Opinion
A123604.
2-26-2009
In re I.G., a Minor. ALICIA G., Petitioner, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF SAN MATEO, Respondent, SAN MATEO COUNTY HUMAN SERVICES AGENCY, Real Party in Interest.
Not to be Published in Official Reports
Petitioner I.G. (minor) petitions to challenge the juvenile courts order, made in the course of a contested 12-month review hearing, that I.G.s therapist preserve her notes regarding all therapy sessions she had with I.G. and supply copies of these notes to all parties. The court overruled the objection of minors counsel, who invoked the psychotherapist-client privilege on I.G.s behalf. Petitioner also challenges the courts subsequent order placing the therapists notes under seal, but not striking them from the record in full. We deny the writ on the merits.
BACKGROUND
In November 2007, the juvenile court found I.G., then 11 years old, to be a dependent of the court pursuant to Welfare and Institutions Code section 300, removed him from his mothers custody, and ordered him detained in the home of his maternal aunt. The court also ordered that reunification services be provided to his mother.
In January 2008, in response to concerns raised by the social worker and the therapist supervising therapeutic visits, minors counsels moved for an order that the therapist have the authority to terminate therapeutic visits between I.G. and his mother if the mother broke the visitation center rules, which the court granted. The court ordered that the mother not raise certain issues with I.G. during the therapeutic visits, and authorized the therapist to terminate the visits if the mother did not follow these rules.
In April 2008, a contested six-month review hearing was held. At the hearings conclusion, the court continued the minors dependency, finding that the mother had failed to participate regularly in court-ordered services or make more than minimal progress. The mother was given six more months of reunification services.
In July 2008, a 12-month review hearing was held. I.G. was still living with his maternal aunt, who had been granted de facto parent status. The San Mateo County Human Services Agency (agency) informed the court that I.G.s biological father, who had never met I.G., had recently appeared, wanted to have some relationship with his son, but was not requesting reunification services or custody. The agency further stated that father and mother made certain negative contentions about one another, and that, while the mother had made some progress since the six-month review, she still had not participated in a substance abuse program as ordered, and she was still homeless. Also, Michelle Pelnar, who had been providing family therapy to mother and I.G., had reported to the agency that while the mother had made some progress toward treatment goals, Pelnar had concerns about the mothers lack of stability and insight regarding healthy boundaries between the mother and I.G., and about the mothers emotional health. The agency recommended that the court provide six more months of reunification services to the mother based on a "substantial probability that the child will be returned" and a finding that the mother had made "adequate" progress in her case plan. The court continued the matter for a contested hearing "as to the likelihood of [the mother] being able to adequately fall within the statutory requirement that [I.G.] can be returned to her" because the court had doubts as to whether or not reunification was appropriate, and ordered the agency to develop a plan for how to introduce the father to I.G. for review by court and counsel in 30 days. Mother was ordered not to discuss the father with I.G.
The record indicates that Pelnar is a licensed mental health clinician in New York, but an intern in California.
In August 2008, pending the continued hearing, the agency social worker reported to the court that in the last family therapy session, which took place in July 2008 on the day after the 12-month review hearing, the mother had violated the courts order not to discuss the father with I.G. Pelnar had reported to the social worker that the mother had been "totally inappropriate" and had required repeated redirection. The mother had told I.G. that the father had never wanted him or cared about him, that there were police reports that he had threatened both their lives, and that the father had attempted to abort I.G. when he was in utero. Pelnar also had reported that the mother "just doesnt get it" and that she "sees [I.G.] as more of an adult than he really is." She stated that I.G. had "no affect" in response to these statements, had asked his fathers name, and had asked for more details. In a subsequent individual therapy session, I.G. seemed to be in a positive mood and stated that he had been thinking about his father and felt confused and overwhelmed, but wanted to further discuss his father with his mother.
In September 2008, the contested 12-month review hearing resumed, and the court heard from several witnesses at that time. The agency called Pelnar as a witness. Among other things, Pelnar testified that the mother had made "several pretty negative statements" to I.G. about the father in a recent therapy session. Specifically, the mother had told I.G. that his father was trying to contact him, that the father had not cared about him until now, and that the father had tried to abort I.G. when he was in utero. I.G. had gone back to his day care and interacted poorly with other kids, and had stamped a shovel in the ground. Pelnar testified that this was a "big reaction" for I.G. and that it appeared he was "pretty anxious" about it.
