People in Interest of D. K.

• Decision Date: 22 September 1976
• Docket Number: 11792,Nos. 11712,s. 11712
• Citation: 245 N.W.2d 644
• Parties: The PEOPLE of the State of South Dakota in the Interest of D.K., a child, and concerning W. L. and B. K.
• Court: South Dakota Supreme Court

Page 644

245 N.W.2d 644

The PEOPLE of the State of South Dakota in the Interest of

D.K., a child, and concerning W. L. and B. K.

Nos. 11712, 11792.

Supreme Court of South Dakota.

Argued May 26, 1976.

Decided Sept. 22, 1976.

J. Preston Ruddell, Jr., Rapid City, Michael A. Wolff, St. Louis, Mo., for appellant B. K., Mother of D. K.

W. H. Engberg, Asst. Atty. Gen., Pierre, for respondent State of South Dakota; William J. Janklow, Atty. Gen., Pierre, on brief.

DUNN, Chief Justice (on reassignment).

These appeals arise from an order adjudicating D. K. to be a neglected and dependent child as defined by SDCL 26--8--6 and from a dispositional order which temporarily deprived the mother of the custody of her child based upon that adjudication. Finding the trial court's conclusion supported by a preponderance of the evidence, we affirm.

The difficulties experienced by this infant in his relatively short lifetime can be recounted only with sympathy. D. K. was born August 17, 1974, five weeks prematurely. He was released to his mother two weeks later. His 24--year-old mother receives approximately $200 a month in ADC (Aid to Dependent Children) benefits as her sole support; she also receives food stamps. In addition to D.K., she has a daughter who is approximately eighteen months older than D.K. D.K.'s father does not live with them and provides no support or assistance. As a result, the mother must raise these two small children herself.

On September 24, 1974, D.K. was admitted to the hospital. His mother complained that he was suffering from a cold and that he had been vomiting. The doctor discovered on September 28th that the child had lobar emphysema, a congenital lung disease. D. K. was flown to Denver where he underwent surgery to remove part of the left lung (left upper lobectomy). Late in October, the child was again at home with his mother.

On November 5, 1974, D. K. was brought to the hospital, this time by a public health nurse. He remained in the hospital with an upper respiratory infection until the 14th of November when he was taken into custody by the Division of Social Welfare. A state social worker had filed a report in district county court seeking a preliminary investigation to determine whether D.K. was a dependent or neglected child. The court entered on order placing D.K. in the custody of the Division of Social Welfare on November 14, 1974, but dismissed that order for want of jurisdiction after a hearing on December 4, 1974. D. K. was returned to the custody of his mother on December 5, 1974.

On December 9, 1974, a petition of dependency was filed in district county court by the Pennington County State's Attorney. A hearing was set for December 20, 1974, but was never conducted. The state filed and was granted a motion to dismiss on January 20, 1975.

In the meantime, D.K. was again placed in the hospital, this time with a cold. D. K. was brought in by his mother on December 13, 1974, and remained in the hospital until December 26th with bronchiolitis. To add to this child's problems, it was discovered that he was allergic to certain foods, among them cow's milk. During this stay, the doctor prescribed a special diet of soybean milk formula.

On January 24, 1975, D.K.'s mother brought him to the hospital with a severe case of diaper rash. Shortly after admission, he developed bronchitis. He was released to his mother on January 30th.

On February 14, 1975, D.K. was hospitalized for bronchitis and bronchiolitis after his mother became concerned by his coughing and wheezing. He was discharged on March 10th, but on March 12th he was readmitted because his mother complained that he could not keep his food down. The diagnosis was mild gastritis, although that was not confirmed during the hospitalization. On March 17, 1975, D.K. was released to the custody of the Pennington County Sheriff and a notification of temporary custody was served on the mother at that time. A hearing on the matter of temporary custody was held on March 19, 1975; on March 31st an order was entered Nunc pro tunc March 19th, giving temporary custody of D.K. to the Division of Social Welfare.

A petition of dependency was filed on March 25, 1975, and the matter was heard on April 3 and 5, 1975, in the Juvenile Division of the Seventh Judicial Circuit. On June 11, 1975, an adjudicatory order was entered finding D. K. to be a dependent and neglected child as provided in SDCL 26--8--6. A dispositional order was entered Nunc pro tunc September 23, 1975, placing D. K. in the temporary custody of the state.

