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M.M v. L.M

September 12, 2012


Appeal from the Order Entered on November 7, 2011 In the Court of Common Pleas of Allegheny County Family Court at No(s): NO. FD 10-000233-009

The opinion of the court was delivered by: Bowes, J.



M.M. ("Father") appeals the order entered on November 7, 2011, wherein the trial court, inter alia, directed him to provide his mental health records to L.M. ("Mother") in anticipation of a custody trial concerning their minor daughter, H.M. We review this appeal pursuant to the collateral order doctrine codified at Pa.R.A.P. 313,*fn2 reverse the order in part, and remand for further proceedings.

Mother and Father married on May 25, 2008, and separated on February 20, 2010. Their separate divorce action is pending. On February 26, 2010, Mother filed a petition for protection from abuse ("PFA") on behalf of herself and her two children from a prior relationship. On March 5, 2010, Mother and Father entered a consent order, wherein Father agreed, inter alia, not to harass, stalk, or threaten Mother or her children. In addition, Father was excluded from the marital residence, Mother's workplace, and the children's daycare and school for one year.

During April 2010, following the parties' separation and consent decree, H.M. was born to the parties. Father immediately filed the present custody complaint seeking shared legal and physical custody of his daughter. The custody trial was continued several times and is pending. On April 15, 2010, the trial court entered an interim custody order awarding Mother primary physical custody and granting Father periods of partial physical custody on every Saturday and Sunday from 10:00 am to 4:00 pm.

Father was diagnosed with bipolar personality disorder during 1998. He has had multiple hospitalizations due to his condition, and his mental health has been at issue throughout this custody litigation. Father has displayed violent behavior during several of the custody exchanges, including allegedly assaulting maternal grandfather and biting his ear during a May 2011 custody exchange in the parking lot of the Jewish Community Center in Pittsburgh. In light of the nature of this appeal, we highlight Father's alleged behaviors along with our recitation of the procedural history of this case.

As a result of a PFA that Mother filed against Father on May 11, 2010, the trial court temporarily suspended Father's custodial rights pursuant to a consent decree. When physical custody resumed during June 2010, Father's custody was limited to periods of supervised custody. Upon discovering that Father was hospitalized for mental health issues July 1, 2010 through July 5, 2010, Mother filed a petition for special relief seeking to suspend any custody. Thereafter, the parties entered a consent order that continued supervised custody and directed Father to execute a release of information for the trial court's in camera review. The release was specifically limited to records pertaining to Father's five-day hospitalization. On August 18, 2010, the trial court ordered Father to submit to a psychological evaluation.

Supervised custody continued until January 21, 2011, upon the completion of the court-ordered psychological evaluation. Following that evaluation, the trial court entered a revised custody arrangement wherein Father was granted unsupervised physical custody with his daughter every Tuesday and Thursday afternoon from 3:30 p.m. to 8:00 p.m. and daytime custody on Saturday and Sunday from 10:00 a.m. to 3:00 p.m. on alternating weekends. The order also granted Father periods of overnight weekend custody effective after three months.

On April 11, 2011, Mother and Father continued the custody trial until June 21, 2011, so that Mother could depose Duane Spiker, M.D., Father's treating psychiatrist. As it relates to this appeal, the consent order provided "The parties agree that Father will provide a release to Dr. Spiker releasing specified information to Mother['s] [and] Father's counsel on a monthly basis to ensure compliance with appointment and drug treatment via blood tests from the date forward." Custody Order, 4/11/11, at unnumbered page 2. This order also extended Father's periods of weekend daytime custody by three hours until 6:00 p.m., but it vacated the provision in the former order providing for Father's eventual assumption of overnight custody after three months. Although Father executed the contemplated release, Dr. Spiker's deposition never occurred.

Thereafter, on May 16, 2011, following the episode when Father allegedly bit the maternal grandfather's ear, the trial court directed that custody exchanges occur at the police station located in the Squirrel Hill section of Pittsburgh. Three days later, following Mother's emergency petition to reconsider, the trial court vacated its prior custody order and imposed periods of supervised physical custody pending the entry of a final custody order. On the same day, Father admitted himself into Western Psychiatric Institute and Clinic ("WPIC") and remained hospitalized voluntarily for one week.

In an order dated June 13, 2011 and entered July 15, 2011, the trial court further postponed the June 21, 2011 custody trial until September 19, 2011, so that Father could submit to an updated psychological evaluation "specifically addressing Father's mental health status as it relate[s] to his [parenting and care of [H.M.] and his relationship with her." Trial Court Order, 7/15/11. Meanwhile, the trial court continued Father's period of supervised physical custody as outlined in the May 19, 2011 order.

Notwithstanding the trial court's entry of an order on August 8, 2011, to facilitate the updated psychological evaluation, the evaluation never occurred. Instead, on August 22, 2011, Mother presented a petition for special relief requesting, inter alia, that Father provide her with his mental health records concerning "the May hospitalization and post[-]hospitalization care[.]" Petition for Contempt and Special Relief, 11/7/11, at unnumbered page 4. Father objected to producing the privileged material for Mother's review, invoking a privacy interest in his mental health records, and reminded the trial court of the pending update to the psychological evaluation. Mother countered that Father waived any privilege that he might have had to his mental health records by agreeing to the deposition of his treating physician. Father responded that the May 2011 release was narrow in scope and limited to the specific purposes enumerated therein.

After taking the matter under advisement for two and one-half months, the trial court entered the November 7, 2011 order directing Father to produce the requested medical records within sixty days and awarding Mother counsel fees totaling $1,000. The order also directed Father to release medical records related to a prior automobile accident and to permit Mother to depose any medical expert that he intended to present during the custody trial. The trial court subsequently vacated the award of counsel fees but otherwise denied Father's petition for reconsideration. This timely appeal followed on December 5, 2011. Father complied with Pa.R.A.P. 1925(a)(2)(i) by filing a statement of errors complained of on appeal concurrent with his notice of appeal.

He presents the following questions for our review:

A. Whether the trial court erred in requiring Father to release directly to Mother his records of mental health treatment ...

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