Children's Therapist Can Not Testify at Divorce Proceedings About Mother's Behavior

Schwartz v. Schwartz, 616 S.E.2d 59 (Va. Ct. App. 2005)

A court presiding over divorce proceedings in Virginia must consider the "mental condition of each parent" in making custody or visitation arrangements.  At the same time, as in most states, statements made to a licensed mental health care provider by a client are privileged (i.e., the provider cannot testify regarding any information obtained while examining or treating a client without the client's permission).  Formerly, this privilege was often disregarded during custody or visitation proceedings because the client was considered to have placed his or her mental condition at issue in these proceedings. However, a new law (VA. CODE § 20-124.3:1) was passed that limits the admissibility of mental health records in these proceedings.

Found in DMHL Volume 25 Issue 1

Showing That a Father Poses a Serious Risk of Psychological or Emotional Harm to His Children Is a Sufficient Basis to Award Custody to Grandparents; Ruling Not Disturbed

In re Marriage of O'Donnell-Lamont, 91 P.3d 721 (Or. 2004), cert. denied, 125 S. Ct. 867 (2005)

Following a divorce, a bitter court battle over who should have custody of the children from the marriage often ensues.  The dispute may focus on who is the children's "psychological parent" (i.e., the parent to whom the children are most emotionally attached) or whether one of the parents pose a risk of psychological or emotional harm to the children...

Found in DMHL Volume 25 Issue 1

Burden Placed on Parents to Show School District's Planned Services Will Not Provide the "Appropriate" Education to Which Children with Disabilities Are Entitled

Schaffer v. Weast, 126 S. Ct. 528 (2005)

A frequently litigated mental health question involves disputes over the nature of services owed children with disabilities by school systems under the federal Individuals with Disabilities Education Act (IDEA).  There are nearly seven million students in the country who receive special education services under the IDEA.  This law, which dates from 1970, requires school districts to provide a "free appropriate public education" and to work with parents to develop an individualized education program (IEP) for each student with a disability.  When parents and school officials cannot agree, an "impartial due process hearing," typically before an administrative law judge (ALJ), must be held...

Found in DMHL Volume 25 Issue 1

Ninth Circuit Finds Federal Juvenile Delinquency Act, Not Adult Act, Controls When Juvenile Committed to Determine Competency to Stand Trial

United States v. LKAV, Juvenile Male, 2013 U.S. App. LEXIS 6573 (9th Cir. April 2, 2013)

The Ninth Circuit Court of Appeals has held that a juvenile charged with murder under the Federal Juvenile Delinquency Act whose competency to stand trial is in doubt must be committed under the juvenile provisions of 18 U.S.C. § 5037(e) and not the provisions related generally to all commitments under 18 U.S.C. § 4241(d).

Tribal authorities with the Tohono O’odham nation charged 17-year old LKAV with murder in May 2009. He was found incompetent and remained in tribal custody but without being sent to a treatment facility for restoration to competency. In November 2011, the United States filed its own charge against LKAV as an alleged juvenile delinquent under the Federal Juvenile Delinquency Act. The United States then obtained a writ of habeas corpus to remove him from tribal custody and moved to commit him for a psychiatric evaluation pursuant to the provision pertaining in general to all federal criminal cases under 18 U.S.C. § 4241(d). The presiding magistrate judge granted LKAV’s request for a local evaluation in Phoenix, Arizona.

After an extensive evaluation, the examining psychologist determined LKAV was incompetent to stand trial. LKAV then moved to proceed with commitment under the juvenile act. The United States maintained that LKAV should be committed to an adult facility under § 4241(d). The magistrate judge granted the United States’ motion and committed LKAV to the custody of the Attorney General for hospitalization for a period not to exceed four months to determine whether he could be restored to competency. LKAC filed a timely appeal, but in the interim was transported to the Federal Medical Center in Butner, North Carolina. FMC-Butner completed its competency evaluation in January 2013 and advised the court that with an additional period of hospitalization and treatment, LKAV could be restored to competency. It requested an additional 120-day extension of the commitment order, which the district court granted. LKAV appealed.

The Ninth Circuit heard LKAV’s appeal under the collateral order doctrine finding that the commitment order conclusively determines LKAV’s rights as to his pre-adjudication commitment; his commitment is a completely separate issue from the ultimate issue of his delinquency; and delay until a final decision of his delinquency on the merits would render the commitment order effectively unreviewable.

