C.L. v. M.P.

J-E03007-20

2021 PA Super 107

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: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., OLSON,
J., STABILE, J., NICHOLS, J., McLAUGHLIN, J., and KING, J.

OPINION BY NICHOLS, J.: FILED MAY 26, 2021

M.P. (Mother) files these consolidated appeals from the orders that

appointed a guardian ad litem (GAL), and provided the GAL access to the

mental health records of Mother and C.L. (Father) from the last three years.

This Court granted en banc reargument to consider three issues, which we

have reordered as follows: (1) whether participation in a custody action results
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in waiver of protection by the Mental Health Procedures Act 1 (MHPA); (2)

whether the Custody Act provides for the “least intrusive means” of a sufficient

mental-health evaluation of the parent, or whether the trial court may order

a limited disclosure of the records; and (3) whether the trial court erred in

disclosing confidential mental health records to the GAL.2 See Order, 1958

MDA 2019 & 1959 MDA 2019, 8/25/20, at 1-2. Mother and Father filed

substitute briefs, and the GAL has also filed a late appellee’s brief. For the

____________________________________________

1 23 Pa.C.S. § 5334.

2 A prior divided panel of this Court affirmed the trial court’s orders in a
memorandum decision that has been withdrawn. See C.L. v. M.P., 1958 MDA
2019 & 1959 MDA 2019 at 2 (Pa. Super. filed July 8, 2020) (withdrawn Aug.
25, 2020). The majority acknowledged that Mother did not waive her
confidentiality privilege under the MHPA. Id. at 18 n.10. However, the
majority concluded that the trial court did not violate Mother’s right to
confidentiality under the MHPA because it “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.” Id. at 18.

The dissent responded that the majority’s opinion ignored this Court’s “clear,
factually on-point, and relatively recent custody precedents” in M.M. v. L.M.,
55 A.3d 1167 (Pa. Super. 2012) and Gates v. Gates, 967 A.2d 1024 (Pa.
Super. 2009), which held that mental health records were not subject to
disclosure in custody cases. See C.L. v. M.P., 1958 MDA 2019 & 1959 MDA
2019 at 2 (Pa. Super. filed July 8, 2020) (Kunselman, J., dissenting). The
dissent stated that the majority misapplied the “less intrusive means” analysis
because (1) the less intrusive means already approved in custody cases is the
evaluation provided in Rule 1915.8; (2) the MHPA confidentiality privilege
protects any disclosure of mental health records and that privilege is not
waived by limiting who receives the disclosed information; and (3) granting
the GAL access to Mother’s mental health records was no less intrusive than
furnishing those records to Father. Id. at 7.

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reasons that follow, we affirm in part, reverse in part, and remand the matter

for further proceedings consistent with this decision.

The trial court set forth the relevant procedural history of this matter 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]
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

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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 [Child].”

[The trial court] denied [Mother]’s petition for emergency special
relief . . . and the matters were consolidated for hearing before
the [trial 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.

Trial Ct. Op., 12/17/19, at 2-3 (record citations omitted).

The trial court held hearings on the parties’ cross-petitions on

September 10, 2019 and October 28, 2019. Both Mother and Father were

present and represented by counsel. The trial court summarized the

remaining procedural history as follows:

After the October 28, 2019[,] hearing, [the court] appointed
Andrew Phillips, Esq.[,] as [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 . . . of the October 29, 2019 order . . . citing the
[MHPA], the psychologist-patient privilege, and relevant case law.
Following oral argument on [Mother]’s petition for

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reconsideration,[3] [the trial 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
[GAL’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 trial 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 trial court] later
issued orders in compliance with [Pa.R.C.P.] 1915.18, limiting the
parties’ access to the evaluator’s file without authorization from
[the court].[4]

Trial Ct. Op. at 9-10 (record citations omitted and some formatting altered).

Mother, through counsel, subsequently filed timely notices of appeal and

Pa.R.A.P. 1925(a)(2)(i) and (b) statements,5 challenging the trial court’s

October 29, 2019 order which allowed access to Mother’s mental health

records, and the November 15, 2019 order which denied Mother’s motion for

reconsideration and provided the GAL with access to her mental health records

____________________________________________

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) (stating that “[w]hile 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 reproduced record, we may
consider it”) (citations omitted)).

