In the Interest of A.M., Minor Child. Heather Thomas, Subpoenaed Witness , 856 N.W.2d 365 ( 2014 )

IN THE SUPREME COURT OF IOWA
No. 14–0806
Filed November 21, 2014
IN THE INTEREST OF A.M.,
Minor Child.
HEATHER THOMAS, Subpoenaed Witness,
Appellant.
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. WRIT ANNULLED; CASE REMANDED.
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.
2
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, 101
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.
3
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 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
1Heather Thomas in her reply brief suggests the GAL improperly attempts to
“extend the record” by referring to prior proceedings. Thomas views the record too
narrowly. At the hearing on the motion to quash subpoena, the juvenile court had
before it the entire record of the CINA action. The record on appeal includes the
juvenile court’s prior rulings, other court filings, and the evidence taken at prior
hearings in this action. See Iowa Code § 232.94A (“Juvenile court records, social
records, and the material required to be recorded pursuant to section 232.94 shall be
maintained and shall be a part of each hearing relating to the child so long as and
whenever the child is a child in need of assistance.”); Iowa R. App. P. 6.801; In re
A.M.H., 516 N.W.2d 867, 873 (Iowa 1994) (noting evidence properly admitted at prior
hearing may be considered in subsequent hearing in CINA proceeding).
4
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
5
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. 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
2The children’s GAL did not cross-appeal on the issue of whether the juvenile
court correctly granted the motion to quash with respect to the psychotherapy notes,
and she stated at oral argument in our court that she did not contest that aspect of the
juvenile court’s ruling. Accordingly, we do not decide whether the therapist could be
compelled to turn over her mental health treatment notes in a CINA proceeding.
6
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 her mental
7
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
3Iowa Code section 228.2 states in relevant part, “Except as specifically
authorized . . . a mental health professional . . . for a mental health facility shall not
disclose or permit the disclosure of mental health information.”
4Iowa Code section 622.10 states in relevant part:
1. A practicing . . . mental health professional, or the
stenographer or confidential clerk of any such person, who obtains
information by reason of the person’s employment, . . . shall not be
allowed, in giving testimony, to disclose any confidential communication
properly entrusted to the person in the person’s professional capacity,
and necessary and proper to enable the person to discharge the
functions of the person’s office according to the usual course of practice
or discipline.
5Thomas asserts for the first time on appeal a constitutional claim of privacy in
mental health records. See Ashenfelter, 792 N.W.2d at 672 (noting a qualified
constitutional right to privacy in mental health records). We decline to reach this issue
because Thomas failed to make a constitutional privacy claim in district court. See
Alvarez v. IBP, Inc., 696 N.W.2d 1, 3 (Iowa 2005); Meier v. Senecaut, 641 N.W.2d 532,
537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court before we will decide them on
appeal.”).
8
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 abrogated for
purposes of CINA adjudicatory hearings, such that the juvenile court
properly compelled Thomas’s testimony without C.D.’s consent.
We begin our analysis of Iowa law by reviewing the operative
statutory language in light of our canons of construction. “The goal of
statutory construction is to determine legislative intent.” Auen v.
Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004). Our starting
point is the statutory text. McGill v. Fish, 790 N.W.2d 113, 118 (Iowa
2010). We generally “presume words used in a statute have their
ordinary and commonly understood meaning.” Id. at 119. We address
each statute in turn, beginning with the provision relied upon by the
juvenile court.
