In re Jacklyn H. ( 2016 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
IN RE JACKLYN H. ET AL.*
(AC 37746)
Sheldon, Keller and Sullivan, Js.
Argued September 11, 2015—officially released February 2, 2016
(Appeal from Superior Court, judicial district of
Litchfield, Juvenile Matters at Torrington, Ginocchio, J.)
Joshua Michtom, assistant public defender, for the
appellant (respondent father).
Jane R. Rosenberg, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral for the appellee (intervenor Judicial Branch).
Opinion
KELLER, J. This appeal requires us to wander into
the thicket of statutory provisions affecting the disclo-
sure of privileged medical communications and
records, particularly those pertaining to an individual’s
mental health. On May 15, 2014, the Commissioner of
Children and Families (petitioner) filed neglect peti-
tions on behalf of the minor children of the respondent
father, Thomas H. (respondent). Two of his children,
Jacklyn H. and Jillian H., were adjudicated neglected
after both of the respondent parents pleaded nolo con-
tendere to one of the grounds alleged for neglect. There-
after, the children were committed to the custody of
the petitioner on February 25, 2015. The respondent
appeals from a postjudgment order of the trial court,
Ginocchio, J., denying his revised motion for order
seeking the return or destruction of copies of a court-
ordered psychological evaluation report that the Judi-
cial Branch released to a juvenile probation officer in
response to her e-mail request, after the clerk of the
court determined the release was authorized by General
Statutes § 46b-124 (b) (1) (E).1 On appeal, the respon-
dent makes the following claims: (1) the trial court’s
application of § 46b-124 (b) (1) (E) was erroneous
because it violated the constitutional privacy rights of
the respondent and his children; and (2) the trial court’s
application of § 46b-124 (b) (1) (E) was erroneous
because the statute, when read in conjunction with
other statutes, does not provide for unlimited access
to a court-ordered psychological evaluation report by an
employee of the juvenile probation department without
prior notice and a hearing. We agree with the respon-
dent’s second claim. This conclusion renders it unnec-
essary to reach the first claim. Accordingly, we reverse
the judgment of the trial court and remand the case for a
hearing consistent with this opinion on the respondent’s
revised motion for order.
The following procedural history is relevant to the
present appeal. On May 15, 2014, pursuant to General
Statutes § 46b-129, the petitioner filed neglect petitions
on behalf of three of the respondent’s minor children:
Jacklyn, Jillian, and Joshua.2 In the petitions on behalf
of Jacklyn and Jillian, then aged eight and nine, respec-
tively, the petitioner claimed that the minor children
were being denied proper care and attention physically,
educationally, emotionally, or morally, and that they
were being permitted to live under conditions, circum-
stances, or associations that were injurious to their
well-being. Further, the petitioner alleged that the
respondent mother and father both had mental health
issues that they were not addressing, which contributed
to the alleged neglect of their minor children.3 On July
16, 2014, the court, Gallagher, J., granted the petition-
er’s motion to consolidate the May 15, 2014 child neglect
proceedings with all ‘‘child custody matters’’ arising
from the respondent parents’ pending dissolution
action.4 On that same date, the court issued a bench
order of temporary custody for both Jacklyn and Jillian.
On July 22, 2014, the court sustained the order of tempo-
rary custody.
On July 16, 2014, the court, Gallagher, J., pursuant
to its authority under General Statutes §§ 46b-129 (i)
and 46b-129a, as well as Practice Book § 34a-21, granted
the oral motions of the petitioner and the children’s
guardian ad litem for a psychological evaluation. On
October 7, 2014, the court, Ginocchio, J., supplemented
Judge Gallagher’s order and issued a more detailed
written order for a psychological evaluation of the
respondent mother, the respondent, Jacklyn, Jillian, and
the respondents’ two sons, Joshua and Justin.5 The
court indicated in its written order that the evaluation
report was to include information pertaining to: (1) the
current psychological functioning of each child and any
emotional, cognitive, or social problems that should be
addressed through treatment; (2) the current psycho-
logical functioning of each parent, including whether
they required treatment for substance abuse, domestic
violence, or mental illness; (3) the nature of the relation-
ship between the children and each individual parent;
(4) the capacity of each parent to understand and meet
each child’s needs; (5) the psychologist’s recommenda-
tions as to permanent placement options and assistance
with co-parenting; and (6) the nature of the relationship
between each parent and the effect that it had on the
children.
The court also ordered that, ‘‘[t]o request education,
medical, mental health or other relevant information
the parent or guardian must complete the Authorization
for Release of Information form (JD-CL-46).6 The com-
pleted authorization must be attached to this referral.’’
(Footnote added.) At the bottom of the second page of
the psychological evaluation order, above where the
judge placed his signature, the order stated, ‘‘Copies of
the evaluation report shall be distributed upon receipt
to all parties. Any communication to the evaluator(s)
before the completion and filing of the evaluation report
must be in accordance with Section 34a-21 of the Con-
necticut Practice Book. Evaluation reports and portions
of the reports are confidential and may not be further
disclosed without a Court Order.’’ Above this statement
on the form that was completed in the present case,
proposed contacts from an educational setting, mental
health providers, and medical providers were listed
with their contact information. Specifically, the names
of a school social worker and a school principal, three
therapists, a pediatrician, and an obstetrician were
listed there.
Pursuant to the court’s order, a licensed clinical psy-
chologist, Suzanne Ciaramella (evaluator), conducted
a psychological evaluation over a four day period and
compiled the results in a seventy-nine page report. The
evaluation report was filed with the trial court on
December 3, 2014. Prior to the commencement of her
evaluation, the evaluator noted in her report that
‘‘Mother and father gave their informed consent for
this court-ordered evaluation after the evaluator and
parents reviewed reasons for the ordered evaluation,
their understanding of the reasons for the evaluation,
the role of the evaluator, the limits of confidentiality
and ultimately, their choice to either consent or refuse
participation. Parents also gave their informed consent
for the children to participate and although Joshua and
Justin were requested to participate, they did not, save
for Joshua participating in the interactional assessment
with mother. Parents were also made aware that results
of this evaluation will be used to guide the Superior
Court for Juvenile Matters in Torrington, CT, in assisting
the entire family with any identified needs and
determining what would be in the best interests of
the children.’’
The evaluator interviewed the respondents and each
of the girls extensively, and conducted psychological
testing on all of them. She also contacted numerous
individuals who had provided educational, mental
health, and other services to the family, including a
school principal, a person identified as Jillian’s thera-
pist, the respondent’s therapist, two parenting educa-
tors, one of whom the evaluator referred to as a
clinician, and a member of a caregiver support team
working with the two girls and their grandparents, who
had not been ordered to participate in the evaluation.
