In re M.L., R.Y., Appellant.
District of Columbia Court of Appeals.
*522 Thomas P. O'Toole, for appellant.
Anna Adamczyk, for appellee M.L.
Tobey K. Oliver, Assistant Attorney General, with whom Peter J. Nickles, Attorney General, for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellee District of Columbia.
Before BLACKBURNE-RIGSBY and OBERLY,[*] Associate Judges, and FARRELL, Senior Judge.
BLACKBURNE-RIGSBY, Associate Judge:
Appellant R.Y. challenges the trial court's determination that he neglected his teenage daughter M.L. from August 2007 to February 2009, during which time M.L. did not attend school. On appeal, appellant contends that the trial court committed numerous errors in reaching its determination of educational neglect. In particular, we focus on appellant's claim that the court committed reversible error by admitting expert testimony and written reports regarding appellant's mental health without previously making an individualized determination that appellant's doctor-patient privilege should be waived. With respect to this claim of legal error, we hold that the Council of the District of Columbia ("Council") did not intend its passage of the Improved Child Abuse Investigations Amendment Act of 2002[1] to bar or restrict Superior Court judges from admitting the results of court-ordered mental evaluations in neglect hearings. Moreover, court-ordered mental examinations made pursuant to D.C.Code § 16-2315(e)(4) (2006 Supp.) are governed by the long-held rule in this jurisdiction that a doctor who examines an individual only for testimonial purposes has "no confidential relation" with the individual and the information gleaned from those examinations is not privileged. Taylor v. United States,
Additionally, we are unpersuaded by appellant's remaining claims that: (1) the trial court abused its discretion and violated appellant's due process rights by denying appellant's request to call M.L. as a witness in appellant's defense; (2) the court abused its discretion in admitting the written reports of the doctors who conducted the court-ordered mental evaluations of appellant, as those reports constituted inadmissible hearsay; and (3) the evidence was insufficient to support the trial court's finding of educational neglect. Accordingly, we affirm the trial court's finding of neglect.
I. Factual Background
The facts in this case are largely undisputed. In summary, M.L. was born to her mother, A.L., and father, appellant R.Y.,[2] on October 8, 1992. On February 2, 2009, appellee District of Columbia filed a petition in Superior Court alleging that M.L. was a neglected child within the meaning of both D.C.Code §§ 16-2301(9)(A)(ii) and (iii) (2009 Supp.). Specifically, the government's petition alleged that M.L. was educationally neglected due to the fact that she had not been enrolled in school for over a year, and that her father suffered from "a mental incapacity that is impacting his ability to parent" M.L. The government alleged neglect pursuant to § 16-2301(9)(A)(iii) based on evidence that, during a three-year period from 2005 through 2008, appellant had reported to authorities a series of false allegations that M.L. had been sexually abused on more than five different occasions. In regard to M.L.'s educational neglect, the government proffered that appellant withdrew M.L. from school for an eighteen-month period, even though appellant acknowledged that M.L. was a special-needs student with cognitive limitations and a learning disability, and appellant was not trained to provide special education instruction.
Beginning on March 20, 2009, Magistrate Judge William W. Nooter presided over a five-day fact-finding hearing to determine whether M.L. was a neglected child.[3] Pursuant to Magistrate Judge Nooter's court order,[4] Dr. Craig King and Dr. Todd Christiansen, both employed by the District of Columbia's Department of Mental Health, conducted evaluations of appellant.[5] After performing numerous psychological tests, both doctors independently concluded that appellant suffered from "Delusional Disorder, Persecutory Type." Dr. King testified that appellant's delusions, that M.L. was being sexually assaulted by various individuals, were a substantial detriment to M.L.'s well-being because they forced her to live "within [appellant's] delusional world, literally changing the way [M.L.] thinks and acts." Ultimately, Magistrate Judge Nooter found that the government had established, *524 by a preponderance of the evidence, that M.L. was a neglected child within the meaning of both D.C.Code §§ 16-2301(9)(A)(ii) and (iii). In a written order dated March 25, 2010, Associate Judge Maurice A. Ross found that Magistrate Judge Nooter did not err or abuse his discretion, and upheld the finding of neglect. Appellant now brings this appeal.