A. Iowa Code Section 232.96(5). Iowa Code section 232.96(5)
provides that the “privilege attaching to confidential communications
between a health practitioner or mental health professional and patient
. . . shall [not] be ground for excluding evidence at an adjudicatory
hearing.” Giving this language its plain meaning, it is clear the
legislature intended to create a statutory exception to the patient–
psychotherapist privilege that otherwise could be asserted to bar
testimony regarding mental health treatment in an adjudicatory hearing
9
in a CINA action. Cf. Anderson, 636 N.W.2d at 31–32 (describing a
similar provision in section 232.74 as an “exception” to the marital
privilege codified in sections 622.9). 6
Viewed in isolation, section 232.96(5) permits the juvenile court to
compel Thomas’s testimony. This makes sense because the juvenile
court must decide where to place the children, and the mother’s
compliance with treatment goals and her mental health are highly
relevant to that determination. Thomas, who has conducted numerous
counseling sessions with C.D. over a span of months, is well positioned
to provide the juvenile court as fact finder with vital information to help
determine the best interest of the children. 7 But, our analysis does not
6Iowa Code section 232.74 provides:
Sections 622.9 and 622.10 and any other statute or rule of
evidence which excludes or makes privileged the testimony of a husband
or wife against the other or the testimony of a health practitioner or
mental health professional as to confidential communications, do not
apply to evidence regarding a child’s injuries or the cause of the injuries
in any judicial proceeding, civil or criminal, resulting from a report
pursuant to this chapter or relating to the subject matter of such a
report.
In Anderson, we held that this exception to the marital privilege “is limited to cases of
child abuse that result from acts or omissions of a care provider. It does not apply to
injuries to children that result from acts or omissions by a non-care provider.” 636
N.W.2d at 36–37. The defendant in that case was accused of statutory rape of a fifteen-
year-old employee who was not a family member or resident of his household. Id. at 29.
We held section 232.74 did not apply. See id. at 37. By contrast, Thomas does not
argue section 232.96(5) is inapplicable; rather, she argues sections 228.2 and 622.10
prevail.
7Thomas argues, in lieu of compelling her testimony, the juvenile court could
order C.D. to submit to an independent psychiatric or psychological examination—
which she calls an “ingenious solution” crafted by the court of appeals in an
unpublished child custody decision. See In re Marriage of Mulligan, No. 10–1752, 2011
WL 2420005, * 7 (Iowa Ct. App. June 15, 2011) (“Such an approach provides the trial
judge with information relevant to the child custody decision, while preserving the
psychiatrist–patient confidentiality.”). While an independent examination may be
warranted in some CINA cases, the availability of that option does not foreclose the
juvenile court’s ability to compel testimony of a treating physician or counselor.
Testimony based on a longer relationship may be more illuminating than the snapshot
of the parent’s mental state in a single examination.
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stop here. We must decide if other statutory protections for mental
health information asserted by Thomas override section 232.96(5).
Thomas relies on Iowa Code section 622.10 and chapter 228.
We read related statutes together and attempt to harmonize them.
Root v. Toney, 841 N.W.2d 83, 90 (Iowa 2013). One canon of
construction is particularly helpful here:
If a general provision conflicts with a special or local
provision, they shall be construed, if possible, so that effect
is given to both. If the conflict between the provisions is
irreconcilable, the special or local provision prevails as an
exception to the general provision.
Iowa Code § 4.7; see also Christiansen v. Iowa Bd. of Educ. Exam’rs, 831
N.W.2d 179, 189 (Iowa 2013) (“One such rule is that the more specific
provision controls over the general provision.”). Applying this rule here,
we hold the limited exception to the patient–psychotherapist privilege in
CINA adjudicatory hearings in section 232.96(5) prevails over the general
privilege and confidentiality protections for mental health records
codified elsewhere.
We have said “[s]tatutes creating privileges are to be liberally
construed.” Anderson, 636 N.W.2d at 35. We do so to further the
policies underlying the privilege and for that reason we “normally” will
narrowly construe an exception to a privilege. Id. at 35–36. Yet, we have
also noted that privileges created in section 622.10 are “narrowly
construed” because they “impede[] the full and free discovery of the
truth.” Miller v. Cont’l Ins. Co., 392 N.W.2d 500, 504 (Iowa 1986) (citing
Chidester v. Needles, 353 N.W.2d 849, 852 (Iowa 1984)). Whether viewed
broadly or narrowly, the plain meaning of section 232.96(5) is dispositive.
“We are not free to rewrite the section ‘under the guise of liberal
11
construction.’ ” Chidester, 353 N.W.2d at 852 (quoting State v. Bedel,
193 N.W.2d 121, 124 (Iowa 1971)).
In this case, we are guided by the specific rule of construction the
legislature provided for in chapter 232:
This chapter shall be liberally construed to the end
that each child under the jurisdiction of the court shall
receive, preferably in the child’s own home, the care,
guidance and control that will best serve the child’s welfare
and the best interest of the state.
