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Colorado Supreme Court
101 W. Colfax Ave., Suite 800
Denver, CO 80202
▲ COURT USE ONLY ▲
Certiorari to the Court of Appeals, 2010CA2408
Denver Juvenile Court, City and County of Denver,
2008JV2939
Petitioners:
L.A.N. a/k/a L.A.C., by and through her Guardian as Litem
and The People of the State of Colorado,
In the Interest of Minor Child:
L.A.N. a/k/a L.A.C., Child,
v.
Respondent:
L.M.B.
Supreme Court Case No:
2011 SC 529
Attorney for Petitioner, The People of the State of
Colorado in the Interest of L.A.N. a/k/a L.A.C:
Douglas J. Friednash, Denver City Attorney
By: Laura Grzetic Eibsen, Assistant City Attorney
Address: c/o Denver Department of Human Services
1200 Federal Boulevard
Denver, CO 80204
Telephone Number: (720) 944-2361
Fax Number: (720) 944-2990
E-Mail: [email protected]
Atty. Reg. # for Douglas J. Friednash: #18128
Atty. Reg. # for Laura Grzetic Eibsen: #14599
OPENING BRIEF OF PETITIONER,
THE PEOPLE OF THE STATE OF COLORADO
i
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of C.A.R. 28 and
C.A.R. 32 , including all formatting requirements set forth in these rules.
Specifically, the undersigned certifies that:
The brief complies with C.A.R. 28(g) . It contains 7,353 words.
The brief complies with C.A.R. 28(k) . It contains, under a separate heading,
(1) a concise statement of the applicable standard of appellate review with citation
to authority, and (2) a citation to the precise location in the record, not to an entire
document where the issue was raised and ruled on.
____________________________
Laura Grzetic Eibsen
ii
TABLE OF CONTENTS
PAGE NO.
CERTIFICATE OF COMPLIANCE.....................................................................i
TABLE OF CONTENTS .................................................................…....….........ii
TABLE OF AUTHORITIES ...................................................................….........iii
STATEMENT OF THE ISSUE PRESENTED FOR REVIEW ................….......1
STATEMENT OF THE CASE…………...................................................……...1
A. Nature of the Case…………………………..………………….....…..1
B. Course of the Proceedings and Disposition Below…………………...1
C. Statement of the Facts Relevant for Review………………….............2
SUMMARY OF THE ARGUMENT ....................................................................13
STANDARD OF REVIEW………………………………………………………13
ARGUMENT .........................................................................................................14
CONCLUSION……………………....................................................…...............33
iii
TABLE OF AUTHORITIES
CASES PAGE NO.
Attorney ad Litem v. Parents of D.K., 780 So.2d 301
(Fla.Dist.Ct.App. 2001)…………………...…...............................................15, 21
B.B. v. People, 785 P.2d 132
(Colo. 1990)…………………………………………….....…....…………..25, 32
C.S. v. People in Interest of I.S., 83 P.3d 627
(Colo. 2004)…………………………………………….....…....……………....25
Clark v. District Court, 668 P.2d 3
(Colo. 1983)…………………………………………….....…....……………....22
In re Adoption of Diane, 400 Mass. 196,
508 N.E.2d 837 (1987)…………………...…......................................................15
In re Berg., 152 N.H. 658 ,
886 A.2d 980 (2005)
…………………...….........................................................16
In re Daniel C.H., 220 Cal.App.3d 814,
269 Cal. Rptr. 624 (1990)…………………...…...........................................15, 21
In re Kristine W., 94 Cal.App.4th 521,
114 Cal. Rptr.2d 369 (2001)…………………...…........................................... 27
Jaffee v. Redmond,
518 U.S. 1, 10, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996)....…………………..18
Kinsella v. Kinsella, 150 N.J. 276,
696 A.2d 556 (1997)…………………...…...................................................18,19
L..G. v. People,,
iv
890 P.2d 647 (Colo. 1995)
……………………………………...……..…....….28
People in Interest of J.A.S., 160 P.3d 257
(Colo. App.2007)………………………………………………………………31
People in Interest of M.H., 855P.2d 15
(Colo. App.1992)………………………………………………………………31
People in Interest of S.X.M., ____ P.3d ____
(Colo. App. Case No. 11CA0398, Sept. 15, 2011)…………………………....25
People v. Alengi, 148 P.3d 154
(Colo. 2006)…………………………………………….....…....…………......13
People v. Caldwell, 43 P.3d 663
(Colo. App. 2001)………………………………………….…....…………….32
People v. District Court, 797 P.2d 1259
(Colo. 1990)………………………………………… …………...18, 28, 29, 30
People v. Gabriesheski, 262 P.3d 653
(Colo. 2011)…………………………………………….....…...………....16, 17
People v. Gaffney, 769 P.2d 1081
(Colo. 1989)…………………………………………….....…...…………......32
People v. Gilmore, 97 P.3d 123
(Colo. App. 2003)…………………………………………….....…...…...…..32
People v. Green, 734 P.2d 616
(Colo. 1987)…………………………………………….....…...……………..25
People v. Marsh, ___ P.3d ___
(Colo. App. No. 08CA1884, Dec. 22, 2011)…………………… …..14, 15, 22
People v. Romero, 179 P.3d 984
v
(Colo. 2007)…………………………………………….....…....……….…..13
People v. Sisneros, 55 P.3d 797
(Colo. 2002)…………………………………………….....…....…………...21
People v. Tauer, 847 P.2d 259
(Colo. App. 1993)………………………………………...…....……….…..21
People v. Wittrein, 221 P.3d 1076
(Colo. 2010)…………………………………………….....…......……..14, 22
Schubert v. People, 698 P.2d 788
(Colo. 1985)…………………………………………….....…....…………..25
STATUTES, RULES, AND CHIEF JUSTICE DIRECTIVES
§13-90-107(1)(g), C.R.S . (2011)………………… …….14, 18, 20, 24, 29, 30
§19-1-103(59), C.R.S . (2011)……………………………………….............16
§19-1-107(2), C.R.S .
