PUBLISHED OPINION
Case No.: 95-2547
95-2548
Complete Title
of Case:
No. 95-2547
In the Interest of Joy P.,
A Person Under the Age of 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
JOSEPH P.,
Respondent-Appellant.
-------------------------------------------------------------------------------------------------------
No. 95-2548
In the Interest of Tiffany P.,
A Person Under the Age of 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
JOSEPH P.,
Respondent-Appellant.
Submitted on Briefs: January 11, 1996
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: February 14, 1996
Opinion Filed: February 14, 1996
Source of APPEAL Appeal
from orders
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Fond du Lac
(If "Special", JUDGE: Steven W. Weinke
so indicate)
JUDGES: Anderson,
P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the respondent-appellant, the cause was submitted on the brief of David
H. Hickey of Hickey & Turim of Waukesha.
Respondent
ATTORNEYSOn
behalf of the petitioner-respondent, the cause was submitted on the brief of Thomas
L. Storm, district attorney.
Guardian
Ad Litem
ATTORNEYSOn
behalf of the guardian ad litem, the cause was submitted on the brief of Frank
J. Endejan of Zacherl, O'Malley & Endejan, S.C. of Fond du Lac.
|
COURT
OF APPEALS DECISION DATED AND RELEASED February 14, 1996 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
Nos. 95-2547
95-2548
STATE
OF WISCONSIN IN COURT OF
APPEALS
No. 95-2547
In the Interest of Joy
P.,
A Person Under the Age
of 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
JOSEPH P.,
Respondent-Appellant.
-------------------------------------------------------------------------------------------------------
No. 95-2548
In the Interest of
Tiffany P.,
A Person Under the Age
of 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
JOSEPH P.,
Respondent-Appellant.
APPEAL from orders of
the circuit court for Fond du Lac County: STEVEN W. WEINKE, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
BROWN, J. This
case primarily addresses the confidentiality of communications between
incarcerated persons and Department of Corrections (DOC) psychologists in
termination of parental rights cases (TPR).
Here, Joseph P. appeals from orders terminating parental rights to his
daughters, Joy P. and Tiffany P. He
maintains that the trial court erred when it admitted testimony of two DOC
psychologists who treated and evaluated him.
Although we conclude that Joseph waived his right to challenge the
testimony of one, we hold that he had an objectively reasonable belief that his
discussions with the other would remain confidential and that the privilege
thus applies. We also reject the
State's argument that this testimony was nonetheless admissible under State
v. Hungerford, 84 Wis.2d 236, 267 N.W.2d 258 (1978). After reviewing the testimony that the trial
court should have excluded, however, we hold that its admission was harmless
error. We also address Joseph's two
challenges to the trial court's discretion concerning the admission of other
crimes evidence and its formulation of the dispositional order. We conclude that the trial court did not
misuse its discretion and affirm.[1]
In 1991, Joseph pled no
contest to sexually assaulting Joy, who was then three years old, and Tiffany,
who was then three months old. These
assaults form the basis for the State's current TPR action.
We first address
Joseph's argument that the trial court erred when it admitted statements he
made to the DOC psychologists. Dr.
Debra Anderson evaluated him during the intake process, and Dr. Michael
VandenBrook became his treating psychologist at the Kettle Morraine
Correctional Institution.
Before trial, Joseph
moved in limine to exclude any testimony from these psychologists as privileged
“psychologist-patient” communications. See
§ 905.04(2), Stats. The
trial court found, however, that these visits had been court ordered and thus
these statements fit an exception to the general privilege. See § 905.04(4)(b). Reacting to Joseph's argument that there
were no such orders, the trial court noted that he could renew his objection
before each psychologist testified.
Nonetheless, Joseph
raised no objection when the State called VandenBrook, but did renew his
objection to Anderson. Through voir
dire, Joseph established that Anderson did not evaluate him pursuant to a court
order. And based on other background
information about the relationship, Joseph argued that any of the statements he
made to her pertained only to his criminal sentence and could not be used
against him in this distinct, TPR proceeding.
The State then argued that even if there was no court order, the
communication was nonetheless still without privilege. The State offered Hungerford
for the proposition that communications by an incarcerated person to a
psychologist are not privileged where the interview is not because the
incarcerated person has retained the psychologist but because the communication
is part of DOC procedure. It drew an
analogy between Joseph's psychological evaluation during intake and the blood
sample that police may freely request from a suspected intoxicated driver. The trial court sided with the State,
stating that it would “allow the testimony to come in under Hungerford.”