Iowa Code § 232.1. We honor the legislature’s directive to construe
chapter 232 liberally to “best serve the child’s welfare.” Doing so
reinforces our conclusion that the specific statutory exception to the
psychotherapist–patient privilege in section 232.96(5) prevails over more
general protections for mental health information in other statutes. We
apply section 232.96(5) to provide the juvenile court with access to
otherwise-privileged, but highly relevant information to help determine
the best interests of the children.
B. Iowa Code Section 622.10. We have addressed the
psychotherapist–patient privilege in CINA proceedings in several prior
cases. In State ex rel. Leas in re O’Neal, parents appealed the
termination of their rights, in part by challenging the juvenile court’s
admission of mental health records over their objection. 303 N.W.2d
414, 419 (Iowa 1981). Relying on Iowa Code section 232.96(5), we held
“[t]he physician–patient privilege is thus clearly abrogated with regard to
termination proceedings.” Id. This decision, however, makes no mention
of Iowa Code chapter 228.
Similarly, In re A.M.H. involved a mother’s challenge to
adjudicatory removal and dispositional orders in the CINA proceedings of
her daughter. 516 N.W.2d 867, 870 (Iowa 1994). The mother objected to
12
the juvenile court’s admission of her mental health and treatment
records. Id. at 873. We noted that juvenile courts in Iowa are allowed to
make use of hearsay and other evidence that would normally be excluded
in our district courts. Id. We went on to apply section 232.96(5) to limit
the “health professional–patient privilege in section 622.10” as follows:
The privilege attaching to confidential communications
between a health practitioner or mental health professional
and patient is not grounds for excluding evidence at a CINA
adjudicatory proceeding. Iowa Code § 232.96(5). Because a
CINA proceeding is a two-step process, the privilege does not
exclude the evidence from being admitted at a CINA
dispositional hearing.
Id. Again, however, this decision is silent regarding Iowa Code chapter
228. Both O’Neal and A.M.H. held section 232.96(5) trumped section
622.10 to allow disclosure of mental health information in CINA cases.
In Ashenfelter, we considered statutory, as well as constitutional,
protections for a mother’s mental health records demanded by
grandparents seeking visitation rights. 792 N.W.2d at 668. Although
the case was rendered moot by the amendment of Iowa Code section
600C.1 addressing grandparent rights, we chose to revisit the
confidentiality of mental health records as a matter of “great public
interest.” Id. at 670. We reiterated that both testimony and medical
records are privileged under section 622.10, without addressing chapter
228. Id. at 671–72. We held the grandparents’ “desire for visitation
cannot overcome [the mother’s] constitutional and statutory privilege
against production of her medical and mental health records in a petition
for grandparent visitation.” Id. at 674. But, we expressly limited our
holding, stating, “[w]e reach no conclusion regarding the ability of a court
13
to order disclosure of medical or mental health records to the State in a
CINA action.” Id. 8
We conclude O’Neal and A.M.H remain good law. We hold the
juvenile court correctly applied section 232.96(5) as an exception to the
patient–psychotherapist privilege in section 622.10.
C. Iowa Code Chapter 228. Thomas raises an argument our
prior cases have not addressed—that Iowa Code chapter 228 precludes
her testimony in this CINA action. Iowa Code chapter 228 has received
scant judicial interpretation. In State v. Heemstra, we noted section
228.2 without setting forth any analysis separate from our discussion of
section 622.10. 721 N.W.2d 549, 559–60 (Iowa 2006). The dissent in
State v. Cashen noted chapter 228’s protection for mental health records.
789 N.W.2d 400, 412–13 (Iowa 2010) (Cady, J., dissenting). In Harder,
we discussed chapter 228, but decided the case under chapter 598. 764
N.W.2d 534 at 537–38. None of these cases was a CINA action.
