Garg v. Pagone

1

2024 IL App (3d) 230228-U

SAHIL GARG, Petitioner-Appellee, v. JENNIFER M. PAGONE, Respondent-Appellant.

No. 3-23-0228

Court of Appeals of Illinois, Third District

February 2, 2024

This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of the 18th Judicial Circuit, Du Page County, Illinois, Circuit No. 12-F-813 Honorable Leah M Bendik, Judge, Presiding.

JUSTICE ALBRECHT delivered the judgment of the court. Justices Brennan and Hettel concurred in the judgment.

ORDER

ALBRECHT JUSTICE

¶ 1 Held: (1) The circuit court did not abuse its discretion when it denied respondent's motion to compel against the guardian ad litem seeking response to written discovery and deposition because the guardian was not a "party" to the lawsuit and her counsel failed to issue a subpoena. (2) The circuit court did not err in denying respondent's motion to compel her minor child's therapy records based on her counsel's procedural missteps. (3) The circuit court did not err in denying respondent's motion to compel the depositions of her minor child's therapists. (4) The circuit court's ruling to grant petitioner's motion to suspend respondent's parenting time was not against the manifest weight of the evidence.

¶ 2 Sahil Garg, the father of minor child S.G., filed an emergency petition to suspend the mother, Jennifer Pagone's, parenting time based on allegations of physical and sexual abuse. During discovery, Garg successfully quashed the various subpoenas Pagone issued seeking S.G.'s mental health records and depositions. Following a trial, the circuit court granted Garg's petition and suspended Pagone's parenting time indefinitely. On appeal, Pagone argues the court erred in its discovery rulings. She also asserts Garg failed to satisfy his burden to support his petition. We affirm.

¶ 3 I. BACKGROUND

¶ 4 S.G. was born on July 30, 2011, and was the only child born of the parties' relationship. The parties were never married. The record reveals that Pagone has a history of behavior that has endangered S.G. On two separate occasions when S.G. was an infant, Garg successfully obtained orders of protection against Pagone stemming from a suicide attempt and other endangering behavior in S.G.'s presence. On December 12, 2012, the circuit court entered a custody judgment and joint parenting agreement, awarding Garg primary physical custody of S.G.

¶ 5 On September 13, 2013, the court modified the custody judgment, awarding Garg sole decision-making and custody over S.G. The order set forth certain visitation rights for Pagone, limiting her parenting time to three days per week. Nearly two years elapsed before the parties entered into a graduated parenting schedule on July 16, 2015. The agreed order increased Pagone's visitation to one overnight per week, with the possibility of an additional increase to alternating weekends, contingent upon Pagone's completion of court ordered therapy and psychiatric treatment for six months.

¶ 6 On May 11, 2020, Garg filed an emergency petition to suspend Pagone's parenting time pursuant to sections 603.10 and 607.5 of the Illinois Marriage and Dissolution of Marriage Act (Act). 750 ILCS 5/603.10, 607.5 (West 2018). In his petition, Garg alleged that S.G. was subjected to recurrent physical and verbal abuse by Pagone. In the accompanying affidavit, Garg contended that Pagone struck S.G. multiple times during the most recent parenting weekend in which S.G. was staying at his mother's residence. He averred that S.G. refused to speak immediately after the incident but recounted the ordeal to his father 11 days later. Garg further stated that 15 days after the incident, S.G. confided in his father that Pagone sexually abused him and that this abuse occurred repeatedly over multiple years.

¶ 7 The following day, the parties appeared before the court for an initial status hearing on Garg's emergency petition. By stipulation, the court indefinitely suspended Pagone's parenting time until further order and set a hearing date.

¶ 8 The parties reconvened for an evidentiary hearing on June 5, 2020. Garg supported his petition by testifying to the incident; submitting photographs of the various bruises and wounds on S.G.'s hands, arms, legs, and back he took the day of the incident; and detailing his discussion with S.G. during which his son told him about Pagone's recurrent acts of sexual molestation. Pagone maintained that she never struck her son to the extent that it caused bruising and denied any inappropriate contact.

