Welfare of Dodge, In re

• Decision Date: 16 January 1979
• Citation: 29 Wn.App. 486,628 P.2d 1343
• Parties: In re the WELFARE OF Gary Gene DODGE, b.d
• Court: Washington Court of Appeals

Page 486

29 Wn.App. 486

628 P.2d 1343

In re the WELFARE OF Gary Gene DODGE, b.d. January 16, 1979.

No. 8992-7-I.

Court of Appeals of Washington, Division 1.

June 1, 1981.

[628 P.2d 1345] Dean Sargent, Seattle, for appellant.

Patrick A. Geraghty, Frederick Rogovy, Seattle, for respondent.

RINGOLD, Judge.

This is an appeal from an order permanently depriving Sharon Dodge of parental rights in her son, Gary Gene Dodge. We affirm.

Shortly before Gary's birth, Ms. Dodge was referred to the Children's Protective Services of the Department of Approximately 2 months later, the mother suffered a psychotic breakdown while at Harborview. On this occasion she hallucinated about her son, claiming he could read her thoughts, he wanted to die after he was born, someone wanted to "blow his brains out," and he wanted to fly out of their second floor apartment window and play with the birds. This breakdown resulted in Gary being taken from her by DSHS.

Social and Health Services (DSHS) by a social worker at Harborview Medical Center to ensure that she and the baby would have support services. A social worker with Children's Protective Services developed a relationship with Ms. Dodge commencing approximately 1 week after the baby's birth.

On April 6, 1979, an order was entered placing the child in shelter care under the supervision of DSHS, and another shelter care hearing order was entered on April 23, 1979. From April through July, Ms. Dodge received supervision by a homemaker and other services from DSHS in an attempt to strengthen her skills as a mother so the child could be returned to her care. On July 23, 1979, an order was entered finding the child to be dependent and placing him in the custody of Catholic Children's Services (later known as Catholic Community Services (CCS)). Ms. Dodge was allowed semi-monthly visits with the child.

CCS petitioned for permanent deprivation of parental rights and a hearing was held on May 7, 1980. Ms. Dodge's DSHS social worker testified that during the course of her relationship with the mother and Gary, Ms. Dodge exhibited "delusional thoughts" on several occasions. The social worker also testified that she had seen Ms. Dodge do something harmful to Gary on two occasions.

Dr. John Pro, a psychiatrist who first came into contact with Ms. Dodge in 1978, testified that he had diagnosed her as being a paranoid schizophrenic. In his opinion there was a probability that she would harm her son, she would need indefinite psychiatric care, her type of mental disease was rarely cured, and it would be better for her and for her Based upon this evidence, the court found that "(b)y June of 1979, it was apparent that ... (Ms.) Dodge was still not able to care for (her son,)" that Ms. "Dodge will not be able in the reasonably foreseeable future, if ever, to provide (her son) with the stability and permanence he requires," that "there is little likelihood that her condition can be remedied so that (her son) can be returned to her," and that "it would be in the best interests of the child that the relationship between he and his parents be terminated." Findings of fact 6, 9, 11, and 12.

child that a deprivation order be granted. He also said that Ms. Dodge did not regularly attend the life skills program which he had recommended.

Ms. Dodge appeals from the order of permanent deprivation. The primary issue presented on appeal is whether the physician-patient privilege is applicable to require rejection of Dr. Pro's testimony.

RELEVANT STATUTES

RCW 13.34.030 gives the following definition of "Dependent child":

(2) "Dependent child" means any child:

(b) Who is abused or neglected as defined in chapter 26.44 RCW; or

(c) Who has no parent, guardian, or custodian willing and capable of adequately caring for the child, such that the child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development.

RCW 26.44.020 defines "Child abuse or neglect":

(12) "Child abuse or neglect" shall mean the injury ... or negligent treatment or maltreatment of a child by a person who is legally responsible for the child's welfare under circumstances which indicate that the child's health, welfare and safety is harmed thereby. An abused child is a child who has been subjected to child abuse or neglect as defined herein....

