Herendeen v. State

• Decision Date: 09 June 2004
• Docket Number: No. A04A0033.,A04A0033.
• Citation: 601 S.E.2d 372,268 Ga. App. 113
• Parties: HERENDEEN et al. v. The STATE.
• Court: Georgia Court of Appeals

601 S.E.2d 372

268 Ga. App. 113

HERENDEEN et al. v. The STATE.

No. A04A0033.

Court of Appeals of Georgia.

June 9, 2004.

Reconsideration Dismissed June 28, 2004.

Certiorari Granted September 8, 2004.

James Allison, Douglasville, for Appellant.

David McDade, Dist. Atty., James Barker, Pamela Brophy, Asst. Dist. Attys., Jennifer McLeod, Edwards, McLeod & Money, P.C., Douglasville, for Appellee.

SMITH, Chief Judge.

This appeal concerns a subpoena for records served on two licensed psychologists, Dr. Dennis Herendeen and Dr. Samuel Haskell, and The Psychology Center, a professional corporation. We granted this interlocutory appeal to consider the scope of the psychologist-patient privilege, OCGA § 43-39-16. Here, we apply it to an attempted production by a defendant in a criminal proceeding arising out of facts developed in a Department of Family and Children Services (DFACS) investigation and deprivation petition. In light of the Georgia Supreme Court's recent holding in Lucas v. State, 274 Ga. 640, 645(8), 555 S.E.2d 440 (2001), we conclude that the trial court's order was too broad in its scope and must be reversed in part. However, we affirm that portion of the trial court's order directing that the documents be produced for in camera inspection, and we remand for the proper application of the privilege to these records.

William Christopher Payne has been charged with multiple counts of aggravated child molestation, child molestation, and cruelty to children. His wife, Regina Lynn Payne, has been charged with cruelty to children. After the couple's arrest, the daughter, who was the alleged victim, and the son were placed in foster care; the son was later returned to the custody of the mother. It appears from the record that both the DFACS case plan and the juvenile court directed that the children receive therapy, and appellants provided at least some "on-going family counseling," including joint therapy sessions, with the mother and daughter.¹ The record reflects that appellants have also made recommendations to the juvenile court with regard to custody. By subpoena, the State sought from appellants "all records and transcripts on" the couple's two children. Appellants responded with a motion to quash on the basis of the psychologist-patient privilege. The trial court found that the records were not privileged and ordered their production to the court for an in camera inspection; the trial court determined that the records would be produced to the State and grand jury once any portion relating to the mother's therapy was redacted.

The records of psychologists and psychiatrists are subject to similar privileges, OCGA §§ 24-9-21(5), (6); 43-39-16, and Georgia courts have applied the same analysis to both. See Wiles v. Wiles, 264 Ga. 594, 595(1), 448 S.E.2d 681 (1994); Christenson v. State, 261 Ga. 80, 84(2)(d), 402 S.E.2d 41 (1991). "Before a person can invoke the confidentiality privilege under OCGA § 24-9-21(5), she must show that the requisite psychologist-patient or psychiatrist-patient relationship existed to the extent that treatment was given or contemplated. [Cit.]" Manning v. State, 231 Ga.App. 584(1), 499 S.E.2d 650 (1998).

One who visits a psychiatrist "on her own volition for the purpose of gaining professional psychiatric assistance ... creat[es] the requisite confidential relationship of psychiatrist and patient." Kimble v. Kimble, 240 Ga. 100, 101(1), 239 S.E.2d 676 (1977). In contrast, "where the psychiatrist or psychologist is appointed by the court to conduct a preliminary examination of the defendant, the psychiatrist or psychologist is a witness for the court, and the privilege does not apply. [Cit.]" Christenson, supra, 261 Ga. at 84, 402 S.E.2d 41. See also Massey v. State, 226 Ga. 703, 704(4), 177 S.E.2d 79 (1970). Many decisions make this distinction by stating that when an individual is evaluated pursuant to a court order or DFACS recommendation and receives no treatment, the privilege does not apply. Johnson v. State, 255 Ga.App. 544, 546, 566 S.E.2d 353 (2002); In the Interest of L.H., 236 Ga.App. 132, 136-137(3), 511 S.E.2d 253 (1999); In the Interest of M.N.H., 237 Ga.App. 471, 475(4), 517 S.E.2d 344 (1999); In the Interest of R.M., 194 Ga.App. 888, 889(1), 392 S.E.2d 13 (1990).

The trial court and the State have interpreted these decisions as requiring both voluntary consultation and treatment before the privilege can be asserted. But we have noted:

It may be irrelevant whether a patient sought out a psychiatrist" on [his] own volition"; and a patient who did not originally seek psychiatric treatment for himself may nevertheless end up contemplating or being given assistance by the psychiatrist. The standard established in Massey, supra, is the test: the relation exists "to the extent that treatment was given or contemplated."

Mrozinski v. Pogue, 205 Ga.App. 731, 733(1), 423 S.E.2d 405 (1992). Significantly, the Georgia Supreme Court explicitly rejected the State's analysis in Lucas, supra, 274 Ga. 640, 555 S.E.2d 440. There, a criminal defendant sought the records of his co-defendant's psychiatric treatment, received while the co-defendant was incarcerated. After an in camera inspection, the trial court refused to disclose them. Lucas argued, as the State does here, that the records were not prepared in the course of voluntary treatment and therefore were not subject to the psychiatric privilege. The Supreme Court disagreed, holding that "because our review of the records indicates that they were prepared in the course of treatment, we conclude...