D.A.S. v. People

863 P.2d 291, 17 Brief Times Rptr. 1754, 1993 Colo. LEXIS 904, 1993 WL 467715

• Court: Supreme Court of Colorado
• Decided: November 15, 1993
• Docket: 92SC646
• Status: Published

Opinions

Chief Justice ROVIRA

delivered the Opinion of the Court.

In this appeal, D.A.S. (the mother) contends that the court of appeals erred in affirming the judgment of the juvenile court which terminated her parental-relationship with her children (O.J.S., A.S.S77 and D.A.S., Jr. (Jr.)).¹ The mother argues that reversal is necessary because the testimony of a psychologist and his report were admitted into evidence at the termination hearing in violation of the attorney-client privilege. ■ We affirm.

I

On April 29, 1987, the Colorado Department of Social Services (department) filed a dependent or neglected children petition with the City and County of Denver juvenile court on behalf of Jr. The petition alleged that Jr. had been placed in a shelter by Denver Police Department personnel after the staff at the United Cerebral Palsy Center, a therapeutic preschool attended by Jr., noticed severe bruising on his back, buttocks, and thighs as well as bruising on his ear and cheek. The petition stated that termination of the parent-child relationship may be a possible remedy should the petition be sustained by the juvenile court.

The juvenile court appointed a guardian ad litem to represent Jr. and accepted the mother’s admission that his home environment was injurious to his welfare. The court sustained the petition and adjudicated Jr. a dependent and neglected child. Jr. then was placed in the department’s custody and began residing in a foster care home. A dispositional hearing was set for May 29, 1987, at which time a treatment plan for the mother was adopted by the court.

On September 23, 1987, the department filed a dependent or neglected children petition with the juvenile court concerning O.J.S. and A.S.S. in order to bring the two children under the court’s jurisdiction. The court sustained the petition and adjudicated O.J.S. and A.S.S. dependent and neglected children. The court adopted the same treatment plan as the one that earlier was adopted, with the additional requirement that the mother maintain a stable source of income.

On_October 12, 1987, O.J.S. and A.S.S. sustained second and third degree burns in a fire that broke out in the apartment they were living in with their parents. After their release from the hospital, they were placed in foster care.

In November 1989, the department moved to terminate the parent-child legal relationship among both parents and their three children. The department alleged that both the mother and father failed to comply with the treatment plan, they were unfit as parents, the treatment plan had been unsuccessful at rehabilitating the parents, and the parents’ conduct was unlikely to change within a reasonable time.

Thereafter, the mother requested the trial court to appoint Dr. Richard Spiegle, a clinical psychologist, as her independent expert witness pursuant to section 19-3-607(1), 8B C.R.S. (1993 Supp.).² The motion stated, in relevant part, that “[f]or the purpose of the termination hearing set for February 5,1990, the [mother] requests the appointment of Dr. Richard Spiegle to conduct an evaluation of the [mother] and her relationship with the minor children....” The motion was granted and the evaluation began in August of 1990. Dr. Spiegle met alqne with the mother four times for clinical interviews and testing. On one occasion, he met with the mother and the children for a parent-child interactional evaluation. In addition, Spiegle obtained relevant documents and information from persons involved in the case. Based on this information, he prepared a written report.

At trial, the mother elected neither to call Spiegle as a witness nor submit his report into evidence. The guardian ad li-tem, however, sought to call Spiegle to testify and introduce his report into evidence. The mother objected. Relying on B.B. v. People, 785 P.2d 132 (Colo.1990), she argued that the attorney-client privilege protected the testimony and report from disclosure.

The court admitted both the testimony and the report, concluding that B.B. was inapposite and that the children’s involvement in the evaluation either negated any attorney-client privilege that might have existed or created an equal privilege in the children which only they could waive. Based on this and other evidence, the court terminated both the mother’s and the father’s parental relationship with their three children. Both parents appealed and the cases were consolidated.

The court of appeals affirmed, reasoning that the presence of the children at the parent-child interactional evaluation, the knowledge of the mother’s attorney that the interactional evaluation would be undertaken, and the provisions of section 19-3-203(2), 8B C.R.S. (1993 Supp.),³ support the conclusion that “the psychologist was appointed and hired under circumstances which prevented the creation of any attorney-client privilege.” People In the Interest of O.J.S., A.S.S., and D.A.S., Jr., 844 P.2d 1230, 1232 (Colo.App.1992).

The mother appeals arguing that (1) the attorney-client privilege attached to the testimony of Spiegle and the report prepared by him and (2) the request for and participation in the parent-child interactional evaluation did not amount to a waiver of the attorney-client privilege.