On appeal, Joseph renews
his objection to the testimony furnished by both psychologists. This issue requires us to construe
§ 905.04, Stats., which is a
question of law reviewed independently of the trial court. See State v. Locke, 177
Wis.2d 590, 602, 502 N.W.2d 891, 896 (Ct. App. 1993).
Initially, we must
address the State's claim that Joseph waived his right to object to
VandenBrook's testimony. As detailed
above, when the trial court denied his motion in limine, it invited Joseph to
renew an objection at trial. Since he
failed to do so, we conclude that he waived his right to bring a challenge on
appeal. See Macherey v.
Home Ins. Co., 184 Wis.2d 1, 13, 516 N.W.2d 434, 438-39 (Ct. App.
1994). Moreover, Joseph's brief
concedes that he “did not voir dire Dr. VanderBrook [sic] prior to his
testimony.” Thus, even if we were to
review the issue as an exercise of discretion, see Vollmer v. Luety,
156 Wis.2d 1, 12, 456 N.W.2d 797, 802 (1990), this court has an inadequate
record with which to evaluate the tenor of his relationship with VandenBrook.[2]
However, when he renewed
his objection to Anderson, Joseph conducted a voir dire and made a record of
her relationship with him. We thus
proceed to the merits.
Our analysis begins with
§ 905.04(2), Stats.,
providing that a patient may prevent disclosure of “confidential
communications” made for purposes of “diagnosis or treatment.” In addition, § 905.04(1)(b) defines a
“confidential communication” as one “not intended to be disclosed to 3rd
persons other than those present to further the interest of the patient.” Here, Joseph points to how Anderson informed
him that the purpose of his evaluation was to determine his “treatment and
placement needs” in the correctional system.
Thus, Joseph asserts that the discussions he had with Anderson fall
within the ambit of protected patient communications.
In response, the State
explains that Anderson gave Joseph a prison manual which informed him that the
results of the evaluation would be shared with “other team members” suggesting
that Joseph knew that what he told Anderson would not be kept
confidential. It also notes that
Anderson believed that her evaluation of Joseph was not part of a
psychologist-patient relationship.
After reviewing the
record outlining Joseph's relationship with Anderson, we hold that these
communications were subject to the privilege set out in § 905.04, Stats., and that the trial court erred
when it allowed this testimony. To
benefit from the privilege, Joseph must show that he had an “objectively
reasonable” belief that the discussions were “confidential” and made for the
“purposes of diagnosis or treatment.” See
Locke, 177 Wis.2d at 603, 605, 502 N.W.2d at 897-98;
§ 905.04(2). Here, the record
shows Anderson informed Joseph that what he told her would be used for his
treatment while he was in the system.
Although she told him that the results would be shared with her
colleagues, as the statute contemplates, this should not affect a reasonable
person's belief that what he or she told a treating psychologist would still
remain confidential outside the psychological “team.” See § 905.04(2).
Further, Anderson's perception of her relationship with Joseph is simply
not relevant to our inquiry as we only look to the patient's beliefs. See Locke, 177 Wis.2d
at 604, 502 N.W.2d at 897. In sum,
Joseph had good reason to think that his discussions with Anderson were
intended only for his benefit and would therefore remain private.
Nonetheless, the State
argues that the trial court ruled correctly when it reasoned that Hungerford
provides an exception allowing disclosure of otherwise privileged
communications to individuals evaluated during incarceration. Since Joseph's evaluation occurred during
the course of his criminal sentence, the State claims that these communications
are outside the scope of protected communications and were thus properly
admitted in this TPR action.
We reject this
argument. Contrary to the State's
reading, Hungerford did not carve out a special exception
for privileged communications gathered
from incarcerated persons. Rather, it
held that the statutory exception allowing disclosure in “[p]roceedings for
hospitalization” included those disclosures made by Hungerford, who was then
committed under the Sex Crimes Act. See
Hungerford, 84 Wis.2d at 240-42, 267 N.W.2d at 261-62 (interpreting
§ 905.04(4)(a), Stats.,
1975). The trial court's reliance on Hungerford
was misplaced because this TPR proceeding does not include a legal “proceeding
for hospitalization” and is distinct from Joseph's criminal conviction and
sentence.[3]
We recognize that our
holding may have ramifications on future TPR proceedings involving parents
convicted of abusing or assaulting their children. Nonetheless, as it currently stands, the Wisconsin privilege does
not provide an exception to cover these situations.[4] Other jurisdictions have, however, created
such exceptions. The State of Missouri,
for example, has designed the following rule to govern TPR proceedings:
No legally recognized privileged
communication, except that between priest, minister, or rabbi and parishioner,
and attorney client, shall constitute grounds for excluding evidence at any
proceeding for the termination of parental rights.
