*1 442 458, 1023, being 464, 1019, 82 58 examined. We
U.S. S.Ct. are concerned in this L.Ed. 1461. case, with the unnecessary implicit ex- Janis, posure Brookhart v. 86 past juvenile U.S. defendant's record 1245, 1247, S.Ct. 16 L.Ed.2d as a witness, result of the State’s choice of and the resulting lack of choice to defend- We find it difficult to imply voluntary ant to cross-examine. waiver by Calhoun where the constitu- pursuit tional of cross examination would This cause is reversed and remanded for a introduce testimony procured by which if new trial. government would constitute reversi- ble error. Waiver cannot exist where NEAL, JJ., DONNELLY and concur. real, given choice is not amounts to a choice whirl- “between the rock
pool,” Garrity v. New U.S. Jersey, 385
493, 498, 87 S.Ct. L.Ed.2d * * *
While we need not determine whether procedure sufficiently used here was P.2d coercive deprivation to amount to a I, II, III, In the Matter of John DOE Calhoun’s constitutional right to confront IV V.& witnesses, it clearly appears right that his and interest in uninhibited choice Mexico, STATE of New ex rel. HUMAN im- sufficiently substantial DEPARTMENT, SERVICES pact testimony was of sufficient Plaintiff-Appellee, import preclude our finding that ruling court’s harmless error. Fair- simple justice always ness and need not Raymond Lou LE VARIO and yard-
be measured
a constitutional
Sickler, Defendants-Appellants.
here,
believe,
stick.
It is enough
we
No. 5478.
hold that
the court’s failure to exclude
Snyder’s testimony was an abuse of its
Appeals
Court of
of New Mexico.
discretion and that
it affected the sub-
July
stantial
of Calhoun
trial.
at
reasoning Calhoun, supra. Ewing,
State v. 97 N.M. 638 P.2d (1982), State, relied on by the There,
similar to the posture of this it case.
was held that the its discre- court exercised properly
tion in excluding cross-examina- proba- testimony
tion prejudicial more than Here,
tive. very source the direct prejudice; created this defendant
was effectively prevented exploring possible motives the probation officer
in reaching negative opinion his of defend-
ant’s credibility. anything Nor is there Wyman,
State v.
(Ct.App.1981), analy- require a different 608(b),
sis. Wyman discussed N.M.R.Evid. refers 'to cross-examination
past criminal conduct then of the witness
Petition” 32-1-19, under N.M.S.A. alleged “Children’s Code.” parents placed their chil- negligently dren endanger in a situation that would health; parents were unable *3 to discharge parental responsibilities pre- incapacity; because of mental and it was liminary inquiry completed was in the the children best interest of public chil- petition be filed. custody dren were of DHS. order, parte custody An affidavit for ex order, parte custody appoint- an ex and an guardian ment of ad litem for the children were filed. ordered September
On the court Health an evaluation Mental Southwest parents Center of the and children reports evaluation copies diagnostic parties. given lawyers of the 27,1979, stipulated agree- On December ment parties was into entered lawyers. provided parents It chil- of the custody would not contest DHS It the duties dren. also stated what the care Mary were with reference to were children and what the duties DHS day, stipu- Raymond. the same On the order of adopted lation was as place. took proceedings No further court. Mary whether made No determination was The essence of children. neglected had the chil- Mary with care the order left year period during dren a two them. custody had uncontested DHS Cruces, for defend- Engel, Albert H. Las filed a verified 13, 1981, DHS On March ants-appellants. rights parental application terminate Gen., M. Atty. Bruce Bingaman, Jeff (1981 N.M.S.A. pursuant to § 40-7— Burwell, Gen., Fe, for Atty. Asst. Santa were stated grounds Cum.Supp.). plaintiff-appellee. 4(B). The facts those set forth § 40-7— supporting those and circumstances OPINION 24, 1981. June alleged. Trial was had were SUTIN, Judge. 8, 1981, was ren- a decision September On were termi- rights dered in which The trial court terminated terminated on (Mary) Mary’s rights Levario were Mary Lou nated. Sickler, parents. 40-7— Raymond neglect. natural the basis of child appeals. We affirm. 4(B)(3). court found: The trial his abandoned Department Respondent Sickler September 3.