The evaluator’s communications with these contact per-
sons were discussed at great length in the evaluation
report. The evaluator indicated that she was unable to
contact the pediatrician or the respondent mother’s
gynecologist, as well as one of the persons listed as a
collateral contact on the court’s order. Four of the per-
sons whom the evaluator contacted and from whom she
obtained detailed information set forth in the evaluation
report were not on the list of contacts contained in
the court order for the evaluation. At the end of the
evaluation report, the evaluator answered the court’s
specific referral questions and opined on whether pro-
posed beneficial services should be utilized, including
further mental health treatment.
During the pendency of the child neglect proceedings
and after the evaluation report had been filed with the
court, Jacklyn was charged with a delinquency offense.
On January 15, 2015, after Jacklyn’s delinquency case
was referred to the office of juvenile probation for non-
judicial handling,7 the juvenile probation officer who
was assigned to the case requested the evaluation report
by sending an e-mail to the clerk of the court.8 Relying
on § 46b-124 (b) (1) (E), the clerk provided copies of
the evaluation report to the juvenile probation officer
on the same day. The clerk thereafter sent an e-mail to
all counsel of record in the neglect proceedings, notify-
ing them of the completed disclosure. Upon learning
of the clerk’s disclosure of the evaluation report, coun-
sel for the respondent filed a motion for order with
the court on January 22, 2015, claiming that both the
respondent’s interests and his minor children’s interests
had been harmed by the disclosure.
In addition to requesting a hearing with regard to
the respondent’s motion, counsel for the respondent
‘‘move[d] [the] court to order the office of probation
to return or destroy all copies of [the] . . . evaluation
[report] that [were] provided to them from the court
file . . . .’’ On January 29, 2015, counsel for the respon-
dent filed a revised motion for order and a memoran-
dum of law in support of the motion. In this revised
motion, the respondent sought ‘‘a hearing on [his]
claims, injunctive relief in the form of destruction and/
or return of the records at issue, and a declaratory
judgment that child protection records generated in this
case shall be released to nonparties only . . . upon
order of the court upon a demonstration of necessity.’’
On February 4, 2015, the court, Ginocchio, J., held
a hearing on the respondent’s motion. At the hearing,
counsel for the respondent, counsel for the respondent
mother, and counsel for the minor children argued,
inter alia, that the disclosure of the evaluation report
to the juvenile probation officer without prior notice
and a hearing had violated the respondents’ and the
children’s constitutional and statutory rights to privacy.
The court denied the respondent’s motion from the
bench and concluded that § 46b-124 (b) (1) (E) permit-
ted the clerk’s disclosure of the evaluation report to
the juvenile probation officer without the need for a
court order.9
In issuing its ruling from the bench, the court stated
the following as its reasoning in denying the respon-
dent’s motion with respect to § 46b-124 (b) (1) (E):
‘‘[T]here’s nothing in the statute that says that you can—
once the evaluation is done, it doesn’t give the court
the right to start sorting out different sections and say-
ing that this should go or should not go to the appro-
priate agency. . . . If they’re ordered by the court and
they applied to the children, those exams, they’re sub-
ject to the statutory scheme as stated in § 46b-124, so I
think it gets turned over to the various agencies. There’s
nothing in that statute that says—what would be the
reason for not turning it over to the appropriate agency
according to the statutory scheme? There would be
none. . . . [I]mplicit in [the office of juvenile proba-
tion’s] request is that they required it for some reason.
. . . They don’t have to show good cause or anything
more than that . . . .’’ This appeal followed.10 Addi-
tional facts and procedural history will be set forth
as necessary.
We begin our analysis by setting forth the appropriate
standard of review. The issue before us is whether the
respondent, on behalf of himself and his children,
waived the statutorily protected confidentiality of their
mental health records under the Health Insurance Por-
tability and Accountability Act of 1996 (HIPAA), 42
U.S.C. § 1320d et seq., or Connecticut privilege statutes
such that the trial court had no gatekeeping function
prior to disclosing the evaluation report to the juvenile
probation officer as a court record pursuant to § 46b-
124 (b) (1) (E).11 Our review of the court’s interpretation
of § 46b-124, its application to the facts of this case,
and its interrelation with federal and state statutes that
protect the confidentiality of private health information
is plenary, as this inquiry presents questions of law.
See State v. Kemah, 289 Conn. 411, 420–21, 957 A.2d
852 (2008) (review of court’s interpretation of General
Statutes §§ 52-146d and 52-146e is plenary); In re Wil-
liam H., 88 Conn. App. 511, 517–18, 870 A.2d 1102 (2005)
(review of court’s interpretation of § 46b-124 and its
application to facts of case is plenary).
‘‘It . . . is well established that we are required to
read statutes together when they relate to the same
subject matter . . . . Accordingly, [i]n determining the
meaning of a statute . . . we are mindful that the legis-
lature is presumed to have intended a just and rational
result.’’ (Internal quotation marks omitted.) Teresa T.
v. Ragaglia, 272 Conn. 734, 748, 865 A.2d 428 (2005);
accord Blum v. Blum, 109 Conn. App. 316, 322, 951
A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157
(2008); Gervais v. Gervais, 91 Conn. App. 840, 855, 882
A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005).
‘‘[W]e look not only at the provision at issue, but also
to the broader statutory scheme to ensure the coher-
ency of our construction.’’ (Internal quotation marks
omitted.) State v. B.B., 300 Conn. 748, 757, 17 A.3d 30
(2011). ‘‘[I]t is a well-settled principle of construction
that specific terms covering the given subject matter
will prevail over general language of the same or
another statute which might otherwise prove control-
ling. . . . The provisions of one statute which specifi-
cally focus on a particular problem will always, in the
absence of express contrary legislative intent, be held
to prevail over provisions of a different statute more
general in its coverage.’’ (Internal quotation marks omit-
ted.) Tappin v. Homecomings Financial Network, Inc.,
265 Conn. 741, 760, 830 A.2d 711 (2003), quoting Mos-
cone v. Manson, 185 Conn. 124, 133–34, 440 A.2d 848
(1981).