Mo. Ann. Stat. § 211.459.4 (Vernon
Supp. 1996). And in Juvenile Officer
v. V.F., 849 S.W.2d 608 (Mo. Ct. App. 1993), the court concluded that
this statute, and a related exception allowing disclosure in “any judicial
proceeding relating to child abuse or neglect,” permitted the state to
introduce in a TPR action statements made by the father to social workers about
his physical and sexual abuse of the children.
See id at 610-11; see also Mo. Ann. Stat. § 210.140 (Vernon 1983). Our legislature could reexamine the delicate
balance between encouraging the free flow of information between health care
providers and patients, and the public's interest in protecting children by
removing them from abusive households, and arrive at a similar conclusion. But until it does so, we will construe the
privilege as it stands.
Regardless of any error
in the admission of Anderson's testimony, the State argues that there was other
ample evidence to sustain the jury's verdict and urges us to affirm. According to the “harmless error” test, we
may grant the State's request if it establishes to us that there is no
reasonable probability of a different outcome on remand. See State v. Dyess, 124 Wis.2d
525, 543, 370 N.W.2d 222, 231-32 (1985).
The State instituted a
three-prong attack against Joseph.
First, it contended that he had caused substantial injury to Joy and
Tiffany. Second, the State claimed that
he exhibited a pattern of this abusive behavior. Last, it asserted that Joseph's behavior pattern is a substantial
threat to the health of these children.
See § 48.415(5), Stats.
As indicated in its
closing arguments, the State urged that the testimony of both psychologists,
but particularly Anderson's, revealed how any children in close contact with
Joseph would face a substantial risk of being abused. Indeed, Anderson testified that Joseph posed a risk to the safety
of his fellow inmates.
Since we have concluded
that Anderson's testimony should not have been admitted, the focus of our
inquiry becomes whether the jury would have reached the same conclusion about the
risk Joseph posed to his children without her testimony. To meet its burden, the State points to the
testimony of the police detective who investigated Joseph's sexual assault of
his two daughters in 1991.
This officer's testimony
was damaging. Joseph admitted to him
that he inserted his fingers into Joy's vagina. Joseph also explained how he would “rub up and down
repeatedly.” He also described for the
officer his concerns that he had caused some “redness” which might have created
suspicions among workers at Joy's day care center.
According to the
officer, Joseph also admitted to several episodes of similar sexual contact
with his then three‑month-old daughter Tiffany. Joseph also reported to the officer his fear that he was going to
engage in similar conduct in the future.
Joseph also mentioned how “both girls appeared to be smiling at him when
he did this, and he felt ¼ they
enjoyed it.” Finally, Joseph told the
officer that he became sexually aroused during these physical contacts. To bolster this testimony, the State
introduced evidence revealing that Joseph pled no contest to two felony counts
for the sexual assaults that the officer described.
After considering the
above evidence, we find that it alone provided sufficient grounds for the jury
to conclude that Joseph had engaged in a pattern of behavior which created a
substantial risk to Joy and Tiffany.
Again looking at closing arguments, Joseph's attorney conceded to the
jury that the officer's testimony affirmatively resolved the issue of whether
Joseph had caused injury to his children.
Although Joseph
contended that there was real dispute over the other two components of the
State's case, that Joseph had engaged in a pattern of this harmful activity and
posed a substantial risk of future harm, we conclude that the officer's
testimony, corroborated with Joseph's no contest pleas, leave no doubt that the
State could secure the same result if we remanded the case.
Joseph overestimates the
harm that Anderson did to his defense.
Although Anderson reached the conclusion that he was a “predatory
individual,” she acknowledged that “it can be difficult” to predict the future
behavior of such individuals. Moreover,
cross-examination of Anderson showed that she had spent only thirty to sixty
minutes in face-to-face discussions with Joseph. The record thus suggests that her evaluation was really focused
on how Joseph compared to other inmates and what services the DOC should
provide to him.
