C.L. v. M.P.

J-S18037-20

2020 PA Super 159

C.L. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
M.P. :
:
Appellant : No. 1958 MDA 2019

Appeal from the Order Entered November 15, 2019
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 2019-FC-41210

C.L. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
M.P. :
:
Appellant : No. 1959 MDA 2019

Appeal from the Order Entered October 29, 2019
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 2019-FC-41210

BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED JULY 08, 2020

Appellant, M.P. (“Mother”), files these consolidated appeals from the

trial court’s October 29, 2019, order appointing a guardian ad litem (“GAL”)

pursuant to Pa.R.C.P. 1915.11-2, and including access to mental health

____________________________________________

* Former Justice specially assigned to the Superior Court.
J-S18037-20

records, as well as the trial court’s November 15, 2019,1 order granting in

part, and denying in part, Mother’s Petition for Emergency Special Relief

Seeking Reconsideration, providing the GAL access to mental health records

from the last three years for both Mother and Appellee, C.L. (“Father”),

pursuant to 23 Pa.C.S. § 5334, with restrictions as to disclosure and

dissemination by the GAL, as well as the ability to object to the GAL’s

testimony and/or report or recommendation. After review, we affirm.

The trial court has set forth the relevant procedural history as follows:

On August 23, 2019, [Father] filed a Petition for Custody
and a Petition for Emergency Special Relief in Custody pro se.
[Father] alleged in both petitions that “[t]he mother of our child,
[Mother] has become increasingly prone to erratic and hostile
outbursts toward me in front of our child.” [Father] also alleged
that “[Mother] had an extensive mental health history . . . and has
refused to seek any further treatment.” Additionally, [Father]
alleged that [Mother] “refused a suggested consultation . . . for
post-partum depression/psychosis.” Further, [Mother] “has been
regularly dissociating to the point of forgetting big stretches at a
time or where she is. . .” according to [Father]’s averments.
[Father]’s Petition for Emergency Special Relief in Custody was
granted ex parte . . . and scheduled for a hearing. Under [the]
____________________________________________

1 While the docket reflects a filed date of October 29, 2019, and November
15, 2019, there is no notation on the docket that notice was given and that
the orders were entered for purposes of Pa.R.C.P. 236(b). See Frazier v.
City of Philadelphia, 557 Pa. 618, 621, 735 A.2d 113, 115 (1999) (holding
that “an order is not appealable until it is entered on the docket with the
required notation that appropriate notice has been given”); Pa.R.A.P. 108(a)
(entry of an order is designated as “the day on which the clerk makes the
notation in the docket that notice of entry of the order has been given as
required by Pa.R.C.P. 236(b)”). Thus, the orders were not entered and the
appeal period not triggered. Although we consider the matter on the merits,
we caution the Court of Common Pleas of Lackawanna County as to
compliance with the rules with regard to the entry of orders.

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Order, [Father] enjoyed temporary sole physical and legal custody
of [Child].
Through counsel, [Mother] filed a Petition for Emergency
Special Relief in Custody on August 27, 2019. [Mother] likewise
alleged serious concerns regarding [Father]’s mental health and
alleged physical, mental, and emotional abuse. Among [Mother]’s
allegations of abuse were that: 1) [Father] was emotionally
controlling and manipulative regarding who could see [Child]; 2)
[Father] coerced [Mother] into severing ties with her parents; 3)
[Father] talked to [Mother] in a degrading and manipulative
manner in front of [Child]; 4) [Father] threatened to leave
[Mother] and take [Child] as punishment for visiting her family;
and 5) [Father] locked [Mother] out of the marital home and
attempted to have her committed.
[Mother] also alleged that [Father] suffered from mental
health conditions and was playing psychiatrist or gaslighting her.
For example, [Mother] alleged that [Father] diagnosed [Mother]
with “dissociative identity disorder” and tried to convince [Mother]
that she suffered from this condition. Moreover, [Mother] put
forth allegations that [Father] suffers from schizotypal personality
disorder and was not taking medication or treating. [Father]’s
disorder manifested itself in bizarre alleged behavior, including
telling [Mother] that Maternal Grandfather “pimped [Mother] out
to his friends while she was unconscious[,]” and that [Father] was
jealous of the sexual relationship [Mother] enjoyed with Maternal
Grandfather according to [Mother]’s petition. [Mother] further
alleged at one point that [Father] threw himself on the ground and
ripped at his clothing over a dispute as to whether Maternal
Grandparents could see [Child] and carved the letter M into his
arm for “no apparent reason” while [Mother] was otherwise caring
for [Child]. “All of the above behaviors exhibited by [Father,]”
[Mother] alleged, “call into question his mental health and his
ability to adequately and safely care for the minor child.”
[The court] denied [Mother]’s Petition for Emergency
Special Relief in Custody ex parte and the matters were
consolidated for hearing before the [c]ourt. The parties, however,
agreed to allow [Mother] periods of partial physical custody with
no overnight periods pending the hearing on the petitions. The
parties agreed that [Child] should have no contact with Maternal
Grandparents.

