The Long-Standing Debate Over Obtaining a Child’s Therapy Records

The Long-Standing Debate Over Obtaining a Child’s Therapy Records

Two of the most misunderstood and misinterpreted issues in family court in Arizona today are the family court’s authority to (a) order a child’s therapy or medical records sealed from a parent, often called either “safe harbor” or “safe haven” therapy; and (b) order a parent or a child into therapy or therapeutic intervention. It doesn’t help that safe haven therapy, safe harbor therapy, and therapeutic intervention aren’t really defined anywhere in Arizona law, statute, or Rule.

This post addresses the first issue, a child’s therapy records.  The second issue, orders for counseling in general, will be addressed in a later post. A pretty standard fact situation involving a request for a  child’s therapy records is found in a 2014 Arizona case which is a memorandum decision (meaning it generally can’t be cited as authority in a later case, with some exceptions).  Charepoo v. Dahnad  (2014)

In Charepoo, a motion to compel the release of the children’s therapy records was filed by Father.  Father was a registered sex offender. The therapist told the court it was not in the children’s interests to have their records released to Father. The COA found that the record supported the trial court’s refusal to release the records to Father.  [1] The memorandum decision relied on ARS 25-408J in denying Father’s access to the records as something that could “endanger seriously” the children’s mental, moral, or emotional health.

The language of ARS 25-408J remains the same today, in 2019, as at the time of the Charepoo decision in 2014, although that language is now in 408K. 

How have other jurisdictions handled safe haven or safe harbor therapies for children? The New Hampshire case In the Matter of Berg, 152 N.H. 658 (2005) addressed the important questions head-on:

1. Do children have a right to privacy for their medical records and communications?

2. Does the court have the authority to seal the therapy records of the parties’ minor children when one parent demands access to the records for purposes of litigation?

3. Should the court have the authority to seal the therapy records of minor children when the parents are in conflict about the release and access to such records?

That decision thoroughly discusses the rights of the parents and how those rights intersect, and possibly conflict with, the rights of children and the enhancement to public good by keeping therapy records private. The Berg court ultimately concluded that parents do not have the exclusive right to assert or waive the privilege on their child’s behalf. The trial court has the authority and discretion to determine whether assertion or waiver of the privilege is in the child’s best interests.   That holding has been repeatedly affirmed since Berg was issued in 2005.

In Arizona, ARS §25-408K remains the primary source for court orders relating to children’s therapy (or other medical) records.     While there is no direct definition of either “safe haven” or “safe harbor” in Arizona, as those terms apply to therapy, the medical records statute found at ARS §12-2293B makes reference to withholding records if  “[a]ccess by the patient’s health care decision maker is reasonably likely to cause substantial harm to the patient or another person.”   In making that determination, ARS §12-2293D requires the health care provider to “note this determination in the patient’s records and provide to the patient or the patient’s health care decision maker a written explanation of the reason for the denial of access.”   The provider also must release any records “for which there is not a basis to deny access under subsection B”. So, a blanket refusal by a health care provider to provide ANY records relating to a patient on the grounds that the patient could be harmed would be presumptively suspect, as it’s unlikely that every record in the provider’s file could cause substantial harm.   In the case of therapy records of a child, most provider’s files would include background and basic information, gleaned from the child’s parents or the child, and could also include summaries of interviews with persons other than the child-patient which would not be harmful.

A future post will address the bases for court orders for parent counseling, child counseling, and therapeutic interventions in Arizona.

[1] Although Father’s Motion may have been denied based on procedure (it was untimely), the COA decision stated that the denial was valid on substantive grounds as well. 

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