STATE EX REL. JUVENILE DEPT., CLATSOP CTY v. Martin , 271 Or. 603 ( 1975 )

HOWELL, J.,

specially concurring.

I concur in the majority opinion, but I am seriously disturbed that our juvenile courts are not allowed the benefit of expert psychiatric evidence in custody or termination of parental rights cases because of the physician-patient privilege.

The law is well established that in cases involving the custody of minor children and termination of parental rights, the primary concern of the court and the state is the welfare of the children.

As the Court of Appeals points out, the legislature has provided that juvenile courts should consider when deciding whether parental rights should be terminated:

“(a) Emotional illness