Adoption of Diane, In re

• Decision Date: 08 June 1987
• Citation: 400 Mass. 196,508 N.E.2d 837
• Parties: In re ADOPTION OF DIANE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 837

508 N.E.2d 837

400 Mass. 196

In re ADOPTION OF DIANE.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Nov. 5, 1986.

Decided June 8, 1987.

Thomas A. Silevitch, Somerville, for the mother.

Lisa A. Levy, Asst. Atty. Gen., Boston, for Dept. of Social Services.

Before WILKINS, LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

On January 11, 1985, pursuant to G.L. c. 210, § 3 (1985 Ann.Supp.), a judge of the Probate and Family Court Department allowed the petition of the Department of Social Services (department) to dispense with parental consent to adoption. A judge of the District Court previously had ordered, pursuant to G.L. c. 119, § 26 (1984 ed.), that the child, born June 9, 1974, be committed to the department "until she becomes eighteen years of age or until in the opinion of the department the object of her commitment has been accomplished." Her natural mother appealed the allowance of the petition to dispense with consent to adoption. ¹ The mother argues that the judge improperly admitted and considered testimony of social workers and psychotherapists which should have been excluded in accordance with applicable statutory privileges. The mother also contends that the petition was improperly allowed because the judge relied on stale information in determining that she was currently unfit to assume parental responsibility. We transferred the appeal to this court on our own motion. We affirm the allowance of the petition.

The mother challenges the admission and consideration of testimony by three social workers. The department concedes that the social workers testified about information they had acquired in conversations between them and the mother or the child. The mother contends that this testimony should have been excluded under the social worker-client privilege created by G.L. c. 112, § 135. ² That statute provides, with certain exceptions, that "[n]o social worker ... shall disclose any information he may have acquired from a person consulting him in his professional capacity or whom he has served in his professional capacity." Id.

We need not discuss all the reasons advanced by the department to support the admission and consideration of the social workers' testimony, because all the challenged testimony was admissible under exception (d ) to G.L. c. 112, § 135. Exception (d ) provides that social workers may disclose otherwise privileged information "to initiate a proceeding under ... section three of chapter two hundred and ten and give testimony in connection therewith." The mother argues that exception (d ) does not apply because the social workers' involvement with the family, and the resultant conversations, did not occur in connection with the initiation of a care and protection proceeding under G.L. c. 119, §§ 23(C) or 24, nor did it occur in connection with a petition to dispense with consent to adoption under G.L. c. 210, § 3. This argument is without merit. In Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 397 Mass. 659, 493 N.E.2d 197 (1986), this court rejected an argument that exception (d ) applies only to social workers who actually bring the petition to dispense with consent to adoption. We reasoned that the exception reflected a legislative intent to balance the goal of protecting confidential relationships with the need to protect the well-being of children, id. at 662, 493 N.E.2d 197, and concluded that, "[i]f the exception is interpreted to permit disclosure of information relevant to the fitness of the parents and the best interests of the children only by a social worker who actually brings a petition seeking an order to dispense with parental consent to adoption, the interest of protecting children reflected in G.L. c. 210, § 3, will be defeated." Id. at 663, 493 N.E.2d 197. In support of that conclusion we noted two "practical considerations" which demanded a broader view of the exception. The first was that, because allowance of a petition to dispense with consent to adoption results in a "drastic intervention in family life," the information necessary to justify such a severe intrusion necessarily involves a detailed and searching examination of the entire parent-child relationship. Hence, a restricted interpretation of exception (d ) would render unlikely if not impossible the appropriate resolution of proceedings pursuant to G.L. c. 210, § 3. See id. at 663, 493 N.E.2d 197. The second practical consideration, intimately related to the first, concerned the "realities of the provision of social work services in the Commonwealth." Id. at 664, 493 N.E.2d 197. We noted that in a typical situation, several social workers are involved with the family receiving services from the department and that, frequently, the proceedings are initiated by attorneys or third parties. As a result, a narrow construction of the exception "would place an undue burden on the department and other agencies when bringing such petitions." Id.