(2011)…………………………………………............26
§19-1-111(1), C.R.S .
(2011)…………………………………………............16
§19-1-111(3), C.R.S .
(2011)…………………………………………............17
§19-1-111(6), C.R.S .
(2011)………………………………………….............17
§19-3-203(1), C.R.S .
(2011)………………………………….........................16
§19-3-203(2), C.R.S . (2011)…………………………………...................17,
26
vi
§19-3-203(3), C.R.S . (2011)…………………………………...................17,
23
C.A.R. 35(e)…………………………………………………………………...31
CJD 04-06…………………..…………………………………........................17
CRE 103……………………………………………………………………….31
1
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
A. WHETHER A GUARDIAN AD LITEM IN A DEPENDENCY AND
NEGLECT PROCEEDING CAN WAIVE THE CHILD’S
PSYCHOTHERAPIST-PATIENT PRIVILEGE.
B. WHETHER THE COURT OF APPEALS ERRED IN DETERMINING
THAT THE CHILD’S PSYCHOTHERAPIST-PATIENT PRIVILEGE
WAS WAIVED WITH RESPECT TO CERTAIN MATERIALS IN THE
PSYCHOTHERAPIST’S FILE.
STATEMENT OF THE CASE
A. Nature of the Case.
This case is before the Court on certiorari from the Court of Appeals’
published opinion issued on July 7, 2011.
B. Course of the Proceedings and Disposition Below.
This case involves a termination of parental rights proceeding. The Court of
Appeals vacated the judgment and remanded the matter to the juvenile court in
order that notice of the proceedings pursuant to the Indian Child Welfare Act could
be provided to the Cherokee Nation. The matter was further remanded for
additional proceedings in light of the Court of Appeals’ conclusion that the
juvenile court erred in denying mother’s request for production of the file of the
child’s therapist.
2
C. Statement of the Facts Relevant for Review.
This case commenced in December 2008, when the Denver Department of
Human Services (DDHS) received a referral regarding the minor child, L.A.N.
a/k/a L.A.C., who had been admitted to Children’s Hospital after engaging in out
of control and aggressive behaviors and making suicidal statements. The minor
child was seven years old at the time. The child protection concerns were centered
on the respondent mother’s inability and/or refusal to follow the treatment
recommendations for the child. Indeed, when the treating staff stated to mother
that they were considering sending the minor child to Fort Logan, mother tried to
flee with her; and when mother was restrained by security, she told the child to run.
There were also concerns about Mother’s mental health status. (V. III, Petitioner’s
Exhibit 2, p. 3).
Upon her discharge from the hospital, the minor child was placed first with
her maternal aunt and later with her maternal grandparents, where she has
remained. The aunt enrolled the minor child in individual therapy with Kristie
“Kris” Newland in April 2009. (V. IV, p. 101). By the time of the October 2010
termination hearing, Ms. Newland had been seeing the minor child for 18 months.
Mother, meanwhile, did not enter an admission to the petition in dependency
and neglect until March 11, 2009. A treatment plan was adopted for her on April
3
7, 2009. (V. II, pp. 501-502). The plan called upon mother to: complete parenting
classes; undergo a mental health evaluation and/or a psychiatric evaluation and
participate in a medication assessment; obtain and maintain suitable, safe, and
stable housing for herself and the child; participate in weekly supervised visits with
the child; attend family therapy sessions with the child; cooperate with DDHS, the
GAL, the court, and all other professionals involved; participate in individual
therapy; attend anger management/domestic violence treatment; and ensure that the
medical and dental needs of the child were met; obtain and maintain legal and
adequate income/employment; and secure and maintain a legal lifestyle. (V. III,
Petitioner’s Exhibit 2, pp. 6-8 & V. I, pp. 67-72).
Supervised visits between Mother and the minor child began shortly after the
child’s discharge from the hospital, and no later than January 14, 2009. (V. I, p.
110). Family therapy, through the Kempe Center for the Prevention and Treatment
of Child Abuse and Neglect, began on July 2, 2009, with Laura Eccles, LCSW.
(V. I, p. 228). However, mother did not complete her psychological evaluation,
with Dr. Melissa Henston, until September 23, 2009, and did not begin individual
therapy with Marilyn Cook until October 9, 2009, ten months into the case. (V.
III, Petitioner’s Exhibit 2, pp. 6-7).
4
The case was reviewed periodically by the juvenile court, at which times it
and the parties were provided with updates related to the parties’ progress in
individual therapy and family therapy. The minor child’s therapist, Kris Newland,
appeared at the June 16, 2009 review hearing. (V. II, p. 504). Ms. Newland and
Laura Eccles appeared and testified at a contested hearing begun on December 11,
2009, and concluded on January 25, 2010. Marilyn Cook made a statement to the
court at the January 2010 hearing. (V. II, pp. 515-516).
Taking into consideration the testimony and statements of the treating
professionals as well as the progress summary prepared by Ms. Eccles, dated
January 21, 2010, the court ruled that the family therapy sessions with Ms. Eccles
were now to take place in the home of mother and the special respondent. The
court noted that the case was set for a review hearing on February 23, 2010, and
that the parties were authorized to request a forthwith hearing if the situation
changed or the child began having difficulties. (V. II, p. 516).
After receiving input from Ms. Eccles about how the in-home sessions were
going as well as from the minor child’s school staff, the GAL came to the
conclusion that continuing to have these family therapy sessions in the home was
not in the child’s best interests; and on February 22, 2010, filed a forthwith motion
5
to that effect. (V. I, pp. 265-286). The court considered the issue at the February
23, 2010 Review Hearing, without objection from any of the parties.
The Assistant City Attorney filed with the court, and provided to the parties,
the latest progress summary from Ms. Eccles, covering the period January 22, 2010
through February 18, 2010. The court also had in its possession a copy of Ms.
