This is a proceeding to involuntarily terminate parental rights. The sole issue presented for our determination is whether evidence of a parent's mental illness may be excluded under the health care provider-patient privilege in a termination of parental rights proceeding brought under LA. CHILD. CODE art. 1015(5). After a careful and thorough review of the record and the law, we conclude for the reasons expressed below that the lower courts erred in precluding the evidence proffered by the State. All parties having stipulated that the child was a child in need of care, this termination proceeding was based on abuse or neglect of a child or the cause of such a condition, and thus LA. CHILD. CODE art. 1034(D) statutorily waives the privilege and precludes the exclusion of the proffered evidence. Accordingly, we vacate and set aside the judgments of the lower courts and remand this case to the juvenile court for an expedited reconsideration of its judgment based on all the evidence consistent with this opinion.
The minor child J.A.
On September 17, 1997, more than eighteen months after the State had removed J.A. from L.A.'s custody, DSS/OCS sought termination of L.A.'s parental rights under LA. CHILD. CODE. art. 1015(5). Counsel for both parties stipulated that J.A. was adjudicated a child in need of care and that there was a court-approved case plan for services for the safe reunification of J.A. and L.A. To achieve reunification, L.A. was to: (1) follow the recommendations of her treating physicians; (2) obtain and maintain independent living; (3) participate in parenting classes; and (4) gain employment or a method of income.
To prove that termination of L.A.'s parental rights was in J.A.'s best interest and to prove the statutory requirements of article 1015(5), DSS/OCS attempted to introduce the testimony of L.A.'s treating physicians and social workers. Counsel for L.A.
As for the testimony considered privileged, DSS/OCS offered the testimony of the following health care providers: (1) Dr. Roger Wortham, a psychiatrist at Southeast Louisiana Hospital, accepted by the termination court as an expert in the field of psychiatry, and one of L.A.'s treating physicians; (2) Dr. Seth L. Strauss, a staff psychiatrist at Southeast Louisiana Hospital, accepted by the termination court as an expert in the field of psychiatry, and one of L.A.'s treating physicians; (3) Ms. Gail Fitzmorris, a social worker at Southeast Louisiana Hospital, accepted by the termination court as an expert in the field of social work, and one of L.A.'s treating social workers; (4) Ms. Jolene Del Cambre, a mental health social worker at Southeast Louisiana Hospital, accepted by the termination court as an expert clinician in the field of social work, and one of L.A.'s treating social workers; and (5) Dr. Rennie Culver, a psychiatrist appointed by the juvenile court in the Child in Need of Care ("CINC") proceeding as a result of the court-approved case plan to evaluate L.A., accepted by the termination court as an independent expert in the field of psychiatry, but not court-appointed in the termination proceedings. The trial court refused to allow the testimony of these health care providers based on article 510(B)(1)'s privilege. Over objection, DSS/OCS proffered the direct testimony of these health care providers and counsel for L.A. proffered their cross-examination testimony. Finally, over objection, DSS/OCS proffered the "pink folder"
The trial court did allow DSS/OCS to present the testimony of Donna Downing, a supervisor at DSS/OCS. Ms. Downing was the supervising case manager assigned to J.A.'s case in January 1996 when he was placed in foster care and referred to DSS/OCS for placement and follow-up services. As the supervisor, she noted that she had a great deal of involvement in J.A.'s case. Ms. Downing stated that DSS/OCS's initial goal was reunification, and, as such, devised a case plan for the family. Ms. Downing testified that DSS/ OCS held the initial case plan, the "first family team conference," at Southeast Louisiana Hospital because of L.A.'s hospitalization and discussed the court-approved case plan with L.A. The case plan structured for L.A. included following all recommendations of her treating physicians while in the hospital, taking all prescribed medications, and not discontinuing any medications without consulting her physicians. If she was discharged, L.A. was to follow all aftercare recommendations for treatment, receive periodic drug screenings, take medications as prescribed, and consult with her physicians if she had any difficulties. Additionally, she was to attend parenting skill classes, to obtain and maintain stable housing or have some sort of living arrangement where she could raise J.A., and to gain some form of employment or method of income. Ms. Downing testified that the initial case plan did not change significantly over time as L.A.'s chronic hospitalization prevented her from attending any parenting classes, obtaining or maintaining independent housing, or obtaining a method of income.
Ms. Downing also testified as to the visitations between J.A. and L.A. She described the interaction between mother and child as L.A. "playing mother." She noted that L.A. became angry when J.A. did not immediately come to her and she became frustrated at the efforts she had to make with J.A. Ms. Downing stated that J.A. usually looked to either herself, the case manager, or DSS/OCS's transportation driver for comfort or reassurance during the visits. She also maintained that it was DSS/OCS's position that J.A. would be at high risk if he returned to live with L.A.
