Shaw v. Shelby County Department of Public Welfare

612 N.E.2d 557, 1993 Ind. LEXIS 50, 1993 WL 122027

• Court: Indiana Supreme Court
• Decided: April 22, 1993
• Docket: 73S01-9304-JV-443
• Status: Published

Opinions

SHEPARD, Chief Justice.

Is the physician-patient privilege available in a proceeding to terminate parental rights? The Court of Appeals held that it is not. We agree.

The youngest child of Carol Shaw and Ralph Rouse, C.S., was declared a child in need of services in 1991, and the trial court made C.S. a ward of the Shelby County Department of Public Welfare. The Department eventually petitioned the court to terminate parental rights. Rouse appeared by counsel and consented to the termination. Shaw contested the termination and the matter was tried on the merits. The trial court granted the petition, and the Court of Appeals affirmed. Shaw v. Shelby Co. DPW, 605 N.E.2d 799 (Ind.App., 1992).

We grant transfer to consider the admissibility of testimony by physicians during termination proceedings. During the trial on the petition to terminate, the Department called Dr. Robert Pearce as a witness. Dr. Pearce had examined Shaw in connection with another case, and he also interviewed her while conducting an evaluation for this case.

Shaw objected to Pearce's testimony. She contended that her communications to Pearce were privileged under Ind.Code § 34-1-14-5 (West Supp.1992), which provide in part: "Except as otherwise permitted by statute, the following persons shall not be competent witnesses: . Physicians, as to matter communicated to them, as such, by patients, in the course of their professional business, or advice given in such cases." Shaw recognizes that Ind. Code Ann. § 81-6-7-18(d) (West 1979) provides that the physician-patient privilege is not available in CHINS proceedings. She contends that this latter statute does not allow the Department to call Pearce during a termination hearing, however, because the termination is a separate proceeding. This Court has so held. State ex rel. Gosnell v. Cass Circuit Court (1991), Ind., 577 N.E.2d 957.

Although termination proceedings are indeed separate cases from CHINS cases, the Court of Appeals correctly noted that the Code chapter on termination, Ind.Code Ann. § 81-5-5-1 (West 1979), specifically adopts the procedures used in the CHINS chapter. We read this as a legislative decision to render the physician-patient privilege unavailable in a termination proceeding. The trial court was thus correct in admitting the testimony of Dr. Pearce.

The Court of Appeals also correctly rejected Shaw's other contentions of error, and we summarily affirm their determinations on those issues. Ind.Appellate Rule 11(B)(8).

We affirm the judgment of the trial court.

DeBRULER, GIVAN and KRAHULIK, JJ., concur. DICKSON, J., dissents with separate opinion.