The Ninth Circuit then reviewed the language of the respective statutes and determined that the plain language of § 5037(e) is clear that it applies to the commitment and evaluation of alleged juvenile delinquents:

If the court desires more detailed information concerning an alleged or adjudicated delinquent, it may commit him…to the custody of the Attorney General for observation and study by an appropriate agency. Such observation and study shall be conducted on an outpatient basis, unless the court determines that inpatient observation and study are necessary to obtain the desired information. In the case of an alleged juvenile delinquent, inpatient study may be ordered only with the consent of the juvenile and his attorney. The agency shall make a complete study of the alleged or adjudicated delinquent to ascertain his personal traits, his capabilities, his background, any previous delinquency or criminal experience, any mental or physical defect, and any other relevant factors. The Attorney General shall submit to the court and the attorneys for the juvenile and the Government the results of the study within thirty days after the commitment of the juvenile, unless the court grants additional time. (Emphasis added.)

By contrast, the commitment scheme generally applicable to all defendants contained in § 4241(d) requires mandatory commitment for determination of the defendant’s potential for restoration to competency. The United States had argued that § 5037(e) does not mention competency and therefore the mandatory competency evaluation and commitment procedures in § 4241(d), which are more explicit and comprehensive and apply to all federal criminal proceedings applies.

The Court found that because § 5037(e) expressly provides for commitment, study, and observation of alleged juvenile delinquents, and specifically references a study of any mental or physical defect, it controls over conflicting provisions in § 4241(d) that apply to federal criminal defendants generally. The Court pointed out, however, that the United States could have sought to have LKAV transferred for trial as an adult and therefore all of the provisions in § 4241(d) would have applied, but for some reason chose not to do so. The Court recognized that because LKAV has now turned 21 and is no longer a juvenile, his further treatment and custody may cause the United States some incidental inconvenience because he cannot be housed with other juveniles or adults. Nonetheless the Court held that the purpose of Federal Juvenile Delinquency Act is to provide for the preferential and protective care and treatment of juvenile delinquents who are significantly different from adult offenders, and its provisions must therefore control.

Found in DMHL Volume 32 Issue 2

Indiana Supreme Court Finds Juvenile Mental Health Statute Conveys Use and Derivative Use Immunity during Therapeutic Polygraph Examination

State v. I.T. 4 N.E.3d 1139 (Ind. 2014)

The Indiana Supreme Court has held that the State’s Juvenile Mental Health Statute, Ind. Code § 31-23-2-2.5(b), that bars a minor’s statement to a mental health evaluator from being admitted into evidence to prove delinquency conveys both use and derivative use immunity to a minor in a later delinquency proceeding based on new charges. To hold otherwise, the Court held, would violate the youth’s Fifth Amendment privilege against self-incrimination.

I.T., a minor, admitted to felony child molesting that would have been a felony if he had been an adult. As a condition of probation, I.T. was ordered to undergo treatment for juveniles with sexual behavior problems, including polygraph examinations. During one of the exams, I.T. admitted to molesting two other children. As a result, I.T. was removed from his home and placed in juvenile detention, and then moved to a residential treatment program, the Sexually Traumatized Adolescents in Residential Treatment (START) program. The Department of Child Services and the police also investigated the minor’s admissions and interviewed one of the victims and I.T. The State then filed a new delinquency petition based on I.T.’s statements to his therapist. Under Indiana law, the juvenile court must approve the filing of a new petition. It initially did so, but I.T. moved to dismiss the petition on the grounds that the Juvenile Mental Health Statute barred the State’s evidence. The trial court agreed finding that absent the minor’s statements to the evaluator, it could find no other evidence to support a probable cause finding to support the petition. The court then gave the State ten days to file a new petition based upon independently obtained evidence, but the State instead appealed to the Court of Appeals.

The Court of Appeals found that the State has no authority to appeal a juvenile court’s order withdrawing its approval of the filing of a delinquency petition under state law and dismissed the appeal. The State then appealed to the Indiana Supreme Court and that Court granted certiorari and reviewed the case. The Supreme Court found that the trial court’s order withdrawing its approval of the filing of the petition was essentially an order suppressing evidence. When the ultimate effect of a trial court’s order is to preclude further prosecution, the Court held, the State may appeal that order even though there was no statute authorizing appeal in this situation.

