In Re Matthew R.

CATHELL, Judge. Rebecca R. appeals from an order of the District Court for Montgomery County, sitting as a Juvenile Court, rendered in a Child in Need of Assistance (CINA) proceeding, that directed that she authorize the release to the Montgomery County Department of Social Services (MCDSS), appellee, of her records pertaining to her past diagnoses and treatments for mental or emotional disorders. She asserts that the order was improper because of the privileged nature of those records. In relevant part, Md.Code (1974, 1995 RepLVol.) § 9-109 of the Courts and Judicial Proceedings Article (CJ) provides: In all judicial ... proceedings, a patient ... has a privilege to refuse to disclose and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient’s mental or emotional disorder....

There is no privilege if ... [i]n a civil or criminal proceeding ... [t]he patient introduces his mental condition as an element of his ... defense---- [Emphasis added.] In the. case at bar, the trial court’s sua sponte order, in relevant part, provided: But I will order both Mr. and Mrs. R. to authorize the Department in writing to get all medical records and medical opinions from the Springfield Hospital and from all persons treating or who treated [them] in the past____ Appellant’s counsel, at the first opportunity, requested that the court reconsider: ⁷⁰⁵ MS. LONG: ... I would just ask ... as a legal matter that you reconsider____ I don’t believe, Your Honor ... has authority to order her to do that.... COURT: Well, the point is if she [does not] want to do it she’s in California and I’m over here.

What am I going to do? Send somebody for her? What I’m really trying to say by ordering it is that I consider it very important. I’m going to let the order stand but it’s up to her if she wants to do it or not. [Emphasis added.] The trial judge was then interrupted by appellant and the following transpired: MRS.

R: I have a lengthy psychiatric history related to many different issues. ... I’d be more than willing to do an independent evaluation but I’m not going to have an evaluation tainted by old documents in my past which is changed.... COURT: Well,' the point is that you can show that it’s changed.... ... I think the Court’s entitled to know the background of ... your background.

We just can’t cut your background off from you. But you’re certainly entitled to show that you’ve gotten help, that you’re a different person. While it is not altogether clear that the trial court intended its order to be mandatory, it is clear that appellant’s trial counsel and appellant vigorously asserted the statutory privilege. It is absolutely clear that the waiver that the Montgomery County Department of Social Services now asserts to us on appeal was never raised by it, asserted by it, proffered by it, or, in any way brought to the trial court’s attention, and it is equally manifest that the trial court never found a waiver of the privilege, either expressly or by implication.

Appellant presents this question on appeal: ⁷⁰⁶ Does the psychotherapist-patient privilege bar discovery of a parent’s prior psychiatric records in a CINA proceeding, even though the parent’s psychological fitness to care for her child is at issue? While we shall ultimately answer that question, we stress now our emphasis on the statute’s use of the words “all judicial ... proceedings” — “all” includes CINA proceedings. Before finally answering the issue posed, we perceive, however, another preliminary question: Where the only basis for admissibility of privileged information is either an express waiver of the privilege under C J section 9-109(6) or an implied waiver under [CJ] section 9-109(d)(3)(i), may a trial court order a party to produce privileged information when that information is not directly requested and where the privilege is plainly asserted and there is no proffer made by the other party or any finding made by the trial court that the privilege has been waived? We answer our preliminary question in the negative.

We explain. We initially note the provisions of two Maryland Rules. Maryland Rule 5-301, Presumptions in Civil Actions, provides that “a presumption imposes on the party against whom it is directed the burden of producing evidence to rebut the presumption.” Maryland Rule 5-104, Preliminary Questions, states: Preliminary questions concerning ... the existence of a privilege ... shall be determined by the court.... In making its determination, the court may, in the interest of justice, decline to require strict application of the rules of evidence, except those relating to privilege and competency of witnesses. [Emphasis added.] Appellee cites In re Vanessa C., 104 Md.App. 452, 460 , 656 A.2d 795 (1995), for the proposition that the error in admitting the records was harmless.