The respondent’s second claim centers on the appli-
cation of exceptions enumerated in § 46b-124 (b) (1)
(E),12 that permit disclosure, without a court order, of
otherwise confidential records used by the court in
nondelinquency juvenile cases. The issue raised is
whether the court’s application of § 46b-124 (b) (1) (E)
in this case, without prior notice and a hearing,
amounted to reversible error insofar as the trial court’s
affirmation of the clerk’s disclosure of the evaluation
report to the juvenile probation officer impermissibly
conflicted both with its own order13 as well as with other
laws that prevented further disclosure of the evaluation
report absent the respondent’s consent. The respondent
asserts that § 46b-124 (b) (1) (E), when read in conjunc-
tion with other state and federal statutes that more
specifically protect the privacy of health treatment
records, should not be interpreted to provide for unlim-
ited access to privileged information contained in an
evaluation report to the entities and individuals that
the statute exempts from the need to seek a court order,
such as an employee of the juvenile probation
department.
Our Supreme Court historically has been cautious
in determining whether the disclosure of information
protected by state statutes providing a privilege for
confidential communications and records should occur,
even in the context of another court proceeding. In
Falco v. Institute of Living, 254 Conn. 321, 328, 757
A.2d 571 (2000), the court, in considering the scope of
the psychiatrist-patient privilege contained in § 52-146e,
noted that ‘‘the principal purpose of [the psychiatrist-
patient] privilege is to give the patient an incentive to
make full disclosure to a physician in order to obtain
effective treatment free from the embarrassment and
invasion of privacy which could result from a doctor’s
testimony. . . . Accordingly, the exceptions to the gen-
eral rule of nondisclosure of communications between
psychiatrist and patient were drafted narrowly to
ensure that the confidentiality of such communications
would be protected unless important countervailing
considerations required their disclosure. See, e.g., 9
H.R. Proc., Pt. 8, 1961 Sess., p. 3945, remarks of Repre-
sentative Nicholas B. Eddy (statutory scheme defines
the protected relationship carefully and at the same
time recognizes the legitimate interest of society in
intruding upon the relationship in certain limited situ-
ations) . . . .’’ (Citation omitted; emphasis in original;
internal quotation marks omitted.) Therefore, the court
concluded that a trial court cannot exercise its discre-
tion to override the psychiatrist-patient privilege where
the court discerned compelling countervailing interests
not explicitly delineated in the narrowly limited excep-
tions to nondisclosure contained in General Statutes
§ 52-146f: ‘‘It is just as clear that no exception is avail-
able beyond those contained in § 52-146f. [W]e have
long held that . . . exceptions to statutes are to be
strictly construed with doubts resolved in favor of the
general rule rather than the exception . . . . [W]here
express exceptions are made, the legal presumption is
that the legislature did not intend to save other cases
from the operation of the statute.’’ (Internal quotation
marks omitted.) Falco v. Institute of Living, supra, 330;
see also State v. Jenkins, 271 Conn. 165, 181–83, 856
A.2d 383 (2004) (because no exception available beyond
those contained in § 52-146f, trial court improperly
allowed state access to, and use of, defendant’s mental
health records to rebut defense of intoxication).
State v. Kemah, supra, 289 Conn. 411, also is instruc-
tive. In that case, a complainant in a criminal case
consented to the release of her confidential mental
health information to the police and prosecuting author-
ities, and defense counsel, based solely on that limited
consent, moved for disclosure and production of her
mental health records to the defendant, claiming they
were necessary to protect his right to prepare a defense
and that the complainant had waived confidentiality.
Id., 416–17. The trial court granted the defendant’s
motion, ruling that because the complainant had turned
over her confidential or privileged records to the prose-
cutor’s office, there was no longer any initial gatekeep-
ing role for the court, and the records should be
disclosed to the defendant. Id., 418. Our Supreme Court
held that ‘‘we have construed waivers narrowly and
have declined to imply a complete waiver of privilege
from a waiver as to particular matters or as to disclosure
to certain persons.’’ Id., 426. The complainant expressly
had limited disclosure in each of three releases she had
signed to a single identified party, and ‘‘[t]here was no
evidence that [she had] intended a broader waiver than
the express terms of the releases had indicated.’’ Id.,
434.
The people of this state enjoy broad privileges, with
limited exceptions, not only in psychiatric communica-
tions and records, but also in communications and
records shared between psychologist and patient; Gen-
eral Statutes § 52-146c; patient communications to, or
information obtained by, a physician, surgeon, or
licensed health care provider; General Statutes § 52-
146o; privileged communications between a marital and
family therapist and a person consulting such therapist;
General Statutes § 52-146p; confidential communica-
tions between a licensed clinical social worker and a
person consulting such social worker; General Statutes
§ 52-146q; and confidential information shared between
a professional counselor and a person consulting such
professional counselor. General Statutes § 52-146s.14 We
observe that all of these enumerated statutory privileges
and the protections that they provide, with limited but
not identical exceptions,15 may be implicated in the
present case, as the evaluator, a psychologist, indicated
that she had collateral contacts with therapists and
parenting educators without designating their exact
professional capacities. Specifically, the record is not
clear as to whether any of these collateral contacts
was a clinical social worker, psychologist, professional
counselor, or ‘‘a person participating under the supervi-
sion of a psychiatrist in the accomplishment of the
objectives of diagnosis and treatment,’’ as described in
§ 52-146d (2).
More significantly, the psychologist-patient privilege
statute specifically restricts the use of court-ordered
psychological evaluations. Pursuant to § 52-146c (c) (1),
the consent of the person consulting the psychologist
is not required for the disclosure of that person’s com-
munications ‘‘[i]f a judge finds that any person after
having been informed that the communications would
not be privileged, has made the communications to a
psychologist in the course of a psychological examina-
tion ordered by the court . . . .’’ The communications
made to the psychologist, however, are ‘‘admissible only
on issues involving the person’s psychological condition
. . . .’’ General Statutes § 52-146c (c) (1). This latter
statutory exception provides that the psychological
evaluation report is subject to disclosure only when
offered as an evidentiary submission in a trial proceed-
ing involving the issue of the subject’s psychological
condition. Thus, providing the court-ordered evaluation
report to a juvenile probation officer would not be
encompassed by this exception. Even within the con-
text of the neglect proceedings in the present case, the
evaluation report was never admitted into evidence,
as the matter proceeded to judgments committing the
children to the petitioner without a trial.16
Previously, we noted the distinction between privi-
leged and confidential information. Although § 46b-124
(b) (1) (E) governs the release of juvenile records used
by the court that are otherwise confidential pursuant
to § 46b-124 (b), the statute does not precisely address
the release of privileged information that may be con-
tained within such confidential juvenile records.
The Judicial Branch argues that the psychologist-
patient privilege and HIPAA do not apply to the disclo-
sure of the evaluation report at issue and have no bear-
ing on the construction of § 46b-124 (b). We disagree.
