COA splits on admission of counselor records in child molesting case

An adoptive father’s child molesting conviction will stand, a divided appellate court determined Tuesday, disagreeing as to whether privileged records from a one-on-one counseling session with the victim should be admitted.

Marty Friend was convicted of Level 1 felony molestation after the Elkhart Superior Court found him guilty for molesting his adopted child. When the child, A.F., began seeing private social worker Kate Creason, she was assessed for reactive attachment disorder. Creason did not diagnose A.F. with RAD, and neither of A.F.’s adoptive parents were provided with records from the therapy sessions.

In Marty Friend v. State of Indiana, 18A-CR-02359, Friend argued that the trial court erred by denying his motions for preliminary discovery of privileged records from A.F.’s session with Creason. He claimed that Creason’s reports might contain information that A.F. had been diagnosed with RAD, and consequently, that she could have been lying about the molestation allegations.

Friend also argued against the exclusion of 137 emails and text messages along with testimony from expert witness Dr. Gerald Wingard on his behalf. A divided appellate panel majority affirmed, however, finding the trial court did not err in its decision.

First, it found Friend unentitled to relief because A.F.’s one-on-one sessions with Creason were privileged and could not be disclosed unless under one of the statutorily defined exceptions. The majority also rejected Friend’s argument that his federal constitutional rights entitled him to Creason’s records in order to present a complete defense.

“Friend also argues that the trial court should have conducted an in camera evaluation of these privileged records. But, ‘Indiana’s [counselor-client] privilege is one that generally prohibits disclosure for even in camera review of confidential information,’” the majority wrote. “Friend had ample opportunities during his trial to access non-privileged information to show that A.F. was showing symptoms of RAD.”

The majority further concluded that without an official diagnosis or a more solid foundation that A.F. was suffering from RAD, the trial court did not err by concluding that the information should be excluded. Likewise, no error occurred in the exclusion of testimony from Wingard.

While partially concurring with the majority, Judge Terry Crone dissented in part in a separate opinion, disagreeing that the trial court did not abuse its discretion in denying Friend’s request for pretrial discovery of Creason’s records.

Crone contended that unlike victim advocate privilege, counselor-client privilege is not absolute. The judge thus agreed with Friend on his argument that “the interest in maintaining confidentiality of A.F.’s counseling is outweighed by the need for fair administration of justice regarding the truth of A.F.’s accusation.”

“Accordingly, I would hold that Friend ‘is entitled to know whether [Creason’s] file contains information that may have changed the outcome of his trial had it been disclosed’ and therefore ‘a remand is necessary’ for an in-camera review by the trial court,” Crone wrote. “All that being said, I agree with the majority’s determination that the trial court’s other evidentiary rulings did not constitute reversible error.”

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