Appellee argues that appellant “does not assert that she has complied with the order, nor that she has been threatened with a contempt proceeding for noncompliance.” We disagree. Appellant has ⁷⁰⁷ refused to execute a release for the records. If appellee’s harmless error arguments were to be accepted by us, a patient would have absolutely no recourse prior to refusing to obey the court’s order and risking contempt sanctions. The risk in refusing to comply, even if the court acknowledges little actual power to enforce because appellant is not within this jurisdiction, exists and continues to exist.

In re Vanessa C. is more relevant for its procedural discussion. We held there that it was error for the trial court to compel the production of a mother’s psychiatric records. We explained: The initial hearing was conducted before Judge Harrington and was of short duration. One of the few things accomplished at that time was the acceptance into evidence of the discharge summary of appellant’s psychiatric records from Holy Cross Hospital.

Initially, the court was reluctant to admit the records. The court was then informed that the records were released to DSS by the Crisis Center and that the Crisis Center had obtained the records from Holy Cross Hospital. It was argued that this amounted to a waiver. Appellant’s counsel objected to admission of the summary and insisted that appellant had the right to an evidentiary hearing with respect to whether the privilege was waived.

It appears that, while DSS has the bu,rden to show waiver, the court did not require DSS to meet its burden prior to accepting the discharge summary. Id. at 460 , 656 A.2d 795 (emphasis added). In the present case, there was no evidentiary hearing on the waiver issue — it was not even presented below by appellee. The potential for harm remains.

More relevant to our discussion of this issue was our clear holding in In re Vanessa C. that the party relying on a waiver of the privilege has the burden to show waiver. Id. Another case involving whether a position taken by a person with a privilege (attorney-client privilege) constituted a waiver ⁷⁰⁸ was Harrison v. State, 276 Md. 122 , 345 A.2d 830 (1975). 1 The defendant, Harrison, while on the witness stand, testified as to the content of a jail house conversation with another prisoner. On cross-examination, the prosecutor was permitted to ask Harrison if he had ever told his former attorney of the conversation.

Harrison replied that he had. The trial judge then allowed the State to reopen its case and call Harrison’s former attorney, over Harrison’s privilege-based objection. Harrison’s former attorney denied that Harrison had told him of the matter. Harrison’s conviction was reversed.

The Court of Appeals, after giving a concise history of the privilege, acknowledged that the existence of the relationship and whether the communication is privileged “in the first instance for the trial court.” Harrison, 276 Md. at 136 , 345 A.2d 830 . The Court then commented that one of the State’s positions was that the privilege “was waived by the appellant’s responses to' the prosecutor on cross-examination.” Id. The Court, in addressing the issue, stated: Although waiver by implication is universally recognized and even though it need not be expressed in writing nor in any particular form, the intent to waive must, however, be expressed either by word or act, or omission to speak out. Once the confidential matter has been disclosed, it is no longer secret and the privilege which might be claimed disappears.

Since a voluntary disclosure deprives a subsequent claim of privilege based upon confidentiality, and since traditionally waiver is described as the intentional relinquishment of a known right, in determining waiver by implication “regard must be had to the double elements that are predicated in ⁷⁰⁹ every waiver, ie., not only the element of implied intention, but also the element of fairness and consistency.” Id. at 137-38 , 345 A.2d 830 (citations omitted). In Harrison , the Court recognized a procedural problem similar to that in the case at bar: Procedurally, we think [the trial court] erred in not conducting a preliminary inquiry out of the presence of the jury and hearing testimony of all the surrounding facts and circumstances to determine initially whether a confidential relationship existed between Harrison and [Harrison’s former attorney], and if so, whether or not there had been a waiver of the privilege. It appears that the trial court required a disclosure of the communication without first determining the existence of the privilege. Id. at 151 , 345 A.2d 830 .

Appellant, in the case sub judice, clearly invoked her privilege. Appellee did not assert below that the privilege had been waived, nor did the trial court make any finding of waiver. Additionally, the Department of Social Services, in one of its reports, noted that appellant declined to waive the privilege as to past records. Goldsmith v. State, 337 Md. 112 , 651 A.2d 866 (1995), involved attempts by a criminal defendant to obtain privileged information about a victim in pretrial criminal proceedings.