The mother testified that she thought she was allowed to discuss the father in therapy until a friend reminded her of the courts order after the session.
Pelnar had not brought her therapy notes with her, but thought that the date of the therapy session when the mother made her comments about the father to I.G. was July 25, 2008. The court ordered her, without objection from the parties, to "preserve those notes in whatever format you have them on so that they are retrievable, and Im going to order you to provide copies to the parties here."
Pelnar proceeded to testify that in subsequent family therapy sessions, the mother had made additional negative comments about the father to I.G., such as that the father "may be doing this for child support purposes." Upon questioning by the court, Pelnar testified that there were no other specific comments by the mother that she could think of at that time, but that her notes encapsulated the conversations. The court then ordered Pelnar to "keep all of those notes from the beginning of this case until now and thereafter," and to "prepare those notes and provide them to the social worker to be distributed to all parties." Minors counsel objected on the ground that the notes "would be privileged information about [I.G.s] therapeutic sessions." Minors counsel started to state a concern about providing the notes in full, rather than having Pelnar provide a report in response to specific information, when the court stated that the objection was overruled, as "it came up because of the issues of this case."
In response to further questioning by the court, Pelnar indicated that while the mothers statement that the father wanted contact with I.G. for child support payments was the only negative comment Pelnar could recall, it had come up "several times," notwithstanding Pelnars admonition that the mother should not say it. The court then asked Pelnar the basis for her view the mother had done "quite well," and Pelnar indicated that it was because the "acuteness and the amount of information" the mother shared had been reduced significantly, and offered as an example that the mother no longer said such things as the father wanted to get rid of I.G. in utero. Also, the mother had started to discuss the amount of anxiety she had about the system and about other things that were happening in her life individually with Pelnar, rather than with I.G. present. Pelnar added that the mothers "entire affect and attitude has changed significantly," in that "[s]he actually accepts redirection from me in a very non-defensive way, and she has definitely increased her understanding of how what she says affects him." At the end of Pelnars testimony, the court ordered that she "get those notes to the social worker within a week."
The hearing was continued to October 2008. On the day of the hearing, minors counsel filed a "Brief in Support of Minors Assertion of Psychotherapist-Client Privilege and Request to Strike Psychotherapists Notes From the Record." Minors counsel stated that she had received Pelnars notes two days before, and the notes were dated from December 7, 2007, through September 26, 2008. She cited case law and statutes, and referred to testimony by Pelnar that I.G. was guarded in therapy, counsel opining that "given [I.G.s] temperament and concerns, it is especially crucial for [I.G.] to have faith that the things he discusses with his therapist in treatment are confidential, and any violation of trust would be detrimental to his future ability to trust and work with his therapist." Counsel also referred to Welfare and Institutions Code section 317, subdivision (f), and stated that "[a]t this point the court has not yet determined if the child is of sufficient age or maturity to consent to waiving privilege. Because [I.G.] chose not to be present at the last hearing, counsel invoked the privilege on his behalf." Counsel concluded:
"[I.G.s] relationship with his therapist is protected by the psychotherapist-client privilege. The scope of that privilege allows the court to have access to circumscribed information regarding [I.G.s] progress in therapy; the court had such information through both progress reports written by the therapist, and the therapists in-court testimony regarding [I.G.s] individual and family sessions. The courts request, however, of all of the therapists notes of her sessions with [I.G.] is a violation of that privilege and a violation of his privacy rights. In addition, such an over-broad disclosure would be detrimental to the future relationship between [I.G.] and his therapist, and thus detrimental to his ability to receive therapeutic treatment. Thus, [I.G.] requests that the court acknowledge [I.G.s] assertion of his privilege, destroy or return to the therapist all copies of her progress notes, and strike all copies of the progress notes from the record."
At the October 2008 hearing, the court heard testimony related to the fathers request that he be declared the presumed father, which the court later declared. The hearing was further continued to November 2008.