II

The mother claims a blanket privilege for all of the testimony of Spiegle and all of the information contained in his written report. As stated in her objection at trial, she invoked the “attorney-client privilege ... and objected] to [the] testimony of Dr. Spiegle and introduction of the report into evidence.” It is important to note at the outset, however, that the privilege asserted cannot possibly extend to all of the testimony and written conclusions of Spiegle.

Section 13-90-107(l)(b), 6A C.R.S. (1987), provides, in part, that “[a]n attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon.... ” The testimony and report admitted at the request of the guardian ad litem was not limited to communications made by the mother to Spiegle and the advice given in response to those communications. Rather, a considerable amount of testimony concerned Spiegle’s observations and conclusions regarding the children themselves. For example, he testified that the “children were affectionate, very needy, and the interactions [between them and the mother] were appropriate based on the level of disruption that the kids have experienced.” He observed that “the kids were developmentally disabled themselves,” and concluded that “based on their needs, they interacted appropriately” with the mother. In addition, Spiegle testified that the children “were very excited and energetic” and the need for discipline never arose. He testified to the children’s cognitive difficulties, and the problems encountered while interacting with their caretaker as a result of their communicative and emotional troubles. He also concluded that based on the children’s needs, as well as the inability of the mother to fulfill those needs, that the parent-child legal relationship should be terminated.

In short, much of the information to which the mother claims the attorney-client privilege has nothing to do with “communications made by the client to him [Spie-gle].” Section 13-90-107(l)(b), 6A C.R.S. (1993 Supp.). Rather, a considerable amount of that testimony resulted from information obtained entirely outside the context of communications which are covered by the statutory attorney-client privilege. In the words of the trial court, Spie-gle’s testimony indicated “that he actually did an evaluation of the children — evaluated their needs, their delays. He evaluated the interaction between the children and the respondent mother.”

Recognizing that the privilege asserted by the mother does not extend to all of the challenged testimony and conclusions of Spiegle, we turn to the narrower question of whether any of Spiegle’s testimony or written conclusions are protected from disclosure under the attorney-client privilege. For the reasons that follow, we conclude that they are not.

A

The mother argues that the court of appeals erred in not applying the holding of B.B. to the facts of this case. She acknowledges that the burden of establishing the applicability of the attorney-client privilege rests with the claimant of the privilege, Clark v. District Court, 668 P.2d 3, 8 (Colo.1983), but asserts that this burden was met by her reliance on B.B. v. People, 785 P.2d 132 (Colo.1990).

In B.B. v. People, 785 P.2d 132 (Colo.1990), we considered “whether a privilege exists between an indigent parent and an expert witness appointed by the court at the request of the parent under section 19-11-107(1), enabling the parent to prevent the expert from testifying on behalf of the People at the termination hearing.” Id. at 133. After examining the need to provide a parent who faces termination of the parent-child legal relationship with fundamentally fair procedures as well as the underlying purposes of the attorney-client privilege, id. at 138-39, we concluded that “when an expert is appointed under section 19-11-107(1) for an indigent parent at the request of the parent’s attorney, communications between the parent and the expert are protected by the attorney-client privilege.” Id. at 138 (emphasis added).⁴

The privilege recognized in B.B. is not absolute, however. To the contrary, under a variety of circumstances the cloak of confidentiality afforded by the attorney-client privilege does not extend to particular communications between an attorney (or his agent) and a client. It is well-settled, for example, that the attorney-client “privilege applies only to statements made in circumstances giving rise to a reasonable expectation that the statements will be treated as confidential.” Lanari v. People, 827 P.2d 495, 499 (Colo.1992). “A mere showing that the communication was from client to attorney does not suffice, but the circumstances indicating the intention of secrecy must appear.” John W. Strong et al., McCormick on Evidence § 91, at 333 (4th ed. 1992).

Here, the mother’s motion for a court appointed expert under section 19-3-607(1), 8B C.R.S. (1993 Supp.), expressly requested that Spiegle “conduct an evaluation of the [mother] and her relationship with the minor children_” The uncontroverted testimony at trial established that at the time the mother’s attorney filed the motion requesting the appointment of Spiegle, she was aware that conducting a parent-child interactional evaluation was “standard procedure” for him. Moreover, at no time was a request made of Spiegle to forego his normal practice by refraining from conducting the parent-child evaluation. Thus, it is clear that from the very outset the mother was aware that at least some of the communications between herself and Spie-gle would occur in the presence of the children. In addition, it is significant to note that Spiegle’s report had been provided to all counsel involved in the termination proceeding prior to trial. This fact strongly suggests that, at least as far as Spiegle was concerned, the report prepared by him was not intended to be treated as confidential.⁵