The Court of Appeals noted that during a hearing on the motion to compel the production of certain documents, the defendant had made “no proffer of any likelihood that relevant information would be obtained by reviewing the records.” Id. at 117 , 651 A.2d 866 . In the case sub judice, appellee not only failed to make a proffer of relevance at the hearing, but never moved to force the production of appellant’s psychiatric records. As we have indicated, it was a sua sponte trial court initiative. The Goldsmith majority commented on its holding in Harris v. State, 331 Md. 137 , 626 A.2d 946 (1993), in which the ⁷¹⁰ Court held, in reference to less protected confidential records, 2 that “before disclosure will be ordered, the moving party must show, usually at a hearing, some connection between the records sought, the issue before the court, and the likelihood that information relevant to the trial would be discovered.” Goldsmith, 837 Md. at 127-28, 651 A.2d 866 (some emphasis added; citations omitted).

The Goldsmith Court concluded that, in order to obtain pretrial discovery of even confidential records, a “defendant [had] to show a likelihood of obtaining relevant information.” Id. at 128 , 651 A.2d 866 . The Goldsmith Court went on to note that a criminal defendant’s constitutional rights may outweigh a victim’s right to assert a privilege and, therefore, privileged information could be obtained by a criminal defendant at trial. The Court, however, cautioned that [t]he mere assertion that the records in question may contain evidence useful for impeachment is insufficient to override an absolute statutory privilege, even at the trial stage---- We cannot permit a privilege to be abrogated even at the trial stage by the mere assertion that privileged records may contain information relevant to credibility. To do so would virtually destroy the psychotherapist-patient privilege of crime victims.

It has long been recognized that privileges, by their very nature, restrict access to information which would otherwise be disclosed. The rationale for this restriction has been our recognition of the social importance of protecting the privacy encompassed by specified relationships. Such privacy interests cannot be negated by the mere assertion of the possibility of impeachment evidence. Id. at 133 , 651 A.2d 866 (citatipns omitted).

The Goldsmith Court ultimately held that in order to abrogate a privilege such as to require disclosure at trial of privileged records, a defendant must ⁷¹¹ establish a reasonable likelihood that the privileged records contain exculpatory information necessary for a proper defense. In the present case, the defendant did not establish the likelihood that the records sought would provide exculpatory information. At most, Goldsmith made only a speculative assertion that the records might be relevant for impeachment. Id. at 133-35 , 651 A.2d 866 (footnotes omitted).

The dissent in Goldsmith , written by Judge (now Chief Judge) Bell and joined by Judge Eldridge, although also basing its discussion on criminal cases, at least inferentially recognized the need for an adequate proffer. Judge Bell commented that in Avery v. State, 15 Md.App. 520 , 292 A.2d 728 , cert. denied, 266 Md. 733 (1972), and appeal dismissed, 410 U.S. 977 , 93 S.Ct. 1499 , 36 L.Ed.2d 173 (1973), it was noted that “[i]t is not clear from the court’s opinion whether, other than a proffer that the records existed, the defendant proffered why he believed he was entitled to inspect the records.” Goldsmith, 337 Md. at 146 , 651 A.2d 866 . The dissent then discussed that in Avery we, addressing a criminal defendant’s request for a victim’s psychiatric records, adopted the procedure suggested by the Court of Appeals in Hamilton v. Verdow, 287 Md. 544 , 414 A.2d 914 (1980), which discussed claims of executive privilege. Judge Bell noted that [ujnder that procedure, once materials have been determined to be presumptively privileged, the burden shifts to the party seeking them to show either that they are not privileged or that there is some necessity for their production notwithstanding the privilege.

Only when the requisite showing has been made to overcome the presumption will the court conduct an in camera inspection of the materials. Goldsmith, 337 Md. at 147 , 651 A.2d 866 (citation omitted). The dissenters’ argument in Goldsmith involved, to a large degree, the conflict between the privilege and a criminal defendant’s constitutional right of confrontation. Their reasoning and discussion leads us to believe that, in a civil case, they would join with the majority in requiring that, when a ⁷¹² privilege, such as that implicated in the case sub judice, is asserted, the party seeking the privileged information has the burden of establishing that one of the exceptions to the respective statutory privilege exists.