II. Analysis
A. Appellant's Court-Ordered Mental Health Evaluations Were Admissible in the Fact-Finding Neglect Hearing
Appellant contends that the trial court committed reversible error when it admitted expert testimony and written reports about appellant's mental health, over objection, without making an individualized determination that appellant's doctor-patient privilege should be waived in regard to statements made during the course of court-ordered mental evaluations.
Generally, "[e]xcept where otherwise provided by statute, the physician- or psychotherapist-patient privilege does not apply to communications . . . during a mental examination or psychological test required by a court, or to a communication made after a court-ordered examination with respect to that examination." 81 AM. JUR.2D Witnesses § 444 (2004) (citations omitted). This exception to the general rules governing privilege is logicala court-ordered examination is not for the purpose of treatment, but is rather geared towards determining the existence of a fact or condition for the court's benefit. Id.
In the D.C.Code, the provisions governing "[p]hysical and mental examinations" provide that the results of a court-ordered mental examination "shall not be admissible evidence in the fact-finding hearing unless the allegations contained in the petition set forth facts which support a petition pursuant to D.C. Official Code, section 16-2301(9)(C)."[6] The government interprets this subsection to mean that the results of a court-ordered mental examination are admissible where "the District's petition includes allegations that the parent's mental health status leaves them unable to properly care for the child." Therefore, the government contends that the expert reports and testimony were properly admitted because the petition in the present case alleges neglect based upon the parent's mental health status.
Ultimately, we agree with the government's interpretation of the statute and affirm the trial court's order. However, the government, in support of its argument, relied on the outdated version of § 16-2301(9)(C).[7] While § 16-2301(9)(C) formerly read: "[The term `neglected child' means a child:] whose parent, guardian, or other custodian is unable to discharge his or her responsibilities to and for the child because of incarceration, hospitalization, or other physical or mental incapacity," it no longer contains such language.[8] The current version of § 16-2301(9)(C) reads: "Subparagraph (A)(viii), (ix), and (x) of this paragraph shall apply as of October 1, 2003."[9] The new language is the result of the Council's passage of the Improved Child Abuse Investigations Amendment Act of 2002 (the "2002 Act"). Taken together and read literally, *525 §§ 16-2315(e)(4) and -2301(9)(C) would now read: "The results of the mental or physical examination shall not be admissible evidence in the fact-finding hearing unless the allegations contained in the petition set forth facts which support a petition pursuant to Subparagraph (A)(viii), (ix), and (x) of this paragraph shall apply as of October 1, 2003." (Emphasis added). In other words, the 2002 Act has now rendered § 16-2315(e)(4) unintelligible. When the literal meaning of a statute "produces absurd results," we do not follow it, but instead attempt to ascertain the legislative intention behind the statute by looking to the legislative history. Varela v. Hi-Lo Powered Stirrups, Inc.,
General canons of statutory construction dictate that, where the words of a later statute differ from those of a previous one on the same or related subject, the legislature must have intended them to have a different meaning. However, we are not bound to apply this canon where such an interpretation is unsupported by the statute's purpose and legislative history. Gause v. United States,
Although the 2002 Act's stated purpose is silent on the issue of the admissibility of the results of a court-ordered mental examination,[11] reading the changed language in the subsection as signifying the intention of the Council to change the law to bar the admissibility of court-ordered examination results would contradict both the Council's earlier legislative history as well as our own case law. A 1977 Council Report explains that the Council earlier amended § 16-2315 "to permit the court to order [mental or physical] examinations before the fact-finding and to admit the results in such a hearing when the mental or physical incapacity of the parent or guardian has been alleged in the petition as a cause of the neglect. . . ." D.C. Council, Report on Bill 2-48 at 18 (Mar. 29, 1977) (emphasis added). If the Council sought to change the law regarding this *526 issue with the 2002 Act, then surely it would have so stated in the act or in the legislative history.[12] However, it did not.
