State ex rel. Human Services Dept., In Matter of Termination of Parental Rights of Sherry C. and John M., 12444

• Decision Date: 26 November 1991
• Docket Number: No. 12444,12444
• Citation: 113 N.M. 201,1991 NMCA 137,824 P.2d 341
• Parties: STATE of New Mexico, ex rel. HUMAN SERVICES DEPARTMENT, IN the MATTER OF the TERMINATION OF PARENTAL RIGHTS OF SHERRY C. AND JOHN M., Respondents, With Respect to the Minor Children, Jane Doe, John Doe, and Mary Doe.
• Court: Court of Appeals of New Mexico

Page 341

824 P.2d 341

113 N.M. 201

STATE of New Mexico, ex rel. HUMAN SERVICES DEPARTMENT, IN the MATTER OF the TERMINATION OF PARENTAL RIGHTS OF SHERRY C. AND JOHN M., Respondents, With Respect to the Minor Children, Jane Doe, John Doe, and Mary Doe.

No. 12444.

Court of Appeals of New Mexico.

Nov. 26, 1991.

[113 N.M. 203] Richard Griscom, General Counsel, Bridget A. Jacober, Children's Court Atty., New Mexico Human Services Dept., Santa Fe, for Human Services Dept.

Michael L. Gregory, Las Vegas, for appellant Sherry C.

Arthur L. Bustos, Las Vegas, for minor children.

E. James Hardgrave, Las Vegas, for appellee John M.

OPINION

MINZNER, Judge.

Mother appeals the children's court's termination of her parental rights. Father's appeal was previously dismissed while this case was assigned to the summary calendar, and he is not a party to this appeal. Mother contends on appeal that the children's court erred in allowing testimony from Dr. Herman Brock, mother's treating psychologist, because the information was protected under the psychotherapist-patient privilege contained in SCRA 1986, 11-504. The Human Services Department (HSD) argues that mother failed to preserve the issues argued on appeal. We agree with HSD that mother failed to preserve for appellate review all of the issues that her appeal involves. We address her issues, however, to the extent she fairly invoked a ruling by the children's court and to explain why we do not find it necessary to address the remaining issues. We affirm.

BACKGROUND.

Mother is the natural parent of three children, to whom we refer in this opinion as Jane, John, and Mary Doe. Jane was born in 1984 and at the time of the termination proceeding was six years old. John was born in 1987 and was three years old at the time of the proceeding. Mary Doe, whom mother never had in her custody, was born in 1988 and was two years old when mother's parental rights were terminated.

In August 1985, Jane was removed from her mother's custody and placed in foster care by HSD after HSD received reports that Jane was abused and neglected by mother. After mother and the child's father received counseling and parenting training, Jane was returned to their care in late 1986.

In May 1987, when John was approximately four months old, HSD received multiple referrals that both children were being abused and neglected. Jane and John were removed from their parents' care in June 1987. In January 1988, the children's court determined that the two children were abused and neglected. The court stated in the judgment that mother suffered from the developmental disability of mental retardation and that she was not capable of independent parenting. The court's findings were in part based on psychological evaluations conducted by Dr. Edward Siegel pursuant to the children's court's order. The court determined that, because of mother's limitations, she was not able to provide adequate care for the children. The court also found that father was limited in his ability to care for the children due to limited intellectual capacity and emotional difficulties. Physical and legal custody of the children remained with HSD.

HSD sought reunification of the family through a treatment plan that required mother and father to attend parenting classes and counseling sessions. HSD also provided homemaker assistance in basic living skills. According to HSD, the treatment plan was unsuccessful due to the parents' lack of cooperation and the difficulty they experienced in learning new skills.

In August 1988, while the other children were still in foster care, mother gave birth to Mary. HSD immediately filed an abuse and neglect petition regarding Mary, and she too was placed in foster care. Mother and father moved to Portales, New Mexico, in September 1988 to be near extended family members and to find suitable employment. The children remained in foster care in Las Vegas.

In September, pursuant to a custody order placing Mary in HSD's care, the court ordered that both mother and father undergo "such psychological diagnostic evaluations and assessments as, in the discretion of the Department, are deemed necessary." A home study was also ordered at that time for the purpose of determining the parents' suitability to care for Mary. In December 1988, a judgment was entered adjudicating Mary to be a neglected child based in part on admissions by mother and father. She was placed in HSD's care, and HSD was instructed to find foster care for all three children.