The mother maintains, however, that her communications with Spiegle should be considered confidential irrespective of the presence of the children and in spite of the fact that the report had been distributed to all counsel prior to trial. The basis for this argument is the generally recognized rule that, although the presence of a third person ordinarily destroys the confidentiality required to assert the attorney-client privilege, that destruction “does not always occur when a person other than client and lawyer becomes a party to the communication if that person is needed to make the conference possible.” 2 Jack B. Weinstein et al., Weinstein’s Evidence 503(a)(4)[01] (1993). This exception has been applied in numerous contexts, all of which are factually distinguishable from the situation presented here.

For example, the presence of a third party has been found not to defeat the requirement of intended confidentiality where “the help of an interpreter is necessary to enable the client to consult the lawyer,” or in cases “where the client has one of his agents attend the conference, or the lawyer calls in his clerk or confidential secretary.” John W. Strong et al., McCormick on Evidence § 91 at 334-35 (4th ed. 1992). We are aware of no authority, however, where this exception has been found applicable when a party that is represented by independent counsel is the third party who is present during the communications at issue. Thus, while we acknowledge that the presence of third parties does not necessarily negate a finding of intended confidentiality if the presence of that party is necessary for the consultation to occur, given the fact that the children themselves are parties to this action and represented by counsel, we believe that the mother could not have had a reasonable expectation that her communications with Spiegle would be confidential.

Moreover, even assuming that this exception to the general rule is applicable when the third person who is privy to the communication is also a party to the litigation, we conclude that the mother has failed to establish, and the record does not support the finding, that the presence of the children was necessary to make Spiegle’s evaluation possible.

The only testimony at trial concerning the reasons why the presence of the children was needed was that in Spiegle’s opinion, conducting a parent-child interactional evaluation was an “appropriate” procedure for determining the mother’s fitness as a parent, and a procedure which was “standard” for Spiegle to conduct. The record is devoid of any evidence which establishes that a parent-child interactional evaluation is necessary in order for a court appointed expert to properly assist in mounting an effective defense against a possible termination of the parent-child legal relationship, and Spiegle’s testimony establishes only that such an evaluation was considered by him to be appropriate and one he routinely utilized. Consequently, we reject the mother’s argument that the presence of the children did not violate the requirement that communications be confidential in order for the attorney-client privilege to attach.

We conclude, therefore, that the attorney-client privilege did not attach given the fact that: (1) much of the information to which the privilege is claimed did not fall within the scope of that privilege; (2) the mother’s attorney knew, prior to appointment of Spiegle, that a parent-child interac-tional evaluation would likely be conducted; (3) no request was made to forego that evaluation; (4) the children participated in Spiegle’s evaluation of the mother and themselves; (5) the children’s participation in the evaluative process was not required in order to make Spiegle’s evaluation possible; and (6) Spiegle’s report had been disseminated to opposing counsel prior to trial.

Accordingly, we reject the mother’s contention that the court of appeals erred in affirming the juvenile court’s ruling that the attorney-client privilege did not attach to the testimony and report of Spiegle.

JUDGMENT AFFIRMED.

LOHR, J., dissents. KIRSHBAUM and SCOTT, JJ., join in the dissent.

1 . Though many of the juvenile court's orders applied to the father as well as the mother, the father did not seek certiorari review of the court of appeals opinion. Consequently, we focus primarily on the juvenile court's orders as they apply to the mother.

2 . Section 19-3-607(1), 8B C.R.S. (1993 Supp.), provides, in pertinent part, that "[a]n indigent parent has the right to have appointed one expert witness of his own choosing whose reasonable fees and expenses, subject to the court’s review and approval, shall be paid by the state of Colorado pursuant to section 19-3-610.”

3 . Section 19-3-203(2), 8B C.R.S. (1993 Supp.), provides, in part, that ”[t]he guardian ad litem shall be provided with all reports relevant to a case submitted to or made by any agency or person pursuant to this article, including reports of examination of the child or persons responsible for the neglect or dependency of the child.”

4 . We note there is no indication in either the facts or holding of B.B. that the children were present during any portion of the evaluative process conducted by the appointed expert in that case. On its own terms, therefore, the holding of B.B. does not specifically address the question of whether the attorney-client privilege extends to communication among a parent, child, and appointed expert.

5 . The mother’s attorney stated that she did not distribute the report herself and assumed that it was Spiegle who must have disseminated it.