On the merits, the State argued that the Juvenile Mental Health Statute prevents it from using I.T.’s actual statements at trial, but does not prevent it from using his statements to develop other evidence. The State conceded that it had no other evidence than that derived from the youth’s statements. Under this argument, the Statute would provide “use immunity” under the Fifth Amendment, but not “derivative use” immunity, meaning the State could use the statement to pursue and develop other evidence to prosecute the juvenile. The Supreme Court disagreed finding that the plain language of the statute conveys “use immunity” except in limited situations, such as a probation revocation hearing, a modification of disposition proceeding or a proceeding in which the juvenile raises the insanity defense. The Court then went on to find that “use immunity” alone cannot protect an individual’s Fifth Amendment right against selfincrimination unless it also conveys “derivative use” immunity. Otherwise investigators could still use compelled testimony to search out other evidence against the individual. The Court noted that the trial court had ordered I.T. into treatment as a condition of his probation and his remaining silent during that therapy could be found to violate his probation due to his failure to participate. To permit the filing of a new petition based upon compulsory participation in a therapeutic polygraph examination without any independent evidence to prove the violations would therefore run afoul of his constitutional privilege against self-incrimination.

The conveyance of derivative use immunity, the Court held, is also consistent with the purposes of the juvenile code. In enacting the Juvenile Mental Health Statute, the legislature found that well over half of minors detained had mental health or substance abuse problems. The legislative history also revealed that encouraging research-based programs can reduce recidivism and future involvement in the juvenile justice system, but that without open and honest communications between treatment providers and patients, the rehabilitative process would fail. The Court found that, as a result, the Statute must prevent the use of information obtained through the treatment process, including therapeutic polygraph examinations. The Supreme Court therefore held that a juvenile’s compelled statements cannot be used against him even in a probable cause affidavit and dismissed the State’s appeal.

Found in DMHL Volume 33 Issue 2

Involuntary Psychiatric Hospitalization of Minor

Parents’ claim that doctors’ “medical hold” keeping child in hospital over their objection violated their right to familial association survives motion to dismiss.

Thomas v. Kaven, 765 F.3d 1183 (10th Cir. 2014)

Legina and Todd Thomas, parents of M.T., a twelve-year-old girl at the time of the events at issue in this case, placed M.T. in the University of New Mexico Children's Psychiatric Center after she revealed suicidal tendencies during a police investigation of a potential sexual assault. She was diagnosed as exhibiting several serious psychiatric problems and her doctors recommended a prescription of psychotropic drugs. The Thomases resisted both the diagnoses and the doctors’ recommendations. M.T. was evaluated for several weeks until Mrs. Thomas decided to remove her from the hospital. Concerned about her safety, M.T.'s doctors and therapist placed her on a medical hold and initiated an involuntary residential treatment petition in state court. After a seven-day hold, M.T. was released before the involuntary commitment proceedings began.

The Thomases claimed that when doctors and the hospital placed a medical hold on M.T. and filed a petition for involuntary residential treatment they violated (1) their constitutional right to direct M.T.'s medical care and (2) their right to familial association. The defendants moved to dismiss, asserting absolute and qualified immunity. The district court granted the motion on qualified immunity grounds, and the Thomases appealed. The Court of Appeals for the 10th Circuit affirmed the decision of the district court with regard to the alleged violation of the right to direct M.T.’s medical care. In regard to the violation of the right to familial association, however, the Court held that the Thomases had stated a claim eligible for relief and remanded the case for further proceedings. As the case had come up as an appeal of a motion to dismiss (not a motion for summary judgment), the decision was made on the basis of the pleadings alone, and the defendants could not “establish as a matter of law at this point in the proceedings that the relevant state interests outweighed the Thomases' interest in their right to familial association.”

Found in DMHL Volume 34 Issue 1

Provider Liability

Binkley v. Allina Health Sys., 877 N.W.2d 547 (Minn. 2016)

In a case involving a minor with history of suicidal behavior, hospital’s affirmative defense of statutory immunity applied to the decision to deny admission to an inpatient mental health unit, but not to decisions regarding what care to provide the patient after leaving the hospital. 