Iowa Code section 228.2(1) states, “Except as specifically
authorized . . . , a mental health professional . . . for a mental health
facility shall not disclose or permit the disclosure of mental health
information.” The parties agree that Thomas is a covered mental health
professional, and the testimony at issue constitutes mental health
information. The parties disagree whether the GAL’s subpoena in this
8We noted the constitutional protection for the privacy of mental health
information is “ ‘not absolute, but qualified.’ ” Ashenfelter, 792 N.W.2d at 672 (quoting
State v. Cashen, 789 N.W.2d 400, 406 (Iowa 2010)). The legislature in 2011 amended
section 622.10 in response to Cashen to mandate certain procedures governing the use
of mental health records in judicial proceedings, and we rejected a facial constitutional
challenge to that statutory amendment. State v. Thompson, 836 N.W.2d 470, 490 (Iowa
2013) (holding Iowa Code section 622.10(4) (2013) is constitutional on its face and
supersedes the Cashen protocol).
14
case fits within the disclosures allowed by Iowa Code section 228.6(1),
which provides:
A mental health professional or an employee of or agent for a
mental health facility may disclose mental health
information if and to the extent necessary, to meet the
requirements of section 229.24, 229.25, 230.20, 230.21,
230.25, 230.26, . . . , 232.74, or 232.147, or to meet the
compulsory reporting or disclosure requirements of other
state or federal law relating to the protection of human
health and safety.
Two of the statutes listed are found in the juvenile code sections 232.74
and 232.147. Iowa Code section 232.74 allows use of otherwise
privileged testimony “regarding a child’s injuries or the cause of the
injuries in any judicial proceeding.” The GAL and juvenile court did not
rely on section 232.74, and there is no claim Thomas’s testimony would
address an actual injury suffered by the children. Iowa Code section
232.147(1) states, “Juvenile court records shall be confidential. They
shall not be inspected and their contents shall not be disclosed except as
provided in this section.” It goes on to specify exactly who has access to
the records and the extent of their access. Id. § 232.147. The parties do
not claim section 232.147 allows the court to compel the testimony of a
mental health therapist.
Iowa Code section 232.96(5) is not listed in section 228.6(1).
Thomas argues this omission shows the legislature did not intend section
232.96(5) to be an exception to the protections of section 228.2. Thomas
relies on Kucera v. Baldazo:
When interpreting laws, we are guided by the rule of
“expressio unius est exclusio alterius.” “This rule recognizes
that ‘legislative intent is expressed by omission as well as by
inclusion, and the express mention of one thing implies the
exclusion of others not so mentioned.’ ”
15
745 N.W.2d 481, 487 (Iowa 2008) (quoting Meinders v. Dunkerton Cmty.
Sch. Dist., 645 N.W.2d 632, 637 (Iowa 2002)). The juvenile court rejected
Thomas’s argument, and so do we. Kucera is distinguishable because
the statute interpreted in that case lacked a catchall provision or other
language indicating the list of Code provisions mentioned was not
exclusive. See id. at 485 (quoting the amendment to Iowa Code § 20.18
at issue). By contrast, the list of statutes in section 228.6(1) is not
exclusive in light of the accompanying catchall provision allowing
disclosure of mental health information to “meet the . . . disclosure
requirements of other state or federal law relating to the protection of
human health and safety.” Iowa Code § 228.6(1). CINA proceedings
relate to the health and safety of children. We conclude the GAL’s
subpoena and the juvenile court’s order compelling Thomas to testify fall
within this catchall provision of section 228.6(1). The expressio unius
maxim is inapplicable. See, e.g., United States v. Guzman, 558 F.3d
1262, 1265 n.1 (11th Cir. 2009) (“[R]eliance on the canon of statutory
construction known as expressio unius est exclusio alterius is without
merit because . . . [a statute] did not . . . preclude the court from
imposing the reporting requirement under [the statute’s] catchall
provision.”); Bailey v. Fed. Intermediate Credit Bank of St. Louis, 788 F.2d
498, 500 (8th Cir. 1986) (“The applicability of ‘expressio unius’ depends
upon the intent of the drafters of a statute, and the maxim should be
invoked only when other aids to interpretation suggest that the language
at issue was meant to be exclusive.”).