Newland’s report, dated February 18, 2010, which the GAL had filed with the
court and distributed to the parties on February 19, 2010. At the conclusion of the
February 23, 2010 hearing, the court ordered that the family therapeutic sessions
cease occurring in the family home in order to preserve the child’s mental health.
(Feb. 23, 2010 Transcript, p. 16, ll. 15-18). The court then set the matter for a
contested allocation of parental rights (APR) hearing on May 25, 2010. (Feb. 23,
2010 Transcript, p. 18, ll. 9-11).
At the request of the GAL, the court also ordered a psychological evaluation
of the minor child to be performed. (V. II, p. 517). Dr. Tiffany Weissmann Wind
completed her psychological evaluation of the minor child in April and wrote her
report in May 2010. Dr. Wind diagnosed the minor child with Post-traumatic
Stress Disorder and a Mood Disorder Not Otherwise Specified. (V. III,
Petitioner’s Exhibit 1, p. 7 & V. IV, p. 55).
6
Dr. Wind saw a struggling then-eight-year-old little girl whose problems
were “consistent with a history of being terrified by her caretakers and not getting
her basic needs for safety and security met.” (V. III, Petitioner’s Exhibit 1, p. 7).
Dr. Wind went on to explain that this was a child with “a clear history of
depression with suicidal thoughts” and “intense difficulties regulating her moods.”
(V. III, Petitioner’s Exhibit 1, p. 7). In addition, although the child’s primary
diagnosis is Post-traumatic Stress Disorder, Dr. Wind noted that the child also has
a “secondary mood disorder and a predisposition towards psychotic thought
processes. She is at risk for Major Depression, Bipolar Disorder and
Schizophrenia if things in her life do not stabilize.” (V. III, Petitioner’s Exhibit 1,
p. 7 & V. IV, p. 55).
In Dr. Wind’s expert opinion, the minor child was in need of a safe, stable
and permanent home as well as an immediate reduction in stress. She was in need
of consistency in all areas of her life – housing, family, school, and in this case,
religious beliefs. (V. III, Petitioner’s Exhibit 1, p. 7). Dr. Wind, in her subsequent
testimony, noted that one of the things that seemed to keep the minor child on edge
was her fear of moving back with Mother. “She [the child] talked a lot about
having moved so many times” and also talked about how happy she was to be in
the same school two years in a row. (V. IV, p. 56).
7
Dr. Wind further opined that the minor child “cannot feel safe if she has
ongoing contact with her mother and stepfather. Any contact will make her feel
insecure and threatened.” (V. III, Petitioner’s Exhibit 1, p. 7 & V. IV, p. 57). Dr.
Wind acknowledged the child’s love for her mother and stepfather, but concluded
that “ongoing contact with them appears more damaging to her than having to deal
with their loss.” (V. III, Petitioner’s Exhibit 1, p. 7 & V. IV, p. 57).
When the parties appeared in court on May 25, 2010, the Department and
GAL indicated that they did not believe entering a permanent APR order at that
time would be in the child’s best interests, based in part on the recommendations
contained in Dr. Wind’s report and the many unresolved issues between the adults
in L.A.N.’s life. (May 25, 2010 Transcript, pp. 14-15). However, there was a
request, and order, for family therapy among the adults alone in an effort to
determine whether a permanent plan short of termination still could be found to be
in the child’s best interests. (May 25, 2010 Transcript, pp. 28-29).
On June 18, 2010, the Department filed its motion to terminate the parent-
child legal relationship. (V. II, pp. 350-353). Approximately ten days later,
mother issued a subpoena duces tecum for Ms. Newland to appear for a deposition
and produce her entire case file related to her therapeutic work with the minor
child. (V. II, pp. 379-380). Ms. Newland filed a motion to quash, which was
8
heard and ruled upon by the juvenile court on July 15, 2010. (V. II, pp. 367-378 &
519).
The court found that the minor child (who was then just shy of her ninth
birthday) could not waive her own privilege; and mother was not in a position to
waive the privilege for her. (V. II, p. 519). That being said, the court was also
mindful of the fact that it had previously authorized a limited waiver of the child’s
privilege to allow Ms. Newland to provide updates to the court (and parties)
regarding the child’s progress in therapy. (V. II, p. 519).
The court extended that limited waiver to allow Ms. Newland to be deposed
by mother’s attorney and/or speak with mother’s attorney so that counsel could
prepare for trial (the termination hearing). However, in so doing, the court
instructed Ms. Newland not to bring any notes, videotapes, or other personal
records to the deposition or provide mother’s counsel with her notes. The court
found that disclosure of such materials would be invasive of the child’s
psychotherapist-patient privilege and clearly beyond the scope of any limited
waiver. (V. II, p. 519 & July 15, 2010 Transcript, pp. 16-18).
The deposition took place on August 13, 2010; and the evidentiary portion
of the termination hearing was held over the course of three days in October 2010.
Ms. Newland was called as a witness by the Department and first took the stand on
9
October 20, 2010. No preliminary matters were raised by respondent mother’s
counsel at the start of Ms. Newland’s testimony. (V. IV, p. 95). Mother’s trial
counsel began her cross-examination, but could not conclude it due to the lateness
of the hour. Ms. Newland resumed the stand on the afternoon of the 21st of
October; and it was only then, after Ms. Newland began her continued testimony,
that counsel renewed her request for Ms. Newland’s file. (V. V, p. 263, ll. 11-20).
The court reiterated its findings and orders of July 15, 2010, to wit, that “the
child does have a privilege and a right to that privilege with her therapist.” (V. V,
p. 264, ll. 9-12). The court again pointed to the “unique situation” presented in a
dependency and neglect case and explained once again that Ms. Newland has had
to communicate with the professionals involved in the case and with the court to
ensure that everyone was apprised of the progress or lack of progress being made
by the minor child. The court went on to find that it “certainly has to obtain
information from therapists and professionals working with children like Ms.