RCW 13.34.180 states the requirements for permanent deprivation:

A petition seeking termination of a parent and child relationship may be filed in juvenile court. Such petition shall conform to the requirements of RCW 13.34.040 as now or hereafter amended and shall allege:

(1) That the child has been found to be a dependent child under RCW 13.34.030(2); and

(4) That the services ordered under RCW 13.34.130 have been offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been offered or provided; and

(5) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future; and

(6) That continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home ....

RCW 13.34.190 provides:

After hearings pursuant to RCW 13.34.110, the court may enter an order terminating all parental rights to a child if the court finds that:

(1) (a) The allegations contained in the petition as provided in RCW 13.34.180(1) through (6) are established by clear, cogent, and convincing evidence; or (b) RCW 13.34.180(3) may be waived because the allegations under RCW 13.34.180(1), (2), (4), (5), and (6) are established beyond a reasonable doubt; or (c) the allegation under RCW 13.34.180(7) is established beyond a reasonable doubt; and

(2) Such an order is in the best interests of the child.

The physician-patient privilege is established in RCW 5.60.060:

(4) A regular physician or surgeon shall not, without the consent of his patient, be examined in a civil action as to any information acquired in attending such patient, which was necessary to enable him to prescribe or act for the patient, but this exception shall not apply in any judicial proceeding regarding a child's injuries, neglect or sexual abuse, or the cause thereof.

(Emphasis added.)

PHYSICIAN-PATIENT PRIVILEGE

Ms. Dodge contends that Dr. John Pro's testimony and the diagnostic evaluation report prepared by him are within the physician-patient privilege and therefore were erroneously admitted at the hearing. CCS responds that the statutory physician-patient privilege does not apply here because of the exception "in any judicial proceeding regarding a child's injuries, neglect or sexual abuse ..."

Ms. Dodge initially argues that she did not waive the privilege when she signed a consent to release medical records. In reviewing the record, it does not appear that the trial court based its decision to admit the testimony of Dr. Pro on the ground that Ms. Dodge waived the privilege, nor does CCS attempt to rely on waiver to support the admission of the testimony and report. A copy of the release is not contained in the record and the circumstances surrounding the release are not apparent from the record.

No Washington cases have been called to our attention which interpret this exception in the context of a permanent deprivation proceeding. In State v. Fagalde, 85 Wash.2d 730, 736, 539 P.2d 86 (1975), the court held that in an action concerning child abuse the privilege did not exist:

Thus, we cannot accept the appellant's theory that confidential communications between the perpetrator and a psychologist, or a doctor, or a mental health center employee, are protected from disclosure and privileged in a judicial proceeding, according to the terms of the applicable statutes. Such protection might well be deemed to be in the public interest. But it is evident that, in its recent enactments, the legislature has attached greater importance to the reporting of incidents of child abuse and the prosecution of perpetrators than to counseling and treatment of persons whose mental or emotional problems cause them to inflict such abuse.

Accord, State v. Anderson, 94 Wash.2d 176, 616 P.2d 612 (1980). Courts in other jurisdictions have held that in custody proceedings the parent's "right to invoke the patient-physician privilege must yield to the paramount rights of the infant." People ex rel. Chitty v. Fitzgerald, 40 Misc.2d We conclude that the same considerations compel a broad reading of the statutory exception to the physician-patient privilege found in RCW 5.60.060(4), so as to encompass permanent deprivation hearings such as the one involved here. "As a statute in derogation of common law, RCW 5.60.060(4) is to be construed strictly." Department of Social & Health Services v. Latta, 92 Wash.2d 812, 819, 601 P.2d 520 (1979). Consequently, statutory exceptions to the privilege should be read more broadly than the privilege itself. ¹ We discern a legislative intent in providing for an Ms. Dodge argues that the exception to the physician-patient privilege is not applicable here because the child was not found to be dependent on the ground that he was "abused or neglected" as defined in RCW 26.44 pursuant to RCW 13.34.030(2)(b) but was instead found to be dependent under RCW 13.34.030(2) (c), which states "that the child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development." In essence, she argues that because there was no finding of dependency based upon abuse or neglect the deprivation proceeding was not one "regarding a child's injuries, neglect or sexual abuse" for purposes of the exception to the physician-patient privilege.

966, 244 N.Y.S.2d 441 (1963). See also, D. v. D., 108 N.J.Super. 149, 260 A.2d 255 (1969). The reason for this exception to the physician-patient privilege is...