Metropolitan News-Enterprise


Wednesday, January 18, 2017


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Court: Teen Seeking Extended Foster Care Did Not Waive Therapist Privilege


By a MetNews Staff Writer


A nonminor dependent care did not, by testifying that she believed herself eligible for extended foster care based on a medical condition, place her mental condition at issue, and thus did not waive the psychotherapist-patient privilege, the First District Court of Appeal has ruled.

Div. Four granted a writ of mandate, overturning an Alameda Superior Court judge’s ruling that the privilege had been waived and that attorneys for the county could therefore question the minor’s therapist regarding confidential communications. The opinion was filed Dec. 16 and certified yesterday for publication.

The minor, identified as N.S., had been in foster care since the age of 11. After turning 18 two years ago, she remained under dependency jurisdiction as a nonminor dependent under Welfare and Institutions Code §11400(v), having been diagnosed with several disorders, including depression.

Although the Alameda County Social Services Agency had initially supported extended foster care, it changed its position about a year ago, saying the minor’s whereabouts were unknown, that she had admitted using drugs, and that she had not participated in services.

At a hearing, however, N.S. testified that she saw her therapist every week, and had gone to a hospital for a medical clearance that would enable her to enter a drug program. She also testified that she believed she was eligible for extended foster care based on a medical or mental condition that prevented her from working or attending school.

The therapist, Kristin Chan, testified she had been seeing N.S. weekly for a year, and that she had written a letter stating that N.S. had a diagnosis that prevented her from participating in services. When the agency’s lawyer asked what that diagnosis was, both Chan and the minor invoked the privilege.

Alameda Superior Court Judge Willie Lott Jr. ruled that the privilege was waived, either when the minor testified that she believed herself eligible for extended care based on her condition, or when she offered Chan’s letter into evidence.

But Justice Maria Rivera, in her opinion for the Court of Appeal, said N.S.’s testimony “cannot properly be construed to mean N.S. herself tendered the issue of her mental state.” Emphasizing that exceptions to the privilege must be construed narrowly, she explained that the witness “did no more than describe accurately her understanding of the basis for her continued dependency, consistent with the Agency’s own earlier conclusion that her mental health condition prevented her from attending school, participating in an employment program, or working at least half-time.”

Nor did N.S. waive the privilege by seeking to admit the therapist’s letter, Rivera said, noting that the letter was similar to one that had been attached to an earlier report by the agency, and that all the letter contained was documentation required by the state regarding eligibility for extended foster care. Nothing in the statutes, Rivera said, suggested that providing the documentation constituted a waiver of privilege.

The case is N.S. v. Superior Court (Alameda County Social Services Agency), A148694.


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