Robert B. Green, Sr. v Richmond Dept. Social Svcs

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Frank and Clements
Argued at Richmond, Virginia
ROBERT B. GREEN, SR.
OPINION BY
v. 	Record No. 2787-00-2 	JUDGE JAMES W. BENTON, JR.
JUNE 26, 2001
RICHMOND DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge
Robert W. Carll for appellant.
Kate O'Leary, Assistant City Attorney
(William Macdonald, guardian ad litem for the
minor child, on brief), for appellee.
The trial judge denied Robert B. Green, Sr., access to his
daughter's medical, hospital, and other records pursuant to Code
§ 20-124.6. 	On appeal, Green argues that the trial judge erred in
finding that the Richmond Department of Social Services
established good cause to deny him access to his daughter's
records. 	We affirm the judgment.
I.
Green has been incarcerated in prison since 1995 and is
serving an eighteen-year sentence for several convictions,
including marital sexual assault. 	Green's daughter was born in
1984 and has been in the custody of the Department since August
1998, pursuant to a court order relieving her mother of custody.
Prior to entry of the order transferring custody of Green's

daughter to the Department, Green's daughter had severe conflicts
with her mother, used drugs, affiliated with gangs, and exhibited
a number of other behavioral difficulties. 	Since August 1998, she
has lived in six homes or treatment facilities, including a foster
home, a group home, a treatment center for children, and several
hospitals and treatment facilities. 	The evidence proved that the
daughter's "oppositionally defiant" attitude and physical
aggression toward staff and peers were the primary reasons for
most of her transfers to different treatment facilities. 	She has
been participating in various counseling programs while in the
Department's custody.
Green, who testified that he will be eligible for parole in
2004, first requested copies of his daughter's records in July
1999. 	Although a foster care worker sent Green a consent form,
Green did not receive any records because of errors on the consent
form. 	In December 1999, when Green again requested access to his
daughter's records, the Department filed a motion in the Juvenile
and Domestic Relations District Court opposing his request. 	A
judge found good cause to deny Green access to his daughter's
medical, hospital, and other health records, except to the extent
authorized by his daughter's treating physician. 	Green appealed
that decision to the circuit court.
At the evidentiary hearing in the circuit court, William
Seay, the daughter's foster care worker, testified that the
daughter was then in a residential treatment unit that specializes
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in providing serious psychiatric treatment for adolescent females.
Seay testified that the daughter's behavioral problems include
physical aggression, defiance to adult authority, mood swings, and
combativeness toward others. 	Seay also testified that various
psychiatric evaluations attributed her aggressive and
self-destructive behavior to past domestic violence in her family.
Kimberly Boone, the daughter's therapist, testified that the
daughter has bipolar disorder, post-traumatic stress disorder, and
conduct disorder. 	Her treatment includes medication for mood
stabilization and participation in group and individual
psychotherapy. 	Boone also testified that the daughter needs help
resolving past abuse issues, was "starting to trust [Boone] and
open up more and more," and has made advances in controlling her
anger. 	Boone further testified that the daughter extensively
discusses her relationship with Green in her therapy sessions and
that, in Boone's opinion, the daughter's relationship with Green
was "abusive." 	Boone testified, however, that Green's past
physical abuse had been directed toward the daughter's mother.
Although Boone admitted she had not discussed this issue with the
daughter, Boone opined that Green's access to his daughter's
records would impair the daughter's therapy because it would
affect her trust in Boone. 	She believed the daughter would
"probably always be worried" that her father would learn from her
records what she discussed in therapy.
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The daughter's guardian ad litem represented to the trial
judge that the daughter believed Green's access to her records
would violate her privacy and did not wish for Green to have
access to her records. 	The guardian ad litem also said the
daughter "had a lot of difficulties" relating to her mother and
father and that she is "trying to work through these issues." 	In
addition, the record contains a letter from the daughter's
psychiatrist stating, "it is of the utmost importance that [the
daughter] has no contact with her family . . . as this may be
quite counterproductive at this time." 	A treatment plan signed by
the daughter's psychiatrist reports that Green "would tell [the
daughter] how he was going to physically and sexually abuse the
mother and would make her watch." 	The plan also notes that Green
is "not allowed any contact with [the daughter]."
Green testified he had exchanged written correspondence with
his daughter "almost every week" from the time he was imprisoned
in 1995 until February 5, 2000, when the correspondence stopped.
Green also testified that his daughter wrote him about events that
occurred in her life after she was placed in foster care. 	Green's
reasons for wanting access to his daughter's records include the
following:
[He] wanted to access the records in order
to better participate in [her] well being
[and] . . . to understand what she was going
through, what her needs were, and . . . to
explain some things to her, as far as how
her family was, what we were really going
through . . . as a dysfunctional family.
