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MATTER ADOPTION LISA MARIE EMBICK (03/20/86)

filed: March 20, 1986.

IN THE MATTER OF THE ADOPTION OF LISA MARIE EMBICK, A/K/A LISA MARIE PLETCHER, A MINOR. APPEAL OF RONALD EMBICK AND DONNA PLETCHER EMBICK


Appeal from the Order of the Court of Common Pleas of Clinton County, Civil, at No. 8-1983.

COUNSEL

Charles R. Rosamilia, Jr., Lock Haven, for appellants.

Rowley, Olszewski and Montemuro, JJ.

Author: Montemuro

[ 351 Pa. Super. Page 493]

This is an appeal from the final decree terminating the parental rights of appellants, Ronald E. Embick (hereinafter Ronald) and Donna Pletcher Embick (hereinafter Donna) in their daughter Lisa Marie Embick, also known as Lisa Marie Pletcher (hereinafter Lisa). Our thorough review of the record and application of the appropriate standard of review compels us to conclude that the determination of the court below is well supported by the evidence. Accordingly we affirm.

Appellants have presented two questions for review:

1. Whether the Clinton County Children and Youth Agency (hereinafter Agency) has established by clear and convincing evidence the grounds for involuntary termination of parental rights under Sections 2511(a)(2) and (a)(5) of the Adoption Act of 1980?*fn1

2. Whether a licensed psychologist can, without the written consent of his/her patient be examined in a civil matter as to information acquired in the course of his/her professional services on behalf of such client?*fn2 The second question appears to be one of first impression in this jurisdiction.

[ 351 Pa. Super. Page 494]

We shall discuss the second question first.

Appellants challenge the ruling of the court below which admitted the testimony of Dr. Patricia Piper, a licensed psychologist. They argue that Dr. Piper's testimony concerned confidential communications between a psychologist and client and, thus, were privileged.

The psychologist-client privilege relied upon by appellants reads as follows:

No person who has been licensed under the act of March 23, 1972 (P.L. 136, No. 52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.

Act of July 9, 1976, P.L. 586, No. 142 § 2, 42 Pa.C.S. § 5944 (footnote omitted).

All parties agree that Dr. Piper is a licensed psychologist in Pennsylvania and has been ever since 1977. Nor can her qualifications be seriously questioned; she has earned an undergraduate degree in psychology, a master's degree in counseled psychology, and a doctorate in counseled psychology. All her degrees were earned at Duke University. For five (5) years she worked at the Children's Psychiatric Institute where she did an internship. Following her internship, she returned to Pennsylvania in 1978. From 1978 until the date of the hearing in this matter she has been engaged in private practice. (N.T.T.H. at 56-57).*fn3

Dr. Piper testified that she examined the appellants and Lisa at the request of the Agency. She stated that the purpose of her examination was two-fold: first, she was asked to see if anything could be done to reunite the family and, second, she was to make an assessment as to what

[ 351 Pa. Super. Page 495]

    would be in Lisa's best interests as far as permanent placement. (N.T.T.H. at 57).

Dr. Piper also testified that she informed the natural mother that the results of her testing would be shared with other people, and that that was always her practice when a child was involved. (N.T.T.H. at 59).

The testimony of Dr. Piper which was sought to be excluded by appellant's reliance on the psychologist-client privilege may be summarized as follows:

When asked what testing was done by her, Dr. Piper testified that because of Lisa's age (she had just recently turned two), no formal testing was done. In Lisa's case, Dr. Piper stated that she spent five (5) hours with her, watching her in the presence of only her foster parents, watching her in the presence of only the appellants, and watching her in the presence of only her foster mother. It was, according to Dr. Piper, a matter of observing and playing with Lisa, and gauging her development accordingly. (N.T.T.H. at 59).

Dr. Piper testified that Lisa was shy with her when she was with her foster parents, but was very warm with her foster parents. She sat on her foster mother's lap and on her foster father's lap, played nicely with toys, and talked and sang while she was with them. The same was true when Lisa was seen just with her foster mother. (N.T.T.H. at 58).