Newland in every case to be able to make those best interests of the child
determinations.” (V. V, p. 264, l. 9 – p. 65, l. 1). The court stated that it had
previously found, and continued to find, that obtaining that information was “only
a limited waiver at best of the child’s right to confidentiality and having a privilege
with her treating therapist.” (V. V, p. 265, ll. 2-6).
10
Mother’s trial counsel cross-examined Ms. Newland extensively, covering a
wide range of topics, including the therapist’s perceived bias against mother,
based, in part, on Ms. Newland’s conclusions reached early on in her work with the
child. Ms. Newland’s diagnosis of the minor child was explored at length as well
as her opinions concerning visitation with mother and other recommendations
related to permanency planning for the child. (V. IV, pp. 137-165; V. V, pp. 262-
279 & 295-297).
The court, in its November 3, 2010 verbal ruling terminating mother’s
parental rights, pointed to numerous examples of mother’s inability to put the
child’s needs ahead of her own. In one instance, mother arrived too late for a visit
at the department to take place, but because she wanted to give some snacks to the
child, went up to the grandparents’ car and attempted to open the door to get to the
child. Mother was very, very angry and insistent upon seeing the minor child.
Mother could not recognize how this might have affected the minor child. (V. V,
pp. 218-219 & V. VII, pp. 577-78).
The court also pointed to mother’s testimony that she believed in-home
visits should begin right away, despite the testimony of both Dr. Wind and Ms.
Newland that visits needed to be suspended in order to give the minor child time to
11
recover from her trauma. Because these in-home visits were what mother wanted,
she was unable to put her child’s needs above her own. (V. VII, p. 578).
At the termination hearing, Dr. Tiffany Weissmann Wind explained that
L.A.N. was presenting as so ill and so damaged, with so many intrusive thoughts
of scary things – with those thoughts being associated with her mother and
stepfather – that she needed time to “stabilize and regroup even if her parents have
done wonderful things and made huge changes just because she’s so fragile.” (V.
IV, p. 76).
Kristie “Kris” Newland testified regarding her treatment of the minor child
in individual therapy dating back to April 2009. Ms. Newland, like Dr. Wind,
diagnosed the minor child with Post-traumatic Stress Disorder. (V. IV, p. 101).
Ms. Newland spoke of the child’s trauma history, which included a great deal of
instability and several moves. Thus, the child would make connections and
attachments to people, but then lose them. The minor child described coming
home from school only to see her things packed, with no warning or idea that they
would be moving that day. (V. IV, pp. 105-06 & 121-22).
There were also scary things she associated with her mother and stepfather.
For example, on one occasion the stepfather kicked out a car window and on other
occasions, as a punishment, he would break some of her toys. Mother meanwhile
12
would have angry outbursts at home and in the community which the minor child
simply could not understand. (V. IV, pp. 106-07). The minor child also talked
about watching scary movies with killer clowns when she was living with Mother
and Stepfather. (V. IV, pp. 108-09).
Ms. Newland worked with the minor child on processing her trauma and
learning how to exercise more impulse control, something she struggled with a lot.
Ms. Newland spoke about the minor child’s immediate response to “triggers” as
becoming aggressive, with the mindset of just needing to save herself. (V. IV, pp.
110 & 113). When asked about the minor child’s projected recovery time frame,
Ms. Newland responded that she could not say exactly, but that this little girl has
“years ahead of her still” with continued therapy. (V. IV, p. 118).
Her prognosis further depended on what her living situation would be. Ms.
Newland explained that the minor child was still seeing mother, who was a trauma
source for her. In fact, the child and mother shared what was described as a
“trauma bond.” (V. IV, p. 118). Ms. Newland further opined that there should not
be continued contact between mother and the child because L.A.N. will never be
able to truly heal as long as there is that contact. (V. IV, pp. 125-26).
13
SUMMARY OF THE ARGUMENT
The Court of Appeals acted properly when it held that it is the GAL who
may assert or waive the psychotherapist-patient privilege for the subject child.
However, the Court of Appeals erred in concluding that the GAL’s actions below
constituted a broad express or implied waiver of the child’s privilege and that the
juvenile court abused its discretion in denying mother’s request for the production
of the file of the child’s therapist, including treatment session notes.
STANDARD OF REVIEW
The issue of whether a guardian ad litem in a dependency and neglect case
can waive the child’s psychotherapist-patient privilege requires application of
principles of statutory construction, and therefore is a question of law that is
reviewed de novo. Romero v. People, 179 P.3d 984, 986 (Colo. 2007) .
Whether the Court of Appeals erred in determining whether the child’s
psychotherapist-patient privilege was waived with respect to certain materials in
the psychotherapist’s file is a mixed question of law and fact and thus the proper
standard of review is de novo. People v. Alengi, 148 P.3d 154, 159 (Colo.
2006) .
14
ARGUMENT
A. THE COURT OF APPEALS ACTED PROPERLY IN CONCLUDING
THAT THE GUARDIAN AD LITEM IN A DEPENDENCY AND
NEGLECT PROCEEDING CAN WAIVE THE CHILD’S
PSYCHOTHERAPIST-PATIENT PRIVILEGE.
The Court of Appeals correctly observed, “No Colorado case has decided
whether, in a D&N proceeding, either the petitioning entity or a GAL has the
authority to waive a child’s privilege.” (Slip op. at 21). Section 13-90-
107(1)(g), C.R.S . (2011), standing alone, does not give sufficient guidance in
resolving the issue for it does not specify who the holder of the privilege is when
the individual in treatment is a minor child. In determining whether the Court of
Appeals was correct in holding that the GAL in a dependency and neglect
proceeding has the authority to waive the psychotherapist-patient privilege for a
subject child, it is essential to analyze the role played by the GAL in such cases.
