J-S18037-20

                                    2020 PA Super 159


    C.L.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                  v.                           :
                                               :
                                               :
    M.P.                                       :
                                               :
                        Appellant              :   No. 1958 MDA 2019

               Appeal from the Order Entered November 15, 2019
      In the Court of Common Pleas of Lackawanna County Civil Division at
                            No(s): 2019-FC-41210

    C.L.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                  v.                           :
                                               :
                                               :
    M.P.                                       :
                                               :
                        Appellant              :   No. 1959 MDA 2019

                Appeal from the Order Entered October 29, 2019
      In the Court of Common Pleas of Lackawanna County Civil Division at
                            No(s): 2019-FC-41210


BEFORE:        KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                               FILED JULY 08, 2020

           Appellant, M.P. (“Mother”), files these consolidated appeals from the

trial court’s October 29, 2019, order appointing a guardian ad litem (“GAL”)

pursuant to Pa.R.C.P. 1915.11-2, and including access to mental health


____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S18037-20


records, as well as the trial court’s November 15, 2019,1 order granting in

part, and denying in part, Mother’s Petition for Emergency Special Relief

Seeking Reconsideration, providing the GAL access to mental health records

from the last three years for both Mother and Appellee, C.L. (“Father”),

pursuant to 23 Pa.C.S. § 5334, with restrictions as to disclosure and

dissemination by the GAL, as well as the ability to object to the GAL’s

testimony and/or report or recommendation. After review, we affirm.

       The trial court has set forth the relevant procedural history as follows:

              On August 23, 2019, [Father] filed a Petition for Custody
       and a Petition for Emergency Special Relief in Custody pro se.
       [Father] alleged in both petitions that “[t]he mother of our child,
       [Mother] has become increasingly prone to erratic and hostile
       outbursts toward me in front of our child.” [Father] also alleged
       that “[Mother] had an extensive mental health history . . . and has
       refused to seek any further treatment.” Additionally, [Father]
       alleged that [Mother] “refused a suggested consultation . . . for
       post-partum depression/psychosis.” Further, [Mother] “has been
       regularly dissociating to the point of forgetting big stretches at a
       time or where she is. . .” according to [Father]’s averments.
       [Father]’s Petition for Emergency Special Relief in Custody was
       granted ex parte . . . and scheduled for a hearing. Under [the]
____________________________________________


1 While the docket reflects a filed date of October 29, 2019, and November
15, 2019, there is no notation on the docket that notice was given and that
the orders were entered for purposes of Pa.R.C.P. 236(b). See Frazier v.
City of Philadelphia, 557 Pa. 618, 621, 735 A.2d 113, 115 (1999) (holding
that “an order is not appealable until it is entered on the docket with the
required notation that appropriate notice has been given”); Pa.R.A.P. 108(a)
(entry of an order is designated as “the day on which the clerk makes the
notation in the docket that notice of entry of the order has been given as
required by Pa.R.C.P. 236(b)”). Thus, the orders were not entered and the
appeal period not triggered. Although we consider the matter on the merits,
we caution the Court of Common Pleas of Lackawanna County as to
compliance with the rules with regard to the entry of orders.