Significantly, we recently stated that the 2002 Act "has no effect" on our analysis of § 16-2315 regarding the admissibility of court-ordered examination results. See In re N.P.,
There are also persuasive policy arguments in support of construing § 16-2315(e)(4) in this manner. The Council enacted these provisions that confer upon family court judges the power to order psychological examinations and to use the results of the examinations to assist the court in making determinations of child neglect or abuse. Any concern about the privacy of this evidence would appear sufficiently addressed by § 16-2315(e)(4)'s requirement that the neglect petition sufficiently allege that the parent's mental or physical incapacity is a cause of the alleged neglect. See D.C.Code § 16-2315(e)(4). It seems unlikely that the Council intended to place another obstacle in the way of a family court judge's admission of evidence that may prove exceedingly beneficial to the court in making a determination of neglect.
In addition to these policy considerations, we find further support for our interpretations of §§ 16-2301(9)(A) and -2315(e)(4) in case law that, interestingly, was not cited by either party here. The long-held rule in this jurisdiction is that a doctor who examines an individual only for testimonial purposesi.e., in preparation for testifying about the individual's physical or mental conditionhas "no confidential relation" with the individual and, therefore, the information gleaned from such an examination is not privileged. Taylor v. United States,
Appellant does not assert that the 2002 Act signified an intention by the Council to change the meaning of § 16-2315(e)(4). Instead, he directs our attention to D.C.Code § 4-1321.05, which provides that "the physician-patient privilege shall [not] be grounds for excluding evidence in any proceeding . . . concerning the welfare of a neglected child; provided, that a judge of the Family Division . . . determines such privilege should be waived in the interest of justice." Appellant interprets this section as requiring a specific finding of waiver by the court before any statement from a court-ordered examination may be admitted. For support, appellant cites In re O.L.,
B. The Trial Court Did Not Abuse its Discretion in Precluding M.L. From Giving Live Testimony
Appellant also seeks reversal on the ground that the trial court erred when it precluded appellant from calling M.L. to give live testimony. Appellant contends that the trial court's decision violated his due process right to a fair trial. Because appellant appeals the trial court's evidentiary rulinga discretionary ruling that depends on the particular facts of each casewe review for an abuse of discretion. See In re L.L.,
We dealt with this precise issue in In re Jam. J.,
First, the trial court must make a finding on the record that testifying would create a risk of serious harm to the child. . . .
Second, if the trial court finds that the child is at risk of serious harm from having to testify, the court must consider whether the risk can be alleviated by means short of prohibiting the testimony altogether. . . .
Third, after taking into consideration the risk of harm to the child and the possibility of ameliorative measures, the court must evaluate the prohibitive value of the child's testimony and the parent's concomitant need for it.
Id. at 917-18. The record indicates that the trial court was aware of the Jam. J. test and applied it correctly in the present case. Magistrate Judge Nooter expressly relied on expert testimony in his Jam. J. analysis: "So I think the [Jam. J.] analysis is appropriate to use, but I would find, *529 based upon the testimony I heard, that there would be substantial harm, both based upon Dr. King's opinion and Dr. Alfano's opinion, regarding that." In considering the first prong of the Jam. J. test, Magistrate Judge Nooter based his conclusion on specific expert testimony.[19]
In explaining his finding with respect to the second prong of the Jam. J. test, Magistrate Judge Nooter explored many different ways to accommodate appellant's desire to have M.L.'s account on the record. Magistrate Judge Nooter discussed the option of live testimony in open court, an examination of M.L. in camera, an under-oath video interview, and the admission of out-of-court statements made during the course of court-ordered interviews.[20] After Dr. King testified that M.L.'s testimony in open court would subject her to the risk of mental and emotional harm, Magistrate Judge Nooter probed the expert further: "Well, what I want to ask the doctor [is] if there were some other method of doing it, either without the father present or even without the attorneys in the same room or possibly without them even asking questions. . . . Would that make any difference to the harm that you've testified to?" Dr. King responded that any type of questioning by a lawyer or judge would further traumatize M.L. This record overwhelmingly supports a determination that the trial court complied with the second prong of the Jam. J. test.
