Opinion
No. 8654, CA 5476
Argued August 24, 1976.
Affirmed October 4, 1976. Reconsideration denied October 27, 1976. Petition for review denied December 7, 1976.
Appeal from Circuit Court, Clackamas County, Howard J. Blanding, Judge.
Raymond R. Bagley, Jr., Oregon City, argued the cause for appellant. With him on the brief was Jack, Goodwin Urbigkeit, Oregon City. Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent Juvenile Department. On the brief were Lee Johnson, Attorney General, W. Michael Gillette, Solicitor General, and Karen H. Green, Certified Law Student, Salem.
No appearance by respondent Kittey Ann Moser.
Before Schwab, Chief Judge, and Fort, Judge, and Sloan, Senior Judge.
Affirmed.
SLOAN, S. J.
The trial court entered an order terminating the parental rights of appellant, Teresa Moser Madison, the mother of the infant child, Kittey Ann Moser. The father is unknown. Teresa Madison appeals.
At the trial a psychologist was permitted to testify over an objection that the psychologist's testimony violated the statutory psychologist-client privilege. The appellant claims that the trial court erred in permitting the psychologist to testify.
The person asserting the privilege has the burden to show "that both the one asserting a privilege and the nature of the testimony offered are within the ambit of the statute according the privilege * * *." Groff v. S.I.A.C., 246 Or. 557, 565, 426 P.2d 738 (1967). State ex rel Juv. Dept. v. Brown, 19 Or. App. 427, 434, 528 P.2d 569 (1974), Sup Ct review denied, cert denied 421 U.S. 1003 (1975).
The statutory privilege, ORS 44.040(1)(h), provides:
"A licensed psychologist, as defined in ORS 657.010, shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon, in the course of his professional employment."
To decide this case it is also necessary to refer to the language of the physician-patient privilege, ORS 44.040(1)(d), which reads:
"Subject to ORS 44.61.0 to 44.640, a regular physician or surgeon shall not, without the consent of his patient, be examined in a civil action, suit or proceeding, as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient."
Although the language of the psychologist's privilege is identical to that of the attorney-client privilege, ORS 44.040(1)(b), except for the reference to ORS 675.010, the functions of the two professions, in their relationships to their "clients," are so different it has proven futile to look to the cases defining the attorney-client privilege as a basis for deciding who and under what circumstances one may invoke the psychologist's privilege. Groff v. S.I.A.C., supra. It is more helpful to look to those cases that consider when and to what extent the physician-patient privilege applies in deciding this case. We are not concerned here with the nature of the testimony offered. Groff v. S.I.A.C., supra.
In State ex rel Juv. Dept. v. Martin, 19 Or. App. 28, 36, 526 P.2d 647 (1974), rev'd on other grounds 271 Or. 603, 533 P.2d 780 (1975), this court had occasion to say that "* * * [i]n terms of the functions and purposes of the privileges, any distinction between a licensed psychologist and a psychiatrist would seem to be a specious one."
The rule applicable to when the physician-patient privilege applies is no more succinctly stated than in Triplett v. Bd. of Social Protection, 19 Or. App. 408, 414, 528 P.2d 563 (1974):
"The physician-patient privilege created by ORS 44.040(1)(d) applies only as to 'information acquired in attending the patient, which was necessary to enable * * * [the doctor] to prescribe or act for the patient.' This language reflects the statutory policy of the physician-patient privilege that confidentiality should be protected only where vital to the attainment of the purposes for which the physician-patient relationship exists, i.e., treatment of medical problems. See Wigmore, supra at 829. Accordingly, the general rule has long been that where the doctor is consulted for the purpose of examination only, and not for treatment, no privilege exists * * *." (Citations omitted; brackets theirs.)
Applying that rule to the instant case, the privilege does not apply.
The only evidence relative to the nature of the examination of appellant by the psychologist, Dr. Russ Sardo, comes from the testimony of Dr. Sardo. Appellant did not testify at the hearing. Dr. Sardo testified that he was a paid consultant for the Clackamas County Juvenile Court and made frequent examinations of this kind. He stated that in this respect he was "seeing someone for the purpose of evaluation, in which case I elicite [sic] information and send the report to the agency." Dr. Sardo testified that he had seen appellant on only one occasion, and he considered that to be for examination only, not for any treatment. In view of Dr. Sardo's testimony we agree with the trial court that the privilege did not apply. State ex rel Juv. Dept. v. Black, 19 Or. App. 493, 528 P.2d 130 (1974).
The second assignment contends that the evidence is insufficient to justify a termination of parental rights. The evidence consisted of the testimony of the psychologist, Dr. Sardo, and a psychiatrist and the testimony of two social workers of the Children's Services Division. There had been numerous contacts between the latter two witnesses and appellant and the child.
The testimony of all of the witnesses was unequivocal that appellant suffered from "mental deficiency * * * of such duration as to render it impossible to care for the child for extended periods of time." ORS 419.523(2)(a). The evidence is convincing that this was true as to both appellant's emotional disability and her physical ability to care for the child. The evidence is also convincing that if the child were returned to appellant for any extended period of time, the child would also develop the same or similar deficiencies suffered by the mother. The factual considerations for terminating parental rights in State v. Blum, 1 Or. App. 409, 415-16, 463 P.2d 367 (1970), is applicable to the evidence in the present case. That is, despite repeated efforts on the part of the social workers to salvage appellant's ability to care for her child, it is improbable that the child could be returned to appellant at any foreseeable future time without serious detriment to the child. We are persuaded that the evidence supports the trial court's decision.
Affirmed.