At the November hearing, Pelnar, called as a witness by the mother, testified further regarding a variety of issues related to the family therapy sessions. With Pelnar present, the court asked if there were any more issues regarding minors counsels briefing on the disclosure of the therapy notes, and stated, "Given the contest of this case and the issues, I dont think your objection is well taken, especially in light of the need to refresh memories of the witness in the past and the ability of the lawyers to be able to focus and determine what might be asked here[.]"
Minors counsel questioned Pelnar about the courts order to turn over the therapy notes. Pelnar testified that she had informed I.G. that the notes had been given to the court, and that his behavior and comments to the therapist had not changed in any way, except that he had become "more forthcoming" in therapy.
Pelnar further testified that she had discussed the limits of the sessions confidentiality with I.G., and told him "everything is confidential unless it has to do with him being harmed or harming somebody else . . . ." She stated that I.G. was aware that she had to write reports to the court about the treatment goals, and the progress he and his mother made towards those goals. She thought that I.G. had trouble initially trusting people, and that it took time in therapy for him to trust her enough to speak up in their sessions. She had not heard I.G. express any concern to her about who knew what went on in the session, and had not discussed with him his feelings about the privacy of the therapy sessions. She testified that if she were "guessing," based on her working with I.G. for almost a year, he would be uncomfortable if he became aware of the fact that all the parties had copies of the notes of all of his therapy sessions. She opined that disclosures beyond her court reports might impact his ability to open up during sessions, and that if more details of his therapy sessions were released, he could lose trust in his therapist and have a setback in his treatment. The 12-month review hearing was again continued, this time to December 2008.
At the December 2008 hearing, the agency social worker recommended that the mothers reunification services be terminated and a hearing pursuant to Welfare and Institutions Code section 366.26 be set, to which minors counsel agreed. Minors counsel again raised the issue of shredding the therapy notes that had been provided to the court and the parties. The court responded by questioning how Pelnars opinions and conclusions could be explored, or a witness cross-examined or impeached, without access to the data forming the basis of the opinions. Minors counsel responded that the therapist notes were not necessary to explore Pelnars conclusions, stating that "[i]n fact, we were all back with Ms. Pelnar after everyone had been provided these documents, and I didnt hear one person in this room, including Your Honor, asking her questions asking her to back up something versus what she had written in her notes." After suggesting the court could subpoena Pelnar to return with her notes and look at them to refresh her recollection about specific instances, and repeating her view that the production of all the therapy notes violated the minors right to privacy, minors counsel stated that "I think if and when [I.G.] were to become aware of that, I think that gets in the way of being able to have any meaningful therapy." The court responded:
"I dont have any quarrel with what you say. I dont have any quarrel with the idea of having a sense of privacy when you are dealing with a therapist and such. Unfortunately, I dont have any memory of what it was that provoked me to make that order, but I am sure it had to do with something or the manner in which [Pelnar] testified at the hearing because I was not satisfied with her demeanor or what she had to say and/or her ambiguous answers, if I recall correctly."
The court nonetheless found that "the dilemma for the trier of fact and the dilemma for the lawyers involved with it is when a therapist comes in and testifies about certain things an relies on her or his notes to make conclusions or write reports, there is a difficulty for the trier of fact and more importantly for the lawyers representing their clients to be able to adequately cross-examine."
The court then stated that, "[i]n light of the fact that nothing arose as a result, I dont have any quarrel with one of you, maybe the department, collecting those notes and well seal them for the record," and that, in the alternative, counsel could shred the notes. Minors counsel objected to the sealing because counsel did not "believe even if the court would like access to private information protected by privilege that it can be waived simply because its more convenient or clear information that may be available," and that I.G. had the right to the information being totally private. The court responded that "the problem is when the issue is raised or put into contest, that opens it up for dissemination . . . under the law . . . ." After minors counsel asserted for the record that I.G. had not made his relationship with Pelnar an issue and had not waived his privilege, the court moved on to other issues.
Following the filing of this petition for an extraordinary writ, we issued an order to show cause why it should not be granted, and indicated that our decision in this case will determine the merits of the petition. The agency subsequently filed an opposition. Oral argument has been deemed waived.
