[This opinion has been published in Ohio Official Reports at
89 Ohio St.3d 535.]
IN RE WIELAND ET AL.
[Cite as In re Wieland, 2000-Ohio-233.]
Juvenile court—Dependent and/or neglected children—Evidence—In the absence
of a specific statutory waiver or exception, the testimonial privileges
established under R.C. 2317.02(B)(1), 4732.19, and 2317.02(G) are
applicable to communications made by a parent in the course of treatment
ordered as part of a reunification plan in an action for dependency and
neglect.
In the absence of a specific statutory waiver or exception, the testimonial privileges
established under R.C. 2317.02(B)(1) (concerning communications
between a physician and patient), R.C. 4732.19 (concerning
communications between a licensed psychologist and client), and R.C.
2317.02(G) (concerning communications between a licensed counselor or
licensed social worker and client) are applicable to communications made
by a parent in the course of treatment ordered as part of a reunification plan
in an action for dependency and neglect.
(No. 99-1586—Submitted May 10, 2000—Decided September 6, 2000.)
APPEAL from the Court of Appeals for Montgomery County, No. 17646.
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{¶ 1} On December 22, 1996, Dayton police officers removed Lindsey and
Holly Wieland from the home of their mother, appellee Laura Wieland, and
delivered them to appellant, Montgomery County Children Services Board. On
December 23, 1996, appellant filed complaints in the Montgomery County Juvenile
Court, alleging that Lindsey and Holly were dependent and/or neglected. A shelter
hearing was held that same day, and the juvenile court granted interim custody of
the children to appellant.
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{¶ 2} On February 10, 1997, an adjudicatory and dispositional hearing was
held. On February 20, 1997, the juvenile court ordered that Lindsey be committed
to the temporary custody of her maternal aunt, that Holly be committed to the
temporary custody of appellant, and that the reunification case plan filed by
appellant be incorporated as the order of the court. The case plan required appellee
to submit to a substance abuse and domestic violence assessment, and to attend
parenting classes.
{¶ 3} On November 10, 1997, appellant filed a motion for permanent
custody of Holly and, on February 24, 1998, moved for permanent custody of
Lindsey. Meanwhile, on February 20, 1998, the juvenile court approved and
adopted an amended case plan, which noted, among other things, that appellee had
“been terminated from two [substance abuse] programs this review period for
noncompliance. The programs are CADAS [Center for Alcoholism and Drug
Addiction Services] and the Turning Point.”
{¶ 4} On May 10, 1998, appellee was admitted to Miami Valley Hospital
with ruptured membranes. On May 11, 1998, appellee gave birth to Danielle
Wieland, who, at thirty-two weeks and weighing three pounds, tested positive for
crack cocaine. When appellant’s motions for permanent custody of Lindsey and
Holly came on for hearing on June 11, 1998, the juvenile court continued the matter
in order to consolidate the dispositional hearing for all three children. On August
31, 1998, appellant filed its complaint for neglect and dependency of Danielle,
seeking a preferred disposition of permanent custody. On September 18, 1998, the
juvenile court ordered Danielle committed to the temporary custody of appellant
on an interim basis.
{¶ 5} On December 24, 1998, pending the consolidated permanent custody
hearing, appellant moved the court for an order admitting into evidence certain
records and testimony regarding appellee’s substance abuse treatment at CADAS.
In so doing, appellant argued that “[t]he testimony to be presented is appropriate
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for release since either the treatment was requested as a result of the court-approved
comprehensive reunification plan or the treatment secured is relevant to this case.”
{¶ 6} On January 29, 1999, the juvenile court ordered that the records shall
be disclosed as requested despite appellee’s objection that she had not waived the
physician-patient privilege. The court found that the “privilege only extends to
voluntarily sought treatment. When the mother submits to testing or counseling
pursuant to a case-plan, such treatment is not voluntary.” (Emphasis sic.)