In Bieluch v. Bieluch, 190 Conn. 813, 814–15, 462 A.2d
1060 (1983), cited by the Judicial Branch, a father con-
testing his children’s custody in a divorce proceeding
argued that a psychiatrist who had conducted a psychi-
atric evaluation of him and his children ordered by the
dissolution court could not testify in the proceedings
for which the evaluation was ordered. Our Supreme
Court held in that case that the father had failed to
establish that his communications with the psychiatrist
conducting the evaluation were privileged. See id., 816–
20. Unlike the present case, Bieluch did not involve
the disclosure of privileged communications relating to
professionals consulted by the father for diagnosis and
treatment; this case does involve such disclosure
because disclosures provided to the evaluator from pro-
fessionals treating the respondent and his children are
referenced in her evaluation report. Furthermore, even
if we only were dealing with the disclosure of communi-
cations made by the participants to the evaluator, § 52-
146 (c) (1) limits disclosure to admissibility in the pro-
ceedings for which the evaluation was ordered.17
Apart from § 52-146c (c) (1), which governs the dis-
closure of communications made to an evaluator acting
under authority of a court, other statutes creating pro-
tection for communications and records related to treat-
ment and diagnosis specifically govern the further
disclosure of a subset of information that may become
part of the court record and may be beneficial to the
court, namely, privileged communications. When privi-
leged information is contained in a record provided to
the juvenile court, the means by which consent to the
disclosure of that information was obtained, including
representations made to the participants and the nature
of the order that they participate, may limit the other-
wise broad and general disclosures of confidential court
records permitted under § 46b-124 (b) (1) (E). Indeed,
the language in the form used by the Judicial Branch
for securing the performance of a court-ordered psycho-
logical evaluation appears to recognize this distinction
and automatically provides for further court consider-
ation before such highly sensitive information is dissem-
inated beyond the parameters of the proceeding in
which its disclosure is ordered, and beyond the eyes
of the court, counsel, and the parties. Clearly, the com-
plicated parameters surrounding the disclosure of cer-
tain types of privileged or confidential communications
specifically shielded from disclosure absent certain
delineated circumstances in our privilege statutes or in
HIPAA—as compared to the more generalized refer-
ence to ‘‘court records’’ in § 46b-124 (a)—demand addi-
tional and cautious court scrutiny. ‘‘[Any] determination
whether the disclosure provisions of [§ 46b-124 (b) (E)]
override state and federal confidentiality laws is a highly
fact-dependent inquiry that cannot be answered defini-
tively in the absence of a specific factual scenario. In
each case, whether any particular [privilege or] confi-
dentiality law applies will depend on the precise nature
of the records at issue, how they were created, and the
nature of the entity that is holding them.’’ Opinions,
Conn. Atty. Gen. No. 2009-012 (November 20, 2009) p. 3.
We do not agree with the Judicial Branch’s argument
that the Judicial Branch form signed by the court in
the present case, which prevented further release of
the evaluation report without a further court order,
should be construed as exempting from the necessity
of a court order those disclosures specified in § 46b-124
(b) (1) (E). The construction of an order is a question of
law for the court, and the court’s review is plenary.
State v. Denya, 294 Conn. 516, 529, 986 A.2d 260 (2010).
‘‘As a general rule, [orders and] judgments are to be
construed in the same fashion as other written instru-
ments.’’ (Internal quotation marks omitted.) Id. The
legal effect of an order ‘‘must be declared in light of the
literal meaning of the language used. The unambiguous
terms of [an order], like the terms in a written contract,
are to be given their usual and ordinary meaning. . . .
[An order] must be construed in light of the situation
of the court, what was before it, and the accompanying
circumstances.’’ (Footnotes omitted.) 46 Am. Jur. 2d
447, Judgments § 74 (2006).
The plain and unambiguous language of this particu-
lar order prohibiting disclosure of the evaluation report
to third parties without court approval, which appears
on a Judicial Branch official form, essentially sealed
the evaluation report from dissemination to anyone
other than the court and the parties. Sealing orders are
contemplated and permitted under § 46b-124 (j), which
states in relevant part, ‘‘Nothing in this section shall be
construed to prohibit a party from making a timely
objection to the admissibility of evidence consisting of
records of cases of juvenile matters, or any part thereof,
in any Superior Court . . . proceeding, or from making
a timely motion to seal any such record pursuant to
the rules of the Superior Court . . . .’’ We do not find
persuasive the argument that a more protective
approach to the release of an evaluation report neces-
sarily undermines or contravenes the legislative intent
of § 46b-124 (b) to facilitate communication among offi-
cials and entities providing services to the same child.
See 38 H.R. Proc., Pt. 8, 1995 Sess., pp. 2938–39, remarks
of Representative Michael P. Lawlor. A great deal of
information used by the court and contained in juvenile
court files, such as Department of Children and Families
social studies, is not as shielded as private health infor-
mation is by other applicable state and federal law, but
it still can be readily obtained.
The evaluation report in the present case contains
information disclosed to the evaluator by the partici-
pants, as well as the results of testing that she performed
on them. It also contains privileged mental health infor-
mation derived from sources other than the evaluator’s
own interviews and personal observations of her sub-
jects. As we noted previously, the court’s evaluation
order stated that, ‘‘[t]o request education, medical, men-
tal health or other relevant information the parent or
guardian must complete the Authorization for Release
of Information form (JD-CL-46). The completed authori-
zation must be attached to this referral.’’ Furthermore,
the evaluator, prior to the commencement of her evalua-
tion, ascertained the respondent’s and the respondent
mother’s understanding of the reasons for the evalua-
tion and advised them of the reasons for the ordered
evaluation, the role of the evaluator, the limits of confi-
dentiality, and, ultimately, their choice to either consent
to or refuse participation. Both respondents were made
aware that the results of the evaluation would be used
to guide the court ‘‘in assisting the entire family with
any identified needs and determining what would be
in the best interests of the children.’’18 The respondents
also gave their similarly informed consent for their
minor children to participate. The evaluator contacted
numerous individuals who had provided educational,
mental health, and other services to the family; these
included a school principal, a person identified as Jilli-
an’s therapist, the respondent’s therapist, two parenting
educators (one of whom the evaluator referred to as a
clinician) and a member of a caregiver support team
working with the two girls and their grandparents (who
had not been ordered to participate in the evaluation).
We reiterate that four of the persons whom the evalua-
tor contacted, and from whom she obtained information
noted in detail in the evaluation report, were not on
the list of contacts contained in the court order for
the evaluation.