DISCUSSION
Petitioner challenges the courts orders that all of Pelnars therapy notes be preserved and that copies be provided to all parties and, later, that the remaining notes be sealed for the record. Petitioner asks that this court to issue a writ of mandate, prohibition or other appropriate relief "ordering reversal of the twelve-month review hearing insofar as the court ordered the psychotherapist to improperly disclose privileged information about minors therapeutic treatment. I.G. respectfully requests that those privileged psychotherapist notes be struck from the record and destroyed."
First, we address the question of whether the psychotherapist-client privilege was properly asserted in this case, which the agency raises in its opposition to the petition.
The psychotherapist-client privilege applies to the relationship between a dependent minor and his or her therapist, and protects confidential communications between them. (In re Kristine W. (2001) 94 Cal.App.4th 521, 525.) In dependency proceedings, "therapy has a dual purpose—treatment of the child to ameliorate the effects of abuse or neglect and the disclosure of information from which reasoned recommendations and decisions regarding the childs welfare can be made." (Id. at p. 527.) The privilege does not preclude the therapist from providing certain circumscribed information to accomplish the information-gathering goal of therapy. (Id. at pp. 527-528; see also In re Mark L. (2001) 94 Cal.App.4th 573, 584.) As noted in In re Pedro M. (2000) 81 Cal.App.4th 550, Evidence Code section 1012 permits the disclosure of confidential communication between patient and psychotherapist to "those whom disclosure is reasonably necessary for . . . the accomplishment of the purpose for which the psychotherapist is consulted," and held that this included the juvenile court. (In re Pedro M., at p. 554.)
A minors assertion of the privilege is outlined in Welfare and Institutions Code section 317 (section 317), subdivision (f). It states in relevant part: "Either the child or the counsel for the child, with the informed consent of the child if the child is found by the court to be of sufficient age and maturity to so consent, which shall be presumed, subject to rebuttal by clear and convincing evidence, if the child is over 12 years of age, may invoke the psychotherapist-client privilege, physician-patient privilege, and clergyman-penitent privilege; and if the child invokes the privilege, counsel may not waive it, but if counsel invokes the privilege, the child may waive it. Counsel shall be holder of these privileges if the child is found by the court not to be of sufficient age and maturity to so consent."
"Welfare and Institutions Code section 317, subdivision (f) was amended effective January 1, 2001, to provide that a dependent child who is `of sufficient age and maturity to so consent . . . may invoke the psychotherapist-client privilege . . . . `This provision is intended to ensure that in cases where the child is a dependent of the court due to abuse or neglect at the hands of the childs parent or guardian, . . . the parent or guardian cannot shield his or her behavior from scrutiny by keeping damaging information hidden from view under the guise of exercising the childs privilege of confidentiality. Absent such amendment, it appears, under the provisions of the Evidence Code, that the parent or guardian would otherwise be the holder of the privilege. (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 2160 [1999-2000 Reg. Sess.] as amended Apr. 25, 2000, p. 7.)" (In re Kristine W., supra, 94 Cal.App.4th at p. 526, fn. omitted.)
We are not aware of any case law which discusses how, pursuant to section 317, subdivision (f), the requisite informed consent, presumed age and maturity, and/or actual age and maturity of the minor should be addressed when the privilege is asserted. These issues are raised by the agencys contention that, although minor is the holder of the privilege, there is no evidence that he asserted it, or that he gave the requisite informed consent to his counsel to assert it. We are uncertain whether or not the agencys argument should prevail in this case.
On the one hand, the record indicates I.G.s age was "over 12" at the time the privilege was asserted, since he was almost 13. Therefore, by section 317, subdivision (f)s own terms, a rebuttable presumption arose that I.G. was of sufficient age and maturity to give his informed consent to counsel in order for counsel to assert the privilege on his behalf. There is no indication that I.G. gave his informed consent to the privilege, as he appears to have been absent from the relevant hearings, his informed consent is not stated in minors counsels brief to the court, and he did not sign the petition to this court. Also, minors counsels comment near the end of the December 2008 hearing that "if and when [I.G.] were to become aware" of the disclosure of the notes to all the parties it would interfere with his therapy, indicates that I.G. did not know of the courts order. Given that I.G. cannot logically give informed consent to a matter of which he is unaware, it appears that I.G. did not do so here. Minors counsel does not provide any indication that the presumption that I.G. was of sufficient age and maturity to provide consent was rebutted either.
