State v. L.S.

499 N.W.2d 89, 1 Neb. Ct. App. 518, 1993 Neb. App. LEXIS 77
CourtNebraska Court of Appeals
DecidedFebruary 16, 1993
DocketNo. A-91-1284
StatusPublished
Cited by1 cases

This text of 499 N.W.2d 89 (State v. L.S.) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. L.S., 499 N.W.2d 89, 1 Neb. Ct. App. 518, 1993 Neb. App. LEXIS 77 (Neb. Ct. App. 1993).

Opinion

Irwin, Judge.

L.S. appeals from the order of the separate juvenile court of Lancaster County which placed physical custody of her minor child with the Department of Social Services (DSS).

She alleges that the juvenile court erred in ordering the release of medical records outside a judicial proceeding, in overruling L.S.’ motion to quash, in allowing Dr. Klaus Hartmann to testify without a showing of injury to the child, and in allowing DSS to have physical custody of her child. We affirm.

STANDARD OF REVIEW

An appeal of a juvenile court proceeding to an appellate court is heard de novo upon the record, and the findings of fact by the trial court will be accorded great weight because the trial court heard and observed the parties and witnesses. The trial court’s findings will not be set aside on appeal unless they are against the weight of the evidence or there is a clear abuse of discretion. In re Interest of D.P.Y. and J.L.Y, 239 Neb. 647, 477 N.W.2d 573 (1991); In re Interest of R. W., 236 Neb. 420, 461 N.W.2d 545 (1990).

BACKGROUND

On October 4, 1991, the State filed a petition in juvenile court alleging that L.S., mother of the minor child J.S., was unable to discharge her parental responsibilities because of [520]*520mental illness or mental deficiency. On the same day, the State filed a motion asking the court for an order authorizing Dr. Klaus Hartmann or the keeper of records at Lincoln Psychotherapy Services to provide the State with all medical records pertaining to L.S. The motion alleged that the records contained information critical to the issue of L.S.’ ability to care for her child and that such information was not subject to the physician-patient privilege under Neb. Rev. Stat. § 27-504 (Cum. Supp. 1990). On October 10, the court ordered that the records be disclosed. The court also signed another order on October 10, appointing counsel for L.S.

On October 22, L.S., through her attorney, filed a motion to quash the order which allowed disclosure of her medical records. The motion was overruled. The admit-deny hearing was held on Octoher 24, and L.S. denied the allegations. On October 25, the State filed a motion for temporary custody of J.S., supported by an affidavit from Child Protective Services, which stated that caseworker investigations of the child’s surroundings required such action.

On December 20, an adjudication hearing was held in which it was determined that J.S. was a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 1988). Dr. Hartmann was allowed to testify over objection on the grounds of physician-patient privilege and attorney-client privilege. Based on his personal knowledge of L.S.’ 10-year history of schizophrenia, Dr. Hartmann testified that it was his opinion that L.S. was unable to adequately parent J.S. L.S.’ parents also testified and expressed their concerns regarding L.S.’ parenting abilities. The court sustained the motion, committing J. S. to the temporary legal custody of DSS.

On December 26, a hearing was held and the court granted a motion for immediate physical custody, stating that although reasonable efforts had been made to prevent the need for removal of the child from her mother’s home, it would have been contrary to the welfare of the child to leave her in her mother’s care. The dispositional hearing was held on January 15,1992, and the order of disposition was filed on January 17. L.S. appeals from the adjudication hearing, the temporary custody hearing, and the dispositional hearing.

[521]*521DISCUSSION

L.S. asserts as error that the trial court granted a motion by the State for disclosure of certain medical records of L.S. Several bases were relied on by L.S. for this conclusion, and we will address them individually.

Section 27-504(4)(d).

On October 4, 1991, the Lancaster County Attorney made a written motion to the court for authorization to obtain medical records of appellant from Lincoln Psychotherapy Services. The State maintained and stated in its motion that these records would provide relevant evidence regarding the issue of L.S.’ ability to care for her child and were not subject to privilege because of § 27-504(4)(d).

Section 27-504(4)(d) states: “There is no privilege under this rule in any judicial proceedings under the Nebraska Juvenile Code regarding injuries to children, incompetents, or disabled persons or in any criminal prosecution involving injury to any such person or the willful failure to report any such injuries.”

L.S. first contends that the above statute relates to the privilege “in any judicial proceedings.” Brief for appellant at 2. This is correct. She then goes on to state that a judicial proceeding is best defined as “an in-court action attended by all parties and their counsel.” Id. No authority is given by L.S. for this position. While it is true that a judicial proceeding is defined by Black’s Law Dictionary 849 (6th ed. 1990) as “[a]ny proceeding wherein judicial.action is invoked and taken,” to restrict this definition to only those actions which occur inside the walls of a courtroom is a literal reading and one that results in farcical outcomes. This case provides but one such illustration. L.S. concedes that a patient’s privilege in the setting of a physician-patient relationship is eradicated if the physician is sitting in the witness stand and being questioned by the State’s attorney. However, L.S.’ position is that the State has no right to discover outside the courtroom and before the trial what the physician will testify to in court. Her position is that the State must blindly examine the physician, only once the physician has taken the witness stand. The State will then by necessity conduct a fishing expedition while the judge, the parties, other [522]*522witnesses, other parties scheduled for cases in that court, and a plethora of others wait for the conclusion of what is basically a discovery session. This flies in the face of legislative and judicial philosophy to eliminate surprise in trials, to conduct hearings that result in judicial economy of court resources, and to prevent possible prejudicial evidence from splashing into the proceedings. We conclude that this motion was made in the context of a judicial proceeding, as contemplated by § 27-504(4)(d).

L.S. also argues that § 27-504(4)(d) is triggered only when actual injury has already occurred to a child. However, in In re Interest of Spradlin, 210 Neb. 734, 317 N.W.2d 59 (1982), the court interpreted the term “injuries,” as used in § 27-504(4)(d):

“An action.to protect a dependent and neglected child necessarily involves a question of impairment of a child’s right to parental protection and guidance with consequent loss or destruction of mental and physical health, and the right to a normal and adequate upbringing. . . . This indicates that former section 25-1207 [the predecessor statute to § 27-504] was intended to be effective when the mental condition of a parent is in issue.

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Bluebook (online)
499 N.W.2d 89, 1 Neb. Ct. App. 518, 1993 Neb. App. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ls-nebctapp-1993.