Thursday, February 28, 2013
The Guardian: Supreme Court of Colorado Finds Guardian Ad Litem Holds Child's Privilege in Parental Rights Case
Like most states, Colorado has a psychotherapist-patient privilege. Colorado's privilege, contained in Colorado Revised Statute Section 13-90-107(g), provides that
A licensed psychologist, professional counselor, marriage and family therapist, social worker, or addiction counselor, a registered psychotherapist, or a certified addiction counselor shall not be examined without the consent of the licensee's, certificate holder's, or registrant's client as to any communication made by the client to the licensee, certificate holder, or registrant or the licensee's, certificate holder's, or registrant's advice given in the course of professional employment; nor shall any secretary, stenographer, or clerk employed by a licensed psychologist, professional counselor, marriage and family therapist, social worker, or addiction counselor, a registered psychotherapist, or a certified addiction counselor be examined without the consent of the employer of the secretary, stenographer, or clerk concerning any fact, the knowledge of which the employee has acquired in such capacity; nor shall any person who has participated in any psychotherapy, conducted under the supervision of a person authorized by law to conduct such therapy, including group therapy sessions, be examined concerning any knowledge gained during the course of such therapy without the consent of the person to whom the testimony sought relates.
Normally, the patient is the holder of the psychotherapist-patient privilege and can decide whether to waive the privilege. When, however, "the patient is a child who is too young or otherwise incompetent to hold the privilege, the child's parent typically assumes the role of privilege holder." In such cases, it is typically the child's parent or parents who have the authority to decide whether to waive the privilege. But what happens when there is an action to terminate the parental rights of the child's parent(s)? That was the question of first impression addressed by the Supreme Court of Colorado in its recent opinion in L.A.N. v. L.M.B., 292 P.3d 942 (Colo. 2013).
In L.A.N., based upon L.A.N.'s out-of-control behavior and suicidal statements, her aunt hired a licensed professional counselor, Kris Newland, to provide therapy for her. Subsequently, the Denver Department of Human Services moved the juvenile court to terminate the parent-child relationship between L.A.N. and her mother, the only parent in the picture, on account of the mother's alleged failure to adequately comply with her court-prescribed treatment plan. The hotly contested issue in this action then became who held the psychotherapist-patient privilege with regard to L.A.N.'s statements to Newland and accordingly who could waive that privilege.
The court first found that L.A.N. (who was seven or eight at the time of her statements) was too young to be able to hold and thus waive the privilege. Next, the court found that "[t]he parent...cannot hold the child's psychotherapist-patient privilege when the parent's interests as a party in a proceeding involving the child might give the parent incentive to strategically assert or waive the child's privilege in a way that could contravene the child's interest in maintaining the confidentiality of the patient-therapist relationship." Therefore, the mother, whose parental rights were at stake, was also not the privilege-holder.
So, who held the privilege? The court listed three possibilities: (1)the department of human services, (2) the juvenile court, or (3) the guardian ad litem. First, the court concluded that "[t]he county department of human services should not hold the child's psychotherapist-patient privilege because its duties could conflict with the child's interest in maintaining the confidentiality of therapeutic communications." Second, the court found that
the juvenile court is not in the best position to hold the child's psychotherapist-patient privilege for several reasons. First, the juvenile court's role in a dependency and neglect proceeding, as in other types of cases, is that of independent decision-maker....Similarly, although the juvenile court must consider the child's best interests throughout the dependency and neglect proceeding,...its role is not to represent the best interests of the child....Finally, the obligation to assert or waive the child's psychotherapist-patient privilege could unduly burden the juvenile court and would constitute a wasteful allocation of resources.
That left the court with the guardian ad litem, and it held
The GAL's "client" is the "best interests of the child."...The GAL's ethical obligations as an attorney "flow from this unique definition of 'client'"; therefore, the GAL owes fiduciary duties of loyalty and confidentiality to the child's best interests....These professional duties serve the privacy interest of the psychotherapist-patient privilege that the General Assembly aimed to protect with subsection 13–90–107(1)(g) because the GAL must refrain from revealing privileged information if doing so would be contrary to the child's best interests....
In addition, unlike the other potential privilege holders discussed above, the GAL is in an optimal position to understand when to assert or waive the child's privilege in order to serve the child's best interests due to the nature of the GAL's statutory duties. Colorado law requires the juvenile court to appoint a GAL in every dependency and neglect case....Therefore, the GAL is consistently available to hold the child's privilege when neither the child nor the child's parent(s) have such authority. To represent the child's best interests, the GAL must investigate the case, question witnesses, and make recommendations to the court concerning the child's welfare....The GAL accomplishes these tasks in part by interviewing people involved in the child's life, including therapists....The knowledge gained by fulfilling these obligations places the GAL in the best position to determine what information to disclose in the best interests of the child. Therefore, the GAL should hold the child's privilege when neither the child nor the child's parent(s) have authority to do so.
Justice Coats, meanwhile, vigorously dissenting, arguing that
the court alone can ultimately decide what is in the best interests of the child, and therefore the court alone can decide whether the child's secrets must be exposed in furtherance of those interests. Although the ultimate question will not yet have been decided, once a parent's fitness has been sufficiently challenged to limit his parental rights and responsibilities, his access to otherwise privileged materials necessary to carry out those responsibilities is clearly no longer required. By the same token, however, I find nothing in the statutory scheme to suggest that the legislature intended by the appointment of a guardian solely for purposes of this litigation to permit that guardian complete access to the child's otherwise legally protected secrets, much less to divulge those secrets to others at his choice.
The legislature has created a privilege for communications made to a licensed therapist, running to the client, by expressly prohibiting the examination of a therapist about those communications without the client's consent....With regard to children in particular, the legislature has limited the privilege to the extent of requiring the therapist to report whenever there is reason to suspect a child has been subjected to abuse or neglect,...and by making clear that the therapist-client privilege cannot be a ground for excluding from proceedings resulting from such a report any communications upon which the report is based or any discussion of future or other past misconduct that could be the basis for such a report....The legislature has not, however, specified circumstances under which a child should be considered incapable of giving or withholding consent for the release of communications that remain privileged, nor has it expressly authorized any person or agency to give consent for the child if the child were incapable of doing so himself.
In this regard, I find particularly problematic the majority's characterization of a statutorily appointed guardian ad litem as the "holder" of the child's privilege. I would not even characterize a parent or legal guardian, who is expressly granted access to certain otherwise confidential records and has legal obligations for the child's safety and welfare requiring him to make important decisions on behalf of the child, as the holder of the child's privilege. Even someone with parental responsibilities may act only in the interests of the child and does not become a person to whom the privilege runs and for whose benefit it exists. Not only do I believe the express and deliberate waiver of a child's privilege, even by one with uncontested parental responsibilities, may nevertheless be ineffective under certain circumstances; I believe the privilege of a child most certainly cannot be implicitly waived by acts of a parent that are not in the child's best interests, even though those acts would otherwise be sufficient for an implied waiver of the parent's own privilege.
So, how has the better of the argument? I must say that at this point, I can see the logic of both sides and feel like I need to research the role of GALs more before I can reach a definitive conclusion