LORI ANN RYAN v. LOUIS FELICETTA RUIZE
No. 46 EDA 2021
IN THE SUPERIOR COURT OF PENNSYLVANIA
DECEMBER 14, 2021
2021 PA Super 246
J-S21002-21
Appeal from the Order Entered November 25, 2020
In the Court of Common Pleas of Northampton County Civil Division at No(s): No. C-48-PF-2019-00855
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
OPINION BY BOWES, J.:
FILED DECEMBER
Louis Felicetta Ruize appeals from the November 25, 2020 protection from abuse (“PFA“) order, prohibiting contact with Lori Ann Ryan, his former wife, and harassment of Ryan‘s two daughters,1 for three years. We affirm.
This case arises out of two incidents surrounding the dissolution of Ruize and Ryan‘s marriage. The first incident occurred in May 2019, when Ruize held a loaded gun to his head and threatened to shoot himself if Ryan left. The second incident occurred in September 2019, when the couple‘s therapist, Bernadette Gaumer, called Ryan to notify her that during Ruize‘s counseling session that day, he stated several times that if he killed Ryan in their home with a firearm, it could look like an accident. Based on that phone call, Ryan immediately filed an emergency PFA petition, which was granted. On September 30, 2019, Ryan filed a PFA petition, and the trial court granted a temporary PFA order. Thereafter, the trial court issued an order extending the temporary PFA order until October 11, 2020, and continued the final PFA hearing.
In anticipation of the final hearing, Ryan sought permission to call Gaumer as a witness to testify about Ruize‘s statements during his therapy session. The trial court again continued the hearing to allow Ryan and Ruize to “file briefs regarding the propriety of expert testimony[.]” Order of Court, 10/28/20. In Ruize‘s brief, he stated that he “suspected that [Gaumer] would be used as an expert witness in the matter to put forth evidence that [Ryan] is afraid of [Ruize] and the effect the alleged incident has had on [Ryan‘s] state of mind.” Letter Brief, 11/2/21, at 1. Ruize argued that such testimony was not proper in a final PFA hearing. Id. at 2. In Ryan‘s brief, she argued that she intended to call Gaumer as a fact witness, not an expert witness, and that Ruize‘s statement to Gaumer during his therapy session did not qualify as a privileged communication under
The trial court, which did not receive Ruize‘s brief, granted permission for Gaumer to testify at the hearing. During Gaumer‘s testimony, Ruize claimed privilege as to his statement to Gaumer during his counseling session that prompted disclosure to Ryan. Since the trial court found that the privilege had already been waived because Gaumer, out of concern for Ryan‘s safety, had notified Ryan of the statement, it held that Gaumer could testify to what she had previously relayed to Ryan.
Gaumer testified that she is a self-employed licensed clinical social worker2 who
Specifically, on direct examination, Gaumer testified as follows:
A. I told Ms. Ryan that her husband cited several ways that he could accidentally kill her in their home by firearm.
Q. Anything else?
A. That was the synopsis of it. He had noted several different ways that if he were to shoot her in his home, then it would be really a non-issue because he could have done it accidentally, or he could have thought that she was a robber or he could think he was under attack. So those things concerned me and I thought I needed to disclose that.
Q. Were you aware of whether Mr. Ruize owned any guns that he had in the residence?
A. I know that Mr. Ruize had a gun in the residence, and I believe that -- I thought there was still a weapon in the home.
Q. Did you indicate anything to Ms. Ryan about how you evaluated those statements?
A. Well, I did not, no. I did not go into that. The reason for my heightened alarm was because it had been noted at least three different times of how he could accidentally shoot her in their home. That was during the course of our session.
Q. Did you say anything further to Ms. Ryan about Mr. Ruize‘s statements?
A. No.
N.T., 11/10/20, at 10-11.
Ryan testified that in May 2019, while she and Ruize were living together, the two got into an argument and she asked him to leave. Instead of leaving, Ruize went into their bedroom and closed the door. When he did not reemerge, Ryan entered the bedroom to find him pressing
Ruize testified that he did not point a firearm at his head in May 2019. As to the statements he made to Gaumer during his therapy session, he testified that they were largely taken out of context. He maintained that he never made a statement that a shooting could look like an accident. Rather, he claimed that he responded to Gaumer‘s repeated hypothetical questions of what he would do if Ryan broke into their home, by stating that if she broke in, he would call 911, but if she attacked him, he would use deadly force, which he believed he was authorized to do.
The trial court accepted the testimony of Gaumer as credible and granted a final PFA order that would remain in effect until November 10, 2023. Ruize filed a motion for reconsideration, asking the trial court to (1) find Gaumer incompetent to testify; (2) modify the final PFA order‘s duration to two years; (3) strike the parties’ child as a protected party; and (4) strike the provision excluding Ruize from his residence in Mount Bethel, Pennsylvania. A hearing was held on November 25, 2020, at the conclusion of which the trial court granted Ruize‘s request to strike the provision excluding him from his residence and otherwise denying the motion.3 This timely appeal followed. Both Ruize and the trial court complied with the mandates of Pa.R.A.P. 1925.
Ruize raises the following issue for our review: “Whether the Trial Court erred when it permitted [Ruize‘s] ‘licensed clinical social worker’ to testify over Counsel‘s objection?” Ruize‘s brief at 2.