On the other hand, the issue of whether or not I.G. had provided his informed consent, or was required to do so, was not raised by any of the parties in the juvenile court, and the court and minors counsel extensively discussed the merits of the privilege assertion without the agency raising any issues. Therefore, the agency may well have waived this claim.
We need not address whether or not the privilege was properly asserted, however, to determine whether or not to reverse any of the courts rulings at the 12-month review hearing insofar as the court having ordered Pelnar to supply copies of her therapy notes to all of the parties, nor do we need to determine whether that order was in error. As the agency argues, any error by the court in so ordering was unquestionably harmless. As indicated by the comments of minors counsel and the court at the December 2008 hearing, the notes were not actually used in any way at the hearing by any of the parties, there is no indication that they were admitted into evidence, and the court ordered the parties to return the notes to the court for placement under seal, or to shred them. Petitioner does not contend otherwise.
Nonetheless, we point out that it is better practice for a minors counsel asserting the psychotherapist-client privilege to seek rulings from the juvenile court at the time the privilege is asserted regarding the issues referred to in section 317, subdivision (f), such as who holds the privilege, the minors age and maturity, and, if necessary, the minors informed consent. Similarly, parties who seek to challenge the assertion of the privilege before an appellate court are wise to raise any deficiencies regarding the privileges assertion before the juvenile court first in order to avoid waiving the challenge.
We recognize that minors counsel may not always know in advance when issues implicating the privilege will arise in a particular hearing, and that as a result minors may be absent when they do arise. Nonetheless, minors counsel should heed the terms of section 317, subdivision (f), and seek the courts rulings on all pertinent issues at the earliest opportunity.
Furthermore, assuming for the sake of argument that the privilege was properly asserted, we have no cause to reverse the juvenile courts order that Pelnar preserve all of her notes, or the courts order placing the copies of them under seal. Placing the notes under seal ensures I.G.s privacy until further court action. Minors counsel provides argument, but no evidence, that their placement under seal would disrupt I.G.s therapy, and no reason why Pelnar should not preserve her notes. The courts interest in the notes arose because it was dissatisfied with some of Pelnars testimony regarding the mothers statements and behavior in group therapy sessions, which Pelnars testimony made clear were relevant to the issues before the court. The mothers statements and behavior in these sessions could also be relevant to the final disposition of this case. Furthermore, the mothers statements and behavior are unlikely to fall within the ambit of a psychotherapist-client privilege asserted by minor or his counsel. Therefore, the court had good reason to order that the notes remain sealed in the courts files because it may well need to determine in further proceedings whether disclosures about the mothers statements and behavior in family therapy sessions are necessary. Of course, nothing prevents minors counsel from seeking the return or destruction of the copies of Pelnars therapy notes upon the final disposition of the case.
Although we do not make a determination herein regarding the propriety of the courts previous order supplying all of Pelnars notes to the parties, as of the completion of the 12-month review hearing, based on the present record, we see no reason for the court to do so in further proceedings. However, nothing we state herein should be construed as preventing further motions by the parties or determinations by the court that portions or all of Pelnars notes be disclosed, whether related to the mothers statements and behaviors or other matters, or, on the other hand, the assertion by minor or his counsel, as appropriate, of the psychotherapist-client privilege. If the court considers allowing disclosures in further proceedings, it should make every effort to tailor such disclosures so as to balance the minors therapys "dual purpose—treatment of the child to ameliorate the effects of abuse or neglect and the disclosure of information from which reasoned recommendations and decisions regarding the childs welfare can be made." (In re Kristine W., supra, 94 Cal.App.4th at p. 527.)
DISPOSITION
The petition for extraordinary writ is denied on the merits, and the case is remanded for further proceedings. The decision is final in this court immediately. (Cal. Rules of Court, rule 8.264(b)(3).)
We concur:
Kline, P.J.
Haerle, J.