Background: Binkley sued Allina Health System (“Allina”) for negligence in failing to properly examine, evaluate, and provide services to her son, Lloyd, who committed suicide after being denied admission into an inpatient mental health unit. In 2009, Lloyd began to experience suicidal thoughts and ideation, which resulted in his participation in the “United Partial Program” (“partial program”), an outpatient mental health treatment program. About nine months after completing the program, Lloyd again experienced suicidal ideation and self-harm behavior. He told his mother that he wanted to go to United in order to get help and stop his pattern of self-harm. Binkley and Lloyd went to the United Health emergency room and repeatedly requested that Lloyd, who consented, be admitted to United's inpatient mental health unit. Lloyd was examined by United staff, but was informed that he would not be admitted to the inpatient unit and, further, he was not “a good candidate” for the outpatient program because of a previous failure to follow through with that program. Lloyd returned home with his mother and committed suicide less than 24 hours later. Respondents asserted an affirmative defense of statutory immunity and, in the alternative, claimed that Binkley's expert affidavit failed to satisfy the statutory requirements under Minnesota law. The district court denied the motion for summary judgment.

Holding: On appeal, the Minnesota Supreme Court held that Respondents' good-faith decision to deny Lloyd admission to the inpatient mental health unit was entitled to immunity. However, the court also held that decisions regarding what care to provide to Lloyd after he left the hospital were not entitled to immunity.

Notable Points:

The immunity provision of the Minnesota Commitment and Treatment Act (“CTA”) applies to both voluntary and involuntary commitments: The CTA creates a state policy in favor of voluntary treatment. The voluntary treatment section of the CTA, which applied to Lloyd's circumstances, prohibits the arbitrary denial of admission and requires that treatment facilities use “clinical admission criteria consistent with the current applicable inpatient admission standards established by the American Psychiatric Association or the American Academy of Child and Adolescent Psychiatry” when “making decisions regarding admissions.”

Found in DMHL Volume 35, Issue 2

Juvenile Offenders; Life Sentence without Parole

State v. Sweet, 879 N.W.2d 811 (Iowa 2016)

Iowa Supreme Court reverses and remands sentencing of a juvenile offender to life without parole in a doublemurder case, on the grounds that such a sentence violates the Iowa Constitution. (Vigorous dissent notes that the Court’s “categorical bar” of life without parole for juveniles goes beyond the U.S. Supreme Court’s decision in Miller v. Alabama.)

Background: Isaiah Sweet was 17 years old when he shot and killed his grandparents, who had raised him since the age of 4. He pled not guilty to two counts of first-degree murder, but after the State concluded its case, he pled guilty as part of a plea agreement with the State. The court entered an order for a presentence investigation report, per recent Iowa precedent concerning the sentencing of juveniles convicted of murder. After review of the report and expert testimony from a clinical psychologist, which detailed hardships in his life and the inherent difficulties of assessing risk in adolescents, Sweet was sentenced to life without the possibility of parole. Sweet appealed the sentence.

Holding: On appeal, The Iowa Supreme Court ruled that a sentence of life without the possibility of parole (LWOP) for a juvenile offender violates article I, section 17 of the Iowa Constitution. The Court noted that Sweet did not expressly cite the federal Eighth Amendment, so it proceeded with its analysis under the Iowa Constitution. The Court reviewed the history of federal Eighth Amendment case law up through the recent cases concerning juveniles (e.g., Miller v. Alabama), then reviewed Iowa case law. It noted that Iowa has extended the reasoning of recent federal cases to provide even greater protection to juveniles (e.g., requiring individualized hearings in cases involving long prison sentences short of life in prison without the possibility of parole). The Court ultimately held that a categorical bar on life without parole sentences was required under the Iowa Constitution.

Notable Points:

Categorical bar to LWOP replaces case-by-case analysis: The Iowa Supreme Court first assessed whether a consensus existed in favor of a categorical approach. The Court noted that nine states have abolished LWOP sentences for juveniles, and that another 13 have functionally barred the practice. It also noted, however, that several state supreme courts have concluded that a categorical bar is not necessary. Concluding that a consensus was not present, the Court then exercised its “independent judgment to determine whether to follow a categorical approach,” ultimately concluding “that sentencing courts should not be required to make speculative up-front decisions on juvenile offenders’ prospects for rehabilitation because they lack adequate predictive information supporting such a decision.” Instead, “[t]he parole board will be better able to discern whether the offender is irreparably corrupt after time has passed, after opportunities for maturation and rehabilitation have been provided, and after a record of success or failure in the rehabilitative process is available.”