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Trial Court Opinion (“T.C.O.”), 12/17/19, at 2-3 (citations to the record

omitted).

Hearings were held on the parties’ cross-petitions on September 10,

2019,2 and October 28, 2019. Both Mother and Father were present and

represented by counsel. Father testified on his own behalf and presented the

testimony of his sister, as well as that of Mother, as of cross-examination.

Additionally, Mother testified on her own behalf.

[Mother]’s testimony was not concluded. After the October
28, 2019[,] hearing, [the court] appointed Andrew Phillips, Esq.[,]
as Guardian ad Litem (“GAL”) of [Child] pursuant to 23 Pa.C.S. §
5334 due to the high conflict in the family and the sensitive nature
of the allegations against each party and others associated. The
Order appointing the GAL was a form order pursuant to Rules
1915.11-2 and 1915.21 and contained language that allowed the
GAL to access both parties’ psychological or psychiatric charts,
including evaluations, progress notes, test evaluations, and
discharge summaries.
[Mother] then filed a Petition for Emergency Special Relief
Seeking Reconsideration to Entry of the October 29, 2019[,] Order
Appointing a Guardian ad Litem in the Nature of a Motion for the
Court to Strike Language from Said Order Pertaining to Mother’s
Release of Mental Health Records & Mental Health Treatment
Records to the Guardian ad Litem & Motion to Strike Mother’s
10/28/2019 Mental Health Testimony from the Record (“Petition
for Reconsideration”) citing the Mental Health Procedures Act, the
Psychologist-Patient Privilege, and relevant case law. Following

____________________________________________

2 We observe that the cover sheet for the Notes of Testimony of this hearing
indicates a date of August 15, 2019. An amended cover sheet reflecting a
date of September 10, 2019, is contained in the certified record. We further
note that Plaintiff’s (Father’s) Exhibit 1 was not included as part of the certified
record, or the reproduced record. Nevertheless, the exhibit was summarized
on the record. See Notes of Testimony (“N.T.”), 9/10/19, at 36.

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oral argument on [Mother]’s Petition for Reconsideration,[3] [the
court] issued two Orders on November 15, 2019[,] granting
[Mother]’s Petition for Reconsideration in part and sealing this
docket. Specifically, [the court] limited the Guardian ad Litem’s
access to three years of both parties’ mental health records and
ordered non-disclosure of such records, tailoring the Order to the
testimony in the case. [The court] also directed that [Father] and
[Mother] submit to mental health evaluations and/or testing
through one of two different providers pursuant to Pennsylvania
Rule of Civil Procedure 1915.8. In that Order, no limits were
placed on the evaluator’s ability to obtain prior mental health
treatment records of the parties. [The court] later issued Orders
in compliance with Pa.R.Civ.P. 1915.18, limiting the parties’
access to the evaluator’s file without authorization from [the
court].[4]

T.C.O. at 9-10 (citations to the record omitted) (footnotes added).

Thereafter, Mother, through counsel, filed timely notices of appeal on

November 25, 2019, along with concise statements of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), with respect to the

October 29, 2019, order appointing a GAL pursuant to Pa.R.C.P. 1915.11-2

and allowing access to mental health records, and the November 15, 2019,

order granting in part and denying in part Mother’s Petition for Emergency

____________________________________________

3 While the notes of testimony from this hearing are not included as part of
the certified record, they are included as part of the reproduced record. As
their veracity is not in dispute, we rely on the copy contained within the
Reproduced Record. See Commonwealth v. Barnett, 121 A.3d 534, 544
n.3 (Pa.Super. 2015) (“While this Court generally may only consider facts that
have been duly certified in the record, where the accuracy of a document is
undisputed and contained in the certified record, we may consider it.”)
(citations omitted)).

