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In re A.M.

Supreme Court of Iowa

November 21, 2014

IN THE INTEREST OF A.M., Minor Child. HEATHER THOMAS, Subpoenaed Witness, Appellant

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[Copyrighted Material Omitted]

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Certiorari to the Iowa District Court for Polk County, Constance Cohen, Associate Juvenile Judge. Mental health therapist filed an appeal, treated as a petition for a writ of certiorari, challenging juvenile court order compelling her testimony as to treatment of mother in child-in-need-of-assistance action.

John P. Roehrick and Carlton G. Salmons of Gaudineer & George, L.L.P., West Des Moines, for appellant.

Michelle R. Saveraid of Youth Law Center, Des Moines, for child.

OPINION

Page 368

WATERMAN, Justice.

In this case, we review the juvenile court's order compelling a therapist to testify in a child-in-need-of-assistance (CINA) proceeding regarding the mother's mental health treatment. The testimony was sought by the guardian ad litem (GAL) for three minor children. The therapist and mother, asserting the patient-psychotherapist privilege, moved to quash the GAL's subpoena for the therapist's records and testimony. The juvenile court, relying on Iowa Code section 232.96(5) (2013), ruled the therapist need not turn over her notes but must testify. The therapist appealed, and we treat the appeal as a petition for writ of certiorari.

We must decide whether section 232.96(5)'s limited statutory exception to the psychotherapist privilege in CINA adjudicatory hearings trumps the confidentiality afforded mental health treatment under Iowa Code chapter 228, Iowa Code section 622.10, and the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. 104-191, 110 Stat. 1936 (relevant portions codified as amended in scattered sections of 42 U.S.C.). This is a question of first impression, highlighting the tension between vitally important interests: (1) the juvenile court's need for relevant evidence of the mother's mental health to determine the best interests of the children, and (2) the need for confidentiality for effective mental health counseling. We conclude the legislature has made the policy choice to balance these competing interests by allowing the court to compel the therapist's testimony in CINA adjudicatory proceedings, and no contrary result is required under HIPAA. For the reasons explained below, we hold the juvenile court properly ordered the therapist to testify. We annul the writ and remand the case for further proceedings.

I. Background Facts and Proceedings.

This CINA proceeding involves three minor children: A.M. who is eleven years old, and her half siblings S.W. Jr. and L.W., ages five and three, respectively.[1]

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A.M.'s father F.M. is serving a federal prison sentence. Until May 29, 2013, the children lived with their mother, C.D., and S.W., C.D.'s paramour and father of the two younger children. On that day, a CINA petition was filed alleging all three children to be in need pursuant to Iowa Code section 232.2(6)( b ), ( c )(2), and ( n ). The petition alleged that the parents were using methamphetamines while caring for the children and that S.W. provided a positive drug screen for meth. All three children were removed from their parents' custody the same day under an order of temporary removal and placed with the paternal grandmother of S.W. Jr. and L.W.

At a contested removal hearing on June 6, the juvenile court found these facts about the mother:

[C.D.] requests that she be permitted to return to the custodial home while the children remain in the legal custody of [the paternal grandmother]. However, her fragility, lack of insight and admitted untruthfulness raise serious protective concerns. It is not credible that she was unaware of the dangers posed by [S.W.'s] active use of methamphetamine given the extensive history of drug abuse and trafficking within the family. She is also clearly in need of trauma informed care to resolve her own therapeutic issues. She is not thinking clearly. There are numerous examples of problems in decision making; e.g., she sees no financial cost to her family by the father's drug abuse, but is struggling with back bills and currently living in her car.

On June 27, the juvenile court found the mother's mental health issues and improper supervision precluded the children's return to her custody at that time. The juvenile court ordered the Iowa Department of Human Services (DHS) to offer substance-abuse evaluation, therapy, and domestic-violence support for the mother. On July 23, C.D. began individual therapy sessions with Heather Thomas at Eyerly Ball Community Mental Health Center. Eyerly Ball is an Iowa nonprofit corporation providing mental health and case management services to those in need.

At an August 15 dispositional hearing, the juvenile court found: " Mother may reside with the children and the custodian. She has complied with and benefited from services." The juvenile court's order required C.D. to continue therapy and domestic-violence classes under DHS's permanency plan. At a review hearing on November 7, the juvenile court returned custody of the children to C.D., under DHS supervision, but cautioned that C.D. " needs to continue to gain insight regarding the impact of domestic violence on herself and the children." C.D. submitted a letter to the juvenile court from Thomas verifying her attendance at nine therapy sessions and reporting that " [C.D.] shows engagement in therapy and interest in continuing." The juvenile court ordered C.D. to continue participating in both individual therapy and domestic-violence classes. The case was scheduled for further review on April 24, 2014.

