Von Goyt, Matter of

• Decision Date: 14 November 1984
• Citation: 461 So.2d 821
• Parties: (In the Matter of Brian VON GOYT and Maude Jones). Rennotta VON GOYT (Ruth Ann Jones) v. STATE of Alabama, DEPARTMENT OF PENSIONS AND SECURITY. Civ. 4353.
• Court: Alabama Court of Civil Appeals

Page 821

461 So.2d 821

(In the Matter of Brian VON GOYT and Maude Jones) Rennotta VON GOYT (Ruth Ann Jones) v. STATE of Alabama, DEPARTMENT OF PENSIONS AND SECURITY.

Civ. 4353.

Court of Civil Appeals of Alabama.

Nov. 14, 1984.

Edwina E. Miller, Tuscaloosa, for appellant.

Michael S. Burroughs of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee.

BRADLEY, Judge.

This is an appeal from an order permanently depriving Rennotta Von Goyt of parental rights in her children, Maude Jones and Brian Von Goyt. We affirm.

On November 2, 1979 Miss Von Goyt, while a patient at Bryce Hospital in Tuscaloosa, gave birth to her daughter, Maude Jones. When Maude was six years old the Department of Pensions and Security obtained a voluntary boarding home agreement from Miss Von Goyt, permitting it to temporarily place Maude in a foster home. In January 1980 Maude was returned to Miss Von Goyt's custody. In March 1980 Miss Von Goyt was readmitted to Bryce Hospital, and she had been in and out of various mental institutions until July 1982 when she was released in order to give birth to her second child, Brian. Miss Von Goyt also moved several times from 1979 to 1983 because she was often asked to leave due to several complaints from neighbors about her unusual behavior.

Suzanne Pitts, a social worker at the Department of Pensions and Security, after becoming concerned about Maude's behavior and appearance around December 1983, took her to a pediatrician, who found traces of a major tranquilizer in Maude's urine sample. In January 1984 Miss Pitts and her supervisor filed a petition in the Tuscaloosa County Juvenile Court for termination of Miss Von Goyt's parental rights, alleging that her mental condition prevented her from properly caring for her children and that she was unable to provide them with a stable environment. The juvenile court terminated Miss Von Goyt's parental rights and awarded custody of the children to the department to be placed for adoption.

Miss Von Goyt appealed to the Tuscaloosa Circuit Court, which heard the case de novo, receiving into evidence Miss Von Goyt's medical records from Bryce Hospital and Indian Rivers Mental Health Center. The circuit court affirmed the juvenile court's order. After her motion for a new trial was denied, Miss Von Goyt appealed to this court.

Miss Von Goyt urges on appeal that the Bryce Hospital and Indian Rivers records containing information about her treatment are protected by the psychologist-client privilege pursuant to section 34-26-2, Code 1975, and should not have been admitted into evidence. The department contends that the privilege was waived because Miss Von Goyt signed several releases authorizing an exchange of her records between the department, Bryce Hospital, and Indian Rivers, and because she failed to object to Mr. Franklin's testimony in juvenile court about her mental condition. We disagree with the department's contentions.

There is testimony that Miss Von Goyt executed several releases; however, the record contains only one release, which release authorizes the Bryce Hospital records to be transferred to Indian Rivers. The release was provided for the stated purpose of "treatment planning" and was not a public disclosure. The privilege extends to this exchange of information between the mental health facilities, because the disclosure was necessary for Miss Von Goyt's treatment. See 97 C.J.S. Witnesses § 295 (1957). Moreover, the release stated that Miss Von Goyt could withdraw her consent at any time, and she did so at trial. We conclude, therefore, that the release signed by Miss Von Goyt did not constitute a voluntary waiver of her psychologist-patient privilege. Nor did her failure to object to Mr. Franklin's testimony constitute a voluntary waiver, because he is not a psychologist, and, thus, no privilege applies. Mr. Franklin also did not have Miss Von Goyt's privileged records before him in juvenile court, so that no objection was necessary. Accordingly, we reject the department's assertion that Miss Von Goyt waived her privilege.

However, the department contends that this privilege, if it exists, should not bar production of Miss Von Goyt's medical records, because the court needs these records in order to make the proper custody decision for the children.

The question whether the court may disregard the psychologist-patient privilege in a custody proceeding has not been addressed by our state courts. However, several other state courts have held that the right of a party to a custody proceeding to invoke the psychologist-patient privilege is outweighed by the right of a child to a proper determination of custody. See Critchlow v. Critchlow, 347 So.2d 453 (Fla.Dist.Ct.App.1977); Matter of A.J.S., 630 P.2d 217 (Mont.1981); In re Norwood, 194 Neb. 595, 234 N.W.2d 601 (1975); D. v. D., 108 N.J.Super. 149, 260 A.2d 255 (1969); People ex rel. Chitty v. Fitzgerald, 40 Misc.2d 966, 244 N.Y.S.2d 441 (Sup.Ct.1963). See also Koump v. Smith, 25 N.Y. 287, 303 N.Y.S.2d 858, 250 N.E.2d 857 (1969).

Our courts have consistently held that the paramount consideration in a custody matter is the child's best interests. Ezell v. Hammond, 447 So.2d 766 (Ala.Civ.App.1984). A court cannot determine the best interests of the child without considering whether a party to a custody proceeding is physically, financially, or mentally able to care for the child. We find it significant that the legislature in ...