{¶ 7} The court of appeals reversed the judgment of the trial court, finding
that “it erred to the extent that its order allows the introduction of any
communications made by [appellee] to her providers during the course of
treatment.” In so doing, it found that the trial court had correctly followed the law
as previously set forth in its decision in In re Smith (1982), 7 Ohio App.3d 75, 7
OBR 88,
454 N.E.2d 171. However, the court of appeals chose to revisit its former
decision, finding that “the bright-line test of voluntary-involuntary treatment set
forth in Smith is overly simplistic.” The court reasoned that the underlying
justification for the creation of the privilege, which is to promote more complete
and effective treatment, is present regardless of whether the patient undergoes
treatment voluntarily or involuntarily. The court of appeals held instead that
communications between the patient and provider are privileged when made in the
course of court-ordered treatment, but not privileged when made in the course of
court-ordered examinations or evaluations conducted for forensic purposes.
{¶ 8} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
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Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and
Kirsten A. Davies, Assistant Prosecuting Attorney, for appellant.
Lynn G. Koeller, Montgomery County Public Defender, and Arvin S. Miller,
Assistant Public Defender, for appellee.
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ALICE ROBIE RESNICK, J.
{¶ 9} Under the juvenile court’s order of January 29, 1999, appellee is
precluded from invoking the physician-patient privilege because she did not
voluntarily undergo treatment. However, as aptly noted by the court of appeals, the
record in this case does not reveal whether the testimony and records that appellant
seeks to obtain regarding appellee’s treatment at CADAS concern communications
received by physicians, licensed psychologists, licensed counselors, and/or licensed
social workers. Thus, in the interest of judicial economy, and because all of these
providers are governed by similar statutes, we will determine at once whether the
testimonial privileges governing all these providers are applicable to
communications made by a parent in the course of treatment ordered as part of a
reunification plan in an action for dependency and neglect.
{¶ 10} The relevant testimonial privileges are statutory in nature, and are
codified at R.C. 2317.02(B)(1) (concerning communications between a physician
and patient), R.C. 4732.19 (concerning communications between a licensed
psychologist and client), and R.C. 2317.02(G) (concerning communications
between a licensed counselor or licensed social worker and client). Under these
sections, the respective privileges are to be given effect absent specific statutory
waivers or exceptions, none of which applies to this case. No provision is made in
any of these statutes that would allow for the in-court disclosure of confidential
information on the basis that the treatment or service received by the patient or
client was involuntary in nature, ordered as part of a journalized case plan provided
in R.C. 2151.412, or is necessary or relevant to a determination of permanent
custody under R.C. 2151.414. Nor is any such provision to be found anywhere in
R.C. Chapter 2151 as it pertains to dependency and neglect proceedings.
{¶ 11} This court has repeatedly and consistently refused to engraft judicial
waivers, exceptions, or limitations into the testimonial privilege statutes where the
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circumstances of the communication fall squarely within the reach of the statute.
In State v. Smorgala (1990), 50 Ohio St.3d 222, 223,
553 N.E.2d 672, 673-674, the
court explained:
“The question presented for review by this certification is whether the courts
of Ohio should judicially create a public policy limitation upon the statutorily
created physician-patient privilege which would allow otherwise clearly
inadmissible evidence to be received in ‘drunk driving’ cases. In keeping with the
constitutional principle of separation of powers, we cannot adopt such a position.
Judicial policy preferences may not be used to override valid legislative
enactments, for the General Assembly should be the final arbiter of public policy.”
{¶ 12} In In re Miller (1992), 63 Ohio St.3d 99, 108,
585 N.E.2d 396, 404,
we succinctly stated that “Ohio’s physician-patient privilege statute makes no
exception for civil commitment proceedings. This means that the privilege applies
in the appropriate commitment situation involving a patient and his or her
psychotherapist.” And in State v. McDermott (1995),
72 Ohio St.3d 570, 572-573,
651 N.E.2d 985, 987, the court reiterated that “the General Assembly may broaden
the statutory exceptions which constitut[e] waiver of the privileged
communications but … the courts should not augment the enumerated waivers.
