B.B. v. People

• Citation: 785 P.2d 132
• Decision Date: 16 January 1990
• Docket Number: No. 88SC332,88SC332
• Parties: B.B., Petitioner, v. The PEOPLE of the State of Colorado, Respondent. In the Interest of T.S.B., a Child.
• Court: Supreme Court of Colorado

Page 132

785 P.2d 132

B.B., Petitioner, v. The PEOPLE of the State of Colorado, Respondent In the Interest of T.S.B., a Child.

No. 88SC332.

Supreme Court of Colorado En Banc.

Jan. 16, 1990.

John M. Cross, Fort Collins, for petitioner.

Harden, Schmidt, Hass & Zier, P.C., Richard M. Stillwell, Asst. Co. Atty., Fort Collins, for respondent.

Justice LOHR delivered the Opinion of the Court.

This case involves the termination of the parent-child legal relationship between a mother, B.B., and her young child T.S.B. under the Parent-Child Legal Relationship Termination Act of 1977, §§ 19-11-101 to -110, 8B C.R.S. (1986). ¹ The question presented is whether a privilege exists between an indigent parent and an expert witness appointed by the court at the request of the parent under section 19-11-107(1), enabling the parent to prevent the expert from testifying on behalf of the People at the termination hearing. The Larimer County District Court permitted such an expert to testify over B.B.'s objection and ultimately entered a judgment terminating the legal relationship between B.B. and her child T.S.B. On appeal, the Colorado Court of Appeals affirmed. People in Interest of T.S.B., 757 P.2d 1112 (Colo.App.1988). We granted certiorari and now hold that an attorney-client privilege exists between a parent and an expert witness appointed for the parent at the request of the parent's attorney under section 19-11-107(1). Although there is some question whether the privilege was effectively asserted in this case, we conclude that the admission of the expert's testimony was harmless. We therefore affirm the judgment of the court of appeals.

I.

B.B. is the mother of two minor children, six-year-old T.B. and four-year-old T.S.B. This certiorari review proceeding concerns the younger child, T.S.B., only. In November 1983, B.B. and T.B. moved to Larimer County, Colorado, from Garden City, Kansas, to be with the child's father, M.D.R. B.B. and M.D.R. separated a short while later.

Soon after B.B. and T.B. arrived in Colorado, the Larimer County Department of Social Services (department) received complaints concerning the care B.B. was providing for her child. The complaints alleged that B.B. left T.B. unattended, inappropriately dressed and unclean, and fed T.B. candy for meals. In accordance with statutorily-prescribed procedures, the department obtained temporary custody of T.B., placed him in foster care, and commenced dependency or neglect proceedings in Larimer County District Court. In March 1985, the Larimer County District Court entered a judgment determining that T.B. was a dependent or neglected child. A treatment plan to remedy the deficiencies in T.B.'s care was formulated in April 1985 and was adopted at that time by the court.

Meanwhile, B.B. gave birth to another child, T.S.B., on January 29, 1985. In May of that year, B.B. was arrested and jailed on felony theft charges. The department then initiated dependency or neglect proceedings in Larimer County District Court, obtained temporary custody of T.S.B., and placed the child in foster care. On October 16, 1985, T.S.B. was adjudicated to be a dependent or neglected child. A treatment plan concerning T.S.B. was developed and was approved by the court.

On June 6, 1986, the People filed motions in the dependency or neglect cases, seeking termination of the parent-child legal relationships between each of the parents, B.B. and M.D.R., and their children, T.B. and T.S.B. The motions alleged, among other things, that the parents had failed to comply with the terms of the treatment plans, that they were unfit, and that their conduct or condition was unlikely to change within a reasonable time. See § 19-11-105(1). On June 11, B.B., who was indigent, filed a motion through her attorney for the appointment of Dr. Peter Kaplan, a clinical psychologist, as an expert witness in the case concerning T.S.B. pursuant to section 19-11-107(1), 8B C.R.S. (1986). The court granted the motion. ² A joint hearing on the termination motions in the two cases was held on September 16, 1986. The People called Dr. Kaplan as a witness in their case in chief, and B.B. objected. B.B. asserted that a psychologist-client privilege existed between her and the doctor, and that as a result Dr. Kaplan could not testify without her consent. The trial court permitted Dr. Kaplan to testify, concluding that no privilege had attached and, even if it had, the privilege had been eliminated "with respect to this type of case." ³