4 Mother does not challenge the order as it relates to the psychological
evaluations and/or testing.

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J-S18037-20

Special Relief Seeking Reconsideration and providing the GAL access to mental

health records from the last three years for both Mother and Father. 5, 6

Pursuant to order of December 2, 2019, Mother was granted leave to amend

her concise statement and such amended concise statement was treated as

timely filed.7, 8 This Court consolidated Mother’s appeals sua sponte on

January 27, 2020.

On appeal, Mother raises the following issues for our review:

1. Did the trial court err or abuse its discretion in directing
disclosure to the Guardian ad Litem, over the objection of counsel,
of confidential mental health records, based upon 23 Pa.C.S.[] §
5334, where the Mental Health Procedures Act [(“MHPA”)], 50 P.S.
§ 7111(a), controls the disclosure of such records and supersedes
any other statute to the contrary?

Mother’s Brief at 2 (suggested answer omitted).9

____________________________________________

5As indicated, this order additionally imposed restrictions as to disclosure and
dissemination by the GAL, and the ability to object to the GAL’s testimony
and/or report or recommendation.

6We find such orders are appealable as collateral orders pursuant to Pa.R.A.P.
313. See M.M. v. L.M., 55 A.3d 1167, 1168 (Pa.Super. 2012).

7Mother’s Amended Concise Statement made corrections as to citations. See
Amended Concise Statement of Errors Complained of on Appeal Pursuant to
Pa.R.A.P. 1925, 11/27/19.

8Upon motion of Mother, pursuant to order of December 3, 2019, the orders
on appeal were stayed by the trial court. See Order, 12/3/19.

9 Mother failed to preserve a claim as to the striking of her testimony from
October 28, 2019, pertaining to confidential mental health information, as she
failed to raise such a challenge in the statement of questions involved section
of her brief or present any argument and/or discussion with regard thereto.

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Initially, for background purposes, we note that in any custody action

brought under the Child Custody Act, (“the Act”), 23 Pa.C.S. §§ 5321-5340,

the paramount concern is the best interests of the child. See 23 Pa.C.S. §§

5328, 5338. In fashioning a custody award, the trial court must consider the

following best interest factors set forth in Section 5328(a), which provides as

follows:

§ 5328. Factors to consider when awarding custody

(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all relevant
factors, giving weighted consideration to those factors which
affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a continued
risk of harm to the child or an abused party and which party can
better provide adequate physical safeguards and supervision of
the child.
(2.1) The information set forth in section 5329.1(a)(1) and
(2) (relating to consideration of child abuse and involvement with
protective services).
(3) The parental duties performed by each party on behalf
of the child.

____________________________________________

See In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa.Super. 2017); Krebs v.
United Refining Co., 893 A.2d 776, 797 (Pa.Super. 2006) (stating that a
failure to preserve issues by raising them both in the concise statement of
errors complained of on appeal and statement of questions involved portion
of the brief on appeal results in a waiver of those issues). Any such challenge
is, therefore, waived. Moreover, we note that Mother, while arguing against
waiver, concedes that she abandoned such a claim. Mother’s Reply Brief at
1-2.

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(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the child
from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate for
the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by another
party is not evidence of unwillingness or inability to cooperate with
that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.

23 Pa.C.S. § 5328(a).

Additionally, relevant to Mother’s specific appellate issue, we note that

“the interpretation and application of a statute is a question of law that

compels plenary review to determine whether the court committed an error

of law.” Wilson v. Transport Ins. Co., 889 A.2d 563, 570 (Pa.Super. 2005).

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“As with all questions of law, the appellate standard of review is de novo and

the appellate scope of review is plenary.” In re Wilson, 879 A.2d 199, 214

(Pa.Super. 2005) (en banc).

We have stated:

[We] are constrained by the rules of statutory interpretation,
particularly as found in the Statutory Construction Act. 1
Pa.C.S.[] §§ 1501-1991. The goal in interpreting any statute is
to ascertain and effectuate the intention of the General Assembly.
Our Supreme Court has stated that the plain language of a statute
is in general the best indication of the legislative intent that gave
rise to the statute. When the language is clear, explicit, and free
from any ambiguity, we discern intent from the language alone,
and not from the arguments based on legislative history or “spirit”
of the statute. We must construe words and phrases in the statute
according to their common and approved usage. We also must
construe a statute in such a way as to give effect to all its
provisions, if possible, thereby avoiding the need to label any
provision as mere surplusage.