From a public policy perspective, parents and their
children who are ordered to submit to court-ordered
psychological or psychiatric evaluations still must sign
written consents authorizing the evaluator to communi-
cate with their mental health and other medical provid-
ers. As a second layer of protection, the parties in this
case were advised by the evaluator that they would give
up significant rights by participating in the evaluation.
In reality, each party has the full right and authority to
refuse to participate in the evaluation pursuant to his
or her statutory privacy rights as well as the right to
remain silent in juvenile neglect proceedings under Gen-
eral Statutes § 46b-137 (d). As a result of the rights
being waived, it is not incomprehensible that certain
assurances may have to be provided to the parties to
persuade them to participate and cooperate. There is
a public policy interest in ensuring a high rate of partici-
pation in evaluations, as the assessment by a profes-
sional may properly be accorded great weight by the
trial court in determining whether a parent’s mental
deficiency interferes with the parenting functions nec-
essary to deal effectively with a child. See In re Nicolina
T., 9 Conn. App. 598, 605, 520 A.2d 639, cert. denied,
203 Conn. 804, 525 A.2d 519 (1987). If a parent’s consent
to participate in an evaluation is premised on an under-
standing that its use and dissemination is narrowly
restricted only to those involved in the child protection
proceeding and that representation later proves to be
untrue, it will be increasingly unlikely that voluntary
participation will occur, and judges, counsel, and ser-
vice providers such as the Department of Children and
Families will have less access to this necessary infor-
mation.
Accordingly, we conclude that with respect to private
and sensitive health information, a just and rational
result in reconciling highly protective state and federal
statutes with the disclosure provisions in § 46b-124 (b)
pertaining to confidential records for the use of the
court in juvenile matters requires that the statutes be
read together and construed harmoniously in order to
render an overall reasonable result. See Blum v. Blum,
supra, 109 Conn. App. 322. Like the trial court in State
v. Kemah, supra, 289 Conn. 418, the court in the present
case determined that it no longer had any gatekeeping
function with respect to the release of the evaluation
report and failed to consider the precise content of
the releases used to waive any privileges or any other
assurances relayed to the respondents to induce them to
consent to any waivers for purposes of the evaluation.
Although the record presented on appeal is insufficient
for us to conclude whether the disclosure of the evalua-
tion report conflicted with the requirements of any
applicable privilege statutes or HIPAA, as claimed by
the respondent,19 the record is sufficient to conclude
that the court, by virtue of its initial order prohibiting
disclosure to third parties and the narrow exception
provided for disclosure of court-ordered psychological
evaluation reports in § 52-146c (c) (1), should have pro-
vided the respondent with a hearing in which he would
have been able to assert, for the court’s consideration,
his concerns about the nature and the extent of the
disclosures to which he may have agreed on behalf of
himself and his minor children. The purpose of a hearing
would have been to ascertain the scope of the explana-
tion provided to the respondent to obtain his informed
consent to the evaluation and whether the releases, if
any, provided to the evaluator by the respondent for
contacting the individuals with whom she conferred as
part of her evaluation fully informed the respondent
of the potential for an unrestricted disclosure of the
evaluation report, or any part of it, to the juvenile proba-
tion officer without further court order.20 The court
also should have examined the precise content of any
releases the respondent signed, before and after the
order for the evaluation was issued, and determined
whether they were HIPAA compliant,21 and whether
they permitted all, part, or none of the evaluation report
to be disclosed to the juvenile probation officer without
the respondent’s further consent or a court order.22 If
the official Judicial Branch release form was employed,
it might have supported the respondent’s argument that
absent a further court order, the dissemination of all or
some of the information contained in this psychological
evaluation report was limited only to use in the
neglect proceedings.
Given that the court’s own order, on an official Judi-
cial Branch form, contemplated a judicial determination
as to whether a nonconsensual disclosure of all or part
of the evaluation report to third parties should occur,
we conclude that the trial court erred by not providing
the respondent a full hearing concerning his claim that
his and his children’s privacy interests were being vio-
lated by the disclosure and by allowing the juvenile
probation officer to retain the copies of the evaluation
report provided to her by the clerk.23
We recognize that the seminal 1995 amendments to
§ 46b-124, which created the statutory disclosure excep-
tion at issue in this appeal, were the result of the legisla-
ture’s focus on increasing efficiency within the juvenile
criminal justice system by eliminating the obstacles
arising from confidentiality barriers within the system.
See 38 H.R. Proc., supra, pp. 2938–39, remarks of Repre-
sentative Lawlor. Nevertheless, we are mindful of the
strong presumption of privacy in an individual’s health
records stemming from our statutory privileges and
HIPAA. Permitting a Judicial Branch employee to ascer-
tain the nature of, for example, the disposition in a
child protection case is a far cry from the invasiveness
of providing that same employee with a seventy-nine
page document containing highly sensitive and poten-
tially damaging information that concerned not only
the accused delinquent child, but also other members
of her family.
Furthermore, Connecticut courts, both before and
after the 1995 amendments, consistently have acknowl-
edged the need to assess carefully the nature of informa-
tion contained within confidential records in juvenile
proceedings before permitting their disclosure to vari-
ous parties. See In re Sheldon G., 216 Conn. 563, 582–83,
583 A.2d 112 (1990) (‘‘[w]e . . . conclude . . . that it
is appropriate to consider the nature of the information
generally contained in juvenile records for the limited
purpose of determining whether the confidentiality of
such records should survive’’); see also id., 584 (‘‘The
present language and structure of § 46b-124 reflect the
legislature’s frequent reconsideration of the competing
interests involved in protecting the confidentiality of
records regarding juveniles who have caused harm to
others. . . . Although the court has some residual dis-
cretion to order disclosure of records in circumstances
not precisely addressed by the statute, its discretion
must be informed by the policies that the statute is
intended to advance.’’); In re Amy H., 56 Conn. App.
