In Re The Adoption Of A.W.A. , 198 Wash. App. 918 ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
May 9, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Adoption of: No. 48727-6-II
A.W.A.,
A minor child,
M.D.B.,
Petitioner,
v.
J.D.A., PUBLISHED OPINION
Respondent/Natural
Father.
LEE, J. – AWA’s mother, LCW, and his stepfather, MDB, challenge the trial court’s denial
of their request for a protective order to prevent the release of AWA’s counseling records to
AWA’s father, JDA.1 LCW and MDB argue that the trial court erred by not considering AWA’s
best interests and by not conducting an in camera review of the records. We agree, reverse the
trial court’s denial of a protective order, and remand for further proceedings consistent with this
opinion.
1
Because this court’s record is sealed, we use all parties’ initials. We mean no disrespect. See
General Order 2017-1 of Division II, In re Changes to Case Title, available at:
http://www.courts.wa.gov/appellate_trial_courts/
No. 48727-6-II
FACTS
AWA lives with his mother, LCW, and her husband, MDB. LCW and MDB have been
married for seven years. JDA is AWA’s father and lives in California. His involvement in AWA’s
life has been sporadic.
In 2012, following a visit in California with his father, AWA disclosed to his mother that
JDA sexually assaulted him. LCW took AWA to the hospital. The hospital referred AWA to
Amber Bradford, a child therapist.2 JDA denied that he abused AWA.
LCW obtained a temporary protection order on behalf of AWA against JDA in 2012. The
temporary order became permanent in October 2014.
In December 2014, MDB petitioned for JDA’s parental rights to be terminated and for
MDB to adopt nine-year-old AWA under chapter 26.33 RCW. LCW joined the petition.
In 2015, AWA began counseling with Darren Wenz. LCW signed an agreement that they
would not involve Wenz in any custody or visitation disputes and would not involve him in any
court proceedings. LCW also agreed that Wenz would not “be asked to share my records regarding
any such proceedings.” Clerk’s Papers (CP) at 52. LCW and MDB told AWA that he could share
openly with Wenz without fear that the counseling sessions would be disclosed.
AWA’s guardian ad litem (GAL) submitted a report, recommending AWA participate in a
forensic interview with a qualified mental health professional regarding the abuse allegations. The
GAL noted in his report that AWA’s current counselor is Wenz. Upon learning that AWA was in
counseling with Wenz, JDA requested Wenz’s records. LCW and MDB filed a motion for a
2
The release of the hospital’s and Bradford’s records to JDA was agreed upon by the parties and
is not the subject of this appeal.
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No. 48727-6-II
protective order to prevent disclosure of Wenz’s counseling records. They argued that the court
must conduct an in camera review before allowing JDA access to the records and that the court
must consider AWA’s best interest.
At the hearing on the protective order motion, the trial court stated,
So I think that the records of Wenz are important. I don’t think that they
can be excused from this entire proceeding when he’s the current treatment
provider. I don’t know exactly what’s going to be in those records. I don’t feel as
though I need to have an in camera review, though.
Verbatim Report of Proceedings (VRP) at 16. The trial court made no mention of AWA’s best
interests in either its written findings of fact or oral ruling. The trial court denied the motion,
finding:
(1) This case involves the possible termination of [JDA’s] parental rights and
therefore the stakes are very high for the parties involved;
(2) The records of Mr. Wenz are important to the Court’s ultimate determination of
the termination issue;
(3) The records of Mr. Wenz are discoverable and the father [JDA] is entitled to
access to the records; and
(4) The Parenting Plan governing [JDA’s] rights to custody does not prohibit
[JDA’s] access to the records.
CP at 82. LCW and MDB moved for discretionary review, which we granted. (CP 83)
ANALYSIS
LCW and MDB contend the trial court erred by denying their request for a protective order
over Wenz’s counseling records with AWA by failing to consider AWA’s best interest and failing
to conduct an in camera review of the records. We agree.
We review the trial court’s denial of a protective order for abuse of discretion. In re
Dependency of J.R.U.-S., 126 Wn. App. 786, 792 n.1, 110 P.3d 773 (2005) (citing King v. Olympic
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No. 48727-6-II
Pipeline Co., 104 Wn. App. 338, 348, 16 P.3d 45 (2000), review denied, 143 Wn.2d 1012 (2001)).
A court abuses its discretion if its decision is manifestly unreasonable or based on untenable
grounds or untenable reasons. In re Marriage of Chandola, 180 Wn.2d 632, 642, 327 P.3d 644(2014). A trial court also abuses its discretion if it fails to exercise discretion when required to do
so. Kucera v. Dep’t of Transp., 140 Wn.2d 200, 224, 995 P.2d 63 (2000).
A. BEST INTERESTS OF THE CHILD
RCW 26.09.225(1) provides that
Each parent shall have full and equal access to the education and health care records
of the child absent a court order to the contrary. Neither parent may veto the access
requested by the other parent.