Leaving aside for a moment the unique properties of a D&N action, the
general rule is that it is the parent who can waive privileges held by his or her
minor child. However, in some circumstances, this authority has been extended to
other individuals charged with acting on the child’s behalf. People v. Marsh, ___
P.3d ___ , ___ (Colo. App. No. 08CA1884, Dec. 22, 2011), citing People v.
Wittrein, 221 P.3d 1076, 1083 n.4 (GAL appointed by the trial court to represent
15
the child’s interest in her mental health records determined that it was not in the
best interests of the child accuser to waive her privilege as to ongoing treatment
records in sexual assault case). The Marsh court ultimately held that “the nature of
a conflict between the interests of a parent and of his or her child may preclude the
parent from waiving the child’s psychologist-patient privilege.” People v. Marsh,
____ P.3d ____ , ____ (Colo. App. No. 08CA1884, Dec. 22, 2011).
Other jurisdictions that have addressed the issue of whether a parent may
waive a privilege on behalf of a minor child where there exists a conflict between
the interests of the child and those of the parent have concluded that the parent
does not have the authority to do so in such circumstances. See, e.g., In re
Adoption of Diane, 400 Mass. 196, 508 N.E.2d 837, 840 (1987)(“where the parent
and child may well have conflicting interests, and where the nature of the
proceeding itself implies uncertainty concerning the parent’s ability to further the
child’s best interests, it would be anomalous to allow the parent to exercise the
privilege on the child’s behalf”); Attorney ad Litem v. Parents of D.K., 780 So.2d
301, 307 (Fla.Dist.Ct.App.2001)(where the parents are involved in litigation
themselves over the best interests of the child, the parents may neither assert or
waive the privilege on their child’s behalf); In re Daniel C.H., 220 Cal. App. 3d
814, 269 Cal. Rptr. 624 (1990)(where a father is accused of molesting his child, the
16
accused parent should not be entitled to access the communications made by the
child to the therapist; thus, it was reasonable for the minor’s attorney to claim the
privilege on behalf of the child).
The Court of Appeals below, citing In re Berg, 152 N.H. 658, 886 A.2d
980, 984-88 (2005) , likewise acknowledged that other jurisdictions have held
that “an existing or specially appointed GAL may determine whether the child’s
privilege should be asserted or waived where, as here, a parent is conflicted and the
child is not sufficiently mature to make the decision.” (Slip op. at 21).
The juvenile court has a statutory obligation to appoint a guardian ad litem
for any child who is the subject of a dependency and neglect action. §§ 19-1-
111(1) and 19-3-203(1), C.R.S . (2011). The GAL in such cases must be an
attorney at law who is licensed to practice in Colorado, § 19-1-103(59), C.R.S .
(2011), but the GAL does not have an attorney-client relationship with the subject
child. People v. Gabriesheski, 262 P.3d 653, 659 (Colo. 2011) . “Rather than
representing the interests of either the petitioner or respondents in the litigation, or
even the demands or wishes of the child, the legal responsibility for whom is at
issue in the proceedings, the guardian ad litem is statutorily tasked with assessing
and making recommendations to the court concerning the best interests of the
17
child. See [ §19-3-203 ].” People v. Gabriesheski, 262 P.3d 653, 659 (Colo.
2011) .
The duties and expectations of a GAL are enumerated in the Children’s
Code and certain Chief Justice Directives. See, e.g., §§ 19-1-111(3) & (6) ,
19-3-203(2) & (3), C.R.S . (2011), and CJD 04-06. The Children’s Code
provides specifically that in the context of a dependency and neglect case, the GAL
is required to talk with or observe the subject child and make such further
investigations as he or she deems necessary to ascertain the facts. §19-3-203(3),
C.R.S . (2011). In conducting an independent investigation, the GAL is expected
to interview “other people involved in the child’s life, including: foster parents;
caseworkers; CASA volunteers; relatives; and school personnel, therapists and any
other persons or professionals necessary to assess and serve the child’s best
interests.” Chief Justice Directive 04-06 V.D.4.e.
Taking into account the duties to be carried out by the GAL, as well as the at
times conflicting interests of the parent and child in a D&N proceeding, especially
in the context of a termination proceedings, the Court of Appeals acted properly
when it held that it is the GAL who may assert or waive the psychotherapist-
patient privilege for the subject child. This Court’s recent decision in People v.
18
Gabriesheski, 262 P.3d 653 (Colo. 2011) , further reinforces the Court of
Appeals’ holding.
B. THE COURT OF APPEALS ERRED IN DETERMINING THAT THE
CHILD’S PSYCHOTHERAPIST-PATIENT PRIVILEGE WAS WAIVED
WITH RESPECT TO CERTAIN MATERIALS IN THE
PSYCHOTHERAPIST’S FILE.
There are “particular relations in which it is the policy of the law to
encourage confidence and to preserve it inviolate.” §13-90-107(1), C.R.S .
(2011). The psychotherapist-patient relationship is among those that the General
Assembly has recognized as warranting protection against involuntary disclosure
of privileged communications. §13-90-107(1)(g) , C.R.S. (2011).
The purpose of the privilege is “to enhance the effective diagnosis and
treatment of emotional, behavioral, and mental disorders by protecting those
seeking treatment from the embarrassment and humiliation that might result from
the psychologist’s disclosure of information obtained from the client in the course
of a professional consultation.” People v. District Court, 797 P.2d 1259, 1263
(Colo. 1990) , citing Clark v. District Court, 668 P.2d 3, 8 (Colo. 1983) .
“Effective psychotherapy…depends upon an atmosphere of confidence and
trust in which the patient is willing to make a frank and complete disclosure of
facts, emotions, memories, and fears.” Jaffee v. Redmond, 518 U.S. 1, 10, 116
19
S.Ct. 1923, 135 L.Ed.2d 337 (1996). “Made public and taken out of context, the
disclosure of notes from therapy sessions could have devastating personal
consequences for the patient and his or her family….” Kinsella v. Kinsella, 150
N.J. 276, 696 A.2d 556, 584 (1997). This is as true in the realm of dependency and
neglect cases as it is in custody cases, and perhaps even more so.