We also conclude that section 232.96(5), as the more specific
statute, prevails over the general confidentiality provisions in chapter
228. See Iowa Code § 4.7. It would make little sense to hold section
232.96(5) prevails over section 622.10 but not chapter 228. Why would
16
the legislature expressly open the door to testimony regarding mental
health treatment in CINA actions through section 232.96(5)’s limited
exception to the psychotherapist privilege in section 622.10, only to close
the door in chapter 228? See Heemstra, 721 N.W.2d at 559–60, 563
(remanding case for in camera inspection of treatment records despite
confidentiality claimed under both section 228.2 and section 622.10).
We hold the juvenile court correctly rejected Thomas’s argument under
chapter 228.
D. Competing Policies. We strive to effectuate each statute’s
purposes when harmonizing interrelated provisions. See Anderson, 636
N.W.2d at 35 (“We attempt to find a reasonable construction that
‘serve[s] the purpose of the statute and avoid[s] absurd results.’ ”
(quoting Sourbier v. State, 498 N.W.2d 720, 723 (Iowa 1993)). We will
elaborate on the legislative goal of protecting children because of its
tension with another legislative goal—privacy of mental health
information.
1. Access to evidence to determine the best interests of the children.
The protection of children is one of the most well-established duties and
public policies of the State of Iowa. “[T]he State has a duty to assure that
every child within its borders receives proper care and treatment, and
must intercede when parents fail to provide it.” In re I.L.G.R., 433
N.W.2d 681, 689 (Iowa 1988). “Both DHS and the juvenile court have
the important function of protecting children who are in need of
assistance.” A.M.H., 516 N.W.2d at 871. It is the duty of the juvenile
court when necessary to intervene and remove a child from the care and
custody of parents, either temporarily or permanently. Id. at 871.
“Whenever possible the court should permit the child to remain at home
17
with the child’s parent, guardian, or custodian.” Iowa Code
§ 232.102(5)(a).
The juvenile court cannot remove a child from custody without a
determination that “continuation of the child in the child’s home would
be contrary to the welfare of the child, and shall identify the reasonable
efforts that have been made.” Id. § 232.102(5)(b); see also id.
§ 232.102(10)(a) (defining “reasonable efforts”). 9 These determinations,
required by law, are essential to the juvenile court’s role as the arbiter of
both temporary and permanent custody for children in need of
assistance. Juvenile courts have the power to “temporarily, even
summarily, remove a child pending a hearing on the modification” at any
time, and require evidence regarding reasonable efforts. A.M.H., 516
N.W.2d at 871–72 (citing Iowa Code section 232.99, which requires a
court to “make and file written findings as to its reason for the
disposition”).
The GAL argues that, without the testimony of Thomas, the
juvenile court will lack important information regarding the mother’s
9Section 232.102(10)(a) defines “reasonable efforts” in relevant part as follows:
“[R]easonable efforts” means the efforts made to preserve and unify a
family . . . . A child’s health and safety shall be the paramount concern
in making reasonable efforts. Reasonable efforts may include but are not
limited to family-centered services . . . . In determining whether
reasonable efforts have been made, the court shall consider both of the
following:
(1) The type, duration, and intensity of services or support offered
or provided to the child and the child's family. If family-centered services
were not provided, the court record shall enumerate the reasons the
services were . . . judged to be unable to protect the child and the child’s
family during the time the services would have been provided, judged to
be unlikely to be successful in resolving the problems . . . .
(2) The relative risk to the child of remaining in the child’s home
versus removal of the child.
18
progress dealing with her mental issues and her fitness to care for the
children. We agree. As the Michigan Supreme Court explained:
[T]he purpose of a child protective proceeding is to protect
the welfare of the child. It is in the best interests of all
parties for the factfinder to be in possession of all relevant
information regarding the welfare of the child.
In re Brock, 499 N.W.2d 752, 761 (1993) (citations omitted). The juvenile
court, as the finder of fact, has a compelling need for the therapist’s
testimony in this case.