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* 	* 	* 	* 	* 	* 	*
To make an assessment of all that she has
gone through because all the things that she
explained to me that had occurred to her
since we had separated. 	You know I wanted
to see if she was getting counseling about
that. 	What was being handled the best way,
you know, was she being truthful with me,
you know, what I could do to investigate.
Green testified that he wanted to take an active role in
facilitating his daughter's treatment.
The trial judge found that Green's access to his daughter's
records would be harmful to her and was not in her best
interests. 	He also found that Green's access to the records
would interfere with his daughter's disclosures to her therapist
and that Green's desire for access was "not to help [the
daughter]." 	Upon these findings, the judge denied Green access
to her medical, hospital, and other health records.
II.
Code § 20-124.6 provides that, "[n]otwithstanding any other
provision of law, neither parent, regardless of whether such
parent has custody, shall be denied access to the academic,
medical, hospital or other health records of that parent's minor
child unless otherwise ordered by the court for good cause
shown." 	Applying former Code § 20-107.2, which contained
protections similar to this statute, we have held as follows:
"The trial court's decision, when based
upon an ore tenus hearing, is entitled to
great weight and will not be disturbed
unless plainly wrong or without evidence to
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support it." 	"Certainly it is true that the
legal rights of the parent should be
respected . . . but the welfare of the child
is to be regarded more highly than the
technical legal rights of the parent."
L.C.S. v. S.A.S., 19 Va. App. 709, 724, 453 S.E.2d 580, 588
(1995) (citations omitted).
Green contends the trial judge impermissibly relied only on
Boone's opinion testimony that Green's access to the records
would affect his daughter's trust in Boone as her therapist. 	He
also argues that Boone's testimony did not support the trial
judge's finding of good cause. 	We disagree.
In L.C.S., we affirmed a trial judge's decision to deny a
father access to his child's medical records where the child
believed that "'he was sexually abused and hurt by his father,'"
and was frightened that his father might later harm him. 	19 Va.
App. at 723, 453 S.E.2d at 588. 	In that case, the trial judge
relied on the testimony of the child's therapist, who testified
that "disclosure of the child's psychological records would
adversely affect [the child's] recovery because [the therapist]
would feel compelled to tell him of the required disclosure."
Id. at 724, 453 S.E.2d at 588.
Boone's testimony, which the trial judge found persuasive,
provided a substantial basis to support the finding that Green's
access to the records would impair treatment of his daughter.
In addition to Boone's testimony, however, the record in this
case "is replete with evidence of 'good cause.'" 	Id. 	The
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daughter's guardian ad litem represented to the trial judge that
the daughter, a sixteen year old, was trying to resolve
difficult issues regarding her relationship with her parents and
viewed Green's access to her medical files as an invasion of her
privacy. 	Although the daughter's wishes are not controlling,
the trial judge properly gave weight to them because she had
reached the age of discretion. 	See Hall v. Hall, 210 Va. 668,
672, 173 S.E.2d 865, 868 (1970) (noting that the wishes of
children 13, 12, and 11 years of age are to be considered in a
child custody case). 	Furthermore, the record contains evidence
that the daughter suffers from psychological disorders as a
result of her exposure to past domestic abuse in her family.
The record proved that the daughter had not communicated with
Green since February 5, 2000, and that the juvenile court judge
had entered an order limiting the daughter's contact with both
parents upon the recommendation of the daughter's treating
professionals.
As the trial judge ruled, no evidence proved that Green has
any specialized training or education in child development or
counseling that would provide him with the ability to help his
daughter by reviewing her medical records. 	In other words,
nothing in the record showed that Green has greater insight than
his daughter's therapist concerning what is in her best interest
as she undergoes treatment. 	The testimony of the therapist and
the report of the psychiatrist are unrebutted by any evidence
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explaining how Green's daughter, who needs psychological
treatment, would benefit or progress in resolving her
psychological issues if Green had access to her medical records.
In his ruling, the trial judge specifically and permissibly
relied on both the past histories of Green and his daughter and
on the opinion of the expert witness in determining what is in
the best interest of Green's daughter. 	See Hughes v. Gentry, 18
Va. App. 318, 325, 443 S.E.2d 448, 452 (1994). 	The trial judge
was well suited to ascertain the expert witness' credibility, to
determine the weight to be given to her testimony, and to
exercise discretion in accepting or rejecting the witness'
testimony. 	Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d
665, 668 (1997) (en banc). 	Based on our review of this record,
we hold that the trial judge did not err in finding good cause
to deny Green access to his daughter's medical, hospital and
other health records pursuant to Code § 20-124.6. 	Accordingly,
we affirm the judgment.
Affirmed.
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