On “Neglect (DHS) filed a of Human Services said children. Respondent parties
4. Mary Lou Le Vario same cause of action. children, natural mother of said Heffernan, ex rel. State Sofeico she has provide failed to proper parental care and control for them. neglect proceedings 5. did not Respondent re LeVario has passively sult in a final neglected on the merits. her children No whereby they have hearing suffered emotional held. No determination psychological damage. made neglected whether her chil dren. The case was left in limbo. DHS Neither respondent is likely to “Judgments” not barred under the rule change in the foreseeable future notwith- proceedings. bringing standing termination reasonable efforts of the state in assisting both respondents to become The “Courts” rule is entitled “Pri responsible parents. ority and Retention of Jurisdiction.” Sim is to the best interests of the *4 stated, ply obtaining jurisdic the court first care, children that their supervision and tion it concur against retains as a court of rearing not be further entrusted to either jurisdiction rent in which a similar action is respondent. same subsequently between the instituted The trial court concluded that the Sickler parties seeking involving similar remedies children were neglected children and the subject the same matter. Historical parental rights should be terminated. Society New Montoya, Mexico v. findings of the court are sustained case, the In instant clear evidence, and convincing substantial the district sitting court the as children’s in 40-7—4(J). nature. Section jurisdiction court had exclusive of the ter mination proceedings. 32-1-
Mary raises seven points of error. 9(B)(1). Those pertaining to an the court’s Furthermore the attack on remedies were not findings will not similar. In the neglect proceedings, are without We merit. weigh the judg Mary evidence our only and substitute care of the children. the ment for that of proceedings, Mary the trial court. We will termination was divested resolve legal They parental the of all presented. issues as 40-7- stated § (1) are: 4(L). the court jurisdiction lacked There similarity actions both proceed case; (2) the instant the psycho dissimilarity on the neglect logical the testimony concerning mother’s respect Mary suggests with remedy. to the parental inadmissible; ability (3) neglect the could be trans proceedings accomplished termination can if only be pro formed motion into a termination the criteria 40-7—4(B)(4) estab are therefore, § termi ceeding; the in the court lished. jur nation proceedings interfered neglect proceed isdiction of the court in the
A. The trial jurisdiction court had to ings. neglect Inasmuch as both the proceed in the instant case. proceedings termination were filed in the children’s court division of the district Mary contends that the orders entered in court, we assume that an amendment to the the neglect proceedings on December petition neglect precluded proceeding could consideration of the instant Such, however, case have rights. sought on Re- termination. is parental termination of seeking liance is irrelevant. The only proceeding had on the rules stated 50 C.J.S. Judgments (1947) termination proceeding; second C.J.S. § prior proceeding, Courts concerned with fact of § neglect, jurisdictional was not a bar “Judgments” rule is entitled separate proceeding. termination “Estoppel by Recovery.” Simply Former stated, a final merits proceed valid on the jurisdiction The trial court had any rights. bars further suit between the same parental with termination of upon he relies condition as an element testimony was psychological
B. The defense, or, claim or after pa- of his privileged. death, tient’s in any proceeding in which two testimony contends that the any party upon relies the condition as an ability was psychologists as to her element of his claim or defense. gist and inadmissible. The privileged Evidence had a chron- Weinstein’s was that 504[07] explains rule above-quoted ic, was unlike- inadequate personality which change. ly to waiv- is on the principle based familiar it proceeds er. assumption Rule of the Rules Reliance is had on mental party rely unfair for on his “Psychotherapist-pa- of Evidence entitled condition, and, time, suppress at the same certified privilege.” tient A licensed or evidence relevant to that condition. psychologist psychotherapist. is a crimi- exception applies in both civil and any tes- 