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ENJOLI BENDER (06/15/87)

submitted: June 15, 1987.

IN THE INTEREST OF ENJOLI BENDER, A MINOR. APPEAL OF STEPHANIE BENDER, LEBANON COUNTY CHILDREN AND YOUTH SERVICES


Appeal from the Order entered February 10, 1987 in the Court of Common Pleas of Lebanon County, Juvenile Division, at No. 149, 1980.

COUNSEL

Robert B. Keys, Jr., Lebanon, for appellant.

Samuel A. Kline, Lebanon, for appellee.

Del Sole, Montemuro and Hester, JJ.

Author: Del Sole

[ 366 Pa. Super. Page 451]

Enjoli Bender was declared to be a dependent child by an Order issued by the Court of Common Pleas of Lebanon County on February 10, 1987. In this appeal, Stephanie Bender, (Enjoli's mother), contends that the dependency of her daughter was not established by clear and convincing evidence at the above noted hearing. In particular, she argues that the trial court erred in permitting Dr. Cal Robinson, a staff clinical psychologist at Philhaven Hospital, to testify on behalf of Lebanon County Children and Youth Services (hereinafter, LCCYS) at the hearing, over her objection.

Mrs. Bender was evaluated by Dr. Robinson, at the request of LCCYS, following a dependency hearing regarding Enjoli's sister, Amber, which took place on October 30, 1986. Due to concerns which arose at that proceeding, the trial court directed in its October 30th order, that LCCYS begin to monitor Enjoli's situation at home and school. The record reveals that Mrs. Bender initially consented to having the psychological evaluation, but at the dependency hearing she revoked her consent to release the evaluation, asserted her client-psychologist privilege and objected to Dr. Robinson's testimony.

The psychologist-client privilege asserted by Mrs. Bender is set forth in 42 Pa.C.S.A. Section 5944 as follows:

No person who has been licensed under the act of March 23, 1972 (P.C. 136, No. 52) to practice psychology shall be,

[ 366 Pa. Super. Page 452]

    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. (Emphasis added).

The Pennsylvania Supreme Court in In Re B, 482 Pa. 471, 394 A.2d 419 (1978), held that a mother who voluntarily submits to an evaluation by a court-appointed expert, who is to evaluate her ability to provide adequate care for her child, would not be detrimentally relying on any statutorily created privilege, and as such the privilege would not bar the admission of such evaluation in a juvenile proceeding. In the case sub judice, the trial court held that since Mrs. Bender had consented to the evaluation, her objection to Dr. Robinson's testimony was properly overruled.

Furthermore, this court's recent holding in Matter of Adoption of Embick, 351 Pa. Super. 491, 506 A.2d 455 (1986) is applicable here. In Embick, the appellants also argued that the admission of the testimony of the court appointed psychologist (Dr. Piper) violated their client-psychologist privilege. The Embick court handled the question of whether the privilege should be ...


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