Facts: Father and Mother are the divorced parents of a 10-year-old child.
Several years after their divorce, they were in the midst of a parental relocation trial on Mother’s request to move with the child to Illinois. In the course of that trial, Mother called the child’s therapist to testify to facts and opinions relevant to the child’s best interest.
The therapist’s testimony included some statements made by the child. The therapist relied on statements made by the child to bolster the therapist’s opinion and to support the therapist’s diagnoses.
Appeal: The Court of Appeals affirmed the trial court.
Father argued (1) the trial court should have prohibited the therapist from being a conduit for the child’s testimony, and (2) the communications between the child and the therapist were privileged communications.
Secondhand accounts of Child’s statements. Father first argued the therapist’s testimony regarding the child’s statements were not covered under the narrow hearsay exception provided by Tennessee Rule of Evidence 803(25). The Court said subsection (25) is not applicable because the case does not involve allegations of abuse and neglect. Thus, the hearsay exception in Rule 803(25) does not permit the admission of Child’s statements through the testimony of the therapist.
The Court concluded, however, that Rule 703 is dispositive on the issue presented.
Tennessee Rule of Evidence 703 provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect. The court shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness.
The Court explains:
This language has been interpreted to allow hearsay to support an expert opinion. Therapists rely on the hearsay statements of their clients to form opinions regarding a diagnosis. Because the hearsay statements at issue were used to bolster [the therapist’s] diagnosis, we find no abuse of discretion in the trial court’s decision to allow [the therapist] to testify as an expert and to admit the statements of [Child] about which she testified.
Accordingly, the trial court’s decision to permit the therapist to testify as to Child’s statements is affirmed.
Privileged communications. Father then argued Child’s statements to the therapist were privileged and, therefore, inadmissible.
Tennessee Code Annotated § 63-22-144 provides in relevant part:
The confidential relations and communications between licensed marital and family therapists, licensed professional counselors or certified clinical pastoral therapists and clients are placed upon the same basis as those provided by law between attorney and client, and nothing in this part shall be construed to require any such privileged communication to be disclosed.
After reviewing the record, the Court concluded:
[T]he law recognizes a confidential relationship between a marital and family therapist and his or her client. In Shaw v. Shaw, a case involving a father’s request for access to his daughter’s counseling records, the court stated:
We conclude that a child’s perceived loss of a confidential relationship with a therapist, standing alone, is insufficient to make the furnishing of such records to a parent, including a noncustodial parent, against a child’s best interest.
. . .
[W]hile these records certainly are privileged, that privilege can be waived by either parent, unless to do so would not be in the child’s best interest. In the absence of a finding of abuse, a finding that it is in the child’s best interest not to disclose the records to a non-custodial parent will be a difficult hurdle to overcome.
In this case, [Child] is a ten-year-old, so her confidential relationship with [the therapist] was subject to waiver by either of her parents, unless the trial court determined that allowing such waiver would be contrary to her best interest. The trial court rejected Father’s privilege argument, stating that perhaps if [Child] were an older child, 16 or 17, the Court would have taken the argument more seriously.
We find no abuse of discretion in the trial court’s rulings with regard to the testimony of [the therapist].
Thus, the trial court’s ruling that Child’s privilege could be waived by Mother was affirmed.
K.O.’s Comment: (1) The opinion suggests it may not be appropriate for a court to allow a parent to waive the privilege of an older child aged 16 or 17 but it’s okay for a 10-year-old. Tennessee courts are all over the place as to when a child’s right to privacy can be abrogated. In Lawrence v. Lawrence, the Court held it was appropriate for a parent to record telephone calls between a 2 1/2-year-old child and the other parent. In In re Jordin M., the Court suggests the child’s therapist erred by allowing a parent to be present for part of the “confidential therapy sessions” with the five-year-old child. In Gonzalez-Bonilla v. Mendez, the Court ruled it was inappropriate for the mother to monitor the nine-year-old child’s Skype conversations with the father.
(2) The Court says this is the first Tennessee case decided under Rule 703 involving a child’s statements to a therapist or psychologist. According to the Court, all previous opinions about children’s statements to therapists have been decided under Rule 803(25) regarding “statements about abuse or neglect made by a child alleged to be the victim of the physical, sexual, or psychological abuse or neglect.”
Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.