580 A.2d 985 | Vt. | 1990
This is an appeal by C.I., a juvenile, from an order of the Franklin District Court declaring him to be a child in need of supervision (CHINS) pursuant to 33 V.S.A. § 632(a)(12)(C). We affirm.
The CHINS petition was filed on January 13,1988, and a preliminary hearing was held on January 21, 1988, at which time father, mother and C.I. all entered denials to the petition; the court ordered that temporary placement of the child remain with the mother. A merits hearing was convened on February 5, 1988, but was continued at the request of the mother prior to the taking of any evidence. Further hearings were held on March 9, March 16, April 5 and April 13, 1988. On April 15, 1988, the court found that C.I. was CHINS because he was beyond the control of his mother. In its disposition order, the court awarded legal custody of C.I. to his mother, with protective supervision by the Department of Social and Rehabilitation Services (SRS). C.I. thereafter filed the present appeal.
C.I. argues first that the trial court lost jurisdiction when it failed to commence a “hearing on the merits” -within fifteen days of the filing of the petition. 33 V.S.A. § 647(a) states in pertinent part:
At the time of the filing of the petition,... the court shall fix a time for á hearing thereon, which, if the child is in detention or shelter care, shall not be later than fifteen days after the filing thereof ....
Appellant argues that there was no “significant” hearing until March 9,1988, and that the period in consideration under § 647(a) should be the period between January 28, 1988 and March 9,1988. We disagree. Although no evidence on the merits was presented until April 5, 1988, the merits hearing was duly convened on February 5, 1988, at which time certain preliminary matters, including the mother’s request for a continuance, were discussed with the court. Since fewer than fifteen days had elapsed from January 28, 1988, the statute was therefore met. See In re R. S., 143 Vt. 565, 569-70, 469 A.2d 751, 754 (1983) (statutory period was complied with where merits hearing, convened within fifteen days of filing petition, was continued to allow parties additional time to prepare).
The statute’s application does not depend on whether a particular hearing is “significant,” and this case is an illustration of why it should be interpreted according to its plain meaning. The hearings on March 9 and March 16 dealt exclusively with preliminary matters, including the issue raised by C.I. of whether Dr. Clifford Rivers, a clinical psychologist, should be allowed to testify about the February 29, 1988 session he had with C.I. and his mother. Central to the appeal is the hearing
C.I. next contends that the court erred in receiving the testimony from Dr. Rivers relating to the February 29, 1988 session, because it was arranged by the deputy state’s attorney without notifying C.I.’s attorney, in violation of D.R. 7-104(A)(l). The disciplinary rule is clear that a lawyer representing a client “shall not... [cjommunicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.” (Emphasis supplied.) The State argues that a juvenile is not an adverse party to the State in a CHINS proceeding within the meaning of D.R. 7-104(A)(l). We do not agree. The fact that the State is acting as parens patriae when it initiates a CHINS proceeding does not mean that those opposing the petition are not adverse parties. It is not the State’s underlying motive nor the fundamental purpose behind the legislation under which the State acts that determines the adverseness of parties in litigation. It suffices for parties to be adverse that “ ‘[t]he issue must be proffered by one and controverted by the other. They must be arrayed on opposite sides of the issue ....’” Williams v. Evans, 220 Kan. 394,
Even assuming a violation of the disciplinary rule, however, it does not follow that the testimony should have been excluded automatically.
In Trans-Cold Express, Inc. v. Arrow Motor Transit, Inc., 440 F.2d 1216 (7th Cir. 1971), a case heavily relied upon by appellant, the trial court refused to admit the transcript of the defendants’ investigator’s report, which had been obtained in violation of a pretrial order and while the investigator falsely purported to represent plaintiff’s employer. In affirming the trial court’s ruling, the Seventh Circuit stated:
*58 Appellants’ basic argument is that the overriding importance of disclosing the truth justified their pretrial tactics. In the long run, truth will be better served by orderly straightforward procedures than by deception and attempted surprise. We find no injustice in the fact that their stratagem misfired.
Id. at 1220. The present case bears no relationship to the facts in Trans-Cold Express. There was no dissembling and no attempted surprise. On the contrary, the deputy state’s attorney’s contact with Dr. Rivers, though in error, arose in the context of Dr. Rivers’ extensive prior association with C.I. and his family on behalf of SRS. Clearly, the deputy state’s attorney should have abandoned the mode of informality once the CHINS petition was filed. But there is no suggestion of intentional misconduct on her part and, based on the entire record in this case, no evidence that the testimony resulted in prejudice to C.I.’s position.
Finally C.I. argues that Dr. Rivers’ testimony about him and his mother should have been barred because it violated their doctor-patient privilege as information acquired by a psychologist “in attending a patient in a professional capacity” within the meaning of 12 V.S.A. § 1612(a).
The same authority applies to C.I. himself, who opposed the CHINS petition, thereby placing his own mental health in issue. V.R.E. 503(d)(3) provides no privilege “as to a communication relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense.” The physical, mental and emotional well-being of C.I. were very much an issue in this proceeding; the impact of the home environment on the juvenile lies at the heart of any CHINS proceeding. Dr. Rivers’ testimony was both relevant and important as it bore on this issue, and to decide that it should have been excluded would place an unnecessary impediment in the path of the court, which is charged with the responsibility of determining whether the juvenile is in fact in need of care or supervision.
Affirmed.
This case does not raise, and we do not consider, the direct enforcement of D.R. 7-104(A)(l). See A.O. 9, § 1.
12 V.S.A. § 1612(a) states:
(а) Confidential information privileged. Unless the patient waives the privilege or unless the privilege is waived by an express provision of law, a person authorized to practice medicine or dentistry, a registered professional or licensed practical nurse, or a mental health professional as defined in 18 V.S.A. § 7101(13) shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.
V.R.E. 503(a)(6) states:
(б) A communication is “confidential” if not intended to be disclosed to third persons, except persons present to further the interest of the patient in the consultation, examination, or interview; persons reasonably necessary for the transmission of the communication; or persons who are participating in diagnosis and treatment under the direction of a physician, dentist, nurse or mental health professional, including members of the patient’s family.