                                           -2-
J-S18037-20


     Order, [Father] enjoyed temporary sole physical and legal custody
     of [Child].
           Through counsel, [Mother] filed a Petition for Emergency
     Special Relief in Custody on August 27, 2019. [Mother] likewise
     alleged serious concerns regarding [Father]’s mental health and
     alleged physical, mental, and emotional abuse. Among [Mother]’s
     allegations of abuse were that: 1) [Father] was emotionally
     controlling and manipulative regarding who could see [Child]; 2)
     [Father] coerced [Mother] into severing ties with her parents; 3)
     [Father] talked to [Mother] in a degrading and manipulative
     manner in front of [Child]; 4) [Father] threatened to leave
     [Mother] and take [Child] as punishment for visiting her family;
     and 5) [Father] locked [Mother] out of the marital home and
     attempted to have her committed.
            [Mother] also alleged that [Father] suffered from mental
     health conditions and was playing psychiatrist or gaslighting her.
     For example, [Mother] alleged that [Father] diagnosed [Mother]
     with “dissociative identity disorder” and tried to convince [Mother]
     that she suffered from this condition. Moreover, [Mother] put
     forth allegations that [Father] suffers from schizotypal personality
     disorder and was not taking medication or treating. [Father]’s
     disorder manifested itself in bizarre alleged behavior, including
     telling [Mother] that Maternal Grandfather “pimped [Mother] out
     to his friends while she was unconscious[,]” and that [Father] was
     jealous of the sexual relationship [Mother] enjoyed with Maternal
     Grandfather according to [Mother]’s petition. [Mother] further
     alleged at one point that [Father] threw himself on the ground and
     ripped at his clothing over a dispute as to whether Maternal
     Grandparents could see [Child] and carved the letter M into his
     arm for “no apparent reason” while [Mother] was otherwise caring
     for [Child]. “All of the above behaviors exhibited by [Father,]”
     [Mother] alleged, “call into question his mental health and his
     ability to adequately and safely care for the minor child.”
           [The court] denied [Mother]’s Petition for Emergency
     Special Relief in Custody ex parte and the matters were
     consolidated for hearing before the [c]ourt. The parties, however,
     agreed to allow [Mother] periods of partial physical custody with
     no overnight periods pending the hearing on the petitions. The
     parties agreed that [Child] should have no contact with Maternal
     Grandparents.




                                    -3-
J-S18037-20


Trial Court Opinion (“T.C.O.”), 12/17/19, at 2-3 (citations to the record

omitted).

       Hearings were held on the parties’ cross-petitions on September 10,

2019,2 and October 28, 2019.           Both Mother and Father were present and

represented by counsel. Father testified on his own behalf and presented the

testimony of his sister, as well as that of Mother, as of cross-examination.

Additionally, Mother testified on her own behalf.

             [Mother]’s testimony was not concluded. After the October
       28, 2019[,] hearing, [the court] appointed Andrew Phillips, Esq.[,]
       as Guardian ad Litem (“GAL”) of [Child] pursuant to 23 Pa.C.S. §
       5334 due to the high conflict in the family and the sensitive nature
       of the allegations against each party and others associated. The
       Order appointing the GAL was a form order pursuant to Rules
       1915.11-2 and 1915.21 and contained language that allowed the
       GAL to access both parties’ psychological or psychiatric charts,
       including evaluations, progress notes, test evaluations, and
       discharge summaries.
             [Mother] then filed a Petition for Emergency Special Relief
       Seeking Reconsideration to Entry of the October 29, 2019[,] Order
       Appointing a Guardian ad Litem in the Nature of a Motion for the
       Court to Strike Language from Said Order Pertaining to Mother’s
       Release of Mental Health Records & Mental Health Treatment
       Records to the Guardian ad Litem & Motion to Strike Mother’s
       10/28/2019 Mental Health Testimony from the Record (“Petition
       for Reconsideration”) citing the Mental Health Procedures Act, the
       Psychologist-Patient Privilege, and relevant case law. Following

____________________________________________


2 We observe that the cover sheet for the Notes of Testimony of this hearing
indicates a date of August 15, 2019. An amended cover sheet reflecting a
date of September 10, 2019, is contained in the certified record. We further
note that Plaintiff’s (Father’s) Exhibit 1 was not included as part of the certified
record, or the reproduced record. Nevertheless, the exhibit was summarized
on the record. See Notes of Testimony (“N.T.”), 9/10/19, at 36.



                                           -4-
J-S18037-20


       oral argument on [Mother]’s Petition for Reconsideration,[3] [the
       court] issued two Orders on November 15, 2019[,] granting
       [Mother]’s Petition for Reconsideration in part and sealing this
       docket. Specifically, [the court] limited the Guardian ad Litem’s
       access to three years of both parties’ mental health records and
       ordered non-disclosure of such records, tailoring the Order to the
       testimony in the case. [The court] also directed that [Father] and
       [Mother] submit to mental health evaluations and/or testing
       through one of two different providers pursuant to Pennsylvania
       Rule of Civil Procedure 1915.8. In that Order, no limits were
       placed on the evaluator’s ability to obtain prior mental health
       treatment records of the parties. [The court] later issued Orders
       in compliance with Pa.R.Civ.P. 1915.18, limiting the parties’
       access to the evaluator’s file without authorization from [the
       court].[4]

T.C.O. at 9-10 (citations to the record omitted) (footnotes added).