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

5 Pursuant to the order of December 2, 2019, Mother was granted leave to
amend her concise statement and such amended concise statement was
treated as timely filed.

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to the last three years.6,7 This Court consolidated Mother’s appeals sua

sponte on January 27, 2020.

Parties’ En Banc Arguments

Mother argues that this Court “has already set precedent that mere

participation in custody litigation does not constitute waiver of the protections

of the MHPA and has rule[d] that confidential mental health records should

not be susceptible to disclosure.” Mother’s Brief at 7. Mother asserts that

“[i]n all custody cases, the current mental health status is an issue because it

is a factor to be considered by the court.” Id. at 20. Nonetheless, Mother

argues that this Court has refused to conclude that, where mental health is at

issue, it would serve “as either an implicit or explicit waiver of the bar to

disclosure of records afforded by the MHPA.” Id. at 21.

Mother also argues that “limiting the disclosure of mental health records

for a period of three (3) years to a GAL does nothing to assuage the violation

of the MHPA” and “does not serve as a reasonable substitute for the less

intrusive means provided under Rule 1915.8.” Mother’s Brief at 24. Further,

she contends that “[a]s in Gates, M.M., and Octave [ex rel. Octave, 103

A.3d 1255 (Pa. 2014)], the disclosure of past mental health records to a GAL

is not the least, or even less, intrusive means for determining the current

____________________________________________

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).

7Upon motion of Mother, pursuant to order of December 3, 2019, the orders
on appeal were stayed by the trial court. See Trial Ct. Order, 12/3/19.

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mental health status of a parent and may not even be the best or most

accurate.” Id. Instead, Mother asserts that “the ‘less intrusive means’ is

achieved by directing that a parent undergo a mental health evaluation by a

professional mental health evaluator” under Rule 1915.8. Id.

Finally, Mother argues that, “based upon the powers provided to a GAL

. . . there is little distinction between a parent and a GAL involved in a custody

action.” Mother’s Brief at 14. Mother asserts that “[d]isclosure of confidential

mental health records to a GAL, who may be an unwitting proxy of the parent

calling into question the mental fitness of the other parent, will have a chilling

effect on a parent’s decision to seek mental health assistance.” Id. Further,

she contends that it “may dissuade that parent from participating in a custody

action, or to initiate or defend against that action” and that neither course

“would serve the best interest of the minor child.” Id.

Father responds that a party’s MHPA “confidentiality protections 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.’” Father’s Brief at 5 (quoting Octave, 103 A.3d at 1256).

Father contends that, here, the parties “placed each other’s mental health

condition(s) as a factor in awarding custody” and “[a]s such, the parties knew

or reasonably should have known that mental health would be at issue at the

time of [the] hearing.” Id.

Father also argues that M.M. and Gates are distinguishable because “it

is not the adverse party who is seeking the mental health records.” Id. at 6.

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Instead, Father contends that the “the trial court, sua sponte, in consideration

of [Child’s] best interest, appointed the GAL, who has statutory authority to

access this information.” Id. Further, Father asserts that the trial court “put

into place several mechanisms to achieve this goal without impinging upon

the parties’ right to confidentiality” which included limiting the disclosure to

records from the past three years, prohibiting the GAL from disclosing the

information to the parties or the trial court, and sealing the record. Id.

General Standards in Custody Matters

In custody cases under the Child Custody Act (the Act), 23 Pa.C.S. §§

5321-5340, our standard of review is as follows:

In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is whether
the trial court’s conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the trial
court only if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

The paramount concern in any custody case decided under the Act is

the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338. Section

5328(a) sets forth sixteen best interest factors that the trial court must

consider in making a custody determination. 23 Pa.C.S. § 5328(a). The trial

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court must consider “all relevant factors, giving weighted consideration to

those factors which affect the safety of the child,” which may include “[t]he

mental and physical condition of a party.” 23 Pa.C.S. § 5328(a), (a)(15).

