J.F. v. Como

74 Arizona Cases Digest 28

514 P.3d 299

J.F., Petitioner,

v.The Honorable Greg COMO, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, Respondent Judge,C.F., Real Party in Interest.

No. 1 CA-SA 21-0123

Court of Appeals of Arizona, Division 1.

FILED July 12, 2022

The Cavanagh Law Firm, PA, Phoenix, By Helen R. Davis, Nicholas J. Brown, Counsel for Petitioner

krdlaw, PC, Scottsdale, By Kiilu Davis, Counsel for Real Party in Interest

Judge David D. Weinzweig delivered the opinion of the Court, in which Judge Paul J. McMurdie joined. Presiding Judge Peter B. Swann dissented.

WEINZWEIG, Judge:

¶1 We must determine when the superior court may order a parent to release mental health records for in-camera review in a child custody dispute. The superior court ordered Father to release five years of his mental health records for in-camera review from providers who treated him for alcohol abuse. Father petitioned for special action review, arguing he cannot be ordered to produce those records under the psychologist-patient privilege, which he never waived. We grant relief in part and deny in part, holding that Father impliedly waived the psychologist-patient privilege on the discrete topic of his alcohol abuse but remand for the court to reduce the responsive period of records from five years to one year. We do not prematurely reach the issue of what sanctions would be proper if Father chooses not to comply with the order, including whether an adverse inference would be appropriate.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Father were married for seven years and have three minor children. Mother filed for divorce in December 2020. Both parents sought legal decision-making and parenting time.

¶3 Father moved for a temporary order that he receive unsupervised parenting time. Mother objected, arguing that unsupervised parenting time would jeopardize the children's safety. She accused Father of being "an alcoholic" who "disappear[ed] for days at a time while on drinking binges," and expressed "serious concerns" about "the children being in a vehicle with Father due to his history of driving while intoxicated." She alleged that Father had once tried to pick up their daughter from school while intoxicated. Given this "ongoing struggle with alcoholism," Mother insisted that Father have only supervised parenting time, at least until the court "determine[s] whether he will be able to provide a safe environment for the children."

¶4 Father conceded he was diagnosed with "moderate to severe" alcohol use disorder and agreed "he should not drink alcoholic beverages." He admitted to four DUI charges before the marriage. Still, Father argued he "rebutted" any adverse presumption arising from his recent alcohol abuse under Arizona law because his disorder was "in early remission," he had tested sober for nearly four months, and he continued to pursue "a wide-range of self-care opportunities," including support groups and "counseling with Nancy Harris, Psy.D." Indeed, Father insisted that Mother's concerns were not "rational" because he had "respon[ded] to [her] concerns with honest acknowledgment and willingness to provide objective measures of sobriety."

¶5 Around this time, Mother asked Father to sign a release for his counseling and outpatient alcohol rehabilitation records. Father refused. He argued the records were privileged under state and federal law. The superior court encouraged the parties to resolve the issue themselves.

¶6 The court held an evidentiary hearing on Father's request for unsupervised parenting time in March 2021. Both parents testified under oath, but we do not know what they said because Father never provided this court with a transcript of the hearing.

¶7 After the hearing, the superior court issued temporary orders, granting the parents joint legal decision-making and designating Mother as the primary residential parent. The court also ordered Father to receive unsupervised parenting time, but only on the condition he continue to participate in extensive daily and monthly alcohol testing, install an Intoxalock device on his vehicle, attend Alcoholics Anonymous, and continue therapy with his therapist or another counselor specializing in addiction.

¶8 About two months later, Father petitioned the superior court to modify the temporary orders, asking the court to grant him equal parenting time and relax his alcohol-testing burden. Father again stressed his continued participation in "alcohol monitoring and treatment." He later argued this relief was appropriate because he had "admitted the issue," "taken multiple steps to address the disorder," and had "another four months of provable sobriety under his belt."

¶9 Meanwhile, Father refused to release the counseling records of providers who treated him for alcohol use disorder. He rejected Mother's offer to hire a neutral third-party to review the records under seal and report on "whether Father[ ] was appropriately treating his addiction through therapy." And so, Mother asked the court to hear and decide the issue.

¶10 The superior court heard evidence and argument on Father's request to modify the temporary orders and Mother's request for Father's counseling records. Both parents testified under oath, but again, Father did not provide us with the transcript. After the hearing, the superior court issued a minute entry granting Father's motion to modify the temporary orders.

