In re O.L.

584 A.2d 1230
CourtDistrict of Columbia Court of Appeals
DecidedJuly 10, 1990
DocketNo. 89-229
StatusPublished
Cited by35 cases

This text of 584 A.2d 1230 (In re O.L.) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re O.L., 584 A.2d 1230 (D.C. 1990).

Opinion

SCHWELB, Associate Judge:

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),1 we answer that question in the affirmative.2

[1231]*1231I

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

[s]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. Eliza-beths 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.3 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. /).4 Judge Alprin held that D.C.Code § 16-2315(e)(l) (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)(l) 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 court5 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, [1232]*1232supra, 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 evidentia-ry ruling and the subsequent adjudication of neglect on grounds different from those on which the trial court relied.6

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,

[t]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.7 “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.Code § 16-2301(9)(B) (1988). There is therefore some question whether the mother’s proposed construction of the term is indeed a literal one. Assuming, for the sake of argument, that it is,8 we are confi[1233]

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Bluebook (online)
584 A.2d 1230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ol-dc-1990.