2. The confidentiality required for effective mental health
counseling. We are equally mindful of the importance of confidentiality to
mental health treatment. Thomas persuasively argues that requiring a
therapist to testify without the patient’s consent will have a chilling effect
on mental health treatment. We share this concern. Parents would be
understandably reluctant to admit drug use and other behavioral
problems to their therapist if they fear disclosure to the court. Problems
hidden from a therapist are unlikely to be treated. Compelled disclosure
can undermine the efficacy of mental health treatment.
The American Psychiatric Association has recognized that
confidentiality is essential to effective treatment, 10 a view that has been
confirmed by numerous empirical studies. Deborah Paruch, The
Psychotherapist–Patient Privilege in the Family Court: An Exemplar of
Disharmony Between Social Policy Goals, Professional Ethics, and the
Current State of the Law, 29 N. Ill. U. L. Rev. 499, 522–32 (2009)
10The American Psychiatric Association formed a task force to study the effects
of judicially compelled disclosure of patient records, which published a report
confirming the importance of confidentiality. See Kinsella v. Kinsella, 696 A.2d 556,
582–83 (N.J. 1997) (citing Am. Psychiatric Ass’n, Task Force Report 31: Disclosure of
Psychiatric Treatment Records in Child Custody Disputes 1 (1991)) (quoting and
summarizing the findings of the task force).
19
[hereinafter Paruch] (providing a comprehensive overview of numerous
empirical studies finding that confidentiality is key to successful
psychiatric treatment). Every state has recognized the importance of
confidentiality in the treatment process by creating a statutory
psychotherapist–patient privilege. See Courtney Waits, Comment, The
Use of Mental Health Records in Child Custody Proceedings, 17 J. Am.
Acad. Matrim. Law. 159, 160 & n.2 (2001) (providing the statutory
citation for every state). As the Ohio Supreme Court observed:
[I]f a parent is fearful that any communications with her
provider will not be privileged, she may not be open and
truthful during treatment, thereby undermining the
effectiveness of treatment and ultimately defeating the goal
of remedying the reason for the removal of the child.
In re Wieland, 733 N.E.2d 1127, 1131 (Ohio 2000) (internal quotation
marks omitted). This concern is exacerbated by the fact that CINA
actions precede parental termination actions. A parent who does not
cooperate with court-ordered mental health treatment may be at risk of
losing their parental rights. Paruch, 29 N. Ill. U. L. Rev. at 562.
We have repeatedly emphasized “the importance of maintaining
confidentiality in mental health treatment.” Thompson, 836 N.W.2d at
483. One court has observed:
Reason tells us that psychotherapists and patients share a
unique relationship, in which the patient’s ability to
communicate freely without the fear of public disclosure is
the key to successful treatment. . . . Moreover,
communications with a psychotherapist often involve highly
personal matters, the disclosure of which would frequently
be embarrassing to the point of mortification for the patient.
Indeed, courts and commentators have focused on an
individual’s right of privacy, a fundamental tenet of the
American legal tradition, to justify the
psychotherapist/patient privilege.
Jaffee v. Redmond, 51 F.3d 1346, 1355–56 (7th Cir. 1995) (citation and
internal quotation marks omitted), aff’d, 518 U.S. 1, 116 S. Ct. 1923,
20
135 L. Ed. 2d 337 (1996). We do not lightly require disclosure of mental
health information.
3. Balancing the competing policies. This case involves competing
public policies: the mental health patient’s right to privacy and the
state’s interest in ensuring the safety and welfare of children in need of
assistance. Other courts have balanced these policies:
There are strong public policy reasons for creating [a
privilege] exception, particularly when the safety and welfare
of a child are at stake. If an expert witness who treated or
consulted with a parent in court-ordered treatment reports
only that the parent involuntarily attended counseling
sessions, the court is left to wonder whether the counseling
sessions were effective or whether the parent continues to
experience problems that would impede his or her ability to
parent. If no additional details of the treatment are
disclosed, the court does not have material, relevant
information upon which to base its decision about the child’s
fate and the parent’s continued right to parent that child.
