July 18, 2019

Colorado Supreme Court: Guardian ad Litem Holds Child’s Psychotherapist-Patient Privilege in Dependency & Neglect Proceeding if Three-Part Test Met

The Colorado Supreme Court issued its opinion in L.A.N. v. L.M.B. on Tuesday, January 22, 2013.

Dependency and Neglect—Psychotherapist–Patient Privilege—Guardian ad Litem—Waiver.

The Supreme Court affirmed the court of appeals’ finding that the guardian ad litem (GAL) held the minor child’s psychotherapist–patient privilege in this dependency and neglect proceeding. A GAL holds a minor child’s psychotherapist–patient privilege in a dependency and neglect case when: (1) the child is too young or otherwise incompetent to hold the privilege; (2) the child’s interests are adverse to those of his or her parent(s); and (3) CRS §19-3-311 does not abrogate the privilege.

The Court also affirmed the court of appeals’ holding that the GAL partially waived the child’s psychotherapist–patient privilege when she disseminated a letter from the child’s therapist to the juvenile court and to all of the parties. However, the Court disagreed with the procedure the court of appeals described for determining the scope of the waiver. On remand, the juvenile court must determine the scope of the waiver consistent with the Court’s instructions.

Summary and full case available here.

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