55, 62–65, 742 A.2d 372 (1999) (trial court abused discre-
tion by ordering copy of memorandum of decision to be
attached to any request by foster parents for restraining
order preventing respondent father from contacting
them, their children, or his own child where memoran-
dum of decision contained highly personal, confidential
information about psychological conditions of respon-
dent father, respondent mother, and family members);
In re Marvin M., 48 Conn. App. 563, 571, 711 A.2d 756
(‘‘[a]lthough this determination has never been made
by this court, case law from other jurisdictions on the
subject supports the view that courts must distinguish,
as a threshold matter, between confidential and non-
confidential communications’’ [footnotes omitted]),
cert. denied, 245 Conn. 916, 719 A.2d 900 (1998); In re
Romance M., 30 Conn. App. 839, 854–57, 622 A.2d 1047
(1993) (trial court did not abuse discretion in weighing
federal statutory criteria in deciding to admit respon-
dent mother’s alcohol rehabilitation records in termina-
tion of parental rights proceeding), appeal dismissed,
229 Conn. 345, 641 A.2d 378 (1994); In re James C.,
Superior Court, judicial district of Waterbury, Juvenile
Matters, Docket Nos. U06-CP-10007295-A, U06-CP-
10007296-A (Rubinow, J.) (December 6, 2011) (‘‘Here,
in determining whether this court should use its discre-
tion to allow [the Department of Criminal Justice]
access to the confidential juvenile court file, the court
has applied the relevant principles established by In re
Sheldon G., supra [563], and as applied [in] In re Amy
H., supra [55]. Those principles include use of the ‘com-
pelling need’ test, attention to the nature of the informa-
tion contained in the juvenile court file, and the requisite
focus upon the anticipated civil, administrative and per-
sonnel purposes for which the [Department of Criminal
Justice] seeks to have [children’s] family records
produced.’’).
In light of the array of resources that Judicial Branch
employees have at their disposal and the varied, sensi-
tive information contained within documents like the
evaluation report in this case, we conclude that the
court was required to conduct a hearing prior to the
disclosure of the evaluation report to the juvenile proba-
tion officer. We note that, upon remand, the trial court
will be required to ascertain whether, and to what
extent, the respondent consented to the disclosure to
third parties of his and his children’s health information,
or similar disclosure of the evaluation report itself. If
the court determines that all or part of the evaluation
report should not have been disclosed to the juvenile
probation officer, it should order any and all copies in
the possession of the probation officer or her depart-
ment redacted, returned to the child protection file,
or destroyed.
The judgment is reversed and the case is remanded
for a further hearing consistent with this opinion on
the respondent’s revised motion for order.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
1
Although Kathleen H., the respondent mother, has not filed an appeal,
she joined in the respondent’s motion to the trial court seeking that the
evaluation report be returned from the Judicial Branch or destroyed, and
pursuant to Practice Book § 67-13, she was permitted, as an appellee who
supports the position of the appellant, to adopt the brief and supplemental
brief of the respondent.
2
The petition alleging the neglect of Joshua was withdrawn on October
27, 2014, after he attained the age of majority.
3
Specifically, the jurisdictional facts sections of the neglect petitions
stated: ‘‘To wit: 1. Mother has mental health issues that are not adequately
addressed. 2. Father has unresolved mental health issues. 3. Mother and
Father are neglecting their children in that they have refused to comply
with recommended mental health services. 4. Mother and Father fail to
protect their children from their verbal and physical altercations.’’
4
The consolidation was sought to avoid potentially conflicting orders as
to the care and custody of the children being issued by two different courts.
Despite the consolidation, however, the record does not include the entire
family court file, only excerpts from it. Furthermore, the record does not
include any indication as to whether the juvenile court entered orders per-
taining to the children’s custody in the dissolution matter. We therefore are
unable to ascertain whether the evaluation report also was intended for use
in the custody determination in the dissolution proceeding, which would
create another problematic layer regarding the disclosure issue in the present
appeal. Although § 46b-124 (b) (1) (E) does not pertain to family court
records, Practice Book § 25-60 (b) appears to limit the disclosure of court-
ordered private evaluation reports in family cases. It provides, in pertinent
part, that a court-ordered private evaluation report compiled by a state
licensed mental health professional of any party or any child in a family
proceeding ‘‘shall be filed with the clerk, who will seal such report, and
shall be provided by the filer to counsel of record, guardians ad litem and self-
represented parties unless otherwise ordered by the judicial authority. . . .’’
5
As of the date on which the psychological evaluation was concluded,
Joshua and Justin both were adults. Neither of them was individually
assessed, although Joshua, three days before he became eighteen years old,
did participate in an interactional assessment with his mother and his two
sisters. Judge Gallagher had indicated on July 16, 2014, that the then seven-
teen year old Joshua only needed to participate in the psychological evalua-
tion if he was willing to do so.
6
This is an official Judicial Branch form titled, ‘‘Authorization for Informa-
tion,’’ available at http://www.jud.ct.gov/webforms/forms/cl046.pdf (last vis-
ited January 19, 2016) (copy contained in the file of this case in the Appellate
Court clerk’s office). It contains itemized criteria that would provide for
either a very limited, or a more expansive receipt of confidential information.
It also states that ‘‘[t]his request is being made at the request of the individual
for purposes related to the case identified in this section which may include,
but not be limited to, court ordered investigation or evaluation, supervision
and mediation or negotiation.’’ It also indicates to the person signing the
authorization, on page 2, in explaining the section captioned, ‘‘Statement
of Authorization,’’ that ‘‘[y]ou give permission to give this information and
if it is for use in a court case, this information, including any sensitive
information checked in Section 4 [which pertains, inter alia, to health records
involving mental health and substance abuse], may be looked at by the
Court by the parties to the case, by attorneys in this case, and by any
appointed Guardian Ad litem. They must not give this information to anyone
else except they can give out non-sensitive health information for legitimate
trial and trial preparation purposes having to do with this case.’’ The form
also requires that the person signing indicate a ‘‘date, event or condition
on which your permission ends, which can be no later than the final disposi-
tion of the case.’’
7
The statute governing nonjudicial handling of juvenile matters, General
Statutes § 46b-128 (a), provides in relevant part: ‘‘Whenever the Superior
Court is in receipt of any written complaint filed by any person, any public
or private agency or any federal, state, city or town department maintaining
that a child’s conduct constitutes delinquency within the meaning of section
46b-120, it shall make a preliminary investigation to determine whether the
facts, if true, would be sufficient to be a juvenile matter and whether the
interests of the public or the child require that further action be taken. If
so, the court may authorize the filing of a verified petition of alleged delin-
quency or it may make without such petition whatever nonjudicial disposi-
tion is practicable . . . provided the facts establishing jurisdiction are
admitted and that a competent acceptance of such a disposition has been
given by the child and his parent or guardian. If a nonjudicial disposition
is made, the term of any nonjudicial supervision shall be established by the
juvenile probation supervisor provided such period of supervision shall not
exceed one hundred eighty days. . . .’’
Practice Book § 27-1A (c) provides that ‘‘[d]elinquency matters eligible
for nonjudicial handling shall be designated as such on the docket. If the
prosecuting authority objects to the designation, the judicial authority shall
determine if such designation is appropriate. The judicial authority may
[also] refer to the office of juvenile probation a matter so designated and
may, sua sponte, refer a [delinquency] matter for nonjudicial handling prior
to adjudication.’’