These are serious concerns that must be weighed
against the basic tenet of confidentiality, and the concern
that a parent will not be candid and open while undergoing
treatment for fear of later disclosure.
Wieland, 733 N.E.2d at 1131 (Stratton, J., concurring); see also Kinsella
v. Kinsella, 696 A.2d 556, 584 (N.J. 1997) (“[T]he value of the therapist–
patient relationship and of the patient’s privacy is intertwined with one of
the most important concerns of the courts—the safety and well-being of
children and families.”); Perry v. Fiumano, 403 N.Y.S.2d 382, 386 (App.
Div. 1978) (“[T]he rule of privilege protecting such communications must
yield to the ‘dominant . . . duty of the court to guard the welfare of its
wards.’ ” (quoting Bachman v. Mejias, 136 N.E.2d 866, 869 (N.Y. 1956))).
In many states, the privilege is abrogated by statute in CINA proceedings.
Paruch, 29 N. Ill. U. L. Rev. at 544 (“[The privilege] is routinely abrogated
in . . . child protection proceedings. Many states, including New York,
Florida, and California, abrogate the privilege completely in child
21
protection proceedings.”). Iowa Code section 232.96(5) is but another
state legislative abrogation of the psychotherapist privilege for child
protection cases.
The Iowa legislature has balanced the competing policies in favor of
access to evidence in CINA proceedings. It is not our role to second-
guess the policy choices of the elected branches. See In re Estate of
Whalen, 827 N.W.2d 184, 194 (Iowa 2013) (“Policy arguments to amend
the statute should be directed to the legislature.”). We are not free to
rewrite a statute in the guise of interpretation. Id.
E. The Patient–Litigant Exception. The parties disagree
whether C.D. placed her mental condition at issue. Iowa Code section
622.10(2) contains an exception to the psychotherapist privilege “in a
civil action in which the condition of the [patient] is made . . . an element
or factor of the [patient’s] claim or defense.” Iowa Code section 228.6(4)
contains a similar exception allowing disclosure of mental health
information when the patient “offers [his or her] mental or emotional
condition as an element of a claim or a defense.” Thomas notes the State
has the burden to prove C.D. is unfit and relies on Ashenfelter, which
held the mother’s “mere act of denying [the claim] she is unfit does not
fall within the patient–litigant exception in section 622.10.” 792 N.W.2d
at 672. The GAL argues that C.D. did more to place her mental health at
issue, including submitting 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.” 11
11Compare Jacobs v. Conn. Cmty. Technical Colls., 258 F.R.D. 192, 196–97 (D.
Conn. 2009) (holding employee put his mental condition at issue by disclosing letters
from therapists), and Everett v. State, 572 So. 2d 838, 840 (Miss. 1990) (holding father
put his mental condition at issue by requesting therapist to submit letter to court
describing treatment), with In re Sims, 534 F.3d 117, 126, 142 (2d Cir. 2008)
22
Because we conclude that section 232.96(5) is dispositive, we do
not decide the question whether C.D. placed her mental condition at
issue for purposes of section 622.10(2) or section 228.6(4).
F. HIPAA Compliance. HIPAA provides that it supersedes any
contrary provisions of state law. 42 U.S.C. § 1320d-7(a)(1) (2012).
HIPAA regulations have been described as “dense, complex, confusing
and lengthy.” Cohan v. Ayabe, 322 P.3d 948, 956 (Haw. 2014). But, the
parties in this case agree Iowa law controls if it is “more stringent” in
protecting mental health information than the privacy restrictions
imposed under HIPAA. See 45 C.F.R. § 160.203(b); Holman v. Rasak,
785 N.W.2d 98, 111 (Mich. 2010) (“[A]ny HIPAA standard or requirement
that is contrary to state law preempts state law, unless the state law is
more stringent than HIPAA. 45 C.F.R. 160, 203. . . . More stringent
means that the state law provides greater privacy protection than HIPAA.
45 C.F.R. 160.202.”).
Under HIPAA regulations, a covered entity generally is not
permitted to use or disclose protected health information. 45 C.F.R.
