State ex rel. Juvenile Dept. of Clatsop County v. Martin

• Decision Date: 01 April 1975
• Citation: 533 P.2d 780,271 Or. 603
• Parties: In the Matter of Christopher and Damon Martin, Minor children. STATE ex rel. JUVENILE DEPARTMENT OF CLATSOP COUNTY, et al., Respondent, v. Clyde Theodore MARTIN, Petitioner.
• Court: Oregon Supreme Court

Page 780

533 P.2d 780

271 Or. 603

In the Matter of Christopher and Damon Martin, Minor children.

STATE ex rel. JUVENILE DEPARTMENT OF CLATSOP COUNTY, et al., Respondent, v. Clyde Theodore MARTIN, Petitioner.

Supreme Court of Oregon, In Banc.

Argued and Submitted Feb. 7, 1975.

Decided April 1, 1975.

Hayes P. Lavis, Astoria, argued the cause for petitioner. On the briefs were Bradley C. Grove and Anderson, Fulton, Lavis & Van Thiel, Astoria.

William T. Park, Deputy Dist. Atty., Astoria, argued the cause for respondent. With him on the brief was Frank J. Coumont, Dist. Atty., Astoria.

TONGUE, Justice.

This is a proceeding to terminate parental rights. Defendant appealed to the Court of Appeals from an order terminating his parental rights in his two children, aged three and seven. The Court of Appeals affirmed that order. Or.App., 99 Adv.Sh. 1694, 526 P.2d 647 (1974). We granted defendant's petition for review because of our concern over the proper disposition of two questions: (1) Whether the psychiatrist-patient privilege may be asserted by defendant in proceedings to terminate parental rights; and (2) Whether the trial court could take judicial notice of the petitioner's prior commitments to the Oregon State Hospital or base its decision in part on personal knowledge previously acquired about petitioner's family history and background.

The Court of Appeals held that the psychiatrist-patient privilege may be asserted by a defendant in a proceeding to terminate parental rights. Although that question is not without difficulty, after a review of the authorities we find that we are in at least general agreement with the decision by the Court of Appeals and in its careful and thorough analysis of the difficult problems which must be considered in any proper decision of that question. For that reason, we believe that further discussion of that question by this court at this time would serve no useful purpose, except for the following comments: (1) Although a proceeding to terminate parental rights under ORS 419.525 may be sui generis for some purposes, as held by the Court of Appeals, we believe that for purposes of evidence it is essentially a 'civil proceeding,' so as to be subject to the provisions for physician-patient privilege, as set forth in ORS 44.040(1)(d), ¹ and (2) We find that most of the recent authorities, including some of those which are critical of the physician-patient privilege, support the need for a privilege in communications between a psychotherapist and his patient, as involved in this case, ² and regardless of whether the psychotherapist is privately employed or is employed by the state. ³

In this case, however, the Court of Appeals also held that 'there was 'competent' evidence untainted by the improper admission of the privileged testimony sufficient to sustain termination * * *' consisting of the trial court's 'judicial knowledge of Mr. Martin's prior commitments' together with 'additional unprivileged testimony which provides supplementary facts adequate to justify termination of parental rights.'

It appears from the record that prior to this termination proceeding there had been three commitment proceedings involving the defendant. The same trial judge entered the commitment order in one of those proceedings.

In the course of this proceeding the trial judge announced that he had reviewed the files in all three of those commitment proceedings; that he intended to take judicial notice of the contents of those files; and that he also had 'been neighbors to these people' and had known defendant's mother, who 'suffers * * * from the same precise condition.'

It is well established in Oregon that a court cannot properly take judicial notice of files in a different case than the case before it. Hood v. Hatfield, 235 Or. 38, 44, 383 P.2d 1021 (1963).

It is equally clear that a judge may not properly take judicial notice of personal information possessed by him. Laurance v. Laurance, 198 Or. 630, 637--38, 258 P.2d 784 (1953).

We have reviewed the record in this proceeding and find no 'additional unprivileged testimony' sufficient to justify termination of defendant's parental rights. We have previously held that the 'permanent termination of parental rights is one of the most drastic actions the state can take against its inhabitants.' State v. Jamison, 251 Or. 114, 117, 444 P.2d 15, 444 P.2d 1005 (1968).

Again, it would serve no useful purpose to review that evidence. Suffice to say that defendant's schizophrenia was of such a type that during periods of 'remission' he was a good parent. It also appears from the record that in the event that defendant continued to take medication regularly and to report regularly to a mental health clinic or psychiatrist there was at least a possibility that he would be able to properly discharge his responsibilities as a parent in the future. The principal conflict in the testimony was whether defendant would in fact do so in the future, in view of his failure to do so in the past.

At the trial of this case, on February 11, 1974, defendant swore that he could and would do so and asked for an additional six months to demonstrate both his good faith and his ability to do so. The testimony was uncontradicted that he loved both children and there was no evidence that he had ever abused them. His wife had previously left him and he had been awarded their custody by the terms of a divorce decree. Both children are now in foster homes where they are receiving good care, at least for temporary purposes.

In the absence of the testimony of the psychiatrists and the contents of the files of the three previous commitment proceedings, we hold that the remaining evidence offered at the trial was insufficient to support the order terminating defendant's parental rights. Accordingly the decisions of both the Court of Appeals and the trial court are reversed and this case is to be remanded by the Court of Appeals to the trial court for a new trial.

HOWELL, Justice (specially concurring).

I concur in the majority opinion, but I am seriously disturbed that our juvenile courts are not allowed the benefit of expert psychiatric evidence in custody or termination of parental rights cases because of the physician-patient privilege.

The law is well established that in cases involving the custody of minor children and termination of parental rights, the primary concern of the court and the state is the welfare of the children.

As the Court of Appeals points out, the legislature has provided that juvenile courts should consider when deciding whether parental rights should be terminated:

'(a) Emotional illness, mental illness or mental deficiency of the parent of such duration as to render it impossible to care for the child for extended periods of time.

'(b) Conduct toward any child of an abusive, cruel or sexual...