How does a minor-child shield his or her secrets, told to a psychotherapist, during a dependency and neglect proceeding? Normally, parents “hold” the child’s psychotherapist-patient privilege, and the right to waive that privilege on behalf of their children. But in a termination proceeding, parents have a conflict of interest. Three others could hold the child’s privilege: the department of human services, the juvenile court, or the guardian ad litem (GAL). The Court’s answer, under CRS sections 13-90-107 and 19-3-311, is the GAL. If waived, the court determines the scope, balancing various factors, seven of which were identified by the Court. The process for a GAL to withhold information is familiar: the GAL serves a privilege log, and then, if necessary, the court conducts an in camera review. The Court remanded this case for a determination of the scope of a GAL’s waiver.
Tag Archives: Children
Children are fearless and sometimes get injured when playing on someone else’s property. Typically, there are three kinds of people injured on property: an invitee, a licensee, and a trespasser. An invitee is basically a store customer for whom a landlord owes a higher level of protection; a licensee is a social guest at a house and is entitled to moderate protection; and a trespasser is on property without consent and is owed only minimal protection. However, as the court of appeals held in this case, an otherwise trespassing child who enters property because of an attractive nuisance is “invited” by the nuisance, and owed the protection of an invitee. But the attractive nuisance doctrine only applies to trespassing children. So a child “licensee” cannot rely on the doctrine. The court found the scheme constitutional because it is rational to give children higher protection.