In applying the last prong of the Jam. J. test, Magistrate Judge Nooter pressed appellant for a proffer of the probative value of M.L.'s prospective testimony. The court reasoned that, whereas the excluded testimony in Jam. J. was the parent's attempt to cross-examine the children concerning their accusations against the parent, "M. has never accused Mr. Y of anything. She's never said anything negative about him. She has made statements regarding being sexually abused by other people. The statements that [appellant is] seeking, from what I gather, are not different from what these out of court statements are." Therefore, the record provides strong support for our determination that the trial court properly applied all three Jam. J. prongs.
We are unpersuaded by appellant's contentions that his interest in calling M.L. as a witness was "at a premium" due to what appellant alleges was the government's heavy reliance on M.L.'s out-of-court statements. The "at a premium" language derives from Jam. J., supra,
C. Appellant's Other Contentions on Appeal
Appellant's final two grounds for appeal are also unpersuasive. Appellant *530 contends that the trial court abused its discretion when it admitted the written reports of Dr. King's and Dr. Christiansen's court-mandated evaluations. Appellant argues that these reports were inadmissible hearsay because they were out-of-court statements and did not fall "within any recognized hearsay exception." We disagree. In admitting the reports, Magistrate Judge Nooter clearly explained his reasoning:
All right, pursuant to 16-2315(e)(4) and over the father's objection, I will admit Government's Exhibit No. 2 with the clarification that information that was provided to Dr. King through what's been referred to as collateral sources or reports, are admissible not for the truth of the matters contained in those reports but solely for the basis of explaining Dr. King's opinions that he reached, although, of course, statements made by the father would be admissible for the truth of the matter because he is a party.
Magistrate Judge Nooter's ruling was entirely consistent with our case law recognizing that a court may admit expert reports containing hearsay, not for the underlying truth of the matter asserted, but rather as the basis for the experts' conclusions.[21]See In re Ca. S.,
Lastly, appellant contends that the trial court's finding of educational neglect was not supported by sufficient evidence. On review of a neglect determination, we view the evidence in the light most favorable to the government and draw every reasonable inference in its favor. Jam. J., supra,
Appellant contends that he initially received permission from the District of Columbia government to home-school his daughter and, therefore, any finding that he educationally neglected M.L. is negated. This argument mischaracterizes the record. Magistrate Judge Nooter based his neglect determination upon findings that appellant:
[E]ducationally neglected [M.L.] by removing her from public school and "home-schooled" her for a year and a half. [Appellant] admitted that [M.L.] is cognitively delayed and entitled to special education services. He also admitted that he has not been trained to teach special education students. Therefore, it is clear by a preponderance of the evidence that [appellant] was not qualified to provide home-schooling to [M.L.] and that she was deprived of education services that she needed for a year and a half.
The court's finding of educational neglect was not based upon appellant merely with-drawing *531 M.L. from schoolwhich appellant had permission from the District of Columbia government to dobut rather upon appellant's failure to provide M.L. with appropriate educational instruction. As such, the court's finding of neglect rests upon sufficient evidence.[22]
III. Conclusion
The trial court did not err in admitting the results of appellant's court-ordered mental examinations. The Council did not intend to bar the admissibility of court-ordered mental evaluations with its passage of the Improved Child Abuse Investigations Amendment Act of 2002, and we recognize that we are bound by the longstanding law of the District of Columbia as stated by the D.C. Circuit's opinions in Taylor and Kendallthat psychological evaluations conducted solely for the purpose of subsequent testimony are not protected by doctor-patient privilege. Further, we discern no error in the trial court's decision to preclude appellant from calling M.L. to testify in his defense. Lastly, we hold that the trial court's neglect adjudication was supported by sufficient evidence, and that the evaluation reports of Dr. King and Dr. Christiansen were properly admitted. For the foregoing reasons, we affirm the order of the trial court finding M.L. in neglect.
