Edward D., In re

• Decision Date: 16 August 1976
• Citation: Edward D., In re, 132 Cal.Rptr. 100, 61 Cal.App.3d 10 (Cal. App. 1976)
• Court: California Court of Appeals
• Parties: In the Matter of EDWARD D. and Charles S., persons coming under the juvenile court law. LOS ANGELES COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Petitioner and Respondent, v. JANET D., mother, Appellant. Civ. 47298.

Page 100

132 Cal.Rptr. 100

61 Cal.App.3d 10

In the Matter of EDWARD D. and Charles S., persons coming under the juvenile court law. LOS ANGELES COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Petitioner and Respondent, v. JANET D., mother, Appellant.

Civ. 47298.

Court of Appeal, Second District, Division 4, California.

Aug. 16, 1976.

Rehearing Denied Aug. 26, 1976.

Hearing Denied Oct. 14, 1976.

Benson Schaffer, Santa Fe Springs, under appointment by the Court of Appeal, for appellant.

John H. Larson, County Counsel, and Sterling R. Honea, Deputy County Counsel, for petitioner and respondent.

FILES, Presiding Justice.

This is an appeal by a mother from judgments making her two sons, aged 14 and 10, dependents of the juvenile court under Welfare and Institutions Code section 600, and placing them in the custody of the Department of Public Social Services (DPSS) for suitable placement. The single issue requiring discussion is the admissibility of the testimony of a clinical psychologist who had examined appellant during the pendency of the proceedings.

Appellant also argues that the evidence is insufficient to support the judgment. Our examination of the record, satisfies us that the evidence is sufficient, and no purpose would be served in detailing it in this opinion.

The record shows that, over a period of years, appellant had suffered from mental problems, for which she had been a hospital patient on at least three occasions. In April 1971 she had signed a voluntary placement order permitting the DPSS to place the minors in a foster home. In November 1974 appellant notified DPSS that she desired to regain physical custody. At that time neither of the respective fathers was involved in looking after the minors. DPSS thereupon initiated this proceeding under Welfare and Institutions Code section 600 to bring the minors under the control of the juvenile court.

On December 10, 1974, a hearing upon the DPSS petition was held before a referee of the juvenile court, who made a finding that the minors were persons described in section 600. Five witnesses, including appellant and the older boy, testified, but no physician or psychologist was called as a witness.

At the disposition hearing on March 5, 1975, the juvenile court judge determined that the welfare of the minors required that custody be taken from the parents, and ordered that the minors be placed in the care of DPSS for suitable placement.

On March 10 appellant applied for a rehearing, and in a written statement of reasons, asserted, among other things, 'A review of the transcript of this case reveals no evidence whatsoever of mental illness on the part of the mother.'

In April, Mrs. Tetley, placement worker for DPSS, referred appellant to Charles H. Cramer, Ph.D., a clinical psychologist, for psychological evaluation of appellant and the two minors. Mrs. Tetley discussed this with appellant and explained to her that the purpose of the referral was to enable DPSS to make a decision as to whether it would recommend that the children be placed or returned to the appellant's custody. Mrs. Tetley told appellant that in order to determine when it was right for the boys to come home, this evaluation was necessary. ¹

On April 22 Dr. Cramer first saw appellant. Under date of May 13, 1975, he wrote a letter to DPSS stating that upon the basis of his psychological evaluation of appellant and the two boys, he recommended that the boys not be placed in appellant's home, but that there should be 'ongoing weekly psychotherapy' for appellant and the boys on a family basis, and that appellant be permitted to visit the boys twice a month.

Following the April 22 meeting appellant continued to see one of the psychologists in Dr. Cramer's clinic 'on a weekly basis.'

The order granting rehearing was signed April 24 and the rehearing took place before the juvenile court judge on June 9. At that time appellant's counsel objected to any testimony by Dr. Cramer concerning his evaluation upon the ground that it was privileged. ²

The court first received the testimony of Mrs. Tetley and Dr. Cramer (summarized above) as to the circumstances under which the reference was made, following which the court heard argument and sustained the objection.

The county counsel then reopened the examination of Dr. Cramer to elicit his testimony that appellant's mental condition was 'dangerous to the two sons.' He explained he felt there was a very slight chance of her harming the minors physically, but the danger he referred to was emotional and psychological.

