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07/10/90 O.L. B.L.

July 10, 1990

IN RE O.L., B.L., APPELLANT


Appeal from the Superior Court of the District of Columbia; Hon. Geoffrey M. Alprin, Motions Judge; Hon. Curtis E. von Kann, Trial Judge

Terry, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Schwelb

The principal issue presented in this appeal is whether, in a child neglect proceeding based on the mother's alleged mental illness and drug abuse, the trial Judge may, over the mother's objection, "waive" her physician-patient privilege with respect to past professional evaluations of her mental condition. Substantially for the reasons stated by Judge A. Franklin Burgess, Jr. in his excellent opinion in In re D.H., 117 Daily Wash. L. Rptr. 2109 (Super. Ct. D.C. 1989), *fn1 we answer that question in the affirmative. *fn2

I

O.L., (the child), was born to B.L., (the mother), on October 21, 1986. On December 21, 1987, the Corporation Counsel filed a petition alleging that O.L. was a neglected child within the meaning of D.C. Code § 16-2301(9)(B) and (C) (1989). The petition alleged in pertinent part that

aid child's mother is unable to provide appropriate care and supervision for said child due to her mental illness and drug usage. On or about April 22, 1987, said child's mother admitted using illegal drugs in said child's presence. Said child's mother was treated for mental illness in 1982. Ms. [L.] was then diagnosed as suffering from "brief reactive psychosis." On several occasions in March, April, and November 1987, Ms. [L.] was observed to exhibit inappropriate, violent behavior and rapid mood swings, including private and public property destruction, displaying signs of mental illness.

After the petition was filed, the government sought a pretrial order waiving the mother's physician-patient privilege with respect to her prior treatment at St. Elizabeths Hospital. The government relied on D.C. Code § 2-1355 (1988), Which authorizes the admission "in any proceeding . . . concerning the welfare of a neglected child" of evidence that would otherwise be barred by the physician-patient privilege, provided that the court has determined that such privilege should be waived in the interest of Justice. *fn3 The mother opposed the request, however, and judge Geoffrey M. Alprin sustained her position. Noting that § 2-1355 was a part of the District's statutory scheme requiring mandatory reporting of suspected cases of child neglect and abuse by certain health care professionals, see D.C. Code §§ 2-1351 - 2-1357 (1988), he concluded that, notwithstanding its apparent plain meaning, § 2-1355 was limited in its application to cases in which such professionals were making the required reports. In re O.L., 116 Daily Wash. L. Rptr. 2733 (Super. Ct. D.C. 1988) (O.L. I). *fn4 Judge Alprin held that D.C. Code § 16-2315(e)(1) (1988), which authorizes the court to order a mental or physical examination of a parent before trial where that parent's mental or physical capacity to care for the child is in issue, is the appropriate vehicle for securing an expert assessment of the parent's psychological condition.

The case subsequently came before Judge Curtis von Kann, who ruled at trial, and subsequently reiterated in a written opinion, In re O.L., 117 Daily Wash. L. Rptr. 1329 (Super Ct. D.C. 1989) (O.L. II), that the psychiatrist and psychologist who examined the mother pursuant to § 16-2315(e)(1) were authorized, despite the mother's refusal to waive the physician-patient privilege, to review the records of her past mental health treatment. Relying inter alia on these experts' testimony, which was based in part on the records of the mother's past treatment, the Judge found respondent O.L. to be a neglected child.

The mother now appeals from the adjudication of neglect. Her primary contention in this court *fn5 is that the trial Judge committed reversible error by overruling her claim of physician-patient privilege.

II

Although Judge von Kann, treating Judge Alprin's construction of § 2-1355 as law of the case, and viewing it as correct in any event, authorized examination of the mother's records for other reasons, O.L. II, (supra) , 117 Daily Wash. L. Rptr. at 1333-38, we agree with and adopt Judge Burgess' views in D.H. as to the reach of that statute. Accordingly, we affirm the evidentiary ruling and the subsequent adjudication of neglect on grounds different from those on which the trial court relied. *fn6

Counsel for the mother contends that Judge Burgess' construction of § 2-1355 is contrary to its "plain language." Observing that the statute applies by its terms to any proceeding "concerning the welfare of a neglected child," counsel argues that O.L. had not been found to be a neglected child at the time the privilege was waived. Accordingly, he claims, § 2-1355 must be inapplicable.