However, while a parent has the right to a child’s health care records, “[a] court, may, in its
discretion, deny full access to one or both parents.” Neel v. Luther Child Center, 98 Wn. App.
390, 395, 989 P.2d 600 (1999); 20 SCOTT HORENSTEIN, WASHINGTON PRACTICE: FAMILY AND
COMMUNITY PROPERTY LAW § 33.26 at 328 n.2 (2015).
In Neel, Division One of this court addressed a similar records access dispute. In that case,
the father sought discovery of his eight-year-old daughter’s counseling records. Neel, 98 Wn. App.
at 392-93. The counseling center responded that in light of the parent’s history of conflict and
allegations of child abuse, release of the records would not be in the best interests of the child. Id.
at 393. After conducting an in camera review of the records, the trial court agreed and ruled that
it was “‘not in the best interest of the child’” for either parent to have access to the child’s records.
Id.
On appeal, the Neel court noted that while “RCW 26.09 does not state grounds for denying
access to health care records,” “[t]he trial court always has considerable discretion to act in the
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No. 48727-6-II
best interests of the child when considering matters arising out of the dissolution of marriage act.”
Id. at 395. Because the father sought access to his daughter’s counseling records to defend against
allegations that he abused her, his request for the counseling records did not serve the child’s best
interests. Id. at 395. Thus, the Neel court concluded that the trial court appropriately exercised its
discretion in denying the father’s request for his daughter’s counseling records after conducting an
in camera review and finding that disclosure of the child’s records would not be in her best
interests. Id. at 396.
Relying on Neel, LCW and MDB argue that the trial court erred by not addressing whether
discovery of AWA’s records would be in AWA’s best interest. They further argue the trial court
focused on JDA’s best interests and not AWA’s. We agree and adopt Division One’s reasoning
in Neel that before a trial court makes a decision regarding a parent’s access to a child’s health
care records, it must consider the child’s best interests, in addition to other relevant considerations.
This holding is in harmony with the Uniform Health Care Information Act (UHCIA),
chapter 70.02 RCW. RCW 70.02.005(1) provides, “Health care information is personal and
sensitive information that if improperly used or released may do significant harm to a patient’s
interest in privacy, health care, or other interests.” The UHCIA “is designed to serve the interests
of the patient, not the patient’s representative.” Neel, 98 Wn. App. at 395. In Neel, the court noted
that the father was not seeking health care records to make an informed decision about his
daughter; rather the father “sought access to his daughter’s health records in order to correct
allegedly inaccurate information about himself.” Id. at 396. JDA is seeking AWA’s counseling
records for the same purposes. This is not a basis for access under the UHCIA. Id.
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No. 48727-6-II
Additionally, this is an adoption proceeding under chapter 26.33 RCW. Our legislature
has expressly stated that while the rights of all parties must be protected in an adoption proceeding,
“[t]he guiding principle must be determining what is in the best interest of the child.” RCW
26.33.010.
Because the trial court’s findings do not reflect consideration of whether discovery of
AWA’s treatment records would be in AWA’s best interests and because a trial court abuses its
discretion when it fails to exercise discretion when required to do so, we hold that the trial court
erred by not considering AWA’s best interests before denying LCW and MDB’s motion for a
protective order.
B. IN CAMERA REVIEW
LCW and MDB next argue that the trial court erred by not reviewing the counseling records
in camera before denying their motion for a protective order. We agree.
We review a trial court’s decision on whether to conduct an in camera review for abuse of
discretion. Forbes v. City of Gold Bar, 171 Wn. App. 857, 867, 288 P.3d 384 (2012), review
denied, 177 Wn.2d 1002 (2013). A court deciding a motion for a protective order as to mental
health treatment records has various options available to it, including the appointment of a GAL,
appointing a qualified mental health professional to review the records and advise the court, or
performing an in camera inspection of the records before ruling on the motion. In re Marriage of
Folise, 113 Wn. App. 609, 614-15, 54 P.3d 222 (2002), review denied, 149 Wn.2d 1027 (2003).
In Neel, the trial court first conducted “an in camera review” of the records before ruling that it
was not in the child’s best interests for either parent to have access to the records. 98 Wn. App. at
393.
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No. 48727-6-II
Here, the trial court did not appoint a mental health professional to review the records or
perform an in camera review of the records before ruling on the motion. While the trial court did
appoint a GAL, it does not appear from the record that the court sought the GAL’s opinion on
whether the records should be disclosed. Both Neel and Folise suggest that more was required of
the trial court before ruling on LCW and MDB’s motion for a protective order. Accordingly, we
hold that the trial court abused its discretion by not reviewing AWA’s records from Wenz, or
having the records reviewed, before ruling on LCW and MDB’s motion for a protective order.
We reverse and remand for consideration of LCW and MDB’s motion for a protective order
consistent with this opinion.
Lee, J.
We concur:
Worswick, P.J.
Sutton, J.
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