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H. S v. J. C


March 3, 2011

H. S.,

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FD-08-1112-04.

Per curiam.


Submitted January 24, 2011 - Decided Before Judges Kestin and Newman.

This non-matrimonial Family Part matter involves issues of parental access to the parties' child. Defendant appeals from one aspect of an order entered on May 4, 2009. Plaintiff has not participated in the appeal. We vacate the one aspect of theorder and remand for such further proceedings as may be required.

When the instant proceeding was opened to the trial court in March 2009, the underlying matter already had a history; it bore a 2004 docket number. The first document in the record before us, however, is an order entered on August 5, 2008, which recited that plaintiff had provided proof she completed intensive outpatient MICA program as of July 29, 2008. [Plaintiff] must follow up with all recommendations. [Plaintiff's] application for custody is denied without prejudice at this time. As long as [plaintiff] continues to be compliant with all mental health recommendations including taking all medications she is to have parenting time unsupervised as agreed. Parenting time not to be overnight and not to exceed eight hours at this time.

Custody to remain with [defendant].

In a document captioned "application for post-disposition hearing," dated March 9, 2009, plaintiff sought "modification of order" and "visitation," specifically modification of "the current visitation order to include overnights" with the child. Defendant filed a letter dated March 13, 2009, setting out his reasons for resisting plaintiff's application; and, in another letter dated March 20, 2009, he requested an adjournment of the scheduled hearing, noting: "This is not a Division of Youth and Family Services case as [plaintiff] with her other kids." [sic]

The hearing on plaintiff's application was held on May 4, 2009, with both parties appearing pro se. It resulted in an order that provided: Defendant to follow the psychiatric evaluation recommendations. Defendant to provide this report to the Court and DYFS.

The plaintiff will have unsupervised overnight parenting time as agreed by the parties. Parties may review the DYFS reports, with a protective order, involving [the child] only. (The parties will need to make an appointment to review those records in the Family Courthouse.) The Court finds that the plaintiff is in compliance with all of DYFS services. The parties are to submit the child study team records & follow through with any recommendations.

In his appeal from this order, defendant presents the following argument:


A. [Defendant] has a fundamental right of privacy in his psychological medical records.

B. An invasion of fundamental privacy rights may only occur in accordance with due process.

C. Due process applies when DYFS seeks to interfere with a fundamental right.

D. The notice provided [defendant] regarding the hearing did not satisfy due process.

The trial court hearing on May 4, 2009 began with plaintiff's acknowledgement of the judge's recitation of the focal issue, that plaintiff was seeking "to modify the current parenting time to include overnights." Defendant said he had resisted the request because he "would like to see some kind of documentation from a doctor. Something saying it's okay." The judge then noted that: the Division [of Youth and Family Services] has been involved with [plaintiff] with respect to her other two children. I have all of the DYFS files.

Quite frankly, Mr. [C] I'm concerned because DYFS recommended that you submit to a psychological assessment or evaluation[.]

We have concerns in regards to [defendant] and [the child]. [The child] is in need of a child study team evaluation. [Defendant] is in need of a psychiatric evaluation.

He appears to be vengeful, immature and not functioning rationally, as he keeps calling SCR [sic] with false information concerning [plaintiff] (inaudible) services from the Division.

When defendant stated that the child was "not involved with DYFS", the judge replied:

DYFS is involved with [plaintiff] and then based on the numerous referrals that have come to their attention, based on referrals received regarding [the child], they recommended psychiatric evaluations for you, Mr. [C].

As well as a child study team evaluation for [the child]. Have you cooperated with either one of those services recommended to you by DYFS, Mr. [C]?

Defendant responded:

Yes. Since I've had [the child] for maybe nine months and according to the child study team, and I have reports of it but I didn't know that they were going to be brought up.

She's doing fantastic. She's no longer disabled.

The hearing continued with a discussion between the judge and the parties regarding the child's development, DYFS's involvement, the parties' conduct, and the prospect of modifying the then-controlling order to allow for the child's overnight visitation with plaintiff. During the course of the discussion, the judge observed: "The only concerns [DYFS is] raising now, Mr. [C] is your non-compliance or failure to follow through with the recommended service of a psychiatric evaluation." Defendant asserted that he was unaware that DYFS "wanted all this stuff[,]" and he repeated that the child was doing very well in his custody.