Dr. Piper continued her testimony by stating that when she observed Lisa with her natural parents, the child screamed loudly, "I want my mommy, I want to get out." She refused to sit on her natural father's lap, and eventually fell asleep in her natural mother's lap, screaming until shortly before falling asleep. (N.T.T.H. at 58).

Dr. Piper testified that with the weekly visits the appellants had with Lisa, she would have expected to see more of a relationship between appellants and Lisa, and that she would have expected Lisa to be more comfortable in their presence. (N.T.T.H. at 58). Lisa, according to Dr. Piper,

[ 351 Pa. Super. Page 496]

    was desperately unhappy when she was in appellants' presence. (N.T.T.H. at 59).

At this point we should observe that the range of applicability of Pennsylvania's psychologist-client privilege has been defined as being the same as the attorney-client privilege. 42 Pa.C.S. § 5944. In Commonwealth v. Goldblum, 498 Pa. 455, 464, 447 A.2d 234, 239 (1982), our supreme court said: "Between an attorney and client the privilege is confined to confidential communications." Thus, even assuming that Lisa was Dr. Piper's client, and certainly she was not, Dr. Piper's testimony concerning Lisa was based on visual observation of Lisa while alone with her natural parents, and alone with her foster parents. There were no confidential communications.

When asked what testing was done on the appellants, Dr. Piper testified that they were both given the Wexler Adult Intelligence Scale Revised Test as well as sentence completion items and discipline techniques. (N.T.T.H. at 57).

Dr. Piper testified that Donna's testing showed her to be functioning in the mentally retarded range with a verbal I.Q. of 65, a performance I.Q. of 74, which is borderline range, and an overall full-scale I.Q. of 68, which is in the mentally retarded range.*fn4 (N.T.T.H. at 60).

With reference to her other tests, Dr. Piper stated that the natural mother showed woeful inadequacies in her responses to discipline techniques, and also with regard to child development milestones. By way of example, Dr. Piper testified that the natural mother said that a child should be eighteen (18) years old before being left alone in the house, yet at age two (2) a child should be able to clean a bedroom, living room and help with the dishes. Further, the natural mother said a child should be fourteen (14) years of age before it could cross the street. The natural mother told Dr. Piper that Lisa was eating fifty (50) jars of baby food a day, and when asked how she would know if a child was sick, she said you would rush her to the hospital if

[ 351 Pa. Super. Page 497]

    the child's temperature was over ninety (90) degrees, seventy (70) to eighty (80) being normal. (N.T.T.H. at 60).

Dr. Piper concluded by saying that in her opinion Donna was not capable at the time of hearing to provide Lisa with the care that would be considered adequate parenting. (N.T.T.H. at 61).

With reference to Ronald, the natural father, Dr. Piper testified that while he had a higher intellectual ability*fn5 and a better understanding of safety rules for children, he was unaware of the emotional needs of the child, and was incorrect as to what could be expected of a child at different ages. For example, Dr. Piper stated that when asked why Lisa should be returned to them, Ronald responded that she should not be returned at this time because they were not capable of keeping her, but that he would like to see her taken from the foster home so that she would be forced to turn toward them, the appellants, for affection. When asked how he thought Lisa would feel about such a removal, he at first replied, "I don't know, I'm not here", and when asked again he said, "well, she would get over it in a couple of days. She would be a little unhappy but she would get over it pretty quickly." (N.T.T.H. 62, 63). Dr. Piper opined that such a removal of Lisa from one foster home to another for the purpose suggested by the natural father would be devastating for Lisa.

Dr. Piper testified that in her opinion the natural father was not capable of parenting Lisa. Dr. Piper also was of the opinion that Lisa's permanent placement with her foster parents by way of adoption would best serve her needs and welfare.

Was Dr. Piper's testimony concerning the natural parents, offered by the Agency as part of its case on involuntary termination of parental rights, privileged and therefore

[ 351 Pa. Super. Page 498]

    inadmissible under the psychologist-client privilege? We think not, and find no abuse of discretion in its admission by the hearing judge.