In making this determination, the court “may order the child(ren) and/or

any party to submit to and fully participate in an evaluation by an appropriate

expert or experts.” See Pa.R.C.P. 1915.8(a) (Physical and Mental

Examination of Persons). Rule 1915.8 further provides that, unless otherwise

directed by the court, the expert shall deliver “copies of any reports arising

from the evaluation setting out the findings, results of all tests made,

diagnosis and conclusions” to the court, attorneys of record for the parties,

any unrepresented party, and the GAL and/or counsel for the child. Pa.R.C.P.

1915.8(b).

Rule 1915.8 is intended to address “the process for any number of

expert evaluations a court may order in a custody case, including, but not

limited to, physical, mental health, custody and/or drug and alcohol

evaluations, and/or home studies.” Pa.R.C.P. 1915.8 cmt. However, this

Court has cautioned that although “Rule 1915.18 authorizes the trial court to

order a party to custody litigation to submit to a mental health evaluation, the

rule does not empower trial courts to compel parties to disclose their

confidential information to their opponents.” M.M., 55 A.3d at 1172.

Implicit Waiver of MHPA Privilege

First, we consider whether participation in a custody action constitutes

implicit waiver of a party’s confidentiality privilege under the MHPA.

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Section 7111 of the MHPA provides that, absent certain exceptions,

“[a]ll 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.” 50 P.S. § 7111(a); see also Gates, 967 A.2d

at 1029 (stating that Section 7111 is “a broad provision that applies to all of

the records concerning [a person’s] mental health treatment”). This Court

has held that the MHPA confidentiality privilege protects parties in a custody

proceeding. See Gates, 967 A.2d at 1032; see also M.M., 55 A.3d at 1177.

“Section 7111 does not explicitly state whether the protections it affords

to mental health records can be waived.” Octave, 103 A.3d at 1258-59. As

such, this matter “involves the proper construction of a statute, for which our

standard of review is de novo and scope of review is plenary.” Id. at 1259

(citation omitted).

In Octave, our Supreme Court addressed the disclosure of confidential

mental health records in the context of a personal injury matter. Octave,

103 A.3d at 1256-57. In that case, the husband sustained injuries after he

was struck by a tractor-trailer. After the incident, the state police issued a

report concluding that the husband had attempted to commit suicide.

Thereafter, the wife filed a personal injury lawsuit seeking money damages on

behalf of herself and her incapacitated husband. The defendants argued that

the husband intentionally caused his own injuries by attempting suicide. To

defend the case against them, the defendants requested access to the

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husband’s mental health records. The plaintiffs asserted the husband’s

privilege under the MHPA.8

In addressing plaintiffs’ claim of privilege, our Supreme Court cited with

approval the following statement made by this Court in Kraus v. Taylor, 710

A.2d 1142 (Pa. Super. 1998):

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.

Octave, 103 A.3d at 1260 (citations omitted). After discussing similar

decisions in other jurisdictions, the High Court held that “a patient waives his

confidentiality protections under the MHPA where, judged by an objective

standard, he knew or should have known his mental health would be placed

directly at issue by filing the lawsuit. Id. at 1262 (footnote omitted).

The Octave Court further concluded that there existed no “less intrusive

means” to obtain the same type of information as contained in the husband’s

mental health records. The Court explained that because the husband

ultimately died from his injuries, it was not possible to obtain information

about his mental health through less intrusive alternatives, such as

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8 Notably, the husband later died from his injuries, but neither party asserted
that the death affected the MHPA privilege. Octave, 103 A.3d at 1256 n.2.

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interrogatories and independent psychological evaluations. Octave, 103 A.3d

at 1263 n.10.

In Gates, we concluded that the mother did not waive her MHPA

privilege in a custody matter, even where she failed to explicitly invoke the

MHPA privilege and had previously agreed to release certain portions of her

mental health records. Gates, 967 A.2d at 1030-1032. In reaching this

conclusion, the Gates Court noted that the mother had consistently

maintained that her records were confidential, which was sufficient to invoke

her right to confidentiality under the MHPA. See id. at 1029-31.

