D.A.S. v. People

• Citation: 863 P.2d 291
• Decision Date: 15 November 1993
• Docket Number: No. 92SC646,92SC646
• Parties: D.A.S., Petitioner, v. The PEOPLE of the State of Colorado, Respondent. In the Interest of O.J.S., A.S.S., and D.A.S., Jr., Children.
• Court: Supreme Court of Colorado

Page 291

863 P.2d 291

D.A.S., Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

In the Interest of O.J.S., A.S.S., and D.A.S., Jr., Children.

No. 92SC646.

Supreme Court of Colorado,

En Banc.

Nov. 15, 1993.

Rehearing Denied Dec. 6, 1993.

Cynthia M. Mardian, Denver, for petitioner.

Daniel E. Muse, City Atty., Laura Grzetic Eibsen, Asst. City Atty., Denver, for respondent.

Allen B. Alderman, Denver, guardian ad litem, for the children.

Chief Justice ROVIRA delivered the Opinion of the Court.

In this appeal, D.A.S. (the mother) contends that the court of appeals erred in affirming the judgment of the juvenile court which terminated her parental relationship with her children (O.J.S., A.S.S., and D.A.S., Jr. (Jr.)). ¹ The mother argues that reversal is necessary because the testimony of a psychologist and his report were admitted into evidence at the termination hearing in violation of the attorney-client privilege. We affirm.

I

On April 29, 1987, the Colorado Department of Social Services (department) filed a dependent or neglected children petition with the City and County of Denver juvenile court on behalf of Jr. The petition alleged that Jr. had been placed in a shelter by Denver Police Department personnel after the staff at the United Cerebral Palsy Center, a therapeutic preschool attended by Jr., noticed severe bruising on his back, buttocks, and thighs as well as bruising on his ear and cheek. The petition stated that termination of the parent-child relationship may be a possible remedy should the petition be sustained by the juvenile court.

The juvenile court appointed a guardian ad litem to represent Jr. and accepted the mother's admission that his home environment was injurious to his welfare. The court sustained the petition and adjudicated Jr. a dependent and neglected child. Jr. then was placed in the department's custody and began residing in a foster care home. A dispositional hearing was set for May 29, 1987, at which time a treatment plan for the mother was adopted by the court.

On September 23, 1987, the department filed a dependent or neglected children petition with the juvenile court concerning O.J.S. and A.S.S. in order to bring the two children under the court's jurisdiction. The court sustained the petition and adjudicated O.J.S. and A.S.S. dependent and neglected children. The court adopted the same treatment plan as the one that earlier was adopted, with the additional requirement that the mother maintain a stable source of income.

On October 12, 1987, O.J.S. and A.S.S. sustained second and third degree burns in a fire that broke out in the apartment they were living in with their parents. After their release from the hospital, they were placed in foster care.

In November 1989, the department moved to terminate the parent-child legal relationship among both parents and their three children. The department alleged that both the mother and father failed to comply with the treatment plan, they were unfit as parents, the treatment plan had been unsuccessful at rehabilitating the parents, and the parents' conduct was unlikely to change within a reasonable time.

Thereafter, the mother requested the trial court to appoint Dr. Richard Spiegle, a clinical psychologist, as her independent expert witness pursuant to section 19-3-607(1), 8B C.R.S. (1993 Supp.). ² The motion stated, in relevant part, that "[f]or the purpose of the termination hearing set for February 5, 1990, the [mother] requests the appointment of Dr. Richard Spiegle to conduct an evaluation of the [mother] and her relationship with the minor children...." The motion was granted and the evaluation began in August of 1990. Dr. Spiegle met alone with the mother four times for clinical interviews and testing. On one occasion, he met with the mother and the children for a parent-child interactional evaluation. In addition, Spiegle obtained relevant documents and information from persons involved in the case. Based on this information, he prepared a written report.

At trial, the mother elected neither to call Spiegle as a witness nor submit his report into evidence. The guardian ad litem, however, sought to call Spiegle to testify and introduce his report into evidence. The mother objected. Relying on B.B. v. People, 785 P.2d 132 (Colo.1990), she argued that the attorney-client privilege protected the testimony and report from disclosure.