Practice Book § 27-5 describes the initial interview for nonjudicial han-
dling eligibility and requires that the probation officer inquire of the child
and parent or guardian whether they have read the court documents and
understand the nature of the complaint.
Practice Book § 27-5 requires that all allegations of misconduct must be
explained in simple and nontechnical language, and that the probation officer
must inform the parent or guardian of the rights that would be afforded to
them if the matter was prosecuted in court, including their right to counsel.
8
We note that the method employed in the present case to obtain a copy
of the evaluation report was not the only route the juvenile probation officer
might have employed to access psychological information on Jacklyn. First,
if the juvenile probation officer had asked the respondents to consent to
her viewing the evaluation report, an agreement may have been reached to
release the information necessary to address her particular need for the
information. If the juvenile probation officer was unable to obtain sufficient
information, and considered that information necessary to effect a proper
nonjudicial supervision, she could have advised the respondents of their
right to a court hearing; see Practice Book § 27-8A; or she could have
ended the nonjudicial handling, at least temporarily, and requested a judicial
hearing. See Practice Book § 27-5 (b). If the probation officer determined
that the nature of the alleged misconduct and the absence of psychological
information warranted judicial intervention, she also could have recom-
mended that the delinquency matter be placed back on the court’s delin-
quency docket and suggested that another evaluation of Jacklyn be
performed. See General Statutes § 46b-134; Practice Book §§ 27-4A (1) (5)
and 31a-14.
9
Prior to oral argument, we requested that the parties be prepared to
address whether the holding in State v. Curcio, 191 Conn. 27, 463 A.2d 566
(1983), permits the present appeal from the court’s denial of the respondent’s
revised motion for order, an interlocutory order, because the order ‘‘termi-
nates a separate and distinct proceeding’’ or ‘‘will not impact directly on
any aspect of the [main] action.’’ (Internal quotation marks omitted.) Niro
v. Niro, 314 Conn. 62, 68, 100 A.3d 801 (2014). At oral argument, both parties
indicated that the order meets the first prong of the Curcio test, and we
agree. Here, the respondent challenges on appeal the disclosure of the
evaluation report to Jacklyn’s probation officer, who had no role in the
neglect proceedings. We note that the disclosure of the evaluation report
should not have any direct impact on the neglect proceedings or the further
use of the evaluation report within them, if necessary, while the parents
pursue reunification. The proceeding regarding the revised motion for order,
which took place after the children’s commitments were ordered, is therefore
not intertwined with the underlying proceedings on the neglect petitions
and, thus, constitutes a separate and distinct proceeding under Curcio’s
first prong. Further, the proceeding concerning disclosure pursuant to § 46b-
124 was terminated when the trial court denied the respondent’s revised
motion for order and allowed the juvenile probation officer to retain the
evaluation report.
10
On May 7, 2015, the Judicial Branch filed a motion with this court
seeking permission to intervene and to appear as an appellee in defense of
its interests in this appeal. This court granted the motion on June 29, 2015.
11
We note that this case does not involve a court’s ordering the use of the
protected information after such information was subjected to a subpoena
issued by a party, which might implicate one of the exceptions to disclosure
without a person’s consent under certain federal and state confidentiality
statutes. In the present case, the respondent was induced to consent to the
release of this information, and it is the nature of both the inducement and
the consent that are at issue.
12
General Statutes § 46b-124 (b) provides in relevant part: ‘‘All records
of cases of juvenile matters . . . except delinquency proceedings, or any
part thereof . . . shall be confidential and for the use of the court in juvenile
matters, and open to inspection or disclosure to any third party, including
bona fide researchers commissioned by a state agency, only upon order of
the Superior Court, except that: (1) Such records shall be available to . . .
(E) employees of the Judicial Branch who, in the performance of their
duties, require access to such records . . . .’’
13
On October 27, 2015, we ordered the parties to file simultaneous supple-
mental briefs addressing whether the participants in the psychological evalu-
ation were entitled to notice and a hearing before the evaluation report was
disclosed to the juvenile probation officer in light of the fact that the order
for the evaluation dated October 7, 2014, states, at the bottom of page 2,
‘‘Evaluation reports and portions of report are confidential and may not be
further disclosed without a Court Order.’’
14
Although the word ‘‘confidential’’ is used in the title of the statutes
protecting communications between a social worker and a professional
counselor, the statutes employ the use of the word ‘‘privileged’’ throughout
the text and clearly intend privileged status. See General Statutes § 52-146p
(b); see also General Statutes § 52-146q (a) (5); General Statutes § 52-146s
(b) and (c) (1); C. Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014)
§ 5.49, pp. 298–300; Id., § 5.58, pp. 305–307.
15
For example, consent is not required from the patient if a psychologist
suspects child abuse, elderly abuse or abuse of a disabled individual; see
General Statutes § 52-146c (c) (4); but no such exception exists for a psychia-
trist who might suspect such abuse under § 52-146f. For a broader discussion
of the comparative inconsistencies in the various statutorily-created privi-
leges and exceptions to them, see C. Tait & E. Prescott, Connecticut Evidence
(5th Ed. 2014) §§ 5.44 through 5.59, pp. 284–308.
16
We note that the Department of Children and Families’ social study was
marked as a full exhibit at the time the parents pleaded nolo contendere
to the neglect allegations and the disposition of commitment was ordered,
presumably by agreement, as there was no trial. There was no similar
treatment of the evaluation report.
17
In a footnote, our Supreme Court in Bieluch noted that General Statutes
§ 52-146f (4) delineated an exception to the requirement of consent, permit-
ting disclosure at a judicial or administrative proceeding of communications
made to or records made by a psychiatrist in the course of a psychiatric
examination ordered by the court, provided the court finds that the patient
has been informed before making the communications that any communica-
tions will not be confidential and provided the communications shall be
admissible only on issues involving the patient’s mental condition. Bieluch
v. Bieluch, supra, 190 Conn. 817 n.2. This exception is similar, but not
identical, to the exception contained in § 52-146c (c) pertaining to the disclo-
sure of court-ordered psychological evaluation reports.
18
‘‘It is axiomatic that any child protection court file can contain myriad
‘highly personal information,’ including . . . psychological examinations of
parents and/or children, which have been generated for the exclusive pur-
pose of promoting family integrity, and with the intention of maintaining
confidentiality for the process.’’ In re James C., Superior Court, judicial
district of Waterbury, Juvenile Matters, Docket Nos. U06-CP-10007295-A,
U06-CP-10007296-A (Rubinow, J.) (December 6, 2011).
