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Juvenile's records not protected by counselor/client privilege

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The Howard Superior Court erred in finding that the counselor/client privilege prevented the admission of a son’s counseling records during a custody modification hearing, the Indiana Court of Appeals ruled today.

The trial court ruled that W.B.’s counseling records, which included his counselor’s notes, summaries, risk assessments, and status reports, were privileged and that no exception to the counselor/client privilege applied.

W.B. was adjudicated a delinquent after he admitted to a sexual battery charge against his sister A.B. A.B. and W.B. lived with their mother who had physical custody of the children after the mother and father divorced. When the father learned W.B. had touched his sister inappropriately, he reported it to Child Protective Services and A.B. moved in with her maternal grandparents due to a no-contact order between the siblings.

W.B. went to counseling, in which his social worker found he remained at a high risk to re-offend. W.B. was eventually discharged from treatment, his probation ended, and the no-contact order ended. A.B. moved back in to live with her mother and brother. That’s when the father petitioned for modification of custody seeking physical custody of A.B. due to the threat of potential molestations by W.B.

The trial court denied father’s petition to modify custody, finding A.B. is older and in school, and while the charges are substantial, they aren’t enough to modify custody.

The counselor/client privilege is set forth in Indiana Code Section 25-23.6-6-1, but it is subject to exceptions. I.C. Section 31-32-11-1 abrogates the privilege in proceedings resulting from reports of child abuse.

“The statute has been applied for the most part in criminal prosecutions,” Judge Nancy Vaidik wrote in J.B. v. E.B. No.34A04-1002-DR-110. “But Section 31-32-11-1 is worded broadly and abrogates the enumerated privileges in ‘any judicial proceeding’ resulting from a report of child abuse or ‘relating to the subject matter of the report.’”   

A.B. reported that her brother touched her inappropriately, which led to W.B.’s delinquency proceedings and the father’s petition to modify custody. He wants to prevent further abuse of A.B., and the privileged information concerns the brother’s potential to re-offend.

“In line with the foregoing, we conclude that the instant case is a proceeding within the purview of Section 31-32-11-1 and in which the counselor/client privilege does not apply,” she wrote. “We therefore find the trial court erred in excluding W.B.’s counseling records on the basis of privilege. We also cannot say the error was harmless, given the content of W.B.’s counseling records and the limited grounds on which the trial court based its ruling.”

The case was remanded for further proceedings.
 

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  1. I will be filing a lawsuit in Tippecanoe County for so many violations in a case we became involved in, including failure to contact through mail, Violation of 4th Amendment rights, Violation of Civil Rights, and so on. Even the Indiana Ombudsmen Bureau found violations and I have now received the report and they are demanding further training in Tippecanoe County. I am going to make sure they follow through!!!

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  3. I thought the purpose of the criminal justice center was to consolidate all the criminal services and get them out of downtown to clean up the place. Why in the HELL are the civil courts moving? What a burden to all the downtown law firms. Now we all get to work downtown, but then have to get in a car and COMMUTE to court? Who approved this idiocy?

  4. I drive through the neighborhood whenever I go to the City-County Building or the Federal Courthouse. The surrounding streets are all two way with only two lanes of traffic, and traffic is very slow during rush hour. I hope that enough money has been allocated to allow for improvement of the surrounding streets.

  5. I have had an ongoing custody case for 6 yrs. I should have been the sole legal custodial parent but was a victim of a vindictive ex and the system biasedly supported him. He is an alcoholic and doesn't even have a license for two yrs now after his 2nd DUI. Fast frwd 6 yrs later my kids are suffering poor nutritional health, psychological issues, failing in school, have NO MD and the GAL could care less, DCS doesn't care. The child isn't getting his ADHD med he needs and will not succeed in life living this way. NO one will HELP our family.I tried for over 6 yrs. The judge called me an idiot for not knowing how to enter evidence and the last hearing was 8 mths ago. That in itself is unjust! The kids want to be with their Mother! They are being alienated from her and fed lies by their Father! I was hit in a car accident 3 yrs ago and am declared handicapped myself. Poor poor way to treat the indigent in Indiana!

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