In order to rebut the claim of privilege with an argument of waiver, the argument must be made to the tribunal before whom the claim of statutory privilege has been asserted. When the privilege clearly applies, as in the case sub judice, our position, that an assertion of privilege creates a presumption, necessitating the introduction or at least the proffer of evidence rebutting it, is buttressed somewhat by the Court of Appeals’s discussion of the privileged confidential relationship between spouses in Coleman v. State, 281 Md. 538 , 380 A.2d 49 (1977). Therein, former Chief Judge Murphy noted: It is not necessary that the spouse claiming the privilege establish the confidential nature of the communication. Generally, the courts have presumed that communications between husband and wife are confidential and privileged, although the circumstances of a given case can negate this presumption.

The presumption is rebutted where it is shown that the communication was not intended to be confidential, or was made to, or in the presence of a third party. Id. at 543 , 380 A.2d 49 (citations omitted). In Hamilton v. Verdow, supra, discussed by Judge Bell in Goldsmith , the Court of Appeals established a procedure to be used by a court when addressing an executive privilege claim. The Court stated: [W]hen a formal claim of executive privilege is made, with an affidavit stating that the demanded materials are of a type that fall within the scope of the privilege, they are presumptively privileged even from in camera inspection.

The burden is on the party seeking production to make a preliminary showing that the communications or documents may not be privileged.... Consequently, absent such a preliminary showing by the party demanding disclosure, the ⁷¹³ claim of executive privilege should be honored without requiring an in camera inspection. 287 Md. at 566-67 , 414 A.2d 914 (citations omitted). We later held, in Reynolds v. State, 98 Md.App. 348, 366 , 633 A.2d 455 (1993), that “the procedure [above] established to resolve claims of executive privilege should also be applied to claims of privilege under C.J. [§] 9-109.... Records containing information about communications between the patient and the psychiatrist or psychologist are presumptively privileged.” In the case at bar, the judge sua sponte ordered disclosure.

Appellant claimed the privilege. Appellee never objected below to the claimed privilege, nor proffered to the trial court the claim of waiver now made to this Court. A presumptive privilege cannot be rebutted when no one even claims it has been waived. Accordingly, we hold that the trial court’s action in ordering appellant to disclose her past records was, for that reason, as well as those that follow, in error.

We shall, however, because of the importance of the issue and the frequency with which social service agencies, and others, introduce the mental condition of opposing parties in litigation, address another reason for reversal and in doing so respond to the position taken by appellee to that important question actually raised by appellant in this appeal. We repeat appellant’s question: Does the psychotherapist-patient privilege bar discovery of a parent’s prior psychiatric records in a CINA proceeding, even though the parent’s psychological fitness to care for her child is at issue? We initially emphasize again that the General Assembly made the statutory privilege applicable in “all” judicial proceedings, subject to certain exceptions. We next note that the subject matter of a document introduced in evidence by appellant was offered for the purpose of responding to appellee’s claims as to appellant’s mental fitness.

To counter MCDSS’s claim of mental unfitness, appellant’s attorney, Ms. Long, on cross-examination of Mr. Williams, an employee of MCDSS, asked him if he had received a document dated ⁷¹⁴ December of 1995 from a Dr. Powell. Williams responded that he had reviewed the document. Thereafter, appellant’s counsel requested that the court admit “mother’s exhibit number one.” It was then received in evidence. That exhibit included the relatively recent letter from Dr. Powell dated December 5, 1995, less than five months before the hearing.

In that letter, the following statements, relative to appellant’s mental and emotional state, were included: The patient currently suffers from bipolar illness____ She has no paranoia, psychosis, suicidal ideation, or homicidal ideation. Her motivation is good for continued care, medication compliance, and self-improvement. ... She is taking her medications regularly. She is aware of having her bipolar disorder. ...