Cimino v. Valley Family Medicine, 912 A.2d 851, 853 (Pa.Super. 2006)

(quotation omitted). See 1 Pa.C.S.[] § 1921(b). Under Section 1921(c), the

court resorts to considerations of “purpose” and “object” of the legislature

when the words of a statute are not explicit. Sternlicht v. Sternlicht, 583

Pa. 149, 876 A.2d 904, 909 (2005) (referring to consideration of matters such

as: (1) occasion and necessity for statute; (2) circumstances under which it

was enacted; (3) mischief to be remedied; (4) object to be attained; (5)

former law, if any, including other statutes upon same or similar subjects; (6)

consequences of particular interpretation; (7) contemporaneous legislative

history; (8) legislative and administrative interpretations of such statute).

Moreover,

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[I]t is presumed that the legislature did not intend an absurd
or unreasonable result. In this regard, we. . .are permitted to
examine the practical consequences of a particular
interpretation.

Commonwealth v. Diakatos, 708 A.2d 510, 512 (Pa.Super. 1998).

Likewise, pursuant to 1 Pa.C.S. § 1933:

Whenever a general provision in a statute shall be in conflict with
a special provision in the same or another statute, the two shall
be construed, if possible, so that effect may be given to both. If
the conflict between the two provisions is irreconcilable, the
special provisions shall prevail and shall be construed as an
exception to the general provision, unless the general provision
shall be enacted later and it shall be the manifest intention of the
General Assembly that such general provision shall prevail.

1 Pa.C.S. § 1933.

As to the confidentiality of mental health records, 50 Pa.C.S. § 7111

provides:

(a) All documents concerning persons in treatment shall be kept
confidential and, without the person’s written consent, may not be
released or their contents disclosed to anyone except:
(1) those engaged in providing treatment for the
person;
(2) the county administrator, pursuant to section 110;
(3) a court in the course of legal proceedings
authorized by this act; and
(4) pursuant to Federal rules, statutes and regulations
governing disclosure of patient information where
treatment is undertaken in a Federal agency.
In no event, however, shall privileged communications, whether
written or oral, be disclosed to anyone without such written
consent. . . .

50 Pa.C.S. § 7111.

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Moreover, as to the appointment of a GAL in a custody matter, 23

Pa.C.S. § 5334 states:

(a) Appointment.--The court may on its own motion or the
motion of a party appoint a guardian ad litem to represent the
child in the action. The court may access the cost upon the parties
or any of them or as otherwise provided by law. The guardian ad
litem must be an attorney at law.
(b) Powers and duties.--The guardian ad litem shall be charged
with representation of the legal interests and the best interests of
the child during the proceedings and shall do all of the following:
...
(2) On a timely basis, be given access to relevant
court records, reports of examination of the parents
or other custodian of the child and medical,
psychological and school records.
...
(6) Make specific recommendations in a written report
to the court relating to the best interests of the child,
including any services necessary to address the child’s
needs and safety. The court shall make the written
report part of the record so that it may be reviewed
by the parties. The parties may file with the court
written comments regarding the contents of the
report. The comments filed by the parties shall also
become part of the record.[10]

23 Pa.C.S. § 5334 (bold in original) (footnote added).

____________________________________________

10As reflected by the Editors’ Notes:
23 Pa.C.S. § 5334 was suspended insofar as it (1) requires that a
guardian ad litem be an attorney, (2) permits the guardian ad
litem to represent both the best interests and legal interests of
the child, (3) provides the guardian ad litem the right to examine,
cross-examine, present witnesses and present evidence on behalf
of the child, and (4) prohibits the guardian ad litem from
testifying, pursuant to Pa.R.C.P. No. 1915.25.
Editors’ Notes 23 Pa.C.S. § 5334.

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In addition, Pa.R.C.P. 1915.11-2 states:

(a) The court may, on its own motion or the motion of a party,
appoint a guardian ad litem to represent the best interests of the
child in a custody action. The guardian ad litem shall be a licensed
attorney or licensed mental health professional. The guardian ad
litem shall not act as the child’s counsel or represent the child’s
legal interests. Prior to appointing a guardian ad litem, the court
shall make a finding that the appointment is necessary to assist
the court in determining the best interests of the child.

Pa.R.C.P. 1915.11-2.