       Thereafter, Mother, through counsel, filed timely notices of appeal on

November 25, 2019, along with concise statements of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), with respect to the

October 29, 2019, order appointing a GAL pursuant to Pa.R.C.P. 1915.11-2

and allowing access to mental health records, and the November 15, 2019,

order granting in part and denying in part Mother’s Petition for Emergency

____________________________________________


3 While the notes of testimony from this hearing are not included as part of
the certified record, they are included as part of the reproduced record. As
their veracity is not in dispute, we rely on the copy contained within the
Reproduced Record. See Commonwealth v. Barnett, 121 A.3d 534, 544
n.3 (Pa.Super. 2015) (“While this Court generally may only consider facts that
have been duly certified in the record, where the accuracy of a document is
undisputed and contained in the certified record, we may consider it.”)
(citations omitted)).

4 Mother does not challenge the order as it relates to the psychological
evaluations and/or testing.



                                           -5-
J-S18037-20


Special Relief Seeking Reconsideration and providing the GAL access to mental

health records from the last three years for both Mother and Father. 5,        6



Pursuant to order of December 2, 2019, Mother was granted leave to amend

her concise statement and such amended concise statement was treated as

timely filed.7,   8   This Court consolidated Mother’s appeals sua sponte on

January 27, 2020.

       On appeal, Mother raises the following issues for our review:

       1. Did the trial court err or abuse its discretion in directing
       disclosure to the Guardian ad Litem, over the objection of counsel,
       of confidential mental health records, based upon 23 Pa.C.S.[] §
       5334, where the Mental Health Procedures Act [(“MHPA”)], 50 P.S.
       § 7111(a), controls the disclosure of such records and supersedes
       any other statute to the contrary?

Mother’s Brief at 2 (suggested answer omitted).9

____________________________________________


5As indicated, this order additionally imposed restrictions as to disclosure and
dissemination by the GAL, and the ability to object to the GAL’s testimony
and/or report or recommendation.

6We find such orders are appealable as collateral orders pursuant to Pa.R.A.P.
313. See M.M. v. L.M., 55 A.3d 1167, 1168 (Pa.Super. 2012).

7Mother’s Amended Concise Statement made corrections as to citations. See
Amended Concise Statement of Errors Complained of on Appeal Pursuant to
Pa.R.A.P. 1925, 11/27/19.

8Upon motion of Mother, pursuant to order of December 3, 2019, the orders
on appeal were stayed by the trial court. See Order, 12/3/19.

9 Mother failed to preserve a claim as to the striking of her testimony from
October 28, 2019, pertaining to confidential mental health information, as she
failed to raise such a challenge in the statement of questions involved section
of her brief or present any argument and/or discussion with regard thereto.



                                           -6-
J-S18037-20


       Initially, for background purposes, we note that in any custody action

brought under the Child Custody Act, (“the Act”), 23 Pa.C.S. §§ 5321-5340,

the paramount concern is the best interests of the child. See 23 Pa.C.S. §§

5328, 5338. In fashioning a custody award, the trial court must consider the

following best interest factors set forth in Section 5328(a), which provides as

follows:

       § 5328. Factors to consider when awarding custody

       (a) Factors.—In ordering any form of custody, the court shall
       determine the best interest of the child by considering all relevant
       factors, giving weighted consideration to those factors which
       affect the safety of the child, including the following:
              (1) Which party is more likely to encourage and permit
       frequent and continuing contact between the child and another
       party.
              (2) The present and past abuse committed by a party or
       member of the party’s household, whether there is a continued
       risk of harm to the child or an abused party and which party can
       better provide adequate physical safeguards and supervision of
       the child.
             (2.1) The information set forth in section 5329.1(a)(1) and
       (2) (relating to consideration of child abuse and involvement with
       protective services).
             (3) The parental duties performed by each party on behalf
       of the child.


____________________________________________


See In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa.Super. 2017); Krebs v.
United Refining Co., 893 A.2d 776, 797 (Pa.Super. 2006) (stating that a
failure to preserve issues by raising them both in the concise statement of
errors complained of on appeal and statement of questions involved portion
of the brief on appeal results in a waiver of those issues). Any such challenge
is, therefore, waived. Moreover, we note that Mother, while arguing against
waiver, concedes that she abandoned such a claim. Mother’s Reply Brief at
1-2.