The court permitted Dr. Cramer to testify to his diagnosis under the exception contained in Evidence Code section 1024. ³ Dr. Cramer's letter to DPSS, dated May 13, 1975, was also received as an exhibit. Since we have concluded that, for other reasons, the privilege did not forbid disclosure to the juvenile court, it is unnecessary for us to decide whether the 'danger' described by Dr. Cramer is the kind which would make his testimony admissible under section 1024.

Before discussing the applicability of section 1012 we make two preliminary comments.

First, since appellant visited Dr. Cramer for diagnosis and treatment for her own benefit as well as for a report to DPSS, she was unquestionably a patient as defined in Evidence Code section 1011.

Second, Dr. Cramer was not appointed by order of the court, and we therefore need not consider the applicability of Evidence Code section 1017. That section, however, is of interest in that it reflects a policy setting apart examinations made for the information of a court.

The definition of 'confidential communication' in section 1012 includes information disclosed to 'those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted. . . .'

The necessary implication is that an examination may be made in confidence for a particular purpose, and that a communication made for the accomplishment of that purpose neither breaches the confidence nor destroys the privilege. The examination of appellant was of that kind.

The record shows without conflict that appellant understood that she was to be examined by Dr. Cramer to provide a diagnosis or evaluation which would be considered in determining whether she would be given custody of the minors. She knew that the juvenile court judge was the one who would make that decision. Her voluntary participation can only be interpreted as reflecting her consent that Dr. Cramer's evaluation be communicated both to DPSS and to the court for that purpose. Thus, while the information remained confidential as between appellant and the world generally, the transmission of the information to the juvenile court judge was proper in order to accomplish her purpose.

The record does not affirmatively show that her attorney was informed in advance of the referral to Dr. Cramer, or that her attorney advised her concerning it. Nevertheless, the record as a whole supports the inference that she was adequately advised. Her counsel made no contention to the contrary in the juvenile court. Counsel's objection was not that appellant was referred to Dr. Cramer for evaluation and report to DPSS, it was that the result should not be received in evidence by the court.

The specific objection which counsel made to Dr. Cramer's testimony in the juvenile court was on three grounds:

First: counsel argued that the testimony was irrelevant because the examination on April 22, 1975, would not be relevant to appellant's condition when the petition was filed on November 20, 1974. Manifestly, in a disposition hearing, the juvenile court is interested in the present condition of the parent. The relevancy objection has not been pressed upon this appeal.

Second: counsel argued that the examination was confidential and that appellant's consent to a report to DPSS did not take the case out of the privilege. This argument ignores reality. We cannot impute to appellant and her attorney a belief that information given to DPSS as a basis for a recommendation would not be made known to the court by DPSS in support of the recommendation.

Third: counsel argued that 'as a matter of basic due process' the evidence should be excluded because in this situation the parent faces a 'Hobson's choice:' she must accede to the DPSS request for an examination or be faulted for failure to cooperate.

The coercion which counsel decries comes from appellant's unfortunate history and not from any improper pressure by authorities. Upon the basis of her longstanding problems, her demonstrated inability to care for her children during the previous three years and other information, DPSS had found it necessary to commence this proceeding. After hearing the testimony of appellant, her son, and others, a referee had decided that the minors' welfare required that they remain with someone else. When she applied to the juvenile court judge for a rehearing, it was most appropriate that DPSS ask for a professional evaluation to aid the court in its decision. Appellant's willingness can only be interpreted as reasonable and intelligent cooperation with DPSS and the juvenile court, whose function was to protect the minors. The procedure followed was consistent with due process.

The judgment are affirmed.

KINGSLEY, J., concurs.

JEFFERSON, Associate Justice (dissenting).

I dissent.

The major issue before us is the correctness of the juvenile court's ruling that the psychotherapist-patient privilege was not available in the proceedings below to support the claim of privilege made by the appellant-patient in an effort to preclude testimony by Dr. Cramer, her psychotherapist. The juvenile court ruled that the psychotherapist-patient privilege would have been applicable to preclude the testimony of Dr. Cramer had not the Exception to this privilege applied--the exception set forth in Evidence Code section...