Lastly, Pa.R.C.P. 1915.21 provides that the order appointing a guardian

ad litem shall provide, in part:

The child’s guardian ad litem shall represent the best interests of
the child. The guardian ad litem shall not act as the child’s
attorney or represent the child’s legal interests.
It is ordered and decreed that all relevant schools, police
departments, hospitals and social service agencies including home
and school agencies, who have records, reports and/or
information pertaining to the child relevant to the custody of the
the child, shall allow the guardian ad litem access to all files and
records in its possession, custody or control and shall cooperate
in responding to all relevant inquiries. These files/records may
include but are not limited to medical, psychological or psychiatric
charts including evaluations and progress notes and records, X-
rays, photographs, tests, test evaluations, intake and discharge
summaries, police records, and school records including report
cards, educational assessments and educational plans, relevant to
this custody dispute and/or relevant to any special needs or
requirements of the child. The guardian ad litem shall have the
right to copy any part of the files and records maintained in
connection with the child.
It is further ordered and decreed that the guardian ad litem shall
be permitted to see and speak with the child, and family, medical
and/or social service providers connected with this case, and take
all steps appropriate to and consonant with this order.
The guardian ad litem shall provide copies of any reports prepared
by the guardian ad litem to each party, or to their counsel, and to

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the court not later than 20 days prior to trial. The guardian ad
litem shall attend all proceedings and be prepared to testify. The
guardian ad litem shall be subject to cross-examination if called
to testify by either party or the court.

Pa.R.C.P. 1915.21.

In M.M. v. L.M., 55 A.3d 1167 (Pa.Super. 2012), the trial court ordered

the father, over objection, to disclose to the mother mental health records

relating to his in-patient hospitalization and post-hospitalization treatment. In

reversing in part and remanding, this Court held that the MHPA “is equally

applicable in a custody dispute as it is in a civil matter. We hold so especially

where, as here, less intrusive alternatives exist to determine the effect of a

party’s mental health upon the child’s best interest.” Id. at 1173. Important

to this Court was the “expectation of confidentiality.” Id. at 1174. This Court

stated, “[T]he importance of confidentiality cannot be overemphasized [and]

[t]he purpose of the [MHPA] . . . would be severely crippled if a patient’s

records could be the subject of discovery in a panoply of possible legal

proceedings.” Id. Instead, noting the “chilling effect” of disclosure of

statutorily privileged mental health records, the Court expressed its

preference for and existence of a less intrusive means, an updated

psychological evaluation. “As the court-ordered psychological evaluation is

the least intrusive means to determine how a parent’s mental health condition

will affect a child’s best interest, it is the preferred method of evaluation.” Id.

at 1175 (citation omitted).

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Moreover, in Octave ex rel Octave v. Walker, 628 Pa. 128, 103 A.3d

1255 (2014), our Supreme Court addressed waiver. The Court recognized the

importance of the privilege and protection provided by Section 7111 and held:

The MHPA, 50 P.S. § 7101 et seq., establishes the rights and
procedures for inpatient psychiatric treatment and involuntary
outpatient care with the purpose of assuring availability of
adequate treatment to mentally ill persons. The confidentiality
protections for mental health records afforded by § 7111 exist to
enable effective treatment “by encouraging patients to offer
information about themselves freely and without suffering from
fear of disclosure of one’s most intimate expressions to others and
the mistrust that the possibility of disclosure would engender.” To
this end, 7111(a) requires a patient’s “written consent” before his
mental health records are released or disclosed, except under
certain limited circumstances inapplicable here. The Superior
Court has held this statutory provision can be “waived,” however,
if the patient places his mental health at issue in a case.

Octave ex rel Octave, supra, 103 A.3d at 1259. Nonetheless, the Court

found the existence of waiver and held:

We cannot believe that the Pennsylvania General Assembly
intended to allow a plaintiff to file a lawsuit and then deny a
defendant relevant evidence, at plaintiff’s ready disposal, which
mitigates defendant’s liability. Rather[,] the General Assembly
must have intended the privileges to yield before the state’s
compelling interest in seeing that truth is ascertained in legal
proceedings and fairness in the adversary process. . . .
...
It must be emphasized that evidentiary privileges have been
viewed by this Court to be in derogation of the search for truth,
and are generally disfavored for this reason. The effect of that
concern is obvious. Accordingly, we hold a patient waives his
confidentiality protections under the MHPA where, judged by an
objective standard, he knew or reasonably should have known his
mental health would be placed directly at issue by filing the
lawsuit.