The psychotherapist-patient relationship at issue here was formed in April
2009, when Kris Newland began individual therapy with the minor child, after a
petition in dependency and neglect was filed in the Denver Juvenile Court. The
child was diagnosed with Post-traumatic Stress Disorder and a Mood Disorder Not
Otherwise Specified, and also described as having a “secondary mood disorder
and a predisposition towards psychotic thought processes” and being “at risk for
Major Depression, Bipolar Disorder and Schizophrenia if things in her life do not
stabilize.” (V. III, Petitioner’s Exhibit 1, p. 7 & V. IV, p. 55).
During the course of the dependency and neglect proceedings, Ms. Newland
provided the Department and GAL with updates concerning the minor child’s
progress in therapy. In addition, Ms. Newland appeared in court on occasion to
present verbal progress reports and be consulted on her opinions regarding issues
such as visitation and family therapy. (See V. II, pp. 504, 515).
20
In February 2010, the therapist wrote a letter to the GAL in which she set
forth some of her observations and concerns about the child’s welfare in the event
she were to be returned to mother’s custody. (V. I, pp. 236-240). The GAL filed
a copy of the therapist’s letter with the court and provided the other parties with
copies just prior to the February 23, 2010 hearing. (V. I, pp. 248-49).
On June 18, 2010, after Dr. Wind’s psychological evaluation of the minor
child was completed, the Department filed a motion to terminate the parent-child
legal relationship. (V. II, pp. 350-355). Later that month, mother’s counsel
subpoenaed the child’s therapist for a deposition and sought production of the
therapist’s “entire case file,” including notes, documents, and video and audio
records of treatment. The therapist moved to quash the subpoena and argued that
the subpoena sought information and documents that were privileged under §13-
90-107(1)(g), C.R.S . (2011). (V. II, pp. 367-380).
In its July 15, 2010 ruling on Ms. Newland’s motion, the juvenile court
noted that the request involved a child and her privilege while recognizing its need
to balance the child’s privilege against respondent counsel’s duty to represent
mother. The juvenile court found that the minor child (who was then just shy of
her ninth birthday) could not waive her own privilege; and mother was not in a
position to waive the privilege for her. That being said, the court was also mindful
21
of the fact that it had previously authorized a limited waiver of the child’s privilege
to allow Ms. Newland to provide updates to the court (and parties) regarding the
child’s progress in therapy. (V. II, p. 519).
The juvenile court extended that limited waiver to allow Ms. Newland to be
deposed by mother’s attorney and/or speak with mother’s attorney so that counsel
could prepare for trial (the termination hearing). However, in so doing, the court
instructed Ms. Newland not to bring any notes, videotapes, or other personal
records to the deposition or provide mother’s counsel with her notes. The court
found that disclosure of such materials would be invasive of the child’s privilege
and clearly beyond the scope of any limited waiver. (V. II, p. 519 & July 15, 2010
Transcript, pp. 16-18).
Where, as here, it was mother and the unstable environment she provided the
child that were the chief source of the minor child’s distress, to allow the parent
“unfettered access” to the child’s therapy records “‘may inhibit the child from
seeking or succeeding in treatment,’ [ Attorney ad Litem v. Parents of D.K., 780
So.2d 301, 310], or, even worse, result in ‘substantial emotional harm to the child
from a forced disclosure.’ In re Daniel C.H., 220 Cal.App.3d 814, 269 Cal.Rptr.
624, 631 (1990).” In re Berg, 152 N.H. 658, 886 A.2d 980, 986 (2005) .
22
“‘Once the privilege applies, the only basis for allowing any disclosure of
information is waiver by the person holding the privilege.’” People v. Sisneros,
55 P.3d 797, 800 (Colo. 2002) , citing People v. Tauer, 847 P.2d 259, 261
(Colo. App. 1993) . “‘To establish a waiver [of the psychologist-patient
privilege], the defendant must show “that the privilege holder, by words or conduct
has expressly or impliedly forsaken his claim of confidentiality with respect to the
information in question.”’” People v. Marsh, ___ P.3d ___ , ___ (Colo. App. No.
08CA1884, Dec. 22, 2011), citing People v. Wittrein, 221 P.3d 1076, 1083
(Colo. 2009) and Clark v. District Court, 668 P.2d 3, 8 (Colo. 1983) .
The Court of Appeals concluded that because the Department and GAL
“disclosed privileged information which was adverse to mother in seeking to
terminate her parental rights, the privilege was waived, and under these
circumstances totally denying mother access to the therapist’s file deprived her of a
fundamentally fair opportunity to protect those rights. Therefore, the trial court
abused its discretion.” (Slip op. at 13).
To begin, this characterization of the juvenile court proceedings is
inaccurate. As was described above, Ms. Newland’s February 18, 2010 letter was
provided to the court and parties, including mother, in February 2010, when the
permanency plan was still reunification and the issue before the court was whether
23
the family therapy sessions being conducted by the Kempe Center’s Laura Eccles
should remain in mother’s home or be moved to a neutral setting. Termination of
the parent-child legal relationship was not then contemplated.
Although the Department agrees that in the context of a dependency and
neglect proceeding, the GAL is in the best position to assert or waive the
psychotherapist-patient privilege for the subject child, it is not clear from the
record that the GAL here believed she was expressly, or even impliedly, waiving
the privilege on behalf of L.A.N. by presenting to the court and parties the
February 18, 2010 letter prepared by the child’s individual therapist. The division
even noted that the GAL had not presented the juvenile court with a
“recommendation on express waiver,” citing § 19-3-203(3), C.R.S . (2011),
before going on to state that it had concluded that the GAL’s conduct in releasing
the therapist’s letter, “if within her authority, constituted an implied waiver.” (Slip
op. at 21-22).
