People Ex Rel. Denver Department of Social Services Ex Rel. R.D.H.
Opinion by
In this рarental rights termination ease, K.L.H. (mother) appeals the judgment terminating the legal parent-child relationship between her and her children, R.D.H. and P.H. Mother claims that the trial court erred in allowing the testimony of two substance abuse counselors and in admitting certain exhibits. We affirm.
After mother abandoned her newborn son and there were indications she was using crack cocaine and was homeless, the Denver Department of Social Services (DDSS) filed a petition in dependency and neglect. Mother subsequently underwent a drug evaluation in which shе indicated that she had been using crack cocaine for several years and had experienced increased tolerance, withdrawal symptoms, and financial problems. The evaluation recommended several months of drug therapy which mother started but did not complete.
Upon mother’s admission, the children were adjudicated dependent and neglected and a treatment plan was adopted. The treatment plan required mother to receive a drug evaluation and treatment, obtain housing and submit a financial budget, complete parenting classes, insure that the children received medical care, cooperate with paternity testing for P.H., and cooperate with the DDSS.
Mother did not take advantage of DDSS referrals to several substance abuse treatment facilities that would have allowed her to have her children with her. She entered a detoxification program at Arapahoe House but left before her treatment was completed to enter the Brandon House shelter. She was admitted to outpatient group counseling at one facility but was discharged because she failed to attend the program in any meaningful manner. Mother completed a 21-day residential treatment program at Arapahoe House but failed to participate in outpatient aftercare or submit to urine analysis. Bаsed on mother’s continued substance abuse problems, DDSS filed motions to terminate her parental rights.
At the termination hearing, a counselor from Arapahoe House testified and asserted that information sought in this case was confidential pursuant to federal regulations рrohibiting federally funded substance abuse treatment facilities from releasing patients’ treatment records. Upon the objection of mother’s counsel to that counselor’s testimony, the trial court ruled that, although the federal confidentiality statute,
The counselor who asserted cоnfidentiality then testified regarding the chronology of mother’s substance abuse treatment and mother’s admission to a two-year problem with cocaine, and gave her opinion that without continued treatment mother’s substance
I.
The federal confidentiality statute,
Comprehensive regulations codified at
Mother claims that the court did not comply with these regulations in ordering the Arapahoe Hоuse counselor to testify. However, these regulations refer only to the disclosure of patient records.
See In re B.S.,
Here, even though the counselor relied on mother’s treatment records in testifying as to the dates of treatment and in forming opinions as to mother’s substance abuse problems, there is nothing in the record to indicate that Arapahoe House disclosed mother’s treatment records. Therefore, mother’s claim is necessarily limited to confidential information disclosed in the counselor s testimony.
The counselor’s testimony falls under
This regulation provides that a court ordеr may authorize disclosure of confidential communications made by a patient to a program in the course of diagnosis, treatment, or referral for treatment only under three conditions: (1) the disclosure is necessary to protect against an existing threat to life оr of serious bodily injury, including circumstances which constitute suspected child abuse and neglect and verbal threats against third parties; (2) the disclosure is necessary in connection with investigation or prosecution of an extremely serious crime, such as one which directly threаtens loss of life or serious bodily injury, including homicide, rape, kidnapping, armed robbery, assault with a deadly weapon, or child abuse and neglect; or (3) the disclosure is in connection with litigation or an administrative proceeding in which the patient offers testimony or other evidеnce pertaining to the content of the confidential communication.
By its terms,
Our review of the counselor’s testimony indicates that the counselor testified in large part to the general procedures that Arapahoe Hоuse uses to treat patients for substance abuse. Objective factual information such as this does not fall under the protections of
The only information given by mother to Arapahoe House that may be a protected confidential communication was mother’s report of her history of drug and alcohol use. However, because this information was already before the court, it was cumulative, and any error in its admission was thus harmless.
See Hansen v. Lederman,
II.