                                           -7-
J-S18037-20


          (4) The need for stability and continuity in the child’s
     education, family life and community life.
           (5) The availability of extended family.
           (6) The child’s sibling relationships.
            (7) The well-reasoned preference of the child, based on the
     child’s maturity and judgment.
          (8) The attempts of a parent to turn the child against the
     other parent, except in cases of domestic violence where
     reasonable safety measures are necessary to protect the child
     from harm.
           (9) Which party is more likely to maintain a loving, stable,
     consistent and nurturing relationship with the child adequate for
     the child’s emotional needs.
           (10) Which party is more likely to attend to the daily
     physical, emotional, developmental, educational and special
     needs of the child.
           (11) The proximity of the residences of the parties.
          (12) Each party’s availability to care for the child or ability
     to make appropriate child-care arrangements.
            (13) The level of conflict between the parties and the
     willingness and ability of the parties to cooperate with one
     another. A party’s effort to protect a child from abuse by another
     party is not evidence of unwillingness or inability to cooperate with
     that party.
         (14) The history of drug or alcohol abuse of a party or
     member of a party’s household.
         (15) The mental and physical condition of a party or
     member of a party’s household.
           (16) Any other relevant factor.

23 Pa.C.S. § 5328(a).

     Additionally, relevant to Mother’s specific appellate issue, we note that

“the interpretation and application of a statute is a question of law that

compels plenary review to determine whether the court committed an error

of law.” Wilson v. Transport Ins. Co., 889 A.2d 563, 570 (Pa.Super. 2005).

                                     -8-
J-S18037-20


“As with all questions of law, the appellate standard of review is de novo and

the appellate scope of review is plenary.” In re Wilson, 879 A.2d 199, 214

(Pa.Super. 2005) (en banc).

      We have stated:

      [We] are constrained by the rules of statutory interpretation,
      particularly as found in the Statutory Construction Act.            1
      Pa.C.S.[] §§ 1501-1991. The goal in interpreting any statute is
      to ascertain and effectuate the intention of the General Assembly.
      Our Supreme Court has stated that the plain language of a statute
      is in general the best indication of the legislative intent that gave
      rise to the statute. When the language is clear, explicit, and free
      from any ambiguity, we discern intent from the language alone,
      and not from the arguments based on legislative history or “spirit”
      of the statute. We must construe words and phrases in the statute
      according to their common and approved usage. We also must
      construe a statute in such a way as to give effect to all its
      provisions, if possible, thereby avoiding the need to label any
      provision as mere surplusage.

Cimino v. Valley Family Medicine, 912 A.2d 851, 853 (Pa.Super. 2006)

(quotation omitted). See 1 Pa.C.S.[] § 1921(b). Under Section 1921(c), the

court resorts to considerations of “purpose” and “object” of the legislature

when the words of a statute are not explicit. Sternlicht v. Sternlicht, 583

Pa. 149, 876 A.2d 904, 909 (2005) (referring to consideration of matters such

as: (1) occasion and necessity for statute; (2) circumstances under which it

was enacted; (3) mischief to be remedied; (4) object to be attained; (5)

former law, if any, including other statutes upon same or similar subjects; (6)

consequences of particular interpretation; (7) contemporaneous legislative

history; (8) legislative and administrative interpretations of such statute).

      Moreover,

                                      -9-
J-S18037-20


     [I]t is presumed that the legislature did not intend an absurd
     or unreasonable result. In this regard, we. . .are permitted to
     examine the practical consequences of a particular
     interpretation.

Commonwealth v. Diakatos, 708 A.2d 510, 512 (Pa.Super. 1998).

     Likewise, pursuant to 1 Pa.C.S. § 1933:

     Whenever a general provision in a statute shall be in conflict with
     a special provision in the same or another statute, the two shall
     be construed, if possible, so that effect may be given to both. If
     the conflict between the two provisions is irreconcilable, the
     special provisions shall prevail and shall be construed as an
     exception to the general provision, unless the general provision
     shall be enacted later and it shall be the manifest intention of the
     General Assembly that such general provision shall prevail.