The division acknowledged the role of the state, “acting as the child’s
protector,” and its assumption of responsibility for the child, including, such as was
the case here, that the child’s psychological condition warranted psychotherapy.
(Slip op. at 17). It concluded, however, that in a D&N proceeding, a therapist
24
might be called upon to evaluate a troubled child and provide information to the
parties and the court or treat such a child, but not disclose anything about the
therapy. (Slip op. at 17-18).
The People take issue with the division’s holding that “where a
psychotherapist has been employed to provide therapy to a child, we construe
section 13-90-107(1)(g) to prohibit disclosure of all communications between
the child and the therapist made in the course of the therapist’s professional
employment.” (Slip op. at 20). The court recognized that “judicial authorization
for limited disclosure of privileged information, without otherwise waiving the
privilege, could assist in identifying the resolution that furthers the child’s best
interests,” but went on hold that section 13-90-107(1)(g) “does not provide for
even limited disclosure.” (Slip op. at 20).
The division’s conclusion does not take into sufficient account either the
stated and underlying purposes of the Children’s Code or the juvenile court’s
responsibility in carrying out those purposes. The juvenile court struck an
appropriate balance by finding that there was a limited waiver of the child’s
privilege so that relevant information could be shared with the court and parties
without compromising the therapist-client relationship. And even if this Court
were to agree with the Court of Appeals that the juvenile court was not authorized
25
to find a limited waiver, the GAL’s actions in distributing the therapist’s February
2010 letter should not be interpreted as a broad waiver of the child’s privilege.
In interpreting any statute, the reviewing court must strive to give effect to
the legislative intent. C.S. v. People in Interest of I.S., 83 P.3d 627, 634-35 (Colo.
2004) . Toward this end, the court first looks to the language of the statute and
gives the words their plain and ordinary meaning. C.S. v. People in Interest of I.S.,
83 P.3d at 635 .
“If the statutory language is clear and the intent appears with reasonable
certainty, we need not resort to other rules of statutory construction….However,
we must also apply the general rule that provisions of the Children’s Code should
be liberally construed to serve the welfare of children and the best interests of
society….Thus, we should avoid any technical reading of the statute that would
disregard the best interests of the child.” People in Interest of S.X.M., ___ P.3d
___ (Colo. App. Case No. 11CA0398, Sept. 15, 2011)(citations omitted).
“If the statutory language is ambiguous or unclear, we must analyze the
statute with full regard for the policy and purpose manifested in the statutory
scheme. People v. Green, 734 P.2d 616, 621 (Colo. 1987) . If at all feasible,
the statute should be construed to make it effective in accomplishing the purposes
26
for which it was enacted. Schubert v. People, 698 P.2d 788, 793 (Colo. 1985)
.” B.B. v. People, 785 P.2d 132, 138 (Colo. 1990) .
Section 19-1-107(2), C.R.S . 2010, states, “For the purpose of
determining proper disposition of a child, written reports and other material
relating to the child’s mental, physical, and social history may be received and
considered by the court along with other evidence.” Thus, there is an expectation
that the court in a D&N case will be provided with a wide variety of information,
including written reports, related to a child’s functioning. It does not follow that
by providing such reports, the treating professional will consider the privilege
waived to the point that the entire contents of his or her file related to any stated
recommendations will be deemed available to the child’s parents.
Section 19-3-203 (2), C.R.S . 2011, provides that the GAL “shall be
provided with all reports relevant to a case submitted to or made by any agency or
person pursuant to this article, including reports of examination of the child or
persons responsible for the neglect or dependency of the child.” It would be
incongruous and counterproductive to then place the GAL in the position of having
to choose between distributing such reports to the parties and trial court, and be
deemed to have waived the child’s therapist-client privilege, or simply not sharing
27
the contents of the reports with anyone in the case, thereby hampering the efforts
of all involved in fashioning an informed permanency plan that is in the child’s
best interests.
California’s appellate courts have recognized that in the context of a juvenile
dependency action, therapy serves “a dual purpose – treatment of the child to
ameliorate the effects of abuse or neglect and the disclosure of information from
which reasoned recommendations and decisions regarding the child’s welfare can
be made.” In re Kristine W., 94 Cal.App.4th 521, 114 Cal.Rptr.2d 369, 373-74
(2001). There, the court concluded that the psychotherapist-patient privilege
protected the 17-year-old minor’s confidential communications and details of her
therapy, but did not preclude her therapist from providing “circumscribed
information to accomplish the information-gathering goal of therapy.” In re
Kristine W., 114 Cal.Rptr.2d at 373-74.
As the court went on to observe, without information from the therapist,
both the court and the county health and human services agency would be
hampered in their efforts to ensure that the minor child received services to protect
her and enable her to make a successful transition from court-dependent minor to
adult. The court looked to the legislative history of California’s Welfare and
Institutions Code and found that the statutory provision at issue did not suggest that
28
the Legislature intended to make unavailable that important information. Id. at
374.
Likewise, in Colorado, there is no indication that the General Assembly
intended that a juvenile court in a dependency and neglect case not be allowed to
receive circumscribed reports from the child’s therapist without opening the door
to full discovery by the respondent parent of the therapist’s file, including notes
taken during the child’s treatment sessions.
“The overriding purpose of the Children’s Code is to protect the welfare and
safety of Colorado children by providing procedures through which their best
interests can be served.” L.G. v. People, 890 P.2d 647, 654 (Colo. 1995) .
“Under the Children’s Code, the State of Colorado acts as parens patriae –
sovereign guardian – to safeguard the interests of vulnerable children within the
state.” L.G. v. People, 890 P.2d 647, 654 (Colo. 1995) . Thus, the General
Assembly has determined that certain communications ordinarily privileged may
not be excluded in any judicial proceeding where the information forms the basis
of a report of child abuse or neglect. §19-3-311, C.R.S . (2011).
This Court, in People v. District Court, 797 P.2d 1259, 1265 (Colo.