“Our standard of review for PFA orders is well settled. In the context of a PFA order, we review the trial court‘s legal conclusions for an error of law or abuse of discretion.” E.K. v. J.R.A., 237 A.3d 509, 519 (Pa.Super. 2020) (citations and quotation marks omitted). Our review focuses on the psychiatrist-patient privilege, which “is codified [at
The
No psychiatrist or person who has been licensed under the act of March 23, 1972 (P.L. 136, No. 52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.
Here, Gaumer‘s testimony was limited to statements made by Ruize during his therapy session that prompted disclosure to Ryan under Gaumer‘s duty to warn. Such statements fall squarely within the parameters of this privilege so long as the privilege applies to Gaumer. In its Rule 1925(a) opinion, the trial court found the privilege did not apply because Gaumer is a licensed clinical social worker, not a psychiatrist or licensed psychologist. Trial Court Opinion, 2/16/21, at 7. As such, the trial court concluded that the privilege applicable to her was found at
Communications of a confidential character made by a spouse to a qualified professional as defined in
23 Pa.C.S. § 3103 (relating to definitions)4 shall be privileged and inadmissible in evidence
in any matter under
23 Pa.C.S. Pt. IV (relating to divorce) orVI (relating to children and minors) unless the party concerned waives this privilege.
Ruize disagrees, insisting that pursuant to Farrell, supra,
Ruize relies on this Court‘s decision in Farrell, supra, where we applied the
In so concluding, this Court relied on Simmons, supra, wherein this Court analogized
As set out supra, the
§ 5944 privilege sets forth that “The confidential relations and communications between a psychologist and his client shall be on the same basis as those provided or prescribed by law between an attorney and a client.” In determining whether a communication by a client to someone other than his attorney is covered by the attorney-client privilege, courts have held that as long as the recipient of the information is an agent of the attorney and the statement is made in confidence
for the purpose of facilitating legal advice, it is privileged. In the attorney-client context, the job description of the recipient of a confidential communication or their lack of legal training is irrelevant so long as the recipient is an agent of an attorney and the statement is made in confidence for the purpose of obtaining or facilitating legal advice. We find that this reasoning should apply with equal force to members of the Mentor treatment team in conversations with T.W. in the course of facilitating the treatment plan.
Id. at 343 (citations omitted). Therefore, this Court held that “any oral communication made by T.W.[, the patient,] in private to any member of the treatment team[, including social workers,] and used by the team for the purpose of psychotherapeutic evaluation is privileged” under
Instantly, Gaumer never testified that she provided care to Ruize as part of a treatment team that included a psychiatrist or licensed psychologist. Rather, she testified that she was self-employed and that she provided divorce and marriage counseling with Ruize and Ryan together, and also saw them separately for other issues. While she testified that she works through an organization called A Pathway to Healing Counseling Services, LLC, the certified record does not indicate whether that organization is a fair analogue to the “treatment team” discussed in Farrell or is merely a shared office space. More importantly, assuming that the organization can operate as a team, there is no record testimony that it actually utilized such an approach for Ruize. In light of the certified record, we simply cannot follow Ruize‘s leap that, because Gaumer, a self-employed licensed clinical social worker, belonged to a counseling organization, her services to Ruize must have been part of a treatment team that included a psychiatrist or licensed psychologist. As such, Farrell and Simmons do not provide support for finding that Gaumer is subject to the
We also note that this Court has not yet extended the
It is well established that, as a general rule, Pennsylvania law does not favor evidentiary privileges. As a result, courts should accept testimonial privileges only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.
In re L.F., 995 A.2d 356, 360 (Pa.Super. 2010) (citations and quotation marks omitted). In In re L.F., this Court raised but did not reach the question of whether the
[t]his Court held that the psychotherapist/patient privilege applied to social workers in the limited situation where the social worker works as an agent under the direct supervision of a licensed psychiatrist/psychologist who approves the patient‘s individual treatment plan and had close contact with the social worker to discuss the patient‘s progress and goals. In the case sub judice, there is no indication from the record that Ms. Schroeder‘s treatment of Mother was supervised by a psychiatrist or psychologist or that Schroeder was a part of mental health care team.
Id. at 360 n.7 (citation omitted).
As in Simmons, there is no indication from the certified record that Gaumer‘s treatment was supervised by a psychiatrist or licensed psychologist, or that she was part of a mental health care team that included a psychiatrist or licensed psychologist. By its plain terms,
We are likewise unconvinced by Ruize‘s argument that conflict exists between
Finally, we agree with the trial court that although
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2021
Notes
https://abecsw.org/clinical-social-work/clinical-social-work-described/Clinical social work is a healthcare profession based on theories and methods of prevention and treatment in providing mental-health/healthcare services, with special focus on behavioral and bio-psychosocial problems and disorders. Clinical social work‘s unique attributes include use of the person-in-environment perspective, respect for the primacy of client rights, and strong therapeutic alliance between client and practitioner. With 250,000 practitioners serving millions of client consumers, clinical social workers constitute the largest group of mental-health/healthcare providers in the nation.
The knowledge base of clinical social work includes theories of biological, psychological, and social development; diversity and cultural competency; interpersonal relationships; family and group dynamics; mental disorders; addictions; impacts of illness, trauma, or injury; and the effects of the physical, social, and cultural environment. This knowledge is inculcated in social work graduate school and is fused with direct-practice skills that are developed by the practitioner during a period of at least two years of post-graduate experience under clinical supervision. This period should suffice to prepare the clinical social worker for autonomous practice and state-licensure as a clinical social work professional. In the years that follow, clinical social workers may pursue an advanced-generalist practice or may decide to specialize in one or more areas.