Our ruling and reasoning in Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, supra, contain the implicit proposition that, in proceedings to dispense with consent to adoption, exception (d ) to the statutory social worker-client privilege encompasses all testimony of social workers. There is no social worker privilege in proceedings pursuant to G.L. c. 210, § 3. See Commonwealth v. Collett, 387 Mass. 424, 433-434, 439 N.E.2d 1223 (1982) (exception (d ) "provide[s] that the privilege does not apply to care and protection proceedings"). In response to the mother's argument that the exception should not apply when the social worker's initial involvement was unrelated to care and protection proceedings or proceedings in connection with a petition to dispense with consent to adoption, we add a third practical consideration relating to the provision of social work services in the Commonwealth. The provision of services by a social agency typically is, and to be most effective should be, of an ongoing nature. Petitions to dispense with consent to adoption are brought neither lightly nor before less severe measures have been taken and efforts have been made to reunite the family. Indeed, the department or other petitioner is entitled to initiate a proceeding to dispense with consent to adoption only if it already has "care and custody" of the child. G.L. c. 210, § 3. See Adoption of a Minor, 386 Mass. 741, 744, 438 N.E.2d 38 (1982). These considerations make clear that the sources of information most pertinent to G.L. c. 210, § 3, proceedings will often be social workers who have been involved with members of the family over a period of time, frequently from the onset of signs of difficulty. Hence, the restrictive interpretation suggested by the mother in this case would often deny extremely valuable and relevant information to judges who must determine questions of a factual and most sensitive nature. Accepting the mother's argument would plainly defeat the purpose of exception (d ). It should be noted that the social worker involved in Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, supra, was also involved with the family long before the petitions were brought. Id. at 660-661, 493 N.E.2d 197. There was no error in admitting or considering the social workers' testimony in this case.

On appeal, the mother also assigns as error the admission and consideration of testimony by three other persons on the ground that their testimony should have been excluded under the patient-psychotherapist privilege created by G.L. c. 233, § 20B. ³ There was no error.

One of those witnesses was Alice Markowitz. Markowitz, however, was not a "psychotherapist" as defined in G.L. c. 233, § 20B, and therefore that statute did not provide the mother with a privilege to prevent Markowitz's testimony. According to her testimony, Markowitz had a degree in psychology from Vassar College and a master's degree in education from Harvard University. She also had done three years of child development research at Harvard. In Commonwealth v. Mandeville, 386 Mass. 393, 436 N.E.2d 912 (1982), we refused to enlarge the Legislature's definition of "psychotherapist." Id. at 408-409, 436 N.E.2d 912. We said in that case that "[t]he patient-psychotherapist privilege has never been recognized at common law ... [and we] are thus not inclined to extend the patient-psychotherapist privilege beyond the bounds established by the Legislature" (citation omitted). Id. at 409, 436 N.E.2d 912. There was no error in admitting Markowitz's testimony.

Nor was there error in admitting the testimony of Dr. Andrea Stern, a psychiatrist, and Dr. Janet Vodvarka, a child psychologist. Dr. Stern and Dr. Vodvarka testified to the content of communications between themselves and the child, who was their patient. The mother is not entitled to challenge such testimony. General Laws c. 233, § 20B, makes clear that the privilege may be asserted only by the patient, or, if the patient is incompetent, by a guardian appointed to act on his or her behalf. See Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 290 n. 21, 503 N.E.2d 1275 (1987) "Because the privilege belongs to the patient, it appears that the burden should be on the patient to assert the privilege"). ⁴ In a case such as this, 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. The anomaly is magnified when, as here, neither the child's attorney nor the guardian ad litem chose to exercise the privilege.

We turn now to the mother's contention that the judge improperly relied on stale information in determining that she was currently unfit to assume parental...