Dr. Kaplan testified that he met with B.B. for one and one-half hours of interviews and three hours of testing for the purpose of performing a "disability evaluation" under a contract with the department before the court appointed him as an expert witness under section 19-11-107(1). After his appointment, Kaplan met with B.B. for another one and one-half hours and on another occasion visited her at home for an hour. During the three hours spent with B.B. devoted to testing, Dr. Kaplan administered a Wechsler Adult Intelligence Scale, Wechsler Memory Scale, Minnesota Multiphasic Personality Inventory and a sentence completion test. Based on the results of those tests and his interviews and home visit with B.B., Dr. Kaplan found that B.B. had an I.Q. in the low normal range and was "impulsive, angry, confused, introverted, socially withdrawn, and guarded. In addition, there were indications that she ha[d] a potential to abuse alcohol and drugs."

Dr. Kaplan expressed the opinion that B.B. would present a poor role model for the children and, with her low cognitive abilities, would be unable properly to develop and carry out an adequate plan for raising her children and would have difficulty differentiating their needs from hers. Dr. Kaplan added that, although therapy and treatment might bring some improvement, significant change in B.B.'s ability to serve as a parent would require at least three years of treatment. The People concluded their direct examination by eliciting Dr. Kaplan's opinion that termination of B.B.'s parental rights would be beneficial to the children.

The People called several other expert witnesses to testify concerning their evaluations of B.B. and M.D.R. Their opinions of B.B.'s ability to serve as a parent were uniformly negative. Each expressed the opinion that termination of the parent-child legal relationships between the parents, B.B. and M.D.R., and their children, T.B. and T.S.B., would be in the best interests of the children.

On October 16, 1986, the trial court entered a written order terminating the parent-child legal relationships between B.B. and M.D.R. and their two children, T.B. and T.S.B. The order included findings of fact and stated that the facts constituted clear and convincing evidence meeting the statutory criteria for termination set forth in section 19-11-105. ⁴

B.B. appealed the decision to the Colorado Court of Appeals. Her appeal, which concerned only T.S.B., raised three issues: (1) whether the trial court erred in admitting Dr. Kaplan's testimony over B.B.'s assertion of a psychologist-client privilege; (2) whether the trial court erred in finding the treatment plan appropriate; and (3) whether B.B. had been given a reasonable amount of time in which to comply with the treatment plan. The court of appeals affirmed the trial court's decision on all three issues.

B.B.'s petition for certiorari raised only the first issue. B.B. urges us to reverse the court of appeals' decision that by requesting appointment of Dr. Kaplan as an expert witness pursuant to section 19-11-107(1), she tacitly waived any psychologist-client privilege that may have arisen as a result of Dr. Kaplan's appointment. People in the Interest of T.S.B., 757 P.2d 1112, 1113 (Colo.App.1988). ⁵ We analyze the matter differently than did the court of appeals but agree that the district court properly entered judgment terminating the parent-child legal relationship between B.B. and her child T.S.B.

II.

A general outline of the statutory requirements and procedures leading up to a hearing on the termination of parental rights will be useful in understanding and resolving the narrow issue before us. A juvenile court ⁶ has exclusive original jurisdiction in proceedings concerning any child who is dependent or neglected. § 19-1-104(1)(c). A dependent or neglected child includes one who lacks proper parental care through the actions or omissions of a parent or whose parent fails or refuses to provide proper or necessary subsistence or other care necessary for the child's health, guidance or well-being. § 19-1-103(20)(b), (d). When a court receives a report that a child is dependent or neglected, it must order a preliminary investigation to determine whether the interests of the child or the community require further action to be taken. § 19-3-101(2). If the court determines from the results of the investigation that further action is required, it may authorize the filing of a petition alleging that the child is dependent or neglected. Id. The petition is brought by the People in the interest of the child, and the parent or parents allegedly neglecting the child are named as respondents. § 19-3-102. In order that the child be adjudicated a dependent or neglected child, facts necessary to establish dependency or neglect must be proved by a preponderance of the evidence. § 19-3-106(6)(a).

If the court finds the child to be dependent or neglected, it must hear evidence regarding what disposition would best serve the interests of the child and the public, § 19-3-109, and enter a decree of disposition, including such matters as legal custody and placement of the child, id. In connection with the decree of disposition, the court must approve an appropriate treatment plan "which is reasonably calculated to render the [parent] fit to provide adequate parenting to the child within a reasonable time and which is relative to the child's needs." § 19-3-111(1)(e)(I...