504(a)(2). Mary sought to exclude and, therefore, applies nal when cases concerning her timony by psychologists insanity. pleads criminal defendant objection beyond far condition. This went psy Mary’s communications a confidential communica- any question of her mental con chologists were relevant to any to bar by Mary. sought tion made She dition; proceeding Mary in the termination even testimony concerning the children in opposing relied on her mental condition expressly though attorney the children’s her rights. termination of privilege stated that no was claimed commu There was no as to those to bar sought behalf of the children. She *5 504(d)(3). under Evidence Rule nications concerning herself any testimony basis of Evidence Rule 504. the mean- It to understand important is Rule a confidential communication. ing of mental Mary Because had obtained 504(a)(3) part: in reads stipula- counseling pursuant health to the if A is communication “confidential” tion in the because neglect proceeding and per- to third to not intended to be disclosed reports counseling had been furnished present other than those to further any sons that ruled parties, the trial court in the consulta- patient the interest of the appeal privilege had been waived. On * * *, tion, examination or interview asserts Mary ruling; attacks the waiver she [Emphasis estopped to Department added.] should be reports claim a waiver on the basis that the These confidential communications are counseling and their results disclosing the privileged. patient, psycho- The not the by Department obtained un- been 504(c). therapist privilege. has the Rule guise appearing der the to assist patient may The refuse to disclose pre- and mother. We do not answer this contention. any person vent other from confi- disclosing 504(b). dential Rule communications. identify appeal, Mary does not On communication which the any psycho confidential Communications between testimony. psychologists disclosed in their ipso facto therapists patients and are Thus, suggests confidential, which nothing presented is two condi confidential. To be 504(b) privilege that “in present: (1) patient Evidence tions must be was violated. Health and Soc. Serv. State be undis tended” the communications to Smith, 348, closed; P.2d 294 Dept. v. 93 N.M. 600 would (2) that non-disclosure (Ct.App.1979). patient. further the interest of the
Further, states: 504(d)(3) Evidence Rule (1) ver A includes: communication psychother or to
(3) patient Condition an element of claim bal communication of this (2) knowledge gained apist; defense. There is no under information or to an by personal to relevant examination of rule as communications observation patient; (3) emotional condition inferences and conclusions issue of the mental or therefrom; (4) which exhibiting patient any proceeding drawn
447
A
question
serious
body
any part
psychother-
or
arises whether
thereof
an
apist
opinion,
diagno-
for
examination
estopped
DHS was
to use the psychologists’
sis.
77 N.M.
City
Gallup,
Williams v.
that
testimony.
psychologists
testified
286,
(1966).
dered pursuant 40-7-4(B)(3) which Mexico, STATE of New pertains Plaintiff-Appellee, neglected to a child. Subsection (B)(4) pertains to child who has been placed Ei- foster care court order. SANTILLANES, Joe Serafin independent ther subsection is the other. Defendant-Appellant. Neither contains the subsection exclusive No. grounds upon granted. relief can be which Court Appeals (B)(4) were (B)(3) alleged Subsections New Mexico. trial, in the complaint. After either subsec- July tion could for termi- have formed basis findings nation if the of the court were
sustained substantial evidence.
The trial court rendered a decision (B)(3). on subsection Subsection
(B)(4) alternative, applicable is an
this appeal. this attorney appeal appointed
specially perfect appeal. this He was not
the attorney who tried case in the court
below. An presentation excellent
made.
Affirmed.
IT IS SO ORDERED.
LOPEZ, J., concurs.
WOOD, J., specially concurring.
WOOD, Judge (specially concurring).
I agree reached, with the result with the
discussion under Issues A and C
discussion under Issue B out points which
that: nothing suggests there is 504(b) violated,
that Evidence Rule
(2) there was no under Evidence 504(d)(3). join I do in the discus-
sion meaning as to the of confidential com-
munication speculation estop- or the about
pel; such is inappropriate to decision in
this case.