L.A.N. v. L.M.B.

• Decision Date: 22 January 2013
• Docket Number: No. 11SC529.,11SC529.
• Citation: 292 P.3d 942
• Parties: L.A.N., a/k/a L.A.C., by and through her Guardian ad Litem, and The People of the State of Colorado, In the Interest of Minor Child: L.A.N., a/k/a L.A.C., Petitioners v. L.M.B., Respondent.
• Court: Colorado Supreme Court

292 P.3d 942

L.A.N., a/k/a L.A.C., by and through her Guardian ad Litem, and The People of the State of Colorado, In the Interest of Minor Child: L.A.N., a/k/a L.A.C., Petitioners

v.L.M.B., Respondent.

No. 11SC529.

Supreme Court of Colorado, En Banc.

Jan. 22, 2013.

Denver Department of Human Services, Douglas J. Friednash, Denver City Attorney, Laura Grzetic Eibsen, Assistant City Attorney, Denver, Colorado, Attorneys for Petitioner the People of the State of Colorado.

Packer Law Firm, LLC, Amy J. Packer, Littleton, Colorado, Attorneys for Petitioner Guardian ad Litem.

Pickard & Associates, P.C., Joe Pickard, Kerry Simpson, Justin Ross, Littleton, Colorado, Attorneys for Respondent.

Colorado Office of the Child's Representative, Sheri M. Danz, Amanda Donnelly, Denver, Colorado, Attorneys for Amicus Curiae Office of the Child's Representative.

Justice RICE delivered the Opinion of the Court.

¶ 1 In this parental rights termination case, we hold that the guardian ad litem (“GAL”) is in the best position to waive the child's psychotherapist-patient privilege in a dependency and neglect proceeding when: (1) the child is too young or otherwise incompetent to hold the privilege; (2) the child's interests are adverse to those of his or her parent(s); and (3) section 19–3–311, C.R.S. (2012), does not abrogate the privilege. We therefore affirm the court of appeals' holding that the GAL in this case held the child's (“L.A.N.'s”) psychotherapist-patient privilege.

¶ 2 In addition, we hold that the court of appeals correctly determined that the GAL partially waived L.A.N.'s psychotherapist-patient privilege when she disseminated a letter from the child's therapist to the juvenile court and to all of the parties. Nevertheless, we disagree with the procedure the court of appeals described for determining the scope of that waiver. Therefore, we remand to the court of appeals with instructions to remand to the juvenile court to determine the scope of the waiver in accordance with this opinion.

I. Facts and Procedural History

¶ 3 Children's Hospital staff contacted the Denver Department of Human Services (“DDHS”) on December 9, 2008, after then seven-year-old L.A.N.'s mother, L.M.B. (“Mother”), brought L.A.N. to the hospital as a result of L.A.N.'s out-of-control behavior and suicidal statements. Mother attempted to flee with L.A.N. when hospital staff told Mother that they were considering transferring L.A.N. to a mental health facility.

¶ 4 On December 12, 2008, DDHS filed a petition in dependency and neglect regarding L.A.N. in the Denver juvenile court. The juvenile court appointed a GAL to represent L.A.N.'s best interests. DDHS placed L.A.N. in the care of her aunt while the action remained pending. After Mother made a no-fault admission to the dependency and neglect petition, the juvenile court adjudicated L.A.N. dependent and neglected as to Mother on March 11, 2009. A month later, the juvenile court adopted a treatment plan for Mother that required her to, among other things, secure lawful income, secure housing, and undergo psychological treatment and evaluation.

¶ 5 L.A.N. remained with her aunt after the juvenile court's March 2009 adjudication. The aunt hired a licensed professional counselor, Kris Newland, to provide therapy for L.A.N. beginning in April 2009. L.A.N. continued in therapy with Newland after moving into her grandparents' home later that year.

¶ 6 On February 18, 2010, Newland wrote a letter to the GAL assessing L.A.N.'s progress. The letter contained a number of Newland's specific observations from her therapy sessions with L.A.N. For example, Newland expressed “[c]oncern about [the parent's] level of anger that I have heard about from [L.A.N.] and witnessed myself in the courtroom after the court hearings.” She additionally quoted L.A.N. directly several times, including statements such as, “Mommy hurts bodies,” and “I'm fine with visits at Mommy's house as long as I don't have to go alone.”

¶ 7 Without expressly waiving or mentioning the psychotherapist-patient privilege contained in subsection 13–90–107(1)(g), C.R.S. (2012), the GAL distributed Newland's letter to the juvenile court and to all of the parties. On June 17, 2010, DDHS moved the juvenile court to terminate the parent-child relationship between Mother and L.A.N. on account of Mother's alleged failure to adequately comply with her court-prescribed treatment plan. On June 28, 2010, Mother's counsel subpoenaed Newland to appear for a deposition and to produce her entire case file in connection with the termination motion. Newland's counsel filed a motion to quash the subpoena and stated therein that the therapist-patient privilege of subsection 13–90–107(1)(g) protected Newland's records from disclosure.

