Dept. of Human Services v. C. E. S.

57

Argued and submitted July 24, affirmed September 13, 2023

In the Matter of C. E. S.,

a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Respondent,

v.

C. E. S.,

Appellant.

Clackamas County Circuit Court

19JU00942; A180562

536 P3d 1089

This appeal arises from a judgment terminating dependency jurisdiction and

wardship. Petitioner challenges the court’s denial of her motion, made after she

turned 18, for an order directing DHS to destroy health records about her that

it had collected and maintained in its dependency file while acting as her legal

custodian. On appeal, petitioner asserts that the juvenile court erred in not pro-

tecting her interests when it declined to order the destruction of health records in

DHS’s possession as it closed the dependency case. DHS countered that the juve-

nile court was without authority to order the destruction of those records because

they are public records subject to statutory retention requirements. Held: The

trial court did not err. The records are public records subject to statutory reten-

tion requirements.

Affirmed.

Heather Karabeika, Judge.

Ginger Fitch argued the cause for appellant. Also on the

brief was Youth, Rights & Justice.

Dustin E. Buehler, Assistant Attorney General, argued the

cause for respondent. On the brief were Ellen F. Rosenblum,

Attorney General, Benjamin Gutman, Solicitor General,

and Jona J. Maukonen, Assistant Attorney General.

Before Mooney, Presiding Judge, and Lagesen, Chief

Judge, and Armstrong, Senior Judge.

MOONEY, P. J.

Affirmed.

58 Dept. of Human Services v. C. E. S.

MOONEY, P. J.

C was made a ward of the juvenile court when she

was 14 years old because there were conditions and circum-

stances in her parents’ home that endangered her welfare,

ORS 419B.100(1)(c). Shortly after she turned 18, C and the

Department of Human Services (DHS) both moved the

court for an order dismissing jurisdiction and terminat-

ing wardship under ORS 419B.328(2)(c). The court granted

those motions. C also asked the court to (1) order DHS to

provide her with her health records and to (2) destroy “any

remaining copies, digital or otherwise[.]” The juvenile court

ordered DHS to provide C with a copy of the health records

it had in its case file, but it denied C’s request for an order

directing DHS to destroy any health records remaining in

its possession. C appeals from the juvenile court’s order and

judgment terminating jurisdiction, assigning error only to

the court’s (1) denial of her request for an order directing

DHS to destroy records and, in the alternative, to the court’s

(2) failure to seal the health records still retained by DHS.

DHS responds that C’s records qualify as public records that

DHS was required to retain under the public records law

and that, in view of that retention requirement, the juvenile

court lacked authority to order DHS to destroy the records.

DHS argues further that C did not preserve the argument

that the court should order the records sealed. We agree with

DHS on both points. We conclude that the juvenile court did

not err in denying the request for an order requiring DHS

to destroy health records. We decline to reach the unpre-

served question of whether the court should have ordered

the remaining health records sealed, with this explanation:

C did not ask the court for an order sealing the records and

she did not develop that issue, factually or legally, when the

possibility of sealing the records was raised by the court. We

affirm.

C argues that “health records created during her

wardship belong to her.” She contends that because she

asserted her privacy interest in those records when she

moved to have wardship terminated, she was still a ward of

the court whose interests the court was obligated to protect.

The court’s refusal to order DHS to destroy the remaining

Cite as 328 Or App 57 (2023) 59

health records in DHS’s file was, according to C, a failure

of the court to protect her interests and, therefore, it consti-

tuted legal error. DHS counters that the health records in

its case file are public records subject to retention accord-

ing to state retention guidelines. DHS argued then, and

now, that the juvenile court was without authority to order

destruction of those records.

Whether the juvenile court has authority to order

the destruction of health records collected and maintained

by DHS in the course of its work as C’s legal custodian is a

legal question which we review for legal error. See Dept. of

Human Services v. T. B., 326 Or App 192, 194, 531 P3d 718

(2023) (“Whether the juvenile court has authority to make

a particular order is reviewed for legal error.”). If we deter-

mine that the juvenile court has authority to issue such an

order, we review that order for abuse of discretion. Id.