Id. at 1260-61.

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In the case sub judice, in appointing the GAL and allowing access to the

parties’ mental health records for the previous three years, the trial court

reasoned as follows:

The confidentiality protections of the Mental Health
Procedures Act can be waived where, “judged by an objective
standard, [a party] knew or reasonably should have known [their]
mental health would be placed directly at issue by filing the
lawsuit.” This [c]ourt notes that in filing his Petition for
Emergency Special Relief, [Father] raised [Mother]’s mental
health conditions and [Mother] raised [Father]’s mental health
conditions in her responsive Petition for Emergency Special Relief.
By filing custody petitions, both parties in this case knew or
reasonably should have known that their own mental health would
be placed directly at issue at a custody trial. A strong argument
can be made that both parties placed their mental health directly
at issue and waived confidentiality protections. However, the
Supreme Court has urged that this form of implicit waiver of
Section 7111 be applied with great caution.
...
Understanding this irreconcilable conflict, this [c]ourt chose
to apply the Guardian ad Litem statute Section 5334 of the Child
Custody Act, to the instant dispute, but in a manner that respects
both parents have concerns about the disclosure of their mental
health history. On one hand, the Guardian ad Litem needs access
to records to represent [Child]’s best interests and to make a
statutorily-mandated report and recommendations to this [c]ourt.
On the other hand, there appears to be over a decade of mental
health treatment potentially available here, most of which does
not necessarily encompass the present issues.
Upon consideration of the incomplete testimony of the
parties and [Mother]’s Petition for Reconsideration, this [c]ourt
determined that access to the parties’ records by the Guardian ad
Litem should be limited to three years given [Mother]’s specific
testimony that she began abusing alcohol at the end of 2016 and
spent ten months in inpatient treatment for both alcohol abuse
and an eating disorder in 2017. Moreover, during that inpatient
treatment, [Mother] admitted that she overdosed on prescription
medication. Given that drug and alcohol abuse and mental health
conditions must be fully considered under 23 Pa.C.S.

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5328(a)(14)-(15), disclosure of records is warranted in this case
despite the broadness of Section 7111 of the [MHPA].
Although disclosure of records was ordered, this [c]ourt did
not permit the Guardian ad Litem full, unfettered access to the
parties’ mental health records in consideration of Section 7111.
This [c]ourt also specifically limited the Guardian ad Litem’s ability
to disseminate the records or the information contained therein
and stated that the parties retained their ability to object to the
Guardian ad Litem’s report or his testimony during the custody
hearing. Furthermore, the Guardian ad Litem was precluded from
sharing those records obtained with any party or with counsel.
Additionally, this [c]ourt took an additional, extraordinary
step to seal the trial court record sua sponte without objection
from either party.
...
“Whenever the provisions of two or more statutes enacted
finally by different General Assemblies are irreconcilable, the
statute latest in date of final enactment shall prevail.” “The
Legislature has made clear [. . .] that tension between statutes
enacted on different dates is generally to be resolved in favor of
giving the greatest effect to [the] later-enacted provision.”
Section 7111 of the [MHPA] was enacted on July 9, 1976[,]
and made effective sixty days later. In 1996, Section 7111 was
amended by P.L. 481, No. 77 and has remained effective as
drafted since July 2, 1996. Section 5334 of the Child Custody Act
was enacted on November 23, 2010[,] and made effective on
January 24, 2011. Clearly, Section 5334 was enacted later in time
and is to be given the greatest effect. . . .

T.C.O. at 12, 24-25, 31 (citations omitted).

Mother, however, argues that her mental health records are privileged

and protected by the MHPA, which supersedes the Custody Act and any

corresponding rules of civil procedure. Mother’s Brief at 7-8. Mother contends

that Section 7111 supersedes Section 5334 because Section 7111 is specific

in its provisions, while Section 5334, as well as the related Pennsylvania Rules

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of Civil Procedure, are general. Id. at 12. She further highlights that,

although Section 5334 is the later enacted statute, there is no intent revealed

for Section 5334 to “trump” Section 7111. Id. at 8-9, 13. Section 7111,

when amended, was not amended or even suspended to the extent of any

conflict with Section 5334. Id. 10, 13. Mother argues:

