records from disclosure.
24 Del.C. § 1703(g) reads as follows:
"The confidential relations and communications between a physician registered under this chapter and his patient are placed on the same basis as those provided by law between attorney and client, and nothing in this subchapter shall be construed to require any such privileged communications to be disclosed except as provided for by law."
D.R.E. 503(b) reads as follows:
"A patient has a privilege to refuse to disclose and to prevent any other person from disclosing...
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Shipman v. Division of Social Services
...supra. In re G.J.A., Pa.Super., 450 A.2d 80, (1982).2 One opinion with respect to this case appears as Shipman v. Division of Social Services, Del.Fam.Ct., 442 A.2d 101 (1981).3 Interestingly, this court did state on page 2 of the opinion "... that the clear and proper course calls for imme......
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Betty J.B. v. Division of Social Services
...objections of the parents who argued that such records are privileged. See the Family Court decision on that point in Shipman v. State, Del.Fam.Ct., 442 A.2d 101 (1981). After trial, the judge granted termination of parental rights. He did not reach the visitation issue. He denied a post-tr......