In contrast, Joseph's
discussions with the officer dealt directly with his past abuse of Joy and
Tiffany. Here, the State gave the jury
an actual example of how Joseph's behavioral problems affected his
daughters. In this short piece of
testimony, the jury also heard how Joseph was concerned about his being
detected. Even without the expert opinion
from Anderson, a jury could readily infer that Joseph repeatedly attacked his
daughters and was aware that he must be more careful in the future or risk
discovery. After comparing the two
sets of testimony, we believe that much of Anderson's testimony was superfluous
to the issue of whether Joseph posed a future risk to his daughters. Thus, we hold that the State has established
that any error resulting from the improper admission of her testimony was
harmless error.
We next address Joseph's
second evidentiary challenge. He
contends that the trial court misused its discretion when it admitted other
crimes evidence consisting of a sexual offense he committed in 1985 or
1986. See State v. Plymesser,
172 Wis.2d 583, 591, 493 N.W.2d 367, 371 (1992).
The issue arose during
VandenBrook's testimony when he noted that this prior offense served as the
basis for his diagnosis. Joseph
contends that such evidence had no relevance to whether his parental rights
should be terminated as a result of his convictions in 1991.
After reviewing the
record, however, we agree with the State that this evidence served as the basis
for VandenBrook's expert opinion and that this ground was a “reasonable basis”
for admitting this prior crimes evidence.
See id.
Finally, we turn to
Joseph's third issue on appeal. While
he raises two specific concerns, both are challenges to the trial court's use
of discretion when it ordered the termination of his parental rights. See Rock County Dep't of Social Servs.
v. K.K., 162 Wis.2d 431, 441, 469 N.W.2d 881, 885 (Ct. App. 1991).
First, he claims that
the trial court improperly valued certain factors when it developed its
dispositional order. He argues that the
trial court overvalued the possibility that terminating his parental rights and
opening the path to adoption would give Joy and Tiffany a greater chance at
living in a healthy home. Instead, he
explains that the trial court should have focused on the children's “safety or
welfare.”
The record does indicate
that the trial court heavily considered the children's chance for
adoption. But these are appropriate
grounds for a dispositional order. See
§ 48.426(3)(a), Stats. And contrary to Joseph's suggestion, the
trial court also considered other appropriate factors, such as the health of
the children and the strength of the relationship they had formed with their
preadoptive parents. See
§ 48.426(3)(b), (f). We thus
conclude that the trial court acted within the bounds of its discretion.
Joseph's second attack
on the dispositional order is premised on its form. He complains that contrary to this court's holding in Trieschmann
v. Trieschmann, 178 Wis.2d 538, 504 N.W.2d 433 (Ct. App. 1993), the
trial court did not make specific findings of fact and conclusions of law, but
simply adopted the position advanced by the State. In Trieschmann, however, the trial court provided
no indication of “why” it had accepted the wife's position in a divorce and we
reversed for further findings. See id.
at 542, 504 N.W.2d at 434.
While we agree with
Joseph that the trial court did not provide a picture-perfect example of a
statement of findings and conclusions of law, it was adequate. Also, the record shows a discussion of the
court's reasoning. As important, the
record was thorough enough to allow us to analyze Joseph's complaint about the
trial court's handling of certain factors.
We thus conclude that the record was sufficient to avoid our remanding
the case for further findings.
By the Court.—Orders
affirmed.
[1] This case was originally a one-judge appeal, but this court, because of the significance of the privilege issue, ordered it to be heard by a three-judge panel. See Rule 809.41, Stats. We also invited the DOC to file an amicus brief. The DOC and the attorney general declined the opportunity to participate.
[2] We observe that Joseph may have made a strategic choice when he declined to renew his opposition to VandenBrook's testimony. For example, VandenBrook seemed somewhat optimistic that Joseph might respond well to treatment because he “has ¼ taken responsibility for his actions.”
[3] The interpretation of State v. Hungerford, 84 Wis.2d 236, 267 N.W.2d 258 (1978), that we apply above was set out in Milwaukee County v. K.S., 137 Wis.2d 570, 405 N.W.2d 78 (1987). There, the court concluded that the county's earlier psychological evaluation of K.S. could not be admitted in a later placement proceeding. K.S., 137 Wis.2d at 576, 405 N.W.2d at 81. It specifically held that the “proceeding to hospitalize” exception in § 905.04(4)(a), Stats., 1985-86, did not include efforts to place a juvenile in protective placement. K.S., 137 Wis.2d at 576, 405 N.W.2d at 81. We observe, however, that this statute was subsequently amended to allow disclosure in such circumstances. See In the Matter of the Amendment of Secs. 880.33(1) and 905.04(4), Stats., 151 Wis.2d xxi (effective Jan. 1, 1990).