Facts: Mother and Father are the never-married parents of Child. Both are recovering alcoholics. After five years of sobriety, Mother relapsed for a short period of time, and the parents separated.

Father petitioned to have Child declared dependent and neglected in Mother’s care.

Before Mother was served with Father’s petition, she voluntarily checked herself into a rehabilitation program for treatment.

After Mother’s release from treatment, an agreed order was entered allowing Mother supervised parenting time during four overnights each week.

The guardian ad litem asked that Mother release all her treatment records and privileged psychotherapy notes to the guardian for her review.

Mother asserted that the records were privileged.

The guardian ad litem asked the juvenile court to order Mother to release her privileged records.

The guardian ad litem argued she wanted to review the records to verify that Mother went to treatment, followed the recommendations, and completed the program.

Mother’s counsel offered to provide this information from the facilities Mother attended for treatment without waiving Mother’s privilege to her psychotherapy records.

The guardian ad litem declined, arguing that these affidavits would not give her the necessary information.

The juvenile court ordered Mother to sign a release allowing the guardian ad litem to review all her treatment records.

Mother appealed this interlocutory order to the circuit court, where it was affirmed.

Mother appealed.

On Appeal: The Court of Appeals reversed the trial court.

Tennessee law recognizes a privilege against compelled disclosure of confidential communications between a psychologist and client. The Rules of Civil Procedure allow parties to “obtain discovery, not privileged, which is relevant to the subject matter involved in the pending action.”

This privilege is necessary to foster an environment between the patient and his or her psychologist that is conducive to treatment and recovery. Once this privilege is lost by disclosure, the link between confidentiality and communication is effectively broken and no longer reparable to its earlier form. Thus, a court’s action in piercing or disregarding the psychologist-patient privilege presents a potentially harmful ramification that may ultimately result in a permanent setback for the individual seeking treatment.

Tennessee Code Annotated § 37-1-411 supplies an exception to this privilege for dependency and neglect cases arising out of a “report of harm.”

The Court held the courts below erroneously ordered Mother to release her privileged mental health records:

[A]s we construe § 37-1-411, dependency and neglect proceeding results from a report of harm when it prompts action from the department to which it was reported. Pursuant to § 37-1-403, that department is DCS. Indeed, as we interpret the statute, a dependency and neglect proceeding resulting from a report of harm under § 37-1-403 denotes involvement from DCS. We do not construe § 37-1-411 to abrogate a party’s privilege merely because a parent has filed a dependency and neglect petition.

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While there is certainly no indication in the record that DCS took any action which was precipitated by Father’s original petition, the record also indicates that DCS never sought to intervene in the pending matter or pursue a dependency and neglect finding as a result of its own investigation. … Because we conclude that the underlying juvenile court proceeding does not suffice as a dependency and neglect proceeding resulting from a report of harm pursuant to § 37-1-403, the [guardian ad litem] cannot invoke § 37-1-411 to obtain Mother’s privileged mental health records.

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Mother’s privilege has been neither pierced nor waived, and, therefore, the [guardian ad litem] is not entitled to obtain her records under Rule 40 or Tennessee Code Annotated § 37-1-411. In its order, the juvenile court noted that, if the [guardian ad litem] is unable to obtain these records, she will be unable to efficiently carry out her duties as a [guardian ad litem]. We disagree. Largely at contention here remains the notes from Mother’s psychotherapy sessions. At trial, the [guardian ad litem] contended that she needed Mother’s records “to verify that Mother did go to these facilities; that she followed the recommendations; that she completed the programs; and moving forward what would be the recommendations.” In response, Mother’s counsel proffered to provide the [guardian ad litem] with affidavits from the institutions to show that Mother was in fact admitted to the institutions on certain dates. Mother’s counsel contended that these affidavits would reveal the purpose of Mother’s treatment, as well as the list of recommendations she was to follow. However, this offer was rejected for reasons that appear unclear. It appears to this Court that Mother is willing to be forthcoming about the purpose of her treatment and recovery from her addiction, provided that she is able to retain her psychologist-patient privilege. We do not view this as an unreasonable position for her to take. If the [guardian ad litem] truly wishes to ensure Mother attended treatment and is following the recommendations given, we ascertain no reason as to why the [guardian ad litem] needs to see Mother’s psychotherapy notes to ensure this, especially in light of the fact that no harm to Child has ever been alleged.

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[T]he juvenile court had no legal basis to invade Mother’s psychologist-patient privilege, and its ruling clearly contravened Tennessee law. … As there was no legal basis for the juvenile court to abrogate Mother’s privilege, we conclude that the circuit court erred in not granting Mother the relief requested….

The trial court’s judgment was reversed.

In re Lucas H. (Tennessee Court of Appeals, Western §, May 26, 2021).

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