Under statutory interpretation, where conflict exists, a
specific provision governs over a general provision. First, review
of § 5334 reveals that its language, providing the powers and
duties to a Guardian ad Litem, is general. . . . The generality of §
5334 is expanded by the rules of civil procedure, not by specific
language in a statute itself. Even in the rules of civil procedure,
Pa.R.C.P. 1915.11-2(a) is no more specific, and even with
reference to the language to be contained in the order granting
powers to the Guardian ad Litem by reference to Pa.R.C.P.
1915.21 is just general. Thus, the language of § 5334 speaks in
broad and general terms. Neither § 5334 nor the rules of civil
procedure identify any limit on the dissemination of content of the
mental health information acquired or to whom that information,
through the Guardian ad Litem, whether in court or otherwise,
may be disseminated.
In contrast, the MHPA is specific. The MHPA specifies that
it applies to mental health records generated and concerning “all
involuntary treatment. . . ., whether inpatient or outpatient, and
for all voluntary inpatient treatment.” The MHPA specifically
delineates to whom the mental health records may be disclosed
and under what circumstances. The MHPA becomes even more
specific through the definition of its terms. Because the MHPA is
the more specific of the two provisions, it governs over § 5334 of
the Child Custody Act.
Next, while the MHPA predates § 5334, which would seem
to lean in favor of § 5334, a specific statute takes precedent over
a general statute. However, this is not the sole factor for the older
statute to take precedent over the newer statute. When reviewing
the two (2) statutes, there must appear to be a “manifest intent”
that the more recent statute trumps the elder statute.
Comparing both § 7111 and § 5334 reveals that the
legislature has made no amendments which would weaken its
strength, despite the enactment of 5334. However, modifications

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have been made to § 7111. . . . Though § 7111 could have been
amended, or even suspended, after the effective date of § 5334,
to the extent that it was inconsistent with § 5334, it was not.
Thus, it is submitted that the lack of suspension or amendments
to § 7111 demonstrates that a “manifest intent” for § 5334 to take
precedent over § 7111 is not present and the more specific
statute, § 7111, takes precedent over § 5334 and is the controlling
statute under the circumstances.
Such a conclusion dove-tails and is consistent with
Pennsylvania jurisprudence in the field of custody, where lesser
intrusive means for the disclosure of records falling within the
MHPA are available and would not lead to offending or causing
conflict within the MHPA.

Mother’s Brief at 12-13.

Discussing M.M. v. L.M., supra, and Gormley v. Edgar, 995 A.2d 1197

(Pa.Super. 2010), Mother further maintains that the trial court erred in

directing such disclosure to the GAL as there is a less intrusive means to

evaluate the status of her mental health and any possible impact with respect

to the custody and best interest of Child. Mother’s Brief at 13-17.

Moreover, differentiating the instant case from Octave ex rel Octave,

supra, Mother asserts that she did not waive the protection of the MHPA as

she did not commence the within proceedings. Mother’s Brief at 16-19. She

contends:

Procedurally, . . . [Mother] did not commence the present action,
rather [Father] did. Because [Mother] did not commence the
custody action, she could not have reasonably known that her
mental health would be called into question before the action had
begun. Also, . . ., this case possesses a less intrusive means to
evaluate [Mother]’s mental health and its possible impact on the
best interest of the minor child. Therefore, this Court should
reject the assertion that [Mother] waived the protection or
privilege of the MHPA.

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Id. at 18.

For the reasons stated by the trial court above and in its thorough and

exhaustive opinion, we do not disturb the trial court’s determinations.11 Unlike

in M.M., where the records in question were being disseminated to the other

party, instantly, they are being disseminated to the GAL.

Moreover, and importantly, here, “less intrusive alternatives exist to

determine the effect of a party’s mental health upon the child’s best interest.”

M.M., 55 A.3d at 1173. The trial court fashioned less intrusive alternatives

by restricting the GAL’s access to records from the last three years, restricting

the GAL’s disclosure of the records, allowing objections to the GAL’s testimony

and/or report or recommendation, and sealing the record.

We further observe that the court additionally ordered mental health

examination and/or testing of the parties. Accordingly, we affirm.

Orders affirmed.

Judge King joins the Opinion.

Judge Kunselman files a Dissenting Opinion.

____________________________________________

11 We do not rely on Octave ex rel Octave, supra, to conclude that Mother
waived her claim of confidentiality by putting her own mental health records
at issue. Rather, we rely on the trial court’s analysis that the court did not
violate Mother’s rights under the MHPA where the trial court properly
appointed a GAL under the Custody Act and utilized the least intrusive means.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/08/2020

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