§ 164.502(a)(1)(i–ii). The federal rule is subject to several exceptions,
including a broad exception for disclosures in judicial and administrative
proceedings. 45 C.F.R. § 164.512(e). The judicial exception allows a
covered entity to disclose any protected health information either in
response to a court order or a subpoena. Id. The subpoena prong of the
exception requires assurances that
______________________
(concluding a district court abused its authority by requiring disclosure of mental
health issues even though patient had previously testified on his communications with
mental health professionals), and In re Matthew R., 688 A.2d 955, 961, 967) (Md. Ct.
Spec. App. 1997) (holding a letter from a mental health practitioner stating a mother
was bipolar but asymptomatic did not put her psychiatric records in issue in a criminal
case).
23
reasonable efforts have been made by such a party to ensure
that the individual who is the subject of the protected health
information that has been requested has been given notice of
the request; or
. . . that reasonable efforts have been made by such a
party to secure a qualified protective order that meets the
requirements of paragraph (e)(1)(v) of this section.
Id. § 164.512(e)(1)(ii)(A–B). The qualified protective order is a court order
or stipulation of the parties that “[p]rohibits the parties from using or
disclosing the protected health information for any purpose other than
the litigation.” Id. § 164.512(e)(1)(v)(A). Alternatively, the covered entity
can provide the information voluntarily as long as it seeks a qualified
protective order on its own initiative. Id. § 164.512(e)(1)(iv).
We conclude Iowa law provides the more stringent protection for
mental health information. See Iowa Code § 622.10; Iowa Code ch. 228.
As Thomas stated in her appellate brief, “In all respects, Iowa’s law,
statutory and common, is far more stringent than HIPAA.” Although
Iowa Code section 232.96(5) abrogates the statutory psychotherapist
privilege for purposes of CINA adjudicatory hearings, juvenile court
records are automatically kept confidential without the need to obtain a
protective order. Id. § 232.147. Moreover, while juvenile court
proceedings are generally open to the public, the juvenile court may close
the hearing on motion of any party or on its own motion. Id. § 232.92. 12
The juvenile court’s order enforcing the subpoena requiring Thomas to
12Iowa Code § 232.92 states in full:
Hearings held under this division are open to the public unless
the court, on the motion of any of the parties or upon the court’s own
motion, excludes the public. The court shall exclude the public from a
hearing if the court determines that the possibility of damage or harm to
the child outweighs the public’s interest in having an open hearing.
Upon closing the hearing to the public, the court may admit those
persons who have direct interest in the case or in the work of the court.
24
testify, therefore, does not violate HIPAA. See, e.g., Turk v. Oiler, 732
F. Supp. 2d 758, 770–71 (N.D. Ohio 2010) (concluding Ohio statute
allowing disclosure in specific circumstances is more stringent than
HIPAA and therefore not preempted); Kalinoski v. Evans, 377 F. Supp. 2d
136, 139 (D.D.C. 2005) (enforcing subpoena after denying motion to
quash and rejecting objections under HIPAA); see also In re C.B., 865
N.E.2d 1068, 1072–73 (Ind. Ct. App. 2007) (holding trial court properly
considered evidence of mother’s positive drug test under HIPAA exception
for child abuse); Bihm v Bihm, 932 So. 2d 732, 735 (La. Ct. App. 2006)
(holding Louisiana law is more stringent than HIPAA and controlled
disclosure of counseling records in child custody case); In re B. Children,
No. NA-35478-81/06, 2009 WL 1176494, *6–8 (N.Y. Fam. Ct. 2009)
(surveying caselaw enforcing state statutes abrogating psychotherapist
privilege in child abuse cases when HIPAA provides no greater
protection).
We hold HIPAA does not supersede Iowa Code section 232.96(5).
On remand, Thomas or C.D. may ask the juvenile court to close the
hearing to the public during testimony regarding her mental health
treatment.
IV. Disposition.
For these reasons, treating Thomas’s appeal as a petition for a writ
of certiorari, we conclude the juvenile court properly ordered Thomas to
testify at the CINA adjudicatory hearing. We annul the writ and remand
the case for further proceedings.
WRIT ANNULLED; CASE REMANDED.