Found in DMHL Volume 35, Issue 2

Individuals with Disabilities Education Act (IDEA) and Mental Health Services

L.J. v. Pittsburg Unified Sch. Dist., No. 14-16139, 2016 U.S. App. LEXIS 16201 (9th Cir. Sep. 1, 2016)

Ninth Circuit rules that a student was eligible for special education services based on prior psychiatric hospitalizations and suicide attempts even though those incidents occurred outside the school environment, and directs that an individualized education plan be developed for the student despite findings that the student was performing well at school.

Background: L.J. was a primary school student exhibiting behavioral problems in grades two through five. L.J.’s mother repeatedly requested that the school district find L.J. eligible for special education under the IDEA, but the requests were denied. Through mediation, the school district agreed to transfer L.J. to another school, provide one-onone counseling through a paraeducator, and provide an assessment by a school psychologist. Despite the services provided, L.J. continued to act out violently and made two suicide attempts resulting in his confinement to a psychiatric hospital, which caused him to miss six school days. L.J.’s mother filed a request for a due process hearing claiming the school district failed to provide a Free Appropriate Public Education (FAPE) by denying L.J special education services and that the district failed to make requested records relating to L.J.’s counseling available. An administrative law judge ruled that L.J. did not have any qualifying disabilities and even if he had such qualifying disabilities, L.J. was not eligible for special education services because his academic performance was satisfactory when he was able to attend school. On appeal, the district court ruled that L.J. had qualifying disabilities, but did not need special education services because of his satisfactory academic performance. 

Holding: The Ninth Circuit reversed and held that the student was eligible for special education services. The court ruled that the student exhibited a need for services because his improved performance was due to his receipt of special education services, and that the student's psychiatric hospitalizations and suicide attempts were relevant to his eligibility for specialized instruction even though they occurred outside the school environment. The court also held that the school district committed procedural violations of the IDEA by failing to disclose school records and failing to conduct a health assessment.

Notable Point:

Qualifications for special education services: The court explained that a student with qualifying disabilities is nonetheless ineligible for special education services if support provided through general education services is sufficient to address the needs of the student. The Ninth Circuit ruled that the lower courts mischaracterized the specialized services L.J. was receiving as falling under general education services.

Found in DMHL Volume 35, Issue 3

Mental Health Treatment Regulation and First Amendment Claims of Patients

Welch v. Brown, No. 15-16598, 2016 U.S. App. LEXIS 17867 (9th Cir. Oct. 3, 2016)

Ninth Circuit upholds California statute prohibiting state-licensed mental health providers from engaging in sexual orientation change efforts (SOCE) with minor patients, rejecting claims under the Free Exercise and Establishment clauses of the First Amendment.

Background: California SB 1172 went into effect prohibiting mental health providers from engaging in SOCE with patients under 18 years of age. Plaintiffs provided counseling and other services involving SOCE and appealed the denial of a motion for a preliminary injunction to prevent the enforcement of California SB 1172. Plaintiffs claimed that SB 1172 violated the Free Exercise and Establishment Clauses by excessively entangling the state with religion and advancing or inhibiting a religion. Plaintiffs also claimed that SB1172 violated a substantive due process right to privacy in seeking a particular type of treatment.

Holding: On appeal, the Ninth Circuit affirmed the district court's judgment upholding the California statute. The court held that plaintiffs' claims failed because the scope of the law regulated conduct only within the confines of the counselor-client relationship and the prohibition against sexual orientation change efforts applied without regard to the nature of the minor's motivation for seeking treatment. The court also ruled that substantive due process rights did not extend to the choice of type of treatment or provider.

Notable Point:

Confines of the counselor-client relationship: The court specifically held that SB 1172 does not apply to clergy or pastoral counselors “as long as they do not hold themselves out as operating pursuant to their license.”

Found in DMHL Volume 35, Issue 3