Her memory is normal. Her judgment and insight appear intact. ... [H]er illness appears stable at the moment---- She also is having no aggravation of her symptoms from seasonal changes____ Thus, for her further mental health stability I would encourage the court to at least consider “sponsored” visitation of her children.! 3 ] Dr. Powell’s letter then recommended to the California court that it consider ordering an evaluation of appellant “with the children to further clarify the appropriateness of the visitation or eventual custody.” Appellee, relying on section 9-109(d)(3)(i) of the Courts and Judicial Proceedings Article, asserts that appellant’s claim to be mentally fit for custody ⁷¹⁵ and this letter constitute the introduction of this mother’s mental condition by her as an element of her claim. We shall address this issue more fully as we conclude our opinion. Most of the cases addressing this privilege, or those closely related to it, are criminal cases.

We first note again what Judge Chasanow wrote in Goldsmith , that the rationale for the privilege is the recognition “of the social importance of protecting the privacy encompassed by specified relationships.” 337 Md. at 133 , 651 A.2d 866 . In addition to Goldsmith, we are guided in our resolution by a case involving the attorney-client privilege, State v. Pratt, 284 Md. 516 , 398 A.2d 421 (1979). In Pratt , a defense attorney retained a psychiatrist to examine his client, who had entered an insanity plea to the charges against her. During trial, the State presented the testimony of that psychiatrist to rebut Pratt’s insanity defense.

Pratt’s attorney objected to the testimony of that particular psychiatrist on the grounds that it violated the attorney-client privilege. The State asserted that “when Mrs. Pratt interposed a defense of insanity, she waived the privilege with respect to all statements she may have made to any medical expert, whether in her employ or in that of the State.” Id. at 521 , 398 A.2d 421 (footnote omitted). The Court commented in a footnote that the State’s position was the equivalent of asking the Court to create a waiver of the attorney-client privilege, similar to that created by the General Assembly in section 9-109(d)(3)(i) of the Courts and Judicial Proceedings Article and asserted by appellee in the present case, “if the patient introduces his mental condition as an element of his claim or defense.” 4 (Emphasis added.) Although Pratt involved the attorney-client privilege (the psychiatrist had been employed by the attorney), the Court, responding to the State’s assertion that Pratt had waived the privilege by interposing “a defense of insanity,” noted what appears to us to be equally true in respect to the case sub ⁷¹⁶ judice. It answered the question by commenting, “An additional consequence of the State’s suggested waiver rule, if adopted by us, is that the defense, in essence, would be required to assist the prosecution in discharging its burden of proof.” Id. at 524 , 398 A.2d 421 .

The Court further opined: If, in its efforts to establish the mental responsibility of the accused following a plea of insanity, the State is permitted to utilize a psychiatrist hired by the defendant, both the defense attorney and his client will be inhibited from “consulting one or more experts, with possibly conflicting views, by the fear that in doing so [they] may be assisting the government in meeting its burden of proof on the [sanity] issue.” Id. (brackets in original). Similarly, in the case at bar, a mother’s desire to seek psychiatric help in order to be a better mother, or remain a good mother, could be seriously inhibited if the records of diagnoses and treatment, which often would include information of the most sensitive nature, could be readily obtained whenever a state agency seeking to modify or terminate that parent’s rights to her children alleges that she is unable to care for them properly due in part to a mental or emotional problem. Moreover, if one parent in a custody dispute could, by challenging the other parent’s mental fitness, get access to the other parent’s records by his or her response to the allegations, the privilege would be meaningless.

In Goldsmith , Judge Chasanow, after opining that “[b]e-cause of the privileged nature of the records involved in the present case, the burden of proof required of the [opposing party] defendant to establish a need for disclosure may be higher than that required in Zaal [v. State, 326 Md. 54 , 602 A.2d 1247 (1992) ],” stated: In [Commonwealth v.] Two Juveniles [ 397 Mass. 261 , 491 N.E.2d 234 (Mass.1986) ], the Supreme Judicial Court of Massachusetts ... recognized that “[i]n general, an assertion that inspection of information is needed only for a possible attack on credibility has been rejected because, if upheld, such a broad right of discovery would substantially destroy the privilege.” In [Commonwealth] v. Clancy, [402 ⁷¹⁷ Mass. 664] 524 N.E.2d 395 (Mass.1988), the