The judgment also ordered that "the Respondents continue to receive treatment from Psychologist Herman Brock." In April 1989, the court approved a treatment plan, which required the respondents to "attend parenting classes with Dr. Brock" and "participate in family therapy to help them with their identified problems." The court also ordered HSD to "make a written report to the Court and counsel regarding the progress with respect to the implementation of this Treatment Plan[.]"

HSD filed a petition to terminate both mother's and father's parental rights in July 1989. Trial on the petition occurred in December 1989. Over mother's objection, Dr. Brock testified about his evaluation and treatment of both parents. Dr. Brock stated that he was asked by HSD to conduct a psychological evaluation of both parents, which he completed in October 1988. Subsequently, he conducted parenting training and counseling for both parents. Dr. Brock diagnosed mother as being at borderline intellectual functioning with no associated personality disorder. He testified that mother's parenting skills would not improve due to her limited abilities. According to Dr. Brock, mother was unable to generalize and apply the information she obtained from counseling and parenting classes. Dr. Brock stated that he knew that mother was not learning what she should when he observed her on a home visit with the children. During the visit, mother ignored the youngest child, fed the children what she later determined was spoiled bologna, and tried to feed the youngest child portions of meat that were too large for the child to ingest. In Dr. Brock's view, these incidents showed mother's continued inability to make sound parental judgments.

Dr. Brock indicated that he acquired the information on which his testimony was based in the course of rendering services arising under the court's order in the earlier abuse and neglect proceeding, and that he understood he was to assist father and mother to improve their parenting skills and then to report back to the court that they had been successful. Finally, he testified he had advised father and mother that he intended to report to the court.

Mother objected to Dr. Brock's oral testimony. She argued that the information was not admissible under Rule 11-504(D)(2) because the evaluation had been ordered in the earlier abuse and neglect proceeding rather than the present termination of parental rights proceeding, and therefore the court-ordered examination exception to the psychotherapist-patient privilege was inapplicable. The children's court judge found that none of the information that mother provided Dr. Brock was confidential or privileged.

I.

Rule 11-504(B) provides in part that "[a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of his mental or emotional condition[.]" One of the exceptions to the privilege is found in Subsection (D)(2) of the rule. Specifically, "[i]f the judge orders an examination of the mental or emotional condition of the patient, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered[.]" In the present case, the children's court ordered mother to be psychologically examined and evaluated regarding her parenting ability.

Mother argued at trial that because the order was entered in the abuse and neglect proceeding rather than the parental termination proceeding, Dr. Brock's testimony regarding the psychological evaluations he conducted was not admissible pursuant to Rule 11-504(D)(2). She has not renewed that argument on appeal, and we do not address it here.

The question raised on appeal is whether Dr. Brock's testimony regarding his psychological treatment of mother, rather than his psychological evaluation of her, was admissible at trial. That question raises a policy issue, as well as the narrower issue on which the children's court based its decision admitting the evidence.

When the present proceeding was filed and at the time of the hearing, the only limitation in New Mexico on the psychotherapist-patient privilege was Rule 11-504(D)(2), which excluded from the privilege the results of court-ordered psychological examinations. Our legislature has not enacted statutory exceptions to the privilege in cases of child neglect, as have other jurisdictions. We do note that effective July 1, 1990, Rule 11-504 was amended to add another exception to the psychotherapist-patient privilege. See SCRA 1986, 11-504(D)(4) (Cum.Supp.1991) (a patient's communications relevant to any information that a physician or psychotherapist is required by statute to report to a public employee or a state agency are no longer confidential). At the time the termination of parental rights proceeding was held in the present case, the new exception to Rule 11-504 was not in effect, and it is unnecessary for the purpose of this case to interpret the meaning of the new rule. There is diversity in the approaches taken elsewhere.

In some jurisdictions, statutes have been enacted that make the child's interest in abuse and neglect cases paramount. See generally A. Haralambie, Handling Child Custody Cases Secs. 12.15, 13.26 (1983) (discussing state statutes abrogating certain testimonial privileges in cases involving abuse and neglect and...