‘The argument addressed to this court might be addressed to the legislature with
persuasive power … but it is not for this court to make such an amendment.’
[Swetland v. Miles (1920)], 101 Ohio St. [501] at 504-505, 130 N.E. [22] at 23.”
{¶ 13} Nevertheless, appellant argues that “the purpose of the privilege is
severely undermined when the patient is not voluntarily seeking help,” and that “the
rationale protecting communications by a parent to a physician, licensed
psychologist, social worker or counselor does not apply in proceedings under R.C.
Chapter 2151.” Whatever persuasive force these arguments may have, this is not
the appropriate forum in which to raise them. This court will not engage in
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subterfuge by judicially creating a public policy limitation under the guise of
statutory interpretation.
{¶ 14} Moreover, there is nothing in the interplay between R.C. Chapter
2151 and the testimonial privilege statutes that supports appellant’s position. “The
purpose of the [physician-patient privilege] statute is to create an atmosphere of
confidentiality, encouraging the patient to be completely candid and open with his
or her physician, thereby enabling more complete treatment.” In re Miller, supra,63 Ohio St.3d at 107,
585 N.E.2d at 403. Otherwise, the fear of disclosure “could
seriously impede the patient’s chances for a recovery.”
Id. at 108,
585 N.E.2d at
404. The same purpose, of course, underlies each of the testimonial privilege
statutes. The same concerns are prevalent where a parent is required, under the
terms of a reunification plan, to utilize medical, psychological, or other social and
rehabilitative services in an effort to remedy the problems that initially caused the
child to be placed outside the home so that the child can return home. See R.C.
2151.01(C), 2151.412(F)(1)(b)(i) and (H), and 2151.414(E)(1). Thus, as well
stated by the court of appeals:
“In order to meet the goal of the reunification plan, the purpose underlying
the statutory privilege—effective treatment—is material and significant. In other
words, if a parent is fearful that any communications with her provider will not be
privileged, she may not be open and truthful during treatment, thereby undermining
the effectiveness of treatment and ultimately defeating the goal of remedying the
reason for the removal of the child.”
{¶ 15} Accordingly, we hold that in the absence of a specific statutory
waiver or exception, the testimonial privileges established under R.C.
2317.02(B)(1) (concerning communications between a physician and patient), R.C.
4732.19 (concerning communications between a licensed psychologist and client),
and R.C. 2317.02(G) (concerning communications between a licensed counselor or
licensed social worker and client) are applicable to communications made by a
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parent in the course of treatment ordered as part of a reunification plan in an action
for dependency and neglect.
{¶ 16} For the foregoing reasons, the judgment of the court of appeals is
affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
LUNDBERG STRATTON, J., concurs separately.
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LUNDBERG STRATTON, J., concurring.
{¶ 17} I reluctantly concur for the reason that the statutory privileges neither
distinguish between voluntary and involuntary treatment, nor create any exception
for communications made in the course of court-ordered treatment.
{¶ 18} There are strong public policy reasons in favor of creating such an
exception, particularly when the safety and welfare of a child are at stake. If an
expert witness who treated or consulted with a parent in court-ordered treatment
reports only that the parent involuntarily attended counseling sessions, the court is
left to wonder whether the counseling sessions were effective or whether the parent
continues to experience problems that would impede his or her ability to parent. If
no additional details of the treatment are disclosed, the court does not have material,
relevant information upon which to base its decision about the child’s fate and the
parent’s continued right to parent that child.
{¶ 19} These are serious concerns that must be weighed against the basic
tenet of confidentiality, and the concern that a parent will not be candid and open
while undergoing treatment for fear of later disclosure. However, I agree that these
competing public policy issues should not be judicially crafted, and instead belong
in the legislative forum subject to public debate.
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