As the hearing continued, defendant acknowledged that he was affording plaintiff overnight visitations. Also, it became apparent that defendant had received a confidential report from a mental health expert regarding plaintiff's parenting capacity, which the court confiscated without prejudice to defendant's right to seek access to it formally.

Defendant agreed that plaintiff could continue to have overnight visitation with the child. The judge went on to provide, over defendant's expressed objection, that he should "follow through with the evaluation that's recommended by DYFS, the psychiatric evaluation." Defendant noted that he had already been evaluated, and the judge stated that he should supply a copy of the report and recommendations to the court. The judge read into the record a child study team report on plaintiff. Defendant also noted that he had undergone a psychiatric evaluation on his own initiative, and the judge stated she would order the report on that evaluation to be provided to DYFS.

Defendant presents his argument on appeal succinctly in the preliminary statement in his brief, contending that the trial court erred in the circumstances by requir[ing] him to surrender his private and confidential psychological medical records to the trial court and [DYFS].

An individual's expectation of privacy in his psychological medical records is a constitutionally protected, fundamental right. When the State seeks to obtain an individual's psychological records they must afford that person due process. This obligation requires the State to provide notice that alerts a party to the nature of the proceedings and the need to prepare a defense and retain counsel.

Here, [defendant] only received advance notice of a hearing for possible modification of a visitation order.

[Defendant] did not receive any notice that the trial court intended to inquire into DYFS's recommendations and order him to submit to an independent psychological evaluation or to provide copies of his psychological medical records. The failure to provide [defendant] notice of the intent to infringe his fundamental right to privacy is a violation of due process[.]

Defendant takes the position that, beyond asserting his due process argument regarding the disclosure requirements imposed, he does not appeal from any other aspect of the order.

We note that the only issue before the trial court on the pending application was resolved when defendant agreed, notwithstanding his initial posture on plaintiff's application, that plaintiff could have overnight visitation. From defendant's perspective that was the only issue before the court. He had no basis for perceiving that any other subject would be raised. Nevertheless, the trial court, apparently in pursuit of its jurisdictional discretion to promote the best interests of the child, see In re D. C., 203 N.J. 545, 551 (2010), chose to expand the focus of the hearing. In doing so, it introduced a specific subject matter in respect of which defendant had received no notice, and for which he could not have been prepared.

Defendant validly argues that the absence of notice regarding the issue that came to be addressed at the hearing -- DYFS's recommendation that he be required to submit his own mental health records -- deprived him of an ample opportunity to protect his privacy interests. See, e.g., Kinsella v. Kinsella, 150 N.J. 276, 295 (1997). With notice that the issue would be addressed, he might have engaged the assistance of counsel in preparing a defense. Competent counsel could have assisted defendant in exploring the validity of the basis for DYFS's recommendation; or, in propounding a more effectively protective way of satisfying the court regarding mental health issues, including possibly proposing in camera review of existing mental health records; or, in devising a better approach to dealing with DYFS's recommendations.

Once the scope of the inquiry became clear to the trial court, it should have continued the matter to give defendant an opportunity to protect his personal privacy interests. If defendant had been the initiator of the application, the court could well have required him to submit pertinent records that would support his claim for relief. As the respondent in plaintiff's application to modify the visitation arrangement, however, defendant was in a very different position. See, e.g., Division of Youth and Family Servs. v. A. R. G., 179 N.J. 264, 285-86 (2004). Our recent decision in Division of Youth and Family Services v. M. D., ___ N.J. Super. ___ (App. Div. 2011), provides a current elucidation of the importance of notice and other due process protections in the context of Family Part litigation generally.

Much time has expired since the order before us was entered on May 4, 2009. We have no way of knowing what has transpired in the interim with regard to the parties and their child, or even whether the underlying matter still pends on the Family Part docket. We therefore order no relief beyond vacating that portion of the trial court's order requiring disclosure of defendant's mental health records. We remand to the trial court for such further proceedings as may be appropriate currently.

The order is vacated in part and the matter is remanded.


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