¶ 8 After a hearing on the motion, the juvenile court granted the motion to quash as to the records, but denied it as to the deposition. In both written and oral findings, the juvenile court determined that neither L.A.N. nor Mother could waive L.A.N.'s psychotherapist-patient privilege. Instead, it found that the juvenile court itself had the authority to authorize a limited waiver of L.A.N.'s privilege because the court allowed and encouraged Newland to report to the court regarding L.A.N.'s therapy. The juvenile court balanced the risks of disclosing Newland's records—and thereby damaging the therapeutic relationship between Newland and L.A.N.—against Mother's interest in putting on a sufficient case to protect her parental rights. It concluded that Mother's counsel could depose Newland, but that Newland should not disclose her notes, video tapes, or personal records because doing so would be “clearly beyond the scope of any limited waiver” of L.A.N.'s privilege. Mother's counsel deposed Newland on August 13, 2010.

¶ 9 The case proceeded to a trial before the juvenile court. Newland testified in her expert capacity as L.A.N.'s therapist. During cross-examination, Mother's counsel again requested that the juvenile court order Newland to produce her case file. Reiterating the findings from its July 15, 2010, order that protected the file, the juvenile court once more determined that Newland's disclosure of information to assist the court constituted a limited waiver of L.A.N.'s therapist-patient privilege, but that this waiver did not include the documents Mother requested.

¶ 10 On November 3, 2010, the juvenile court terminated the parent-child relationship between Mother and L.A.N. Mother appealed the termination order to the court of appeals on several grounds, including that the juvenile court erred when it denied Mother's request for production of Newland's case file. The court of appeals determined that Mother was entitled to at least a portion of Newland's file because the GAL partially waived L.A.N.'s psychotherapist-patient privilege when she disseminated Newland's letter. People ex rel. L.A.N., ––– P.3d ––––, ––––, 2011 WL 2650589 (Colo.App.2011). As such, the court of appeals opined that the juvenile court's denial of Mother's access to Newland's file deprived Mother of a fundamentally fair opportunity to protect her parental rights. Id. It therefore reversed the order of the juvenile court. Id. at ––––.

¶ 11 The GAL and DDHS petitioned this Court for certiorari review of the court of appeals' opinion. We granted certiorari to determine: (1) whether a GAL in a dependency and neglect proceeding can waive the child's psychotherapist-patient privilege; and (2) whether the court of appeals erred in determining that L.A.N.'s psychotherapist-patient privilege was waived with respect to certain materials in Newland's file.

II. Analysis

¶ 12 We first describe the psychotherapist-patient privilege and discuss its application in dependency and neglect cases. Next, we explain why the GAL holds the child's privilege in a dependency and neglect case when neither the child nor the child's parent(s) have such authority. Finally, we outline the privilege log and balancing procedures that the juvenile court shall apply on remand to determine the scope of the GAL's waiver of L.A.N.'s psychotherapist-patient privilege.

A. The Therapist–Patient Privilege in Dependency and Neglect Proceedings

¶ 13 We first review subsection 13–90–107(1)(g) and the dependency and neglect provisions of the Children's Code, sections 19–3–100.5 to 19–3–703, C.R.S. (2012), de novo to determine how the psychotherapist-patient privilege applies in the dependency and neglect context. See Klinger v. Adams Cnty. Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo.2006) (statutory interpretation presents a question of law that this Court reviews de novo).

¶ 14 The psychotherapist-patient privilege statute states that a psychotherapist “shall not be examined without the consent of the [patient] as to any communication made by the [patient] to the [therapist].” § 13–90–107(1)(g). The purpose of this provision is to preserve the “atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears” necessary for effective psychotherapy. Jaffee v. Redmond, 518 U.S. 1, 10, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996); see People v. Sisneros, 55 P.3d 797, 800 (Colo.2002); Bond v. Dist. Court, 682 P.2d 33, 38 (Colo.1984). Juvenile patients in particular require the privacy protection provided by the psychotherapist-patient privilege due to the sensitive nature of children's mental health care. See Dill v. People, 927 P.2d 1315, 1321 (Colo.1996) (describing the importance of the psychotherapist-patient privilege in the child sexual assault context).

¶ 15 The psychotherapist-patient privilege shields communications between the therapist and the patient from disclosure and also prevents pretrial discovery of files or records derived from or created during the course of ongoing mental health treatment. Sisneros, 55 P.3d at 800;Dill, 927 P.2d at 1321. If not otherwise abrogated by statute, the...