The problem with this purportedly literal construction is that it puts the cart before the horse; under the mother's scenario, the Judge must make the most important decision implicating the child's safety and welfare before receiving what may be the most important information on the subject. As we observed in In re N.H., 569 A.2d 1179, 1183 (D.C. 1990), in sustaining the trial Judge's waiver of the privilege on the basis of § 2-1355 during the fact-finding hearing designed to determine whether N.H. had been neglected,

he statutory definition of neglected child includes a child whose parents are unable to discharge their responsibilities because of mental incapacity. D.C. Code § 16-2301(9)(B). Obviously, to exclude information about the mother's mental condition would deprive the Judge of important information required for a Disposition in the best interests of the child.

It is in determining whether the child has been neglected -- whether the mother is unable to discharge her responsibilities because of mental incapacity -- that the court needs the information about the parent's mental health.

Moreover, as we have previously noted, the Mental Health Act requires mental health professionals to report suspected cases of neglect or abuse to the appropriate District of Columbia agencies. *fn7 "It taxes logic to suggest that the Mental Health Act authorizes disclosure but would prohibit the same physician, despite § 2-1355, from bringing the same information to the attention of the court in a closed proceeding in the Family Division." N.H., supra, 569 A.2d at 1183 n.7.

The statutory definition of "neglected child" does not specify that there must have been a prior adjudication of neglect. D.C. Cede § 16-2301(9)(B) (1988). There is therefore some question whether the mothers proposed construction of the term is indeed a literal one. Assuming, for the sake of argument, that it is, *fn8 we are confident that the Council of the District of Columbia did not intend to deprive the court, in carrying out is responsibilities to the child as parens patriae, of access to facts which would assist it in making an informed judicious decision as to whether state intervention is appropriate in the lives of the child and his or her parents. Even if we continue to indulge the assumption that the term "neglected child" as used in § 2-1355 literally means what the mother's counsel says it means, we should not make a fortress out of the dictionary at the expense of achieving the evident legislative purpose of enabling the court to carry out its obligations to the child. See generally Alvarez v. United States, 576 A.2d 713, slip op. at 7-8 (D.C. 1990), and authorities there cited.

Our Conclusion that Judge Burgess' analysis of § 2-1355 is correct is further bolstered by two recent decisions of this court, both of which were issued after D.H. In N.H., supra, we rejected the contention that only the Mental Health Information Act of 1978, D.C. Cede § 6-2002 (1989), applies to the question whether past mental health records may be admitted into evidence in child neglect proceedings where the mother has invoked the physician-patient privilege. We expressly held, on the contrary, that § 2-1355 controls. 569 A.2d at 1183. In rejecting the mother's claim that disclosure would contravene what she described as her constitutionally protected right to privacy, we held, citing analogous authority from other jurisdictions, that "the interest of the District of Columbia in assuring that the mother is mentally competent to raise the daughter is sufficiently strong to limit the mother's privacy rights." Id. at 1184. We also stated that "policy considerations involving custody and welfare of children dictate the need for flexibility in applying technical rules of evidence." Id. (citation omitted.)

In In re S.K., 564 A.2d 1382 (D.C. 1989), we held that "ivil neglect statutes are designed to enable the state to identify and protect children who are in need of assistance; they are remedial and should be liberally construed." Id. at 1388. We added that one cannot determine whether a child's welfare requires the intervention of the state "by simply examining the most recent episode. Rather, the Judge must be apprised of the entire mosaic." Id. at 1389. *fn9

Our approach in N.H. and S.K. is altogether incompatible with the notion that remedial child neglect legislation should be construed to deprive the Judge of information which he or she needs in order to protect the safety and welfare of a minor child who has allegedly been neglected or abused. We do not minimize the importance of the physician-patient privilege, especially in the area of mental health. As the court stated in In re S.W., 79 Cal. App. 3d 719, 722, 145 Cal. Rptr. 143, 145 (1978),

hen a parent is afflicted with an illness or disability which may affect the welfare of the child, the confidentiality of communication with a therapist may encourage the parent to seek treatment, and ...


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