¶11 At the same time, the court ordered Father to release his medical records from providers who had "seen or treated [him] for alcohol abuse" since December 2015. The court ordered it would first review the documents in camera to ensure the records were limited to the issue of his alcohol abuse. This special action followed. We exercise jurisdiction. Blazek v. Superior Court , 177 Ariz. 535, 536, 869 P.2d 509, 510 (App. 1994) ("[A] special action is the appropriate means of relief when a party is ordered to disclose what [ ]he believes is privileged material.").

DISCUSSION

¶12 Father argues the superior court should not have required him to release the records because they were protected under the psychologist-patient privilege, A.R.S. § 32-2085(A), and he never waived the privilege.¹

¶13 We review de novo the waiver of an evidentiary privilege, which "poses a mixed question of law and fact." See Empire W. Title Agency, LLC v. Talamante ex rel. County of Maricopa , 234 Ariz. 497, 498-99, ¶ 8, 323 P.3d 1148, 1149-50 (2014). We also review de novo issues of statutory interpretation. State ex rel. DES v. Pandola , 243 Ariz. 418, 419, ¶ 6, 408 P.3d 1254, 1255 (2018).

I. Arizona Child Custody Laws and the Doctrine of Parens Patriae

¶14 The dispositive factor in all child custody disputes is the child's best interest, and Arizona courts must safeguard that interest. See Hays v. Gama , 205 Ariz. 99, 102, ¶ 18, 67 P.3d 695, 698 (2003) (child's best interests "paramount" in custody determinations). This duty is rooted in Arizona statutes and the common law.

¶15 Arizona law has a full chapter of statutes devoted to child custody issues that invariably direct the superior court to protect a child's best interests. See , e.g. , A.R.S. § 25-403(A) (legal decision-making and parenting time); A.R.S. § 25-403.01(B) ("level of decision-making"); A.R.S. § 25-403.02 (parenting plans); A.R.S. § 25-404 (temporary orders); A.R.S. § 25-407(C) (costs and expenses); A.R.S. § 25-407(D) ("public hearing"); A.R.S. § 25-408(G) (relocation); A.R.S. § 25-411 (modification); A.R.S. § 25-410(B) (judicial supervision); A.R.S. § 25-414(A) (visitation or parenting time violations); A.R.S. § 25-415(B)(3) (sanctions).

¶16 To that end, the courts "must strive to marshal, inspect and analyze the relevant and admissible evidence needed for it to reach a well-informed decision in the child's best interests." See Kelly v. Kelly , 252 Ariz. 371, 375, ¶ 18, 503 P.3d 822, 826 (App. 2021).

¶17 As relevant here, Section 25-403 requires that courts determine questions of legal decision-making and parenting time "in accordance with the best interests of the child," accounting for "all factors that are relevant to the child's physical and emotional well-being." A.R.S. § 25-403(A). One factor is "[t]he mental and physical health of all individuals involved." A.R.S. § 25-403(A)(5). The legislature also recognized an adverse presumption against parents who have abused drugs or alcohol "within twelve months before the petition." See A.R.S. § 25-403.04(A). In those cases, Arizona law creates a "rebuttable presumption that sole or joint legal decision-making ... is not in the child's best interests." Id .

¶18 Beyond these statutes, however, Arizona courts have long assumed the "power and duty ... to act for the child's best interests" under the common law doctrine of parens patriae . See Stewart v. Superior Court , 163 Ariz. 227, 228, 787 P.2d 126, 127 (App. 1989) (describing the "parens patriae concern" as when "a child's parents, by conflict of interest or for other reasons, may be unable or unwilling to perceive or advance the child's best interest"); see also Kinsella v. Kinsella , 150 N.J. 276, 696 A.2d 556, 577-78 (1997) (describing this role as "an expression of the court's special responsibility to safeguard the interests of the child at the center of a custody dispute because the child cannot be presumed to be protected by the adversarial process"). This unique role of our courts predates even statehood. See Bell v. Bell , 44 Ariz. 520, 528, 39 P.2d 629 (1934) (the doctrine of parens patriae "dates from a very early period in the history of these courts," originating with "the king of England").

¶19 Against this backdrop, a child's best interest represents the lens through which Arizona courts must review and decide all custody disputes.

II. The Psychologist-Patient Privilege and Waiver

¶20 Father asserts the psychologist-patient privilege under Section 32-2085(A), which prevents a licensed psychologist...