1 Pa.C.S. § 1933.

     As to the confidentiality of mental health records, 50 Pa.C.S. § 7111

provides:

     (a) All documents concerning persons in treatment shall be kept
     confidential and, without the person’s written consent, may not be
     released or their contents disclosed to anyone except:
            (1) those engaged in providing treatment for the
            person;
            (2) the county administrator, pursuant to section 110;
            (3) a court in the course of legal proceedings
            authorized by this act; and
            (4) pursuant to Federal rules, statutes and regulations
            governing disclosure of patient information where
            treatment is undertaken in a Federal agency.
     In no event, however, shall privileged communications, whether
     written or oral, be disclosed to anyone without such written
     consent. . . .

50 Pa.C.S. § 7111.



                                    - 10 -
J-S18037-20


       Moreover, as to the appointment of a GAL in a custody matter, 23

Pa.C.S. § 5334 states:

       (a) Appointment.--The court may on its own motion or the
       motion of a party appoint a guardian ad litem to represent the
       child in the action. The court may access the cost upon the parties
       or any of them or as otherwise provided by law. The guardian ad
       litem must be an attorney at law.
       (b) Powers and duties.--The guardian ad litem shall be charged
       with representation of the legal interests and the best interests of
       the child during the proceedings and shall do all of the following:
                                          ...
              (2) On a timely basis, be given access to relevant
              court records, reports of examination of the parents
              or other custodian of the child and medical,
              psychological and school records.
                                          ...
              (6) Make specific recommendations in a written report
              to the court relating to the best interests of the child,
              including any services necessary to address the child’s
              needs and safety. The court shall make the written
              report part of the record so that it may be reviewed
              by the parties. The parties may file with the court
              written comments regarding the contents of the
              report. The comments filed by the parties shall also
              become part of the record.[10]

23 Pa.C.S. § 5334 (bold in original) (footnote added).


____________________________________________


10As reflected by the Editors’ Notes:
      23 Pa.C.S. § 5334 was suspended insofar as it (1) requires that a
      guardian ad litem be an attorney, (2) permits the guardian ad
      litem to represent both the best interests and legal interests of
      the child, (3) provides the guardian ad litem the right to examine,
      cross-examine, present witnesses and present evidence on behalf
      of the child, and (4) prohibits the guardian ad litem from
      testifying, pursuant to Pa.R.C.P. No. 1915.25.
Editors’ Notes 23 Pa.C.S. § 5334.

                                          - 11 -
J-S18037-20


      In addition, Pa.R.C.P. 1915.11-2 states:

      (a) The court may, on its own motion or the motion of a party,
      appoint a guardian ad litem to represent the best interests of the
      child in a custody action. The guardian ad litem shall be a licensed
      attorney or licensed mental health professional. The guardian ad
      litem shall not act as the child’s counsel or represent the child’s
      legal interests. Prior to appointing a guardian ad litem, the court
      shall make a finding that the appointment is necessary to assist
      the court in determining the best interests of the child.


Pa.R.C.P. 1915.11-2.

      Lastly, Pa.R.C.P. 1915.21 provides that the order appointing a guardian

ad litem shall provide, in part:

      The child’s guardian ad litem shall represent the best interests of
      the child. The guardian ad litem shall not act as the child’s
      attorney or represent the child’s legal interests.
      It is ordered and decreed that all relevant schools, police
      departments, hospitals and social service agencies including home
      and school agencies, who have records, reports and/or
      information pertaining to the child relevant to the custody of the
      the child, shall allow the guardian ad litem access to all files and
      records in its possession, custody or control and shall cooperate
      in responding to all relevant inquiries. These files/records may
      include but are not limited to medical, psychological or psychiatric
      charts including evaluations and progress notes and records, X-
      rays, photographs, tests, test evaluations, intake and discharge
      summaries, police records, and school records including report
      cards, educational assessments and educational plans, relevant to
      this custody dispute and/or relevant to any special needs or
      requirements of the child. The guardian ad litem shall have the
      right to copy any part of the files and records maintained in
      connection with the child.
      It is further ordered and decreed that the guardian ad litem shall
      be permitted to see and speak with the child, and family, medical
      and/or social service providers connected with this case, and take
      all steps appropriate to and consonant with this order.
      The guardian ad litem shall provide copies of any reports prepared
      by the guardian ad litem to each party, or to their counsel, and to

                                     - 12 -
J-S18037-20


      the court not later than 20 days prior to trial. The guardian ad
      litem shall attend all proceedings and be prepared to testify. The
      guardian ad litem shall be subject to cross-examination if called
      to testify by either party or the court.

