In re Jones

790 N.E.2d 321, 99 Ohio St. 3d 203
CourtOhio Supreme Court
DecidedJuly 2, 2003
DocketNo. 2002-0176
StatusPublished
Cited by14 cases

This text of 790 N.E.2d 321 (In re Jones) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Jones, 790 N.E.2d 321, 99 Ohio St. 3d 203 (Ohio 2003).

Opinion

Moyer, C.J.

{¶ 1} Zachary Jones is the minor son of appellant, Karen Nye. Karen is also the mother of three daughters, two of whom live with their father, Zachary’s [204]*204stepfather, Robert Nye. In January 2001, Franklin County Children Services (“FCCS”) filed a complaint in the Franklin County Court of Common Pleas, Domestic Relations and Juvenile Division, alleging that Zachary, who at that time was living with his mother, was a dependent child in need of services. FCCS sought custody, as did Zachary’s stepfather.

2} FCCS had become involved with the Nyes during earlier dependency adjudications concerning the daughters. Robert was eventually granted temporary legal custody of the girls.

{¶ 3} As part of the earlier proceedings, in February, 2000, a licensed independent social worker, Sharon Pickel, had begun counseling sessions with the Nye sisters. Ultimately Robert, Karen, and Zachary joined the counseling sessions. Pickel conducted an individual therapy session with Karen on September 25, 2000. Pickel met with Karen, Robert, and two FCCS employees on October 3, 2000, to “talk about the ground rules for family therapy.” Karen attended ten counseling sessions conducted by Pickel, eight of which were family sessions.

{¶ 4} Karen’s participation in counseling was part of a case plan approved by the court in the dependency proceedings concerning the daughters. The case plan required Karen to undergo counseling, one goal of which was to improve her parenting skills.

{¶ 5} After FCCS filed its complaint concerning Zachary, the court awarded temporary custody of him to Robert and ordered a mental health assessment of Karen, who was restricted to supervised visitation. Accordingly, George Pfaff, a licensed independent social worker, thereafter interviewed Karen.

{¶ 6} On February 2, 2001, the court held a hearing to consider Karen’s request for broader visitation, and Pickel was the sole witness. Over Karen’s objection, Pickel divulged some of the contents of her conversations with Karen during counseling. The trial court overruled Karen’s motion that Pickel’s testimony be stricken as violating “client/clinician privilege.” In denying Karen’s objection to Pickel’s testimony, the court found that “Mrs. Nye was engaged with Miss Pickel pursuant to court order and only to the extent to be involved with family counseling as it was instant to the children’s counseling.” The court found that a therapist-client relationship had not existed between Karen and Pickel because Karen’s counseling sessions with Pickel were not for purposes of treatment. Based on Pickel’s testimony, the court ordered that visits between Zachary and his mother continue to be supervised.

{¶ 7} At the conclusion of the February 2 hearing, the guardian ad litem noted that the court had ordered psychological testing on Karen and Robert in the case involving the Nye sisters and asked the court to take judicial notice of “everything in the court file from the other case and incorporate it in this case so that Court [sic] doesn’t have to spend money on a psychological for these people.”

[205]*205{¶ 8} On February 22, 2001, Pfaff was called as a witness at Zachary’s dependency hearing. He immediately asked the court to consider whether the privilege provided by R.C. 2317.02(G) applied to limit his testimony. Karen, through counsel, refused to waive any privilege. The court ruled that Karen’s mental health assessment occurred pursuant to a court order and was not for purposes of treatment. Therefore, a privileged, therapeutic relationship had not been established between Karen and Pfaff. Pfaff then testified that Karen suffered from adjustment disorder and posttraumatic stress disorder and showed symptoms of borderline personality disorder and histrionic personality disorder. His assessment was based on a two-and-one-half-hour interview at which Nye provided him a history and responded to his questions.

{¶ 9} Dr. John H. Mason, a psychologist, also appeared as a witness at Zachary’s dependency hearing. He testified that in early 2000, pursuant to the court’s referral, he had evaluated both Karen and Robert in connection with the court proceedings concerning their two daughters. He recounted that he had performed his standard evaluative process, including a clinical interview and the administration of standardized psychological tests. He testified that the results of his testing suggested that Karen might possess a personality disorder and that she should not be the custodial parent. Dr. Mason further testified that his only professional contact with either Nye was his conducting the psychological evaluations ordered by the court.

{¶ 10} During the last day of the dependency hearings, Pickel’s testimony from the visitation hearing was incorporated into the record by agreement. Mason’s reports were admitted into evidence. The court declared Zachary a dependent minor pursuant to R.C. 2151.04(C) and granted custody to FCCS.

{¶ 11} Karen appealed, arguing that the trial court erred in admitting the therapists’ testimony and report in the absence of any waiver of the testimonial privilege.

{¶ 12} The court of appeals affirmed the judgment of the trial court, holding that a therapist-client privilege applies only to communications “made in the course of treatment.” It thereafter certified the cause to this court, finding that its judgment conflicted with the decisions of the Stark County Court of Appeals in In re Daywalt (Mar. 19, 2001), Stark App. Nos. 2000CA332 and 2000CA355, and In re Layne (June 25, 2001), Stark App. No. 2001CA00104, 2001 WL 1773763; and the Portage County Court of Appeals in In re Kyle (Dec. 1, 2000), Portage App. No. 2000-P-0014, 2000 WL 1774155. It certified this question to us for resolution: “In dependency/neglect cases, do the statutory privileges set forth in former R.C. 4732.19 and R.C. 2317.02(G) apply to the reports and/or testimony of a psychologist and a licensed independent social worker when such testimony and [206]*206report were generated for forensic purposes only and do not concern communications made in the course of treatment?”

{¶ 13} We answer the certified question in the negative, and hold that statements made by an individual to a licensed psychologist or licensed independent social worker in the course of an examination ordered by a court for forensic purposes are not communications received “from a client in that relation,” R.C. 2317.02(G)(1), and are not protected as privileged communications pursuant to R.C. 4732.19 and former R.C. 2317.02, 147 Ohio Laws, Part III, 4686, 4702, as in effect prior to April 10, 2001, the effective date of 2000 Sub.H.B. No. 506. A psychological examination is considered to be for forensic purposes when it is ordered to assist the court in determining facts or making conclusions of law. Individuals interacting with a professional in such an examination are not clients of the professional for purposes of the privilege statutes.

{¶ 14} At the time of the hearings, former R.C. 2317.021 provided:

{¶ 15} “The following persons shall not testify in certain respects:

{¶ 16} “* * *

{¶ 17} “(B)(1) A physician * * * concerning a communication made to the physician * * * by a patient in that relation or the physician’s * * * advice to a patient * * *.

{¶ 18} “* * *

{¶ 19} “(G)(1) * * * [A] person licensed under Chapter 4757.

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Cite This Page — Counsel Stack

Bluebook (online)
790 N.E.2d 321, 99 Ohio St. 3d 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jones-ohio-2003.