Mother also claims that the testimony of a licensed social worker, who testified concerning mother’s history of substance abuse and her participation in treatment, and gave her opinion that mother had not successfully completed the treatment program, was privileged under § 13-90-107(l)(g), C.R.S. (1996 Cum.Supp.). The trial court allowed the testimony on the basis that the communications were made pursuant to mother’s substance abuse treatment in response to the court-ordered treatment plan. We conclude that any error in allowing the social worker to testify was harmless.
Section 13-90-107(l)(g) prohibits a licensed psychologist, professional counselor, marriage and family therapist, or social worker from testifying as to any communication made by a client without the client’s consent. The communications protected under this privilege are limited to information the patient discloses to a mental health therapist that is necessary for the therapist to рrescribe or act for the patient.
B.B. v. People,
Here, information concerning mother’s history of drug use was before the court prior to the testimony of the licensed social worker. Therefore, the testimony of the licensed social worker as to mother’s history of drug use was cumulative and any error was harmless. Hansen v. Lederman, supra.
III.
Mother next contends that the trial court erred in allowing into evidence certain reports that allegedly contained hearsay. We disagree.
The Children’s Code, § 19-1-107, C.R.S. (1996 Cum.Supp.), requires that the agency designated by the court make a social study and report in writing in all cases brought under the Children’s Code. For the purpose of determining the propеr disposition of a child, written reports and other material relating to the child’s mental, physical, and social history may be received and considered by the court along with other evidence. Section 19-1-107(2), C.R.S. (1996 Cum. Supp.).
Dispositional and evaluative reports that fall within § 19-1-107 may be аdmitted, into evidence if the reports are furnished to counsel in advance of the termination hearing, and the authors of the reports or those preparing the materials contained in the report are available for direct or cross-examination upon the request of the respondent or any other interested party.
People in Interest of A.M.D.,
Further, hearsay objections to dispo-sitional and evaluative reports whose admission is authorized by § 19-1-107 go to the wеight and probative value of the reports rather than to their admissibility.
People in Interest of A.R.S.,
A.
Mother contends that the termination report was inadmissible under § 19-1-107 because it contained extensive information about her and therefore was not a report on the child’s mental, physical, and social history. However, our review of the termination report indicates that it is of the type contem
B.
Mother asserts that the admission of an evaluative report concerning the health and develоpment of the child, R.H., was error because it contained hearsay. We find no error because our review of the record indicates that the report clearly falls under § 19-1-107, and that the author of the report testified at the termination hearing and was subject to cross-examination.
C.
Mother’s final assertion of error goes to the admission of the records of the Brandon House shelter under the business records hearsay exception of CRE 803(6). Mother argues that the Brandon House records do not qualify as business records because they contain hearsay statements of other Brandon House residents and a DDSS case worker that lack the requisite guaranty of trustworthiness. We disagree.
The business records exception allows the admission of reports, records, or data compilations of acts, events, conditions, opinions, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the reports, records, or -data cоmpilations, all as shown by the testimony of the custodian. The term “business” as used in the rule includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. CRE 803(6).
Statements by an outside party included within a business record are nоt necessarily granted the presumption of accuracy that attaches to statements made in the regular course of business because the outside party does not have a business duty to report the information. However, records containing such information are admissible when, as here, the information is provided as part of a business relationship between a business and an outsider and there is evidence that the business substantially relied upon the information contained in the records.
See Schmutz v. Bolles,
The determination of the sufficiency of a foundation for the admission of evidence is a matter within the sound discretion of the trial court, and its ruling may not be disturbed upon review absent a clear abuse of discretion.
Hauser v. Rose Health Care Systems,
Here, after hearing the parties’ arguments, the trial court determined that the Brandon House records met the test оf admissibility under CRE 803(6) and Schmutz. The court concluded that Brandon House relied upon the statements of residents concerning the conduct of other residents in making decisions relevant to the business of providing shelter to women and children. Mother presents no legal arguments disputing the court’s ruling, and, in any event, we perceive no abuse of discretion in the trial court’s ruling.
The judgment is affirmed.