396 Mass. 485 | Mass. | 1986
The mother of a child bom in 1980 appeals, through new appellate counsel, from a judgment of the Bristol County Probate and Family Court dispensing with the need for her (and the father’s) consent to the adoption of her son.
On January 24, 1984, in response to a motion filed by counsel for the child, the judge ordered an examination of the mother by a psychiatrist whom the judge directed “to consider whether or not the mother is mentally and/or [szc] emotionally competent to adequately parent and care for her minor child.”
Evidence quite apart from the psychiatrist’s testimony strongly supported the judge’s conclusion to authorize adoption of the child without the mother’s consent. It is nevertheless apparent from the judge’s findings that the psychiatrist’s testimony provided significant support for the judge’s ultimate ruling. We conclude that the psychiatrist’s testimony was properly admitted under one of the statutory exceptions to the psychotherapist-patient privilege.
We conclude that exception (b) of § 20B supports the admission of the psychiatrist’s testimony. That section provides that “communications [made] to a psychotherapist in the course of a psychiatric examination ordered by the court” are not privileged if a judge finds that the patient made those communications “after having been informed that the communications would not be privileged.”
The mother argues further that the judge should have given attention to the alternative of leaving the child in the custody of the department (and in foster care) and of taking no action to allow the petition to dispense with the mother’s consent to the child’s adoption. The short but complete answer is that there was no factual support for such a conclusion. The mother’s unfitness, apparent from her own testimony, was caused by a condition found to be chronic. Even visitation with the mother was said to be detrimental to the child (and to her). In such circumstances, the judge was warranted in concluding that the best interests of the child were properly reflected in the judgment.
Judgment affirmed.
The Department of Social Services had filed a motion under Mass. R. Civ. P. 35 (a), 365 Mass. 793 (1974), for a psychiatric examination of the mother. That motion was declared moot because of the action taken on January 24, 1984, on the other motion for an examination.
The designation of an expert or other person, appointed to give an impartial report to the judge, as a guardian to represent the interests of a particular party is potentially misleading and should be avoided.
General Laws c. 233, § 20B (e), provides this exeption to the psychotherapist-patient privilege: “In any child custody case in which, upon a hearing in chambers, the judge, in the exercise of his discretion, determines that the psychotherapist has evidence bearing significantly on the patient’s ability to provide suitable custody, and that it is more important to the welfare of the child that the communication be disclosed than that the relationship between patient and psychotherapist be protected.”
At one stage in the trial, the judge apparently was proceeding under the cl. (e) exception in permitting the psychiatrist to testify. At another point, the judge used words consistent with the exception set forth in cl. (c). Clause (c) provides as an exception to the privilege: “In any proceeding, except one involving child custody, in which the patient introduces his mental or emotional condition as an element of his claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected.” It is not apparent that the mother introduced her mental or emotional condition in any respect on the merits of the petition to dispense with her consent to adoption. The department, as would presumably be true in any case of this kind, appears to have introduced the question by alleging the mother’s unfitness in its petition. The cl. (c) exception, therefore, appears to be inapplicable in this case.
Although certain language in exception (b) has particular application to criminal proceedings (see Blaisdell v. Commonwealth, 372 Mass. 753 [1977]), we have considered that exception to be applicable to noncriminal proceedings as well. See Commonwealth v. Barboza, 387 Mass. 105, 109,