19
The parties allege that the respondents and their children were ordered
to sign a release allowing the mental health, medical, and counseling profes-
sionals who had treated the respondent parents and their children to release
protected health information to the evaluator. Further, the parties allege
that at least one respondent parent actually did sign such a release, which
was compliant with HIPAA. Although the parties make reference to this
release, the record does not otherwise reveal that any such release was
signed. Thus, we only can surmise as to whether any release actually was
signed, let alone the nature and extent of it.
20
We need not address the issue pertaining to the alleged violation of the
respondent’s and the children’s constitutional rights of privacy because the
second issue is dispositive of the present appeal and we ‘‘do not engage in
constitutional analysis if a nonconstitutional basis upon which to resolve
an issue exists.’’ Shelton v. Statewide Grievance Committee, 277 Conn. 99,
107, 890 A.2d 104 (2006); accord State v. McCahill, 261 Conn. 492, 501–502,
811 A.2d 667 (2002); State v. Cofield, 220 Conn. 38, 49–50, 595 A.2d 1349
(1991). We note, however, that at least in the context of the psychiatrist-
patient relationship, we previously have held that that relationship is not
protected by a constitutional right to privacy. See Falco v. Institute of
Living, 50 Conn. App. 654, 662–64, 718 A.2d 1009 (1998), rev’d on other
grounds, 254 Conn. 321, 757 A.2d 571 (2000).
21
The releases signed for access to mental health treatment communica-
tions and records would need to be compliant with HIPAA, which includes
detailed recommendations on standards with respect to the privacy of indi-
vidually identifiable health information. Subsequent to its passage, the fed-
eral Department of Health and Human Services promulgated final regulations
containing such standards. Authorizations used for a patient’s consent under
HIPAA must be in writing and contain specific language regarding the infor-
mation to be disclosed or used, the person(s) disclosing and receiving the
information, the expiration of the authorization, the patient’s right to revoke
in writing, and other data. 45 C.F.R. § 164.508 (c). In every release, a covered
entity must make reasonable efforts to use, disclose, and request only the
minimum amount of protected health information needed to accomplish
the intended purpose of the use, disclosure, or request. See id., § 164.514
(d). HIPAA is normally preemptive of state laws that are contrary to its
provisions and any regulations promulgated under it, but state laws that
relate to the privacy of individually identifiable health information are
exempted from preemption, provided that they are more stringent than a
standard, requirement, or implementation specification set forth by HIPAA.
See 42 U.S.C. § 1320d-7 (a); 45 C.F.R. §§ 160.202 and 160.203 (b); see also
Byrne v. Avery Center for Obstetrics & Gynecology, P.C., 314 Conn. 433,
448–50, 102 A.3d 32 (2014) (discussing HIPAA’s preemptive effect on state
law and state laws that are exempted from such effect). In reviewing the
scope of the consent provided by the releases signed by the parents, upon
remand, the court will need to compare the disclosure restrictions and
exceptions in the applicable state privilege statutes and in § 46b-129 (b) (1)
(E), with the restrictions and exceptions in HIPAA and its regulations in
order to determine which law, state or federal, is more restrictive and,
therefore, controls. The specific HIPAA exceptions related to the disclosure
of protected health information without a consent in judicial and administra-
tive proceedings is contained in 45 C.F.R. § 164.512 (e).
22
We do not address issues concerning the educational information dis-
closed by the children’s school principal to the evaluator pertaining to Jillian
and Jacklyn because the respondent has made no privacy claim with respect
to educational information. We note, however, that the Family Educational
Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, contains provisions
relating to the confidentiality of educational records, and except as disclo-
sure of confidential student information is otherwise authorized in FERPA,
school districts must have written consent of the parent before confidential
student information is disclosed. The federal regulations promulgated under
FERPA require that such consent specify the records that may be disclosed,
the purpose of the disclosure, and the party to whom the records are to be
disclosed. See T. Mooney, A Practical Guide to Connecticut School Law (3d
Ed. 2002) c. 4, p. 292.
23
We recognize that the present appeal brought by the respondent may,
at first glance, appear to be moot on the ground that there is no practical
relief that this court can afford him in light of the fact that copies of the
evaluation report already have been disclosed to the juvenile probation
officer. Although the Judicial Branch indicated during oral argument to this
court that the nonjudicial supervision of Jacklyn is completed, possibly
concluding the probation officer’s need for further use of the evaluation
report, the Judicial Branch has not raised the issue of mootness.
Nevertheless, even if the issue had been raised, we would not conclude
that the appeal is moot because the respondent seeks practical relief by
way of an order that any copies of the evaluation report in the possession
of the juvenile probation office be returned to the child protection file or
destroyed. In addition, we further conclude that the appeal is not moot
because it raises an issue that is capable of repetition, yet evading review.
See Karp v. New Britain, 57 Conn. App. 312, 316 n.8, 748 A.2d 372 (2000)
(moot appeal may nevertheless be heard under exception that issues raised
therein are capable of repetition, yet evading review); see also Loisel v.
Rowe, 233 Conn. 370, 377–83, 660 A.2d 323 (1995) (discussing ‘‘capable of
repetition, yet evading review’’ doctrine in Connecticut).
In analyzing whether we can still afford practical relief, we consider three
factors identified in Delevieleuse v. Manson, 184 Conn. 434, 437, 439 A.2d
1055 (1981); see also Loisel v. Rowe, supra, 382. First, we find that the issue
here raises a matter of public importance, the protection of private mental
health information. In addition, given the short duration of the nonjudicial
supervision, which cannot exceed six months, the issue of the probation
officer’s possession of the evaluation report was so short as to evade review,
and finally, the respondent and his children are likely to be affected in the
same manner again. Section 46b-124 (b) (1) (E) sets no limitations as to
the length of time that such records are subject to disclosure, nor does it
limit the disclosure to records pertaining only to the actual subject of the
juvenile proceeding. The statute permits, without the necessity of a court
order, widespread dissemination of child protection records to employees
of the Division of Criminal Justice, Judicial Branch employees, other courts,
the Department of Children and Families, and the probate courts. In addition,
as the evaluation report in the present case is now part of Jacklyn’s delin-
quency record, § 46b-124 (d) may permit further disclosure to employees
and authorized agents of state or federal agencies involved in delinquency
proceedings, the provisions of services directly to the child or the delivery
of court diversionary programs, school officials, law enforcement officials
and prosecutorial officials conducting legitimate criminal investigations.
Furthermore, if any of the participants are convicted of a crime in the future
and there is a need for risk assessment, members and employees of the Board
of Pardons and Paroles and employees of the Department of Correction may
obtain the evaluation report.