State ex rel. Juvenile Dept. of Lincoln County v. Ashley

• Decision Date: 10 October 1991
• Citation: 312 Or. 169,818 P.2d 1270
• Parties: In the Matter of Ryan James Green and Rachael Sarah Kasper, Children. STATE ex rel. JUVENILE DEPARTMENT OF LINCOLN COUNTY and Children's Services Division, Respondent on Review, v. Tammy ASHLEY, Petitioner on Review. CC 86-0195; CA A61020; SC S37156.
• Court: Oregon Supreme Court

Page 1270

818 P.2d 1270

312 Or. 169

In the Matter of Ryan James Green and Rachael Sarah Kasper,

Children.

STATE ex rel. JUVENILE DEPARTMENT OF LINCOLN COUNTY and Children's Services Division, Respondent on Review, v. Tammy ASHLEY, Petitioner on Review.

CC 86-0195; CA A61020; SC S37156.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Oct. 10, 1990.

Decided Oct. 10, 1991.

Michele Longo Eder, of Longo Eder & Lovejoy, Lincoln City, argued the cause and filed the petition for petitioner on review.

John Reuling, Asst. Atty. Gen., Salem, argued the cause and filed the response to the petition for respondent on review. With him on the response were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Michael C. Livingston, Asst. Atty. Gen., Salem.

GRABER, Justice.

The principal issue in this case is whether the statutory psychotherapist-patient privilege applies to communications made during drug counseling. We conclude that the privilege does not apply. For the reasons discussed below, we reverse in part and remand the case to the Court of Appeals for further proceedings.

The state initiated a petition to terminate the parental rights of mother. ORS 419.523 (1987). ¹ At the time of the hearing, on May 10, 1989, mother was incarcerated on forgery convictions. Mother admitted that she is dependent on controlled substances, but she testified that she had not used drugs while incarcerated, that she had participated while incarcerated in what she referred to as "Christian counseling," and that she was committed to remaining drug-free. She said that, when released, she would seek treatment from Teen Challenge, a residential drug treatment program. Mother did not deny that her drug dependency had made her unfit as a parent before her incarceration.

In response, the state argued that mother's short-term abstinence in a highly structured prison environment did not show that she would remain drug-free after her release. The state attempted to introduce evidence about mother's prior, unsuccessful counseling for drug dependency in 1986 and 1987. Specifically, the state sought to introduce mother's drug counseling records and testimony of two of her former drug counselors. Mother objected, asserting that that evidence was inadmissible under OEC 504. OEC 504 reads, in part:

"(2) 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 the patient's mental or emotional condition among the patient, the patient's psychotherapist or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family."

OEC 504(1)(c) defines "psychotherapist" as a person who is:

"(A) Licensed, registered, certified or otherwise authorized under the laws of any state to engage in the diagnosis or treatment of a mental or emotional condition; or

"(B) Reasonably believed by the patient so to be, while so engaged." ²

The trial court excluded the evidence on the basis of OEC 504. At the end of the hearing, the trial court concluded that:

"[Mother] was unfit as a parent by reason of conduct and conditions seriously detrimental to the children up until the time she entered prison in December 1988. However, this court specifically concludes that the state has failed to prove by clear and convincing evidence that such unfitness has not terminated, nor has it proved that it is improbable that the children can be integrated into the home of the parent in the foreseeable future due to conduct or conditions not likely to change." (Emphasis in original.)

The trial court, therefore, dismissed the state's petition to terminate mother's parental rights.

The state appealed. It argued, inter alia, that the trial court erred, because the legislature intended to exclude drug counseling from the privilege. The Court of Appeals held that the psychotherapist-patient privilege does not encompass drug counseling. The court's reasoning was twofold. First, OEC 504, which was based on proposed FRE 504, ³ deleted the part of the federal version that expressly included drug counseling. Second, the Court of Appeals found this passage in the legislative commentary to OEC 504 to be persuasive:

"The Legislative Assembly intends to exclude, from the definition of 'psychotherapist,' a person who is specifically consulted for a problem of drug and alcohol dependency."

State ex rel. Juv. Dept. v. Ashley, 101 Or.App. 268, 271, 790 P.2d 547 (1990).