Our research has failed to unearth any Pennsylvania case wherein the psychologist-client privilege has been asserted when the issue before the court was, as in the case sub judice, whether parental rights should be involuntarily terminated. Those cases where the statutory privilege was asserted are easily distinguished.*fn6

At common law the attorney-client relationship was the only professional association protected by an evidentiary privilege. 8 J. WIGMORE, EVIDENCE, § 2286, n. 17

[ 351 Pa. Super. Page 499]

(McNAUGHTON'S rev. ed. 1961). In the early fifteen hundreds, the theory of the attorney-client privilege was objective rather than subjective -- "a consideration for the oath and the honor of the attorney rather than for the apprehensions of his client." Id. at § 2290 (emphasis in original). However, since the latter part of the seventeen hundreds the new theory, which prevails today, evolved, grounded on the subjective consideration that, "in order to promote freedom of consultation of legal advisers by clients, the apprehension of compelled disclosure by legal advisers must be removed . . . ." Id § 2291. This concept of freedom of consultation was recognized by this court in Commonwealth v. Hutchinson, 290 Pa. Super. 254, 263, 434 A.2d 740, 744 (1981) when, we said "[a] fundamental purpose of the attorney-client privilege is to foster full communication between an attorney and his client."

This Commonwealth, like most of our sister states, mindful of the common law rule that "no pledge of privacy nor oath of secrecy can avail against demand for truth in a court of justice", WIGMORE, supra, § 2286, passed legislation to protect disclosure of communications in certain other relationships, e.g., physician-patient, 42 Pa.C.S. § 5929; confidential communications to news reporters (the so-called Pennsylvania Shield Law), 42 Pa.C.S. § 5942; confidential communications to clergymen, 42 Pa.C.S. § 5943; confidential communications between psychologist and client, 42 Pa.C.S. § 5944; confidential communications to school personnel, 42 Pa.C.S. § 5945 and, most recently, confidential communications with sexual assault counselors, 42 Pa.C.S. § 5945.1. The common law attorney-client privilege was codified in the Act of May 23, 1887, P.L. 158, No. 89, § 5(d), 28 P.S. § 321, repealed and reenacted by Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978, 42 Pa.C.S. § 5928.

There can be no doubt that the purpose of the psychologist-client privilege is to encourage people to seek professional help for their mental or emotional problems, and that purpose is best accomplished when people in need of psychotherapeutic

[ 351 Pa. Super. Page 500]

    treatment know that what they tell their therapist during treatment will not be disclosed to anyone. In a concurring and dissenting opinion in Commonwealth ex rel. Platt v. Platt, supra, former President Judge Spaeth wrote that, "General agreement exists in the legal and medical worlds that confidentiality of communications between patients and therapists is the sine qua non of successful psychiatric treatment." Id., 266 Pa. Superior Ct. at 305, 404 A.2d 425. (citations omitted.)

It cannot be gainsaid that society desires to protect and provide succor for the relationship of psychologist and client, and that without the confidentiality which the privilege provides, many people would simply forego therapeutic treatment.

With that rationale as the underpinning in support of non-disclosure of confidential communications between client and psychologist, should the privilege be applicable where appellants, as in the case at bar, agreed to be examined by Dr. Piper at the request of the Agency? For several reasons, we think not.

First, there has been no showing that appellants were Dr. Piper's clients in any sense of that term. They were not seeking treatment, or counseling, or advice for any mental or emotional problems; in fact, as we read this record, we doubt that either appellant would ever even remotely suggest that any mental or emotional problems might exist. They went to see Dr. Piper because they were asked to do so by the Agency, and for the limited purpose of examination. We therefore hold that under the facts of this case, the relationship between appellants and Dr. Piper was not the type of relationship contemplated by the statute which confers the privilege.

Second, we are satisfied from our own reading of the record that appellants knew Dr. Piper would, at the very least, report back to the Agency if not directly to the court, the results ...


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