Further, recognizing that a party’s mental health was an important

factor in custody proceedings, the Gates Court explained:

Presuming [the f]ather’s primary purpose in seeking the privileged
documents was to ensure the existing custody order was in [the
child’s] best interest, we recognize that [the f]ather was entitled
to place [the m]other’s mental condition at issue in the custody
proceedings. Nonetheless, less intrusive means exist for the trial
court to make a determination as to [the m]other’s suitability as
a custodial parent, rather than releasing [the m]other’s privileged
mental-health records . . . and vitiating her statutory right of
confidentiality. For example, [the f]ather can utilize [the
m]other’s testimony from the [custody] hearing to attempt to
sustain his burden of proving modification is warranted, and if
further inquiry into [the m]other’s mental health is necessary, the
trial court can order [the m]other to submit to a psychological
evaluation pursuant to Rule 1915.8. However, [the m]other’s
mental health records are not subject to disclosure.

Id. at 1032.

The Gates Court also relied on our Supreme Court’s decision in Zane,

stating that “we acknowledge and cannot emphasize too strongly an

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expectation of confidentiality in mental health records is critical to effective

mental health treatment” and that a disclosure requirement would “not only

violate [the] statutory guarantee of confidentiality, but would have a chilling

effect on mental health treatment in general.” Id. (citing Zane v. Friends

Hospital, 836 A.2d 25, 33 (Pa. 2003)).

Further, the Gates Court rejected the father’s assertion that Zane was

inapplicable, “in part, because that case involves a civil dispute in tort rather

than a custody matter, where consideration of the child’s best interest is

paramount.” Gates, 967 A.2d at 1032. The Gates Court held that “the MHPA

is equally applicable in a custody dispute as it is in a civil matter. . . . 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.

In M.M., this Court reversed a trial court order that required the father,

who suffered from a severe mental condition, to disclose his mental health

records to the mother in a custody proceeding. M.M., 55 A.3d at 1177. The

M.M. Court concluded that the father did not waive his confidentiality rights

during the course of litigation “by submitting to the court-ordered

psychological evaluations, consenting to the deposition of his treating

psychiatrist, [and] by authorizing the release of specific information to ensure

his compliance with the ongoing treatment regimen.” Id. at 1174. Further,

we explained that because the MHPA privilege applied, “absent written

consent or a finding of waiver, all of the documents relating to [the f]ather’s

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voluntary inpatient hospitalization . . . are privileged and are not subject to

compelled disclosure.” Id.

The M.M. Court explained that, although the father’s mental health was

relevant to the custody matter, the “alleged severity of [the f]ather’s mental

health concerns did not vitiate his expectation of confidentiality in his mental

health records.”9 Id. Further, we emphasized that “less intrusive alternatives

exist, such as an updated psychological evaluation pursuant to Rule 1915.8,

to determine the effect of [the f]ather’s bipolar personality disorder on his

daughter’s best interest.” Id. at 1174-75. Therefore, we concluded that “[a]s

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 (citing Gates,

967 A.2d at 1032; Zane, 836 A.2d at 33).

In sum, both Gates and M.M. demonstrate that absent explicit waiver

of the MHPA confidentiality privilege, a party’s confidential mental health

records are not subject to disclosure. This is especially true in custody cases,

where “less intrusive means” exist to determine the effect of a parent’s mental

health upon a child’s best interests. See Gates, 967 A.2d at 1032; see also

M.M., 55 A.3d at 1174. Further, both Gates and M.M. are consistent with

our Supreme Court’s decision in Octave, which recognized a limited exception
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9 We rejected the trial court’s conclusion that Gates was distinguishable “due
to the concern the trial court had with [the f]ather’s mental health condition
and because [the f]ather did not consistently assert that his mental health
records were privileged.” M.M., 55 A.3d at 1174.

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for finding implicit waiver under circumstances where the defendant was

seeking mental health information about a deceased plaintiff that was

unavailable through other means. Indeed, the Octave Court cited M.M. as

an example of when disclosure of a party’s mental health records was not

appropriate when less intrusive alternatives, such as an updated psychiatric

evaluation, for obtaining the same information existed. Octave, 103 A.3d at

1263 n.10.

Here, in addressing Mother’s waiver of the confidentiality privilege under

the MHPA, the trial court explained:

The confidentiality protections of the [MHPA] 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.” Octave, 103 A.3d
at 1262. 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.

Trial Ct. Op. at 12-13.