On cross examination, Ms. Downing admitted that J.A. likely looked to DSS/OCS employees for comfort because he was exposed to them more often and that, as a result, DSS/OCS had considered a plan to increase the number of visitations between J.A. and L.A. However, DSS/OCS could not schedule more visits because of L.A.'s hospitalization. Ms. Downing also admitted that she was not present at all of the visitations but only about five. Ms. Downing also stated that when she was present she would offer L.A. encouragement and ideas on how to engage J.A. She reiterated that the basis for the termination proceeding was that L.A. had not rehabilitated satisfactorily and was not expected to do so. She admitted that eventually DSS/ OCS decided not to refer L.A. to parenting skill classes due to her mental health problems. She further testified that pursuant to the CINC court's order, if L.A. failed to sign medical release forms she could not visit J.A. In April 1997, Ms. Downing stated that DSS/OCS determined that reunification was unachievable and an alternative plan was necessary.
Following the conclusion of DSS/OCS's case-in-chief, L.A. moved for a directed verdict.
Immediately after submission, the trial court ruled orally from the bench. The court reiterated that the testimony of many of DSS/OCS's witnesses was inadmissible
On appeal, the Fourth Circuit affirmed the judgment in an unpublished opinion. Concerning the trial court's refusal to take judicial notice of the CINC record adjudicated in another division of the Orleans Juvenile Court, the court noted that while LA. CHILD. CODE art. 1036.1 permitted its introduction, DSS/OCS was not prejudiced because of the stipulation.
Regarding whether the trial court properly excluded the medical evidence, the court of appeal held that by the plain wording of article 1034(D), testimony relevant to the abuse or neglect of a child may not be excluded on any ground of privilege. Thus, the appellate court reasoned, because DSS/OCS based this termination proceeding on the length of time J.A. had been in state custody and not on any allegations of abuse or neglect, the trial court correctly excluded the testimony and evidence relative to advice, diagnosis, and treatment of L.A. Finally, the court of appeal remanded the case to the trial court and ordered it to appoint an expert to conduct a psychiatric examination of L.A. in an expeditious manner and report her condition to the court without violating the health care provider-patient privilege. We granted DSS/OCS's writ of certiorari to consider the correctness of the lower courts' judgments. State in the Interest of J.A., 99-2905, 1999 La. LEXIS 3122, at *1 (La.11/5/99), 750 So.2d 973.
LAW AND ANALYSIS
In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law, Lassiter v. Department of Soc. Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship, State in Interest of Delcuze, 407 So.2d 707 (La.1981). However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that
The State's parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. LA. CHILD. CODE art. 1001. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven. Nonetheless, courts must proceed with care and caution as the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens. The potential loss to the parent is grievous, perhaps more so than the loss of personal freedom caused by incarceration. State in the Interest of A.E., 448 So.2d at 185.
Title X of the Children's Code governs the involuntary termination of parental rights. LA. CHILD. CODE art. 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. The State need establish only one ground, LA. CHILD. CODE art. 1015, but the judge must also find that the termination is in the best interest of the child. LA. CHILD. CODE art. 1039. See State in Interest of ML & PL, 95-0045 (La.9/5/95), 660 So.2d 830, 832. Additionally, the State must prove the elements of one of the enumerated grounds by clear and convincing evidence to sever the parental bond. LA. CHILD. CODE art. 1035(A); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding that the minimum standard of proof in termination of parental rights cases is clear and convincing evidence). In this case, DSS/OCS sought termination of L.A.'s parental rights under LA. CHILD. CODE art. 1015(5), which provides:
Based on L.A.'s objection, the court excluded the proffered evidence concluding that its admission would violate the health care provider-patient privilege found in LA. CODE EVID. art. 510. Article 510(B)(1) provides, in part, as follows:
However, article 1034(D) of the Children's Code provides an exception to this statutory privilege by providing as follows:
L.A. argues that the lower courts did not err because article 1034(D) plainly provides that testimony and other evidence relevant to the abuse or neglect of a child or the cause of such condition shall not be privileged in parental termination proceedings. Thus, she argues, this provision is not applicable in this proceeding because DSS/OCS based the termination of L.A.'s parental rights upon LA. CHILD. CODE art. 1015(5) and the amount of time J.A. has been in the custody of the State and not upon any abuse or neglect. Further, L.A. argues that this case could not be based on abuse or neglect because J.A. was removed from her care and custody at birth, and, therefore, she could not have abused or neglected him.