Pa.R.C.P. 1915.21.

      In M.M. v. L.M., 55 A.3d 1167 (Pa.Super. 2012), the trial court ordered

the father, over objection, to disclose to the mother mental health records

relating to his in-patient hospitalization and post-hospitalization treatment. In

reversing in part and remanding, this Court held that the MHPA “is equally

applicable in a custody dispute as it is in a civil matter. We hold so especially

where, as here, less intrusive alternatives exist to determine the effect of a

party’s mental health upon the child’s best interest.” Id. at 1173. Important

to this Court was the “expectation of confidentiality.” Id. at 1174. This Court

stated, “[T]he importance of confidentiality cannot be overemphasized [and]

[t]he purpose of the [MHPA] . . . would be severely crippled if a patient’s

records could be the subject of discovery in a panoply of possible legal

proceedings.”    Id.   Instead, noting the “chilling effect” of disclosure of

statutorily privileged mental health records, the Court expressed its

preference for and existence of a less intrusive means, an updated

psychological evaluation. “As the court-ordered psychological evaluation is

the least intrusive means to determine how a parent’s mental health condition

will affect a child’s best interest, it is the preferred method of evaluation.” Id.

at 1175 (citation omitted).



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     Moreover, in Octave ex rel Octave v. Walker, 628 Pa. 128, 103 A.3d

1255 (2014), our Supreme Court addressed waiver. The Court recognized the

importance of the privilege and protection provided by Section 7111 and held:

     The MHPA, 50 P.S. § 7101 et seq., establishes the rights and
     procedures for inpatient psychiatric treatment and involuntary
     outpatient care with the purpose of assuring availability of
     adequate treatment to mentally ill persons. The confidentiality
     protections for mental health records afforded by § 7111 exist to
     enable effective treatment “by encouraging patients to offer
     information about themselves freely and without suffering from
     fear of disclosure of one’s most intimate expressions to others and
     the mistrust that the possibility of disclosure would engender.” To
     this end, 7111(a) requires a patient’s “written consent” before his
     mental health records are released or disclosed, except under
     certain limited circumstances inapplicable here. The Superior
     Court has held this statutory provision can be “waived,” however,
     if the patient places his mental health at issue in a case.

Octave ex rel Octave, supra, 103 A.3d at 1259. Nonetheless, the Court

found the existence of waiver and held:

     We cannot believe that the Pennsylvania General Assembly
     intended to allow a plaintiff to file a lawsuit and then deny a
     defendant relevant evidence, at plaintiff’s ready disposal, which
     mitigates defendant’s liability. Rather[,] the General Assembly
     must have intended the privileges to yield before the state’s
     compelling interest in seeing that truth is ascertained in legal
     proceedings and fairness in the adversary process. . . .
                                    ...
     It must be emphasized that evidentiary privileges have been
     viewed by this Court to be in derogation of the search for truth,
     and are generally disfavored for this reason. The effect of that
     concern is obvious. Accordingly, we hold a patient waives his
     confidentiality protections under the MHPA where, judged by an
     objective standard, he knew or reasonably should have known his
     mental health would be placed directly at issue by filing the
     lawsuit.

Id. at 1260-61.

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J-S18037-20


     In the case sub judice, in appointing the GAL and allowing access to the

parties’ mental health records for the previous three years, the trial court

reasoned as follows:

            The confidentiality protections of the Mental Health
     Procedures Act can be waived where, “judged by an objective
     standard, [a party] knew or reasonably should have known [their]
     mental health would be placed directly at issue by filing the
     lawsuit.”    This [c]ourt notes that in filing his Petition for
     Emergency Special Relief, [Father] raised [Mother]’s mental
     health conditions and [Mother] raised [Father]’s mental health
     conditions in her responsive Petition for Emergency Special Relief.
     By filing custody petitions, both parties in this case knew or
     reasonably should have known that their own mental health would
     be placed directly at issue at a custody trial. A strong argument
     can be made that both parties placed their mental health directly
     at issue and waived confidentiality protections. However, the
     Supreme Court has urged that this form of implicit waiver of
     Section 7111 be applied with great caution.
                                   ...
           Understanding this irreconcilable conflict, this [c]ourt chose
     to apply the Guardian ad Litem statute Section 5334 of the Child
     Custody Act, to the instant dispute, but in a manner that respects
     both parents have concerns about the disclosure of their mental
     health history. On one hand, the Guardian ad Litem needs access
     to records to represent [Child]’s best interests and to make a
     statutorily-mandated report and recommendations to this [c]ourt.
     On the other hand, there appears to be over a decade of mental
     health treatment potentially available here, most of which does
     not necessarily encompass the present issues.
           Upon consideration of the incomplete testimony of the
     parties and [Mother]’s Petition for Reconsideration, this [c]ourt
     determined that access to the parties’ records by the Guardian ad
     Litem should be limited to three years given [Mother]’s specific
     testimony that she began abusing alcohol at the end of 2016 and
     spent ten months in inpatient treatment for both alcohol abuse
     and an eating disorder in 2017. Moreover, during that inpatient
     treatment, [Mother] admitted that she overdosed on prescription
     medication. Given that drug and alcohol abuse and mental health
     conditions must be fully considered under 23 Pa.C.S.


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      5328(a)(14)-(15), disclosure of records is warranted in this case
      despite the broadness of Section 7111 of the [MHPA].
            Although disclosure of records was ordered, this [c]ourt did
      not permit the Guardian ad Litem full, unfettered access to the
      parties’ mental health records in consideration of Section 7111.
      This [c]ourt also specifically limited the Guardian ad Litem’s ability
      to disseminate the records or the information contained therein
      and stated that the parties retained their ability to object to the
      Guardian ad Litem’s report or his testimony during the custody
      hearing. Furthermore, the Guardian ad Litem was precluded from
      sharing those records obtained with any party or with counsel.
            Additionally, this [c]ourt took an additional, extraordinary
      step to seal the trial court record sua sponte without objection
      from either party.
                                     ...
             “Whenever the provisions of two or more statutes enacted
      finally by different General Assemblies are irreconcilable, the
      statute latest in date of final enactment shall prevail.” “The
      Legislature has made clear [. . .] that tension between statutes
      enacted on different dates is generally to be resolved in favor of
      giving the greatest effect to [the] later-enacted provision.”
            Section 7111 of the [MHPA] was enacted on July 9, 1976[,]
      and made effective sixty days later. In 1996, Section 7111 was
      amended by P.L. 481, No. 77 and has remained effective as
      drafted since July 2, 1996. Section 5334 of the Child Custody Act
      was enacted on November 23, 2010[,] and made effective on
      January 24, 2011. Clearly, Section 5334 was enacted later in time
      and is to be given the greatest effect. . . .


T.C.O. at 12, 24-25, 31 (citations omitted).

      Mother, however, argues that her mental health records are privileged

and protected by the MHPA, which supersedes the Custody Act and any

corresponding rules of civil procedure. Mother’s Brief at 7-8. Mother contends

that Section 7111 supersedes Section 5334 because Section 7111 is specific

in its provisions, while Section 5334, as well as the related Pennsylvania Rules



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of Civil Procedure, are general.     Id. at 12.    She further highlights that,

although Section 5334 is the later enacted statute, there is no intent revealed

for Section 5334 to “trump” Section 7111. Id. at 8-9, 13. Section 7111,

when amended, was not amended or even suspended to the extent of any

conflict with Section 5334. Id. 10, 13. Mother argues:

            Under statutory interpretation, where conflict exists, a
      specific provision governs over a general provision. First, review
      of § 5334 reveals that its language, providing the powers and
      duties to a Guardian ad Litem, is general. . . . The generality of §
      5334 is expanded by the rules of civil procedure, not by specific
      language in a statute itself. Even in the rules of civil procedure,
      Pa.R.C.P. 1915.11-2(a) is no more specific, and even with
      reference to the language to be contained in the order granting
      powers to the Guardian ad Litem by reference to Pa.R.C.P.
      1915.21 is just general. Thus, the language of § 5334 speaks in
      broad and general terms. Neither § 5334 nor the rules of civil
      procedure identify any limit on the dissemination of content of the
      mental health information acquired or to whom that information,
      through the Guardian ad Litem, whether in court or otherwise,
      may be disseminated.
            In contrast, the MHPA is specific. The MHPA specifies that
      it applies to mental health records generated and concerning “all
      involuntary treatment. . . ., whether inpatient or outpatient, and
      for all voluntary inpatient treatment.” The MHPA specifically
      delineates to whom the mental health records may be disclosed
      and under what circumstances. The MHPA becomes even more
      specific through the definition of its terms. Because the MHPA is
      the more specific of the two provisions, it governs over § 5334 of
      the Child Custody Act.
            Next, while the MHPA predates § 5334, which would seem
      to lean in favor of § 5334, a specific statute takes precedent over
      a general statute. However, this is not the sole factor for the older
      statute to take precedent over the newer statute. When reviewing
      the two (2) statutes, there must appear to be a “manifest intent”
      that the more recent statute trumps the elder statute.
             Comparing both § 7111 and § 5334 reveals that the
      legislature has made no amendments which would weaken its
      strength, despite the enactment of 5334. However, modifications

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J-S18037-20


      have been made to § 7111. . . . Though § 7111 could have been
      amended, or even suspended, after the effective date of § 5334,
      to the extent that it was inconsistent with § 5334, it was not.
      Thus, it is submitted that the lack of suspension or amendments
      to § 7111 demonstrates that a “manifest intent” for § 5334 to take
      precedent over § 7111 is not present and the more specific
      statute, § 7111, takes precedent over § 5334 and is the controlling
      statute under the circumstances.
             Such a conclusion dove-tails and is consistent with
      Pennsylvania jurisprudence in the field of custody, where lesser
      intrusive means for the disclosure of records falling within the
      MHPA are available and would not lead to offending or causing
      conflict within the MHPA.

Mother’s Brief at 12-13.

      Discussing M.M. v. L.M., supra, and Gormley v. Edgar, 995 A.2d 1197

(Pa.Super. 2010), Mother further maintains that the trial court erred in

directing such disclosure to the GAL as there is a less intrusive means to

evaluate the status of her mental health and any possible impact with respect

to the custody and best interest of Child. Mother’s Brief at 13-17.

      Moreover, differentiating the instant case from Octave ex rel Octave,

supra, Mother asserts that she did not waive the protection of the MHPA as

she did not commence the within proceedings. Mother’s Brief at 16-19. She

contends:

      Procedurally, . . . [Mother] did not commence the present action,
      rather [Father] did. Because [Mother] did not commence the
      custody action, she could not have reasonably known that her
      mental health would be called into question before the action had
      begun. Also, . . ., this case possesses a less intrusive means to
      evaluate [Mother]’s mental health and its possible impact on the
      best interest of the minor child. Therefore, this Court should
      reject the assertion that [Mother] waived the protection or
      privilege of the MHPA.

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J-S18037-20



Id. at 18.

       For the reasons stated by the trial court above and in its thorough and

exhaustive opinion, we do not disturb the trial court’s determinations.11 Unlike

in M.M., where the records in question were being disseminated to the other

party, instantly, they are being disseminated to the GAL.

       Moreover, and importantly, here, “less intrusive alternatives exist to

determine the effect of a party’s mental health upon the child’s best interest.”

M.M., 55 A.3d at 1173. The trial court fashioned less intrusive alternatives

by restricting the GAL’s access to records from the last three years, restricting

the GAL’s disclosure of the records, allowing objections to the GAL’s testimony

and/or report or recommendation, and sealing the record.

       We further observe that the court additionally ordered mental health

examination and/or testing of the parties. Accordingly, we affirm.

       Orders affirmed.

       Judge King joins the Opinion.

       Judge Kunselman files a Dissenting Opinion.




____________________________________________


11 We do not rely on Octave ex rel Octave, supra, to conclude that Mother
waived her claim of confidentiality by putting her own mental health records
at issue. Rather, we rely on the trial court’s analysis that the court did not
violate Mother’s rights under the MHPA where the trial court properly
appointed a GAL under the Custody Act and utilized the least intrusive means.

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J-S18037-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/08/2020




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