1990) , found that the structure and text of the statutory scheme for the care and
treatment of mentally ill persons provided the framework for the proper resolution
29
of that case, where the issue was whether “during a judicial review of a
psychologist’s certification for short-term treatment of a person alleged to be
mentally ill, the person so certified may invoke the psychologist-client privilege in
order to prevent the certifying psychologist from testifying to information obtained
from that person during an emergency evaluation, when such information is
necessary to an informed decision on whether the person is mentally ill and, as a
result of such mental illness, is a danger to others or to himself and thus is in need
of short-term treatment.” People v. District Court, 797 P.2d 1259, 1260 (Colo.
1990) .
The Court looked to the statutory goal of securing for persons who may be
mentally ill such care and treatment that will meet their needs; and the statute
clearly contemplated a thorough evaluation of an individual’s mental condition in
order to assess whether the individual, by reason of his mental illness, was a
danger to himself or others or was gravely disabled. “Without such an evaluation,
the statutory goal of providing care and treatment suited to the needs of the
mentally ill person would be substantially undermined.”
While the question in People v. District Court, 797 P.2d 1259, 1263
(Colo. 1990) , concerned whether a person under short-term certification could
assert his privilege under §13-90-107(1)(g), C.R.S ., and prevent the
30
psychologist who examined him during the emergency evaluation from testifying
in court regarding what she learned during that prior examination, whereas as here,
the issue is one of waiver of such privilege, the framework for the analysis of the
legal issue is comparable.
As this Court pointed out in People v. District Court, 797 P.2d 1259,
1263 (Colo. 1990) , the analysis of §13-90-107(1)(g), C.R.S ., did not end the
inquiry. Given the existence of a comprehensive statutory scheme relating to the
care and treatment of mentally ill persons, Title 27, and the fact that it was the
application of that statutory scheme that resulted in the involuntary detention and
evaluation of the patient in question, it was appropriate to look at this statutory
scheme for further guidance on whether the psychologist-client privilege was
properly applied to prevent the psychologist from testifying to information she
learned during her emergency evaluation of the patient. People v. District Court,
797 P.2d 1259, 1263 (Colo. 1990) . Likewise here, in the context of a
dependency and neglect proceeding where information related to the child’s mental
health status was relevant, the juvenile court acted appropriately in finding a
limited waiver of the child’s psychotherapist-patient privilege and preventing
mother from gaining access to greater portions of the file of the child’s therapist.
31
Certainly, when the state seeks to terminate the parent-child legal
relationship, it must guarantee the parent fundamentally fair procedures in order to
satisfy due process. “However, that parental right to due process is subject to the
power of the state to act in the child’s best interest.” People in Interest of M.H.,
855 P.2d 15, 17 (Colo. App. 1992) (where the father was convicted of attempted
sexual assault of his son and that child implicated father in a separate incident of
felony child abuse of another child for which father was convicted, the trial court
acted properly in denying father’s motion for a parent-child interactional
evaluation sought in preparation for a termination of parental rights hearing).
Thus, “a parent’s statutory right to have an expert appointed to assist him in
a termination proceeding may be limited in scope if necessary because of the
physical, mental, and emotional conditions of the child.” People in Interest of
M.H., 855 P.2d at 17 . That same rationale can be, and was properly, applied by
the juvenile court here in allowing the child’s therapist to be deposed, but not
requiring her to provide mother with copies of all her file notes related to the
contents of the February 2010 letter she penned. Nonetheless, if this Court were to
find that the Court of Appeals did act properly when it found error on the part of
the juvenile court, any such error should be deemed harmless and not requiring
reversal of the order of termination.
32
Error may not be predicated upon a ruling that admits or excludes evidence
unless a substantial right of the party is affected. CRE 103 ; C.A.R. 35(e) ;
People in Interest of J.A.S., 160 P.3d 257, 261 (Colo. App. 2007) ; People v.
Caldwell, 43 P.3d 663 (Colo. App. 2001) . Error affects a substantial right when
it can be said with fair assurance that the error substantially influenced the outcome
of the case or impaired the basic fairness of the trial. People v. Wilson, 838 P.2d
284 (Colo. 1992) . “‘If a reviewing court can say with fair assurance that, in light
of the entire record of the trial, the error did not substantially influence the verdict
or impair the fairness of the trial, the error may properly be deemed harmless.’”
People v. Gilmore, 97 P.3d 123, 130 (Colo. App. 2003) , citing People v.
Gaffney, 769 P.2d 1081, 1088 (Colo. 1989) .
Leaving aside Ms. Newland’s testimony, the juvenile court heard the
testimony of Dr. Tiffany Wind, the psychologist who evaluated the minor child;
Diane Garrett, the ongoing social caseworker; Jessica Grace, one of the family
therapists; Larry Curry, a psychologist who attempted family therapy with the
adults involved in the case; Marilyn Cook, Mother’s therapist; Kristi Breen,
Mother’s sister; Sharon New, the maternal grandmother; and Mother herself. In
addition, more than one expert witness arrived at conclusions and
recommendations similar to those of Ms. Newland.
33
Here, as was the case in B.B. v. People, 785 P.2d 132, 141 (Colo. 1990) ,
with regard to the admission of Mother’s expert’s testimony, this Court could, and
should, conclude that there was more than ample evidence in the record as a whole
to support the trial court’s order of termination, and thus the Court of Appeals
erred in holding that mother was deprived of a fundamentally fair opportunity to
protect her parental rights.
VI. CONCLUSION
The People respectfully request that this Court affirm the Court of Appeals’
decision as related to the issue of which party to a dependency and neglect action
may assert the psychotherapist-patient privilege on behalf of a minor child, but
reverse the Court of Appeals’ decision finding error on the part of the juvenile
court in denying mother’s request for production of the file of the child’s therapist.
Dated this 20th
day of March, 2012.
Respectfully submitted,
______________________________
Laura Grzetic Eibsen #14599
Assistant City Attorney
Counsel for Petitioner
34