So ordered.
NOTES
Notes
[*] At the time of argument, Associate Judge Noël Anketell Kramer was a member of the panel. Judge Kramer retired on May 1, 2011, and Judge Oberly replaced her on this panel.
[1] D.C. L. No. 14-206, 49 D.C.Reg. 7815 (2002).
[2] The government notes in its brief that although "there was some question at the beginning of the case as to whether R.Y. was M.L.'s biological father or if he was only acting in loco parentis, paternity testing concluded after the trial showed that he is her biological father."
[3] The day before the trial began, A.L. stipulated that M.L. was subjected to educational neglect by appellant, whom she contended she entrusted with making decisions concerning M.L.'s education, mental health, and medical care. Furthermore, A.L. agreed to cooperate with the government during and after the neglect hearing. A.L. did not file a brief on appeal.
[4] Appellee District of Columbia requested, and appellee M.L. supported, the court order; appellant did not object.
[5] Dr. King also conducted a psychological evaluation of M.L.
[6] D.C.Code § 16-2315(e)(4).
[7] We undertake the following statutory analysis in order to clarify the meaning of the current statute, and to avoid future litigation regarding this issue.
[8] Compare D.C.Code § 16-2301(9)(C) (2001), with D.C.Code § 16-2301(9)(C) (2009 Supp.).
[9] D.C.Code § 16-2301(9)(C) (2009 Supp.).
[10] Improved Child Abuse Investigations Amendment Act of 2002, D.C. L. No. 14-206, 49 D.C.Reg. 7815 (2002).
[11] The issue is also not discussed in the committee report recommending adoption of the amendment, nor is it discussed in any of the prior drafts of the legislation. See D.C. Council, Report on Bill 14-372 (May 29, 2002).
[12] See Gause, supra,
[13] See N.P., supra,
[14] As both Taylor and Kendall were issued prior to February 1, 1971, when the D.C. Circuit remained the court of last resort for District of Columbia law, we recognize those decisions as binding precedent. See M.A.P. v. Ryan,
[15] In Kendall, the D.C. Circuit applied the Taylor rule in a civil context. Specifically, the D.C. Circuit determined that there was "no showing on this record as to whether or not [the psychiatrist]'s duties as admitting physician at St. Elizabeth's Hospital place him in the category of an examining physician." Kendall, supra,
[16] The case law of our neighboring state of Maryland, as well as other states, provides a rule similar to the Taylor rule. See In re Alethea W.,
[17] Instead, the N.P. parent successfully challenged the admissibility of the examination on the ground that the neglect petition did not sufficiently allege that the child was neglected due to the parent's mental condition. N.P., supra,
[18] Even if this were a case where specific waiver was required, the government also convincingly argues that the trial court satisfied such a requirement by finding that appellant was told at the beginning of the mental evaluations that the information he provided would not be confidential and that he could refuse to answer any questions asked of him.
[19] "Although expert testimony may not always be required, it will often be the best evidence" that testifying would create a risk of serious harm to the child. Jam. J., supra,
[20] Ultimately the parties agreed to offer the portion of Dr. King's report that detailed M.L.'s responses regarding the alleged sexual abuse, and the parties stipulated to its admissibility. We previously deemed this method to be an acceptable alternative in Jam. J., supra,
[21] This common-law evidentiary rule shares its principles with Rule 703 of the Federal Rules of Evidence, which provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.
(Emphasis added).
[22] Magistrate Judge Nooter's finding of neglect was based upon appellant's mental incapacity as well. The government contends that, because appellant does not challenge the sufficiency of the mental incapacity finding, appellant lacks standing to challenge the sufficiency of the second, independent ground of educational neglect. We held in In re Z.C.,