DSS/OCS argues that the lower courts erred in excluding the proffered evidence by applying LA.CODE EVID. art. 510 to these proceedings and failing to apply LA. CHILD. CODE art. 1034(D)'s exclusion to this proceeding. DSS/OCS argues that the exception is applicable to the termination of L.A.'s parental rights as this involuntary termination proceeding was premised on the stipulation that the juvenile court had previously adjudicated J.A. a child in need of care, and therefore, this was a proceeding based on abuse or neglect.
We begin by noting that courts should be cognizant of the fact that the Legislature has expressed its intent that courts shall construe the procedural provisions of Title X of the Children's Code relative to the involuntary termination of parental rights liberally. LA. CHILD. CODE art. 1001. We conclude that the lower courts erred in failing to recognize that because J.A. was adjudicated a child in need of care as alleged in the CINC petition and stipulated to by all counsel in the case sub judice, DSS/OCS's termination proceeding was based on the premise that J.A. was an abused or neglected child. Specifically, DSS/OCS based the CINC proceeding and this involuntary termination proceeding on the alleged ground that J.A. was a neglected child.
Before a juvenile court may adjudicate a child in need of care under Title VI of the Children's Code, the State must allege and prove by a preponderance of the evidence one or more of the statutorily expressed allegations in LA. CHILD. CODE art. 606(A). See LA. CHILD. CODE arts. 606, 665, 666. Specifically, article 606(A) provides as follows:
A reading of this statute makes clear that all of the grounds listed as required showings are based on either abuse or neglect, criminal and noncriminal. Thus, before a child may be adjudicated a child in need of care, the court must first make a predicate finding of abuse or neglect. Here, one of the statutory grounds provided for in article 606 that the State must allege and prove is that the "child is a victim of neglect." LA. CHILD. CODE art. 606. As used in Title VI, the Code defines "neglect" as follows:
LA. CHILD. CODE art. 603(14).
The Legislature defined a "neglected" child in broad terms precisely because foreseeing all the possible factual situations that may arise is impossible. Further, the broad definition enables experienced juvenile courts to apply their training and experience to the unique facts and circumstances of each case. The proposition asserted by L.A. that J.A. cannot be a neglected child because he has never been in her custody would compel the juvenile court judge to place the child in her custody to determine whether she could render proper care, and ignores the possibility that if the "experiment" proves unsuccessful, the consequences to the child could be seriously detrimental or even fatal. We choose not to force the hand of the juvenile court by foreclosing prognostic evidence as did the lower courts, especially considering the Legislature's liberalization of the procedural rules. LA. CHILD. CODE art. 1001. Instead, applying the heightened clear and convincing standard of proof best protects the parents' rights and interests in termination cases.
DSS/OCS alleged in its petition that the court approved a case plan for services for the safe return of J.A., but that L.A. had made no substantial compliance. The petition also alleged as follows:
Accordingly, we conclude that trial court erred in excluding the evidence proffered by DSS/OCS under the health care provider-patient privilege. Because article 1034(D) provides that the proffered evidence, all relevant to the "neglect" of J.A. and "the cause of such condition," should not have been excluded, the court of appeal erred in affirming the trial court's judgment.
We note that a finding of mental illness, standing alone, is insufficient grounds to warrant termination of L.A.'s parental rights. See LA. CHILD. CODE art. 1015, see also State in the Interest of August v. Fontenot, 554 So.2d 244 (La.App. 3 Cir. 1989). Instead, the mental deficiency must be related to the parenting ability. That is, if the evidence provides clear and convincing evidence that the prognosis for L.A.'s recovery in the near future is poor and there is no reasonable expectation of significant improvement in her condition in the near future, then termination is proper if it is in the best interests of the child and the additional grounds for termination have been met. LA. CHILD. CODE art. 1015(5).
In keeping with the codal dictate that the paramount interest in termination proceedings is the best interest of the child and the dictate of LA. CHILD. CODE art. 1001.1 that proceedings held under Title X of the Children's Code shall, to the extent practicable, be given priority, this Court in exercising its supervisory jurisdiction orders that on remand this case shall proceed expeditiously and within the following time frames to the extent practicable: (1) the juvenile court shall review all the
For the foregoing reasons, the judgments of the lower courts are vacated and set aside, and this case is remanded to the juvenile court for a reconsideration of its judgment on the petition for the involuntary termination of parental rights to be held expeditiously and according to the time frame established herein.
JUDGMENTS VACATED AND SET ASIDE; CASE REMANDED WITH INSTRUCTIONS FOR EXPEDITIOUS TREATMENT.