It is from these orders that the mother appeals. The first assignment of error is that there is insufficient evidence to justify a finding that the child was neglected or dependent under SDCL 26--8--6. Before we deal with that assignment, however, it is necessary to decide exactly what evidence was properly before the trial court when it reached its decision.

Appellant objected to the introduction of any evidence concerning events occurring prior to December 4, 1974. Essentially, it is appellant's position that the issue of 'neglected or dependent child' was litigated on December 4, 1974, and that under the doctrine of a collateral estoppel the state cannot relitigate that same issue.

'The rule of collateral estoppel is 'simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." United States v. Kills Plenty, 1972, 8 Cir., 466 F.2d 240, 243, quoting Ashe v. Swenson, 1970, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469.

After careful examination of the order involved, it is evident that the issue of 'neglected or dependent child' was not litigated on December 4th. The order resulted from a hearing on appellant's motion to dismiss those portions of the November 14, 1974 order which deprived the mother of the custody of her child. The court in its December 4th order agreed that it was without jurisdiction under the authority cited (SDCL 26--8--1.1) to deprive the mother of custody and ordered the child returned to its mother.

A finding of 'neglected or dependent child' can come only as the result of an adjudicatory hearing based on a petition of dependency. SDCL 26--8--1(1); SDCL 26--8--22; SDCL 26--8--22.5. No such petition was before the court; it was without authority to decide the issue at that time. The question considered was the jurisdiction to deprive the mother of custody and the court concluded it had none based upon the statute cited as authority in the order. We therefore uphold the ruling of the trial court that evidence of events prior to December 4, 1974, was admissible.

Appellant also contends that the testimony of the doctor and nurses, as well as the admission of hospital records as exhibits, was not admissible because of the physician-patient privilege. The privilege is a creature of statute. SDCL 19--2--3 provides:

'A physician or surgeon, or other regular practitioner of the healing art, cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient; provided, however, that, in any civil action or proceeding or quasi-judicial administrative proceeding, whenever the physical or mental health of any person is in issue, such privilege hereunder shall conclusively be deemed to be waived for the purpose of discovery under chapter 15--6. However, unless otherwise agreed between the parties no such discovery shall be conducted prior to ninety days before the commencement of a term of court at which the case may be on the calendar for trial.'

Appellant contends that it was error to allow this evidence in the record because there was no waiver of the privilege by the mother. In the alternative, appellant contends that should the mother be unable to claim the privilege there is still an absence of waiver by the child or anyone on his behalf. The trial court found that there could be no claim of privilege in this case because of SDCL 26--10--10 ¹ and 26--10--15. ² While we agree that the evidence was admissible, we do not agree that admissibility is predicated on those statutes.

To fall within the ambit of SDCL 26--10--10 as then in effect, it was necessary that the child suffer from starvation or serious physical injury because of abuse or wilful neglect. The evidence does not support the trial court's conclusion that the privilege was waived under this statute. Appellant argues that absent waiver under this statute there has been no waiver by anyone allowed to do so that justifies admitting the testimony. We disagree.

'The physician-patient privilege expresses a long-standing policy to encourage uninhibited communication between a physician and his patient.' Schafeer v. Spicer, 1974, S.D., 215 N.W.2d 134, 138. It is a privilege that seeks to insure the free flow of health care, absent any fears on the patient's part that anything he says might later be used against him. It is a privilege that is personal to the patient. In the case of an infant incapable of intelligent waiver, it is a privilege that must be claimed for him. Cory v. Bolton, 1900, 31 Misc. 138, 63 N.Y.S. 915. It seems only logical that the parents are the proper parties to assert the privilege for the infant under normal circumstances, but when it is the conduct of those same parents that is in issue, it would be an anomalous result to allow them to exercise the privilege. It would be contrary to the interest of the child and the state to allow them to do so. State v. Goff, 1972, 86 S.D. 354, 195 N.W.2d 521.

Although it was within the power of the court to appoint counsel to represent the interests of the child in this case, SDCL 26--8--22.2, it is our opinion that it is also within the inherent power of the court itself to protect the interests of the child in this type of...