A family team meeting was held on February 28, 2014. By that time, the GAL for the children had begun " to get concerning reports from other professionals involved in this case" and shared them with the DHS caseworker who had her own concerns about C.D.'s lack of cooperation with services, dishonesty, and demeanor.

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When the GAL learned that the caseworker had not been able to obtain any progress reports regarding the mother's therapy, she subpoenaed Thomas to testify at the April 24 hearing with her therapy notes and attendance records. The subpoena was served on Thomas at Eyerly Ball on April 9.

Eyerly Ball and Thomas took the position that the information sought was confidential, noting the mother had not signed an authorization for its release. On April 16, Thomas filed a motion to quash the subpoena, and C.D. filed a " concurrence" with the motion two days later. On April 24, the juvenile court conducted a combined hearing on the motion to quash and review of the children's cases. At the hearing, the children's GAL argued that " substantive information from Ms. Thomas is necessary to further plan for these children." The GAL clarified that the request for notes was not to admit the therapy notes for inspection by the juvenile court or the parties, but because it had been her " experience in the past that therapists come without those and can't give the juvenile court useful information." Counsel for Thomas argued that HIPAA and Iowa law prevented disclosure of the information. The juvenile court granted the motion to quash conditionally with respect to the psychotherapy notes, but denied it with respect to testimony. The juvenile court also stated that objections to specific questions may be made during her testimony.[2]

Thomas filed a notice of appeal on May 13. We treated the notice as a petition for writ of certiorari and granted the petition with oral argument in an expedited appeal. See generally Crowell v. State Pub. Defender, 845 N.W.2d 676, 682-87 (Iowa 2014) (describing circumstances when a nonparty may challenge a ruling through a petition for writ of certiorari).

II. Standard of Review.

We typically review discovery rulings for abuse of discretion. Ashenfelter v. Mulligan, 792 N.W.2d 665, 668 (Iowa 2010). However, we review the juvenile court's interpretation of statutes for correction of errors at law. Id. at 668-69; see also State v. Anderson, 636 N.W.2d 26, 30 (Iowa 2001) (noting the standard of review for a ruling interpreting a privilege statute is for correction of errors at law). " Our standard of review for the admissibility of evidence alleged to be privileged is for an abuse of discretion." Anderson, 636 N.W.2d at 30.

" Abuse of discretion may be shown . . . where the decision is grounded on reasons that are clearly untenable or unreasonable. A ground or reason is untenable . . . when it is based on an erroneous application of the law." Office of Citizens' Aide/Ombudsman v. Edwards, 825 N.W.2d 8, 14 (Iowa 2012) (citation and internal quotation marks omitted).

III. Analysis.

The parties agree that Iowa law controls if it is more stringent than HIPAA in protecting mental health information. We therefore examine the Iowa enactments before turning to HIPAA. We conclude the Iowa protections are more stringent than HIPAA and are dispositive.

We must determine whether the juvenile court erred by compelling Thomas to testify in a CINA adjudicatory hearing regarding

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her mental health counseling of the mother, who declined to waive privilege. Thomas and C.D. argue the statutory protection for mental health information in Iowa Code section 228.2[3] and the patient--psychotherapist privilege codified in Iowa Code section 622.10[4] preclude her testimony regarding her treatment of C.D. The juvenile court disagreed, relying on the statutory exception to privileges in Iowa Code section 232.96(5), which provides:

Neither the privilege attaching to confidential communications between a health practitioner or mental health professional and patient nor the prohibition upon admissibility of communications between husband and wife shall be ground for excluding evidence at an adjudicatory hearing.

We have not previously addressed the interplay between these three statutes. We conclude the more specific provision, section 232.96(5), controls in this CINA proceeding and annul the writ on that basis.[5]

Iowa has no common law physician--patient privilege; the privilege is strictly statutory. Harder v. Anderson, Arnold, Dickey, Jensen, Gullickson & Sanger, L.L.P., 764 N.W.2d 534, 537 (Iowa 2009); see also Travelers' Ins. Co. of Hartford v. Bergeron, 25 F.2d 680, 682 (8th Cir. 1928) (" The privilege as to communications between patient and physician is purely statutory, there being no such privilege at common law." ). A privilege created by the legislature can be limited by the legislature. The fighting issue in this case is whether the statutory privilege and protection for mental health treatment is ...


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