C points to no statutory provision that gives her a

possessory or other ownership interest in the health records

in DHS’s case file. There is no question that she has a pri-

vacy interest in the personal health information contained

within those records. DHS does not dispute that. But the

existence of a privacy interest in personal health informa-

tion is not the same as a possessory or other ownership

interest in records that contain that information. The par-

ties did not create an evidentiary record on the motion for

destruction of records and, thus, the exact nature of the

records in question is not entirely clear. As framed by the

parties, we understand that the records contain information

about medical and mental healthcare conditions for which

C received care and treatment while she was a ward of the

court and records created by third-party healthcare provid-

ers that were provided to DHS as C’s legal custodian and

made a part of DHS’s dependency file on C. Thus, it is the

collection of third-party health records maintained by DHS

in its case file that C sought to have destroyed.

C argues that because the health records were not

created by DHS, they are not “the property of [DHS],” and

now that C has reached the age of majority, they should be

turned over to her without DHS retaining any copies. But C

did not create the health records in question any more than

60 Dept. of Human Services v. C. E. S.

DHS did. The records are about her, but they were created

by her healthcare providers, who are generally required to

maintain such records for each of their patients, as a mat-

ter of licensure. For example, the Oregon Health Authority

requires licensed hospitals to maintain medical records for

every patient admitted to a hospital for care. OAR 333-505-

0001; OAR 333-505-0050; see also Classen v. Arete NW, LLC,

254 Or App 216, 232 n 2, 294 P3d 520 (2012) (discussing

record-keeping standards required of licensed physicians).

C’s contention that health records that are about her “are

her individual records” and, thus, belong to her does not

square with the fact that such records are created by her

providers for their own business and licensure purposes.

C undoubtedly benefits from the existence of those records

in terms of any ongoing care she receives from her provid-

ers, and she clearly has a privacy interest in the information

contained in those records, but that does not confer posses-

sory rights upon her.

C’s privacy interest is significant, and there is no

dispute that state and federal laws exist to protect her inter-

est in the personal health information contained within

health records created and maintained by her healthcare

providers. But such laws protect a patient’s privacy interests

by prohibiting the unlawful disclosure of health records;

they do not transfer ownership of the records to the patient.1

It is important to note that C does not claim that DHS came

into possession of the health records by unlawful means.

Indeed, there is no dispute that, in the course of its work

investigating reports of child abuse, filing petitions to estab-

lish dependency jurisdiction, carrying out its duties as legal

custodian for children made wards of the court, planning

for permanency, and facilitating transitions leading up to

1

For example, ORS 192.553(1) provides:

“It is the policy of the State of Oregon that an individual has:

“(a) The right to have protected health information of the individual

safeguarded from unlawful use or disclosure[.]”

Also, ORS 192.553(2) expressly recognizes that the federal Health Insurance

Portability and Accountability Act (HIPAA) establishes “additional rights and

obligations regarding the use and disclosure of protected health information and

the rights of individuals regarding the protected health information of the indi-

vidual.” HIPAA restricts a “covered entity” from using “protected health informa-

tion” without the “written authorization of the individual.” 45 CFR § 164.512(a).

Cite as 328 Or App 57 (2023) 61

and including the final plan, DHS is required to obtain a

wide variety of highly confidential records, including health

records, and to maintain those records in its case files along

with its own records and reports. In short, there is no dis-

pute that DHS was in lawful possession of the records C

sought to have destroyed.

The issue, then, is whether the juvenile court had

authority to direct DHS to destroy health records that were

lawfully disclosed to DHS while it was serving as C’s legal

custodian. C’s health records, as collected and maintained

by DHS, qualify as public records under ORS 192.005(5)(a)

because they include “information” that:

“(A) Is prepared, owned, used or retained by a state

agency or political subdivision;

“(B) Relates to an activity, transaction or function of a

state agency or political subdivision; and

“(C) Is necessary to satisfy the fiscal, legal, adminis-

trative or historical policies, requirements or needs of the

state agency or political subdivision.”

