State Health and Social Services Dept. v. Smith
| Decision Date | 09 January 1979 |
| Docket Number | No. 3614,3614 |
| Citation | 1979 NMCA 4,93 N.M. 348,600 P.2d 294 |
| Parties | STATE of New Mexico HEALTH AND SOCIAL SERVICES DEPARTMENT, Petitioner-Appellee, v. Peggy SMITH, Respondent-Appellant. |
| Court | Court of Appeals of New Mexico |
This appeal involves the termination of the parental right of the mother of a child, approximately 21/2 years old at the termination hearing. The mother's appeal raises issues as to the trial court's findings, which need not be discussed, either because the particular finding is supported by substantial evidence or because irrelevant to the decision. We discuss: (1) Evidence Rule 504, the psychotherapist-patient privilege, and (2) requirements for termination of the mother's parental right.
The child, whose father is unknown, was born October 15, 1975; the child had been in foster care with the H.S.S.D. (Health and Social Services Department) for over two years at the time of the termination hearing in April, 1978. Thus, the child has not lived with his mother most of its life. The reason was the condition of the mother; she had been "unable to discharge her natural responsibilities as a parent due to mental incapacity, hospitalization and incarceration periods, and the use of alcohol."
Dr. Lowe testified as to the mother's mental condition. The trial court found Dr. William R. Lowe is a licensed psychologist in the State of New Mexico, and he has over the past three (3) years examined, counselled, and treated Peggy Smith pursuant to court commitment while she was confined to the New Mexico State Hospital, Las Vegas and while incarcerated in the Clovis City Jail, and at the request of personnel of HSSD.
Substantial evidence supports this finding.
The mother objected to Dr. Lowe testifying, claiming the privilege stated in Evidence Rule 504(b), against disclosure of confidential communications. The mother tendered nothing indicating any communication was "confidential", that is, "not intended to be disclosed". See State v. Gallegos, 92 N.M. 370, 588 P.2d 1045 (Ct.App.1978) cert. denied, 92 N.M. 353, 588 P.2d 554 (1978). Rather, the mother's argument centers on the meaning of communication. She argues that communication means more than the oral communication of the patient to the psychotherapist. See Williams v. City of Gallup, 77 N.M. 286, 421 P.2d 804 (1966). Dr. Lowe's testimony was based on his examinations, counseling, and treatment of the mother over a three-year period. The mother asserts the examinations, counseling, and treatment all involve communication and, therefore, Dr. Lowe's testimony should have been excluded because in violation of the privilege. We do not answer this contention.
Assuming, but not deciding, that communication has the broad meaning asserted by the mother, a part of the communications were in connection with court ordered examinations of the mother's mental condition. Communications made in the course of those examinations were not privileged with respect to the particular purpose of the examination unless the judge ordered otherwise. Evidence Rule 504(d)(2). The judge did not order otherwise. To the extent Dr. Lowe's testimony was based on court ordered examinations, there was no privilege. State v. Milton, 86 N.M. 639, 526 P.2d 436 (Ct.App.1974).
The mother objected to Dr. Lowe's testimony in its entirety. She did not attempt to distinguish between non-privileged testimony and testimony allegedly subject to the privilege. Since the objection went to the entire testimony, the objection was properly overruled. State v. Carlton, 83 N.M. 644, 495 P.2d 1091 (Ct.App.1972).
The termination of the mother's parental right was under § 40-7-4, N.M.S.A.1978. The trial court found the mother was unfit; thus, the specific ground for termination was § 40-7-4(A)(3), which reads:
(3) the parent is unfit, that is, the parent has repeatedly or continually neglected or willfully abused the child, or failed or refused to perform the natural and legal obligations of care and support; and because of such parental conduct the minor has suffered serious physical, mental or emotional harm; and such parental conduct will probably continue and the continuation of such parental conduct will probably cause further and serious harm to the minor and the disintegration of the parent-child relationship.
The quoted provision states four components for an "unfit" finding:
(a) The parent has repeatedly or continually neglected or willfully abused the child, or failed or refused to perform the natural or legal obligations of care and support.
(b) Because of such parental conduct the child has suffered serious physical, mental or emotional harm.
(c) The parental conduct will probably continue.
(d) The continuation of such parental conduct will probably cause further and serious harm to the child and the disintegration of the parent-child relationship.
The mother asserts that mental illness was an insufficient basis to terminate her parental right. We agree, in this case the requirements for "unfit" must have been met. The mother asserts her parental right was terminated on the ground that she was unable to care for the child because of mental illness. We disagree. The trial court found that the child had been placed in the custody of H.S.S.D. "(p)ursuant to a determination . . . that the child was dependent and neglected". Other findings are to the effect that the mother had failed to perform the natural and legal obligations of care and support because of mental illness. These findings went to component (a).
The trial court found the child had been subjected to mental or emotional harm; this went to component (b).
The trial court found that the mother's mental illness was continuing "and no indication exists that she will ever improve"; this went to component (c).
The trial court found that "(c)ontinuation of this atmosphere will probably cause further harm to the child and the disintegration of the parent-child relationship"; this went to component (d).
Although the trial court made findings directed to each of the statutory components, such findings were not required. The trial court was only required to find the ultimate fact. The ultimate fact was that the mother was unfit. The trial court was not required to make findings as to the components of "unfit" because those components were not ultimate facts. See McCleskey v. N. C. Ribble Company, 80 N.M. 345, 455 P.2d 849 (Ct.App.1969).
Having found the ultimate fact that the mother was unfit, the appellate issue does not involve the sufficiency of Findings as to the components of "unfit"; rather, the appellate issue is whether there was substantial Evidence of each of the components so that the finding of the ultimate fact was supported by the evidence.
There is no serious claim concerning the sufficiency of the evidence as to components (a), (c) or (d). The mother contends, however, that there is no substantial evidence as to component (b), that because of parental conduct, the child has suffered serious physical, mental or emotional harm. The mother refers us to evidence concerning the physical condition of the child after visiting the mother and asserts the physical harm was not "serious". We do not review this evidence because the trial court findings, even though not required, show the trial court did not rule that the child suffered serious physical harm. The trial court found that the...
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C.P., Matter of
...alternative to the other. Id. The trial court did not identify its reasons nor did it need to do so. State Health and Social Services Dep't v. Smith, 93 N.M. 348, 600 P.2d 294 (Ct.App.1979). The appellate issue is whether the findings of ultimate fact were supported by the evidence. Id. Suf......
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State ex rel. Human Services Dept., In Matter of Termination of Parental Rights of Sherry C. and John M., 12444
...invoked." State v. Carlton, 83 N.M. 644, 653, 495 P.2d 1091, 1100 (Ct.App.1972). HSD relies on State Health & Social Services Department v. Smith, 93 N.M. 348, 600 P.2d 294 (Ct.App.1979) in support of its claim that the mother's objection below was insufficient because it went to all of Dr.......
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Doe, Matter of
...Thus, nothing is presented which suggests that the privilege in Evidence Rule 504(b) was violated. State Health and Soc. Serv. Dept. v. Smith, 93 N.M. 348, 600 P.2d 294 (Ct.App.1979). Further, Evidence Rule 504(d)(3) (3) Condition an element of claim or defense. There is no privilege under ......