The Court of Appeals then considered mother's argument that, even if the privilege does not apply, exclusion of the evidence was harmless error. The court disagreed, reasoning that "the excluded evidence could contain information crucial to" determining whether mother "is capable of recovering from her dependency in the foreseeable future, which would allow the reintegration of her children into her home." State ex rel Juv. Dept. v. Ashley, supra, 101 Or.App. at 272, 790 P.2d 547. The court reversed the judgment of the circuit court and remanded the case. Ibid.

On review, mother disputes both the Court of Appeals' reading of OEC 504 and its disposition of the case. We will consider each of those issues in turn.

With respect to the psychotherapist-patient privilege, mother argues that the Court of Appeals misinterpreted OEC 504. She challenges in particular the court's reliance on the legislative commentary, which, she contends, does not accurately reflect the intent of the legislature.

As a threshold matter, we observe that the Oregon Evidence Code applies generally to all actions, suits, and proceedings in circuit courts. OEC 101(2). OEC 503 and OEC 504, relating to privileges, apply at all stages of all such actions, suits, and proceedings. OEC 101(3). A proceeding to terminate parental rights, ORS 419.525, is a proceeding within the meaning of the Code. See State ex rel. Juv. Dept. v. Martin, 271 Or. 603, 605, 533 P.2d 780 (1975) (psychiatrist-patient privilege, then provided by ORS 44.040(1)(d) and (2), applied in proceeding to terminate parental rights). OEC 504 applies, then, to this case.

In interpreting OEC 504, our task is to discern the intent of the legislature. ORS 174.020. We begin with the words of the statute. ORS 174.010; Whipple v. Howser, 291 Or. 475, 479, 632 P.2d 782 (1981).

The pertinent passages in OEC 504(1)(c) and (2) provide that the privilege applies to diagnosis or treatment of a "mental or emotional condition." The phrase "mental or emotional condition" neither unambiguously includes nor unambiguously excludes drug dependency. "Mental or emotional condition" may mean quite different things to a psychiatrist, a psychologist, an internist, a research physician, a social worker, a patient, a member of the clergy, a legislator, and a judge. ⁴ Cf. Mattiza v Foster, 311 Or. 1, 4, 803 P.2d 723 (1991) (the term "bad faith" is not self-explanatory). The intent of the legislature is not clear from the terms and context of the statute. We turn, therefore, to legislative history.

The Advisory Committee on the Oregon Evidence Code (Advisory Committee) proposed a version of OEC 504 that defined "mental or emotional condition" expressly to include "drug addiction":

"A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications in a civil action, suit or proceeding, made for the purposes of diagnosis or treatment of the patient's mental, physical or emotional condition, including drug addiction, among the patient, the patient's psychotherapist, regular physician or surgeon or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist or regular physician or surgeon." Proposed OEC Report, Interim Committee on the Judiciary, December 1980, p 76 ("Proposed OEC Report") (emphasis added).

The proposed definitions of psychotherapist and physician likewise expressly included certain persons diagnosing or treating "drug addiction":

"(c) 'Psychotherapist' means:

"(A) A person authorized to practice medicine in any state or nation, or reasonably believed by the patients so to be, while engaged in the diagnosis or treatment of a mental or emotional condition, including drug addiction; or

"(B) A person licensed or certified as a psychologist under the laws of any state or nation, while similarly engaged.

"(d) 'Regular physician or surgeon' means a person authorized and licensed or certified to practice medicine in any state or nation, or reasonably believed by the patients so to be, while engaged in the diagnosis or treatment of a mental, emotional or physical condition, including drug addiction." Id. at 76 (emphasis added).

The Advisory Committee's commentary stated that the committee included drug addiction to encourage drug-dependent persons to seek assistance. Id. at 78. The Advisory Committee had based its version of the privilege on proposed FRE 504. Id. at 77. Proposed FRE 504 expressly included drug addiction as a mental or emotional condition:

"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, including drug treatment, among himself, his psychotherapist or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family." Proposed FRE 504 (emphasis added).

Psychotherapist was defined as:

"[A] person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be, while engaged in the diagnosis or treatment of a mental or emotional condition, including drug addiction[.]" Proposed FRE 504(a)(2) (emphasis added).

When the Interim Joint Committee on the Judiciary (Interim Committee) designed its proposed...