C does not dispute that the health records in DHS’s file ful-

fill the requirements of (A) and (B) because they were used

and retained by DHS in the course of its functions as a state

agency. C disputes only that the records continue to be nec-

essary for DHS to satisfy its official functions because juris-

diction is now dismissed, and she is no longer a ward of the

court and is no longer in DHS’s legal custody. But Oregon’s

public records law expressly acknowledges that the state has

“a responsibility to ensure orderly retention and destruction

of all public records, whether current or noncurrent, and to

ensure the preservation of public records of value for admin-

istrative, legal and research purposes.” ORS 192.001(1)(c)

(emphases added). Thus, regardless of whether the health

records maintained in DHS’s dependency file concerning C’s

wardship are ever used again by DHS in the scope of its

official work, they are public records subject to retention by

the state.

C is understandably concerned about maintaining

her privacy. Now that the DHS case is closed, she wishes

to prevent the release of her childhood health records,

62 Dept. of Human Services v. C. E. S.

maintained by DHS, to any other person or entity. Oregon’s

public records law already exempts health records from dis-

closure “if public disclosure would constitute an unreason-

able invasion of privacy, unless the public interest by clear

and convincing evidence requires disclosure in the partic-

ular instance. The party seeking disclosure shall have the

burden of showing that public disclosure would not consti-

tute an unreasonable invasion of privacy.” ORS 192.355(2)(a).

We acknowledge that, by its terms, that exemption is not

absolute, and DHS does not say that it will never seek to

disclose the health records in its file on C. But the burden

of proof required to overcome the exemption builds in a sig-

nificant evidentiary barrier that would protect C’s privacy

interest in the face of a request for the health records in

question.

C’s reliance on Dept. of Human Services v. E. J.,

316 Or App 537, 504 P3d 1262 (2021), rev dismissed, 370 Or

740 (2023), does not support her position that the juvenile

court had the authority to order the destruction of records

in DHS’s possession. In E. J., we held that DHS could not

defeat the privilege that attaches to certain juvenile court

records concerning a ward’s “history and prognosis” under

ORS 419A.255 simply because the records in the court’s files

originated from “its own files that it still possesses.” Id. at

550. In the context of this case, E. J. supports the idea that

possession of health records alone does not defeat or override

important protections, such as privilege and confidentiality,

that might apply to such records. But neither E. J. nor ORS

419A.255 support C’s request for an order directing DHS to

destroy records. Therefore, the court did not err in declining

to order their destruction.

Notwithstanding the absence of statutory authority

for an order requiring the destruction of health records that

are public records maintained in DHS’s case file, C argues

on appeal that such authority may be inferred from ORS

419B.343(4) and OAR 413-030-0460. C did not raise that

argument before the juvenile court. But even if she had,

ORS 419B.343(4) simply provides that DHS’s case plan-

ning efforts must include “health and education records

of the ward[.]” It mentions nothing about the retention or

Cite as 328 Or App 57 (2023) 63

destruction of health records. OAR 413-030-0460(2), like-

wise says nothing about the destruction of public records.

It does list the type of “written records” that DHS must

“provide” to a ward who “reach[es] independence.” OAR

413-030-0460(3) also requires DHS to “retain the records”

and to provide them to the ward at a later time “when the

whereabouts of the child or young adult are unknown[.]”

(Emphases in original.) But, again, the obligation to keep

records for a particular purpose says nothing about whether

and when such records might be destroyed.

C also belatedly raises ORS 419A.269(4) in support

of her argument that the court erred in not ordering the

destruction of DHS records. But ORS 419A.269(4) autho-

rizes the juvenile court to order the destruction of records

in the context of expungements. We decline, on this limited

record, to address that argument beyond noting its lack of

preservation and relevance.

Affirmed.