The court admitted both the testimony and the report, concluding that B.B. was inapposite and that the children's involvement in the evaluation either negated any attorney-client privilege that might have existed or created an equal privilege in the children which only they could waive. Based on this and other evidence, the court terminated both the mother's and the father's parental relationship with their three children. Both parents appealed and the cases were consolidated.

The court of appeals affirmed, reasoning that the presence of the children at the parent-child interactional evaluation, the knowledge of the mother's attorney that the interactional evaluation would be undertaken, and the provisions of section 19-3-203(2), 8B C.R.S. (1993 Supp.), ³ support the conclusion that "the psychologist was appointed and hired under circumstances which prevented the creation of any attorney-client privilege." People In the Interest of O.J.S., A.S.S., and D.A.S., Jr., 844 P.2d 1230, 1232 (Colo.App.1992).

The mother appeals arguing that (1) the attorney-client privilege attached to the testimony of Spiegle and the report prepared by him and (2) the request for and participation in the parent-child interactional evaluation did not amount to a waiver of the attorney-client privilege.

II

The mother claims a blanket privilege for all of the testimony of Spiegle and all of the information contained in his written report. As stated in her objection at trial, she invoked the "attorney-client privilege ... and object[ed] to [the] testimony of Dr. Spiegle and introduction of the report into evidence." It is important to note at the outset, however, that the privilege asserted cannot possibly extend to all of the testimony and written conclusions of Spiegle.

Section 13-90-107(1)(b), 6A C.R.S. (1987), provides, in part, that "[a]n attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon...." The testimony and report admitted at the request of the guardian ad litem was not limited to communications made by the mother to Spiegle and the advice given in response to those communications. Rather, a considerable amount of testimony concerned Spiegle's observations and conclusions regarding the children themselves. For example, he testified that the "children were affectionate, very needy, and the interactions [between them and the mother] were appropriate based on the level of disruption that the kids have experienced." He observed that "the kids were developmentally disabled themselves," and concluded that "based on their needs, they interacted appropriately" with the mother. In addition, Spiegle testified that the children "were very excited and energetic" and the need for discipline never arose. He testified to the children's cognitive difficulties, and the problems encountered while interacting with their caretaker as a result of their communicative and emotional troubles. He also concluded that based on the children's needs, as well as the inability of the mother to fulfill those needs, that the parent-child legal relationship should be terminated.

In short, much of the information to which the mother claims the attorney-client privilege has nothing to do with "communications made by the client to him [Spiegle]." Section 13-90-107(1)(b), 6A C.R.S. (1993 Supp.). Rather, a considerable amount of that testimony resulted from information obtained entirely outside the context of communications which are covered by the statutory attorney-client privilege. In the words of the trial court, Spiegle's testimony indicated "that he actually did an evaluation of the children--evaluated their needs, their delays. He evaluated the interaction between the children and the respondent mother."

Recognizing that the privilege asserted by the mother does not extend to all of the challenged testimony and conclusions of Spiegle, we turn to the narrower question of whether any of Spiegle's testimony or written conclusions are protected from disclosure under the attorney-client privilege. For the reasons that follow, we conclude that they are not.

A

The mother argues that the court of appeals erred in not applying the holding of B.B. to the facts of this case. She acknowledges that the burden of establishing the applicability of the attorney-client privilege rests with the claimant of the privilege, Clark v. District Court, 668 P.2d 3, 8 (Colo.1983), but asserts that this burden was met by her reliance on B.B. v. People, 785 P.2d 132 (Colo.1990).

In B.B. v. People, 785 P.2d 132 (Colo.1990), we considered "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." Id. at 133. After examining the need to provide a parent who faces termination of the parent-child legal relationship with fundamentally fair procedures as well as the underlying purposes of the attorney-client privilege, id. at 138-39, we concluded that "when an expert is appointed under section 19-11-107(1) for an indigent parent at the request of the parent's attorney, communications between the parent and the expert are protected by the attorney-client privilege." Id. at 138 (emphasis added). ⁴

The privilege recognized in B.B. is not absolute, however. To the contrary, under a variety of circumstances the cloak of confidentiality afforded by the...