¶ 9 Based on the evidence presented at the hearing, the court granted temporary relief by suspending Pagone's parenting time. Due to the allegations and the parties' history, it appointed a guardian ad litem (GAL) to investigate the alleged inappropriate conduct and the mental health statuses of S.G. and Pagone. The court authorized the GAL to the "same notice and opportunity to participate, including Discovery, in this matter, as are afforded to counsel of record for the parties."

¶ 10 On October 9, 2020, when before the court on status of the investigation, the GAL stated S.G. was actively in counselling and was "really, really struggling with the idea of seeing his mom because of past traumatic events." At the hearing on Pagone's petition for interim and prospective attorney fees and costs in March 2021, the parties indicated that the GAL had concluded her investigation. Pagone's counsel also requested, and was granted, permission to conduct discovery. Thereafter, Pagone issued a subpoena duces tecum to Gloria Cockerill, S.G.'s therapist, which sought documents containing her medical evaluations of the child and all communications that Cockerill had with Garg and the GAL. Within the subpoena for records, Pagone also sought Cockerill's deposition.

¶ 11 On September 24, 2021, Garg filed a motion to quash Pagone's subpoena, claiming her requests were for confidential and privileged medical records, the release of which would violate the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). 740 ILCS 110/1 et seq. (West 2020); 45 C.F.R. § 164.508 (2018). Garg argued that Pagone's failure to obtain leave of court or written consent forms in compliance with these statutes invalidated the subpoena. Further, he represented that Cockerill invoked statutory privilege on behalf of S.G. which prevented compelling her production of the requested documents or sitting for her deposition. See 740 ILCS 110/10(a)(1) (West 2020).

¶ 12 In reply, Pagone filed a motion to compel Cockerill's deposition and a petition for rule to show cause. Within her motion and petition, Pagone refuted the statutory analysis in Garg's motion, arguing that as S.G.'s mother, she is expressly entitled to a copy of her son's mental health records pursuant to the Confidentiality Act. Id. § 4(a)(1). Pagone's motion also indicated that documents already disclosed in discovery, including an email authored by Cockerill and a report from S.G.'s school, included mental health diagnoses for S.G. of an unknown origin that were discoverable to her. Cockerill filed written objections to Pagone's subpoena, arguing it violated the Confidentiality Act. Cockerill's pleading included a request for the entry of a protective order alleging that Pagone's counsel "barge[d] in on a closed-door therapy session with a child" unannounced, to personally deliver the subpoena.

¶ 13 Following a hearing on October 15, 2021, the court denied Pagone's motion to compel and rule to show cause. It stated that her attempt to issue a subpoena without court order was noncompliant with the Confidentiality Act but reserved judgment on whether Pagone was entitled to S.G.'s records under the Act should she follow proper protocol.

¶ 14 A month later, the court quashed the subpoena deeming it overbroad and noting its failure to comply with sections 5 and 10 of the Confidentiality Act. Id. §§ 5, 10. The court did, however, grant leave to issue another subpoena with the forewarning that "before [Pagone's counsel] serve[s] that subpoena, [Pagone's counsel] need[s] to seek an order from the Court" because according to the court, section 10 of the Confidentiality Act required that a subpoena for records in this context "must be accompanied by a written order issued by the judge." Later, in November, Pagone prepared a second subpoena^[1] and filed a motion for leave to serve it on Cockerill. Garg and Cockerill filed responses to Pagone's motion. Garg's response argued that the procedure and requests continued to run afoul of the Confidentiality Act. Cockerill maintained her assertion of the Confidentiality Act privilege on S.G.'s behalf. Her response also clarified that she was no longer actively treating S.G. ¶ 15 The issue of whether Pagone could access S.G.'s documents from therapy and depose Cockerill via subpoena again came before the court in January 2022. Following arguments, the court struck Pagone's second subpoena. It cited United States v. Nixon, 418 U.S. 683 (1974), to find the subpoena improper in that Pagone failed to show the documents requested were not otherwise procurable through the exercise of due diligence by using the statutory avenues afforded to her under sections 4, 5, and 10 of the Confidentiality Act. 740 ILCS 110/4, 5, 10 (West 2018). As S.G.'s mother, the court found that there was "no need to issue the subpoena because she c[ould] avail herself to the consent form" which, if directly tendered to the therapists, conferred her the statutory right to access her son's mental health records. Id. §§ 4(a)(1), 5. As the...