Based on our review of the record and the controlling case law, we

conclude that Octave is distinguishable from the instant case. Here, as in all

custody cases, the trial court had the authority to order a mental health

evaluation under Rule 1915.8, which would provide information necessary to

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

See Gates, 967 A.2d at 1024; see also M.M., 55 A.3d at 1174. Further,

unlike in Octave, there were less intrusive means available for the trial court

to obtain information about Mother’s mental health without requiring her to

disclose confidential mental health information. See Octave, 103 A.3d at

1263 n.10.

Reading Gates, M.M., and Octave together, we conclude that a party’s

participation in a custody matter does not constitute implicit waiver of that

party’s confidentiality protections under the MHPA. See Gates, 967 A.2d at

1032; see also M.M., 55 A.3d at 1174; see also Octave, 103 A.3d at 1262.

This remains true even where one or both of the parties’ mental health is

placed at issue during the custody dispute.10 Gates, 967 A.2d at 1032; see

also M.M., 55 A.3d at 1174. Therefore, we reiterate that absent explicit

waiver, the parties’ “mental health records are not subject to disclosure” in

custody cases. Gates, 967 A.2d at 1032.

Accordingly, we conclude that Mother did not waive her MHPA

confidentiality privilege by participating in the instant custody action, even

though her mental state was at issue in the custody proceedings. See Gates,

967 A.2d at 1032; see also M.M., 55 A.3d at 1174.

Disclosure of Records to the GAL
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10Indeed, the trial court is free to consider the mental health of the parties in
any custody hearing, by virtue of Section 5328(a)(15) of the Child Custody
Act. See 23 Pa.C.S. § 5328(a)(15) (stating that the judge must consider the
“mental and physical condition of a party or member of a party’s household”).

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We next address whether the trial court erred in ordering Mother to

disclose her mental health records to the GAL. Here, the trial court concluded

that Section 7111 of the MHPA conflicted with the role of the GAL set forth in

Section 5334 of the Child Custody Act and the relevant Rules of Pennsylvania

Civil Procedure. Specifically, the trial court explained:

Section 5334 of the Child Custody Act and the form order set forth
at Rule 1915.21 mandates that guardians ad litem obtain reports
of examination of the parents or other custodian of the child and
medical, psychological and school records. Section 5334 also does
not expressly limit a guardian ad litem’s access to involuntary
treatment records or voluntary inpatient records as provided in
Sections 7103 and 7111 of the [MHPA]. In this circumstance
where a party has [been] treated involuntarily or sought voluntary
hospitalization for mental health, Section 5334 of the Child
Custody Act conflicts with Section 7111 of [the MHPA].

In analyzing this matter on [Mother’s] petition for reconsideration,
this [c]ourt attempted to avoid such a conflict by applying both
Section 5334 and Section 7111 to the instant matter. Applying
both statutes in this case, however, creates an absurd or
unreasonable result. See 1 Pa.C.S. § 1922(1). If both statutes
were applied here, the [GAL] would only be able to obtain records
of the parties’ voluntary outpatient treatment, which accounts for
only a portion of the parties’ mental health treatment. Such a
limitation cannot serve [Child’s] best interests where the mental
health of both parties is at issue and one parent has an inpatient
stay in her recent history that focused on alcohol abuse and a
mental health diagnosis.

If [Mother’s] arguments regarding the broadness of Section 7111
carry the day in this matter, the work of the [GAL] in this high-
conflict case would be frustrated because any report or
recommendation relating to the best interests of Child would be
made without the [GAL] knowing each parent’s actual mental
health diagnoses and treatment plan from their providers,
whether that parent is following the treatment plan put in place,
and anything from the records relative to the safety concerns as
alleged by each party. Additionally, under Section 5334(b)(6),
the [GAL] must also make recommendations for services

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necessary to address the child’s needs and safety, including
specific types of counseling, therapy, parenting classes, or support
groups for the parties. Mental health conditions are not the
parties’ fault, but they are the parties’ responsibility moving
forward. Without a clear picture, the [GAL] would be engaging in
guesswork as to any services this family may need and what real
safety concerns there are in this family for Child.

* * *

“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. . . .

Trial Ct. Op. at 12, 24-25, 31 (citations omitted).

A review of the trial court’s analysis involves a question of law, namely,

the proper construction and application of the statutes and rules.11 Therefore,
____________________________________________

11 Pennsylvania Rule of Civil Procedure 127 states:

(a) The object of all interpretation and construction of rules is to
ascertain and effectuate the intention of the Supreme Court.

(b) Every rule shall be construed, if possible, to give effect to all
its provisions. When the words of a rule are clear and free from
all ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.

(c) When the words of a rule are not explicit, the intention of the
Supreme Court may be ascertained by considering, among other
(Footnote Continued Next Page)

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our review is de novo and plenary. See Octave, 103 A.3d 1255; Barrick v.

Holy Spirit Hosp. of the Sisters of Christian Charity, 32 A.3d 800, 808

(Pa. Super. 2011).

Both the Pennsylvania Rules of Civil Procedure and the Domestic

Relations Code permit courts to appoint a GAL in a custody action. See

Pa.R.C.P. 1915.11-2; see also 23 Pa.C.S. § 5334. “The function of the [GAL]

is to represent and protect unrepresented minors and their interests.” C.W.

v. K.A.W., 774 A.2d 745 (Pa. Super. 2001).

Of relevance to the instant case, Section 5334(b)(2) of the Child

Custody Act provides that the GAL shall “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.” 23 Pa.C.S. § 5334(b)(2).

Further, the GAL must “[m]ake 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.” 23 Pa.C.S. § 5334(b)(6).

Further, Rule 1915.21 establishes the form of a GAL order, including a

provision that states:

____________________________________________

matters (1) the occasion and necessity for the rule; (2) the
circumstances under which it was promulgated; (3) the mischief
to be remedied; (4) the object to be attained; (5) the prior
practice, if any, including other rules and Acts of Assembly upon
the same or similar subjects; (6) the consequences of a particular
interpretation; (7) the contemporaneous history of the rule; and
(8) the practice followed under the rule.

Pa.R.C.P. 127.

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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 child, shall
allow the [GAL] access to all files and records in its possession,
custody or control and shall cooperate in responding to all relevant
inquires. 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
[GAL] shall have the right to copy any part of the files and records
maintained in connection with the child.

Pa.R.C.P. 1915.21.

Despite the trial court’s assertions to the contrary, we do not construe

this case as a battle between the provisions of the Child Custody Act and the

MHPA. Section 5334 of the Custody Act authorizes the GAL to access “reports

of examination of the parents.” 23 Pa.C.S. § 5334(b)(2). Given our prior

decisions emphasizing the importance of confidentiality in mental health

treatment and the trial court’s authority to obtain the same information

through a Rule 1915.8 mental examination, it is clear that these “reports of

examination” are not meant to include a parent’s confidential mental health

records. See Gates, 967 A.2d at 1032; see also M.M., 55 A.3d at 1174.

Therefore, we disagree with the trial court that the GAL statute conflicts with

the confidentiality protections set forth in Section 7111 of the MHPA.

Further, we conclude that the provisions relating to “medical,

psychological and school records” refer to the records of the child, not the

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parents. See Pa.C.S. § 5334(b)(2); see also Pa.R.C.P. 1915.11-2. Because

the GAL is given access to all “reports of examination of the parents,” a clear

reference to the “physical and mental examination” described in Rule 1915.8,

it would be unreasonable to conclude that the GAL would also need access to

the parents’ confidential medical or psychological records, let alone a parent’s

school records, which would have no relevance to determining the best

interests of the child. Such a result would be unreasonable, as the practical

effect would vitiate a party’s right to privacy under both the MHPA and the

Pennsylvania Constitution. See 1 Pa.C.S. §§ 1922(1), (3), 1921(c)(4).

Finally, we reject the trial court’s contention that the GAL needed access

to the Mother’s confidential mental health records in order to make a

recommendation about the child’s best interests. The GAL, like the trial court,

must consider numerous other factors in making this determination. See 23

Pa.C.S. § 5328(a), (a)(15); see also T.B. v. L.R.M., 874 A.2d 34, 38 n.3 (Pa.

Super. 2005) (“while psychiatric considerations may very well be important,

they must not be made determinative”). In any event, because the same

information about Mother’s mental health could be obtained through less

intrusive means, such as a court-ordered mental examination under Rule

1915.8, Mother’s confidential mental health records are not subject to

disclosure. See Gates, 967 A.2d at 1032; see also M.M., 55 A.3d at 1174;

see also 50 P.S. § 7111(a) (stating that a person’s mental health records

cannot be disclosed to anyone). Therefore, the trial court erred in ordering

Mother to disclose her mental health records to the GAL.

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“Least” Intrusive Means Analysis

Lastly, we next consider whether the Custody Act provides for the “least

intrusive means” of a sufficient mental health evaluation of the parent, or

whether the trial court may order a limited disclosure of the party’s mental

health records. In its Rule 1925(a) opinion, the trial court reasoned that,

although it ordered Mother to disclose portions of her mental health records,

it did so “in a manner that respects both parents have concerns about the

disclosure of their mental health history.” Trial Ct. Op. at 27. Specifically,

the trial court explained:

On one hand, the [GAL] 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 [GAL] 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. 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 [GAL] full, unfettered access to the parties’ mental
health records in consideration of Section 7111. This [c]ourt also
specifically limited the [GAL]’s ability to disseminate the records
or the information contained therein and stated that the parties
retained their ability to object to the [GAL]’s report or his

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testimony during the custody hearing. Furthermore, the [GAL]
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.

Trial Ct. Op. at 24-25.

As discussed previously, the MHPA prohibits the disclosure of a

person’s mental health records. See 50 P.S. § 7111(a). Further, as our

decisions in Gates and M.M. make clear, it is the disclosure itself—not the

scope of the disclosure or the alleged necessity of the information contained

in the records—that vitiates a party’s statutory right to confidentiality under

the MHPA. See Gates, 967 A.2d at 1032 (concluding that the mother’s

privileged mental health records from one hospitalization were not subject to

disclosure); see also M.M., 55 A.3d at 1174 (stating that “the alleged severity

of the mental health problem is not a permissible reason to compromise the

privilege of confidentiality”).

Further, the “less intrusive means” approved in custody cases is the

evaluation provided in Rule 1915.8. See M.M., 55 A.3d at 1174; see also

Octave 103 A.3d at 1263, n.10 (citing M.M., 55 A.3d 1167). Here, unlike in

Octave, there is no indication that a court-ordered mental evaluation would

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be insufficient to provide the trial court or the GAL with pertinent information

about Mother’s mental health.12

Therefore, the trial court erred by failing to utilize “less intrusive means”

by ordering Mother to disclose her mental health records, regardless of the

limitations it placed on the scope of the records or the GAL’s ability to access

and disseminate that information. See Gates, 967 A.2d at 1032; see also

M.M., 55 A.3d at 1174. Accordingly, we need not consider whether the

Custody Act provides for the “least” intrusive means for obtaining information,

such that a trial court could never compel disclosure of information protected

by the MPHA.

Conclusion

In sum, we conclude that Mother’s mental health records are absolutely

privileged under the mandates of the MHPA, which requires a patient’s “written

consent” before those records are released or disclosed to anyone, except

under limited circumstances inapplicable here. See 50 P.S. § 7111(a).

Further, in custody cases, such as this one, this Court has already determined

that the same information available in a party’s mental health records may be

gleaned from a Rule 1915.8 evaluation; i.e., a less intrusive means. The MHPA

and our precedents do not authorize the disclosure of Mother’s mental health

records in this custody case, even if limited to three years, and even if limited

____________________________________________

12Indeed, the trial court’s November 15, 2019 order included a requirement
that both Mother and Father submit to a mental health examination under
Pa.R.C.P. 1915.8. See Trial Ct. Order, 11/15/19, at 2.

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to access by the Child’s GAL. See Gates, 967 A.2d at 1032; see also M.M.,

55 A.3d at 1174.

For these reasons, we reverse the portion of the October 29, 2019 order

to the extent it provided the GAL with access to Mother’s confidential mental

health records. We also reverse the portions of the November 15, 2019 order

that provided the GAL with access to Mother’s mental health records from the

last three years and ordered Mother to provide information about her mental

health treatment to the GAL. We do not disturb the remaining portions of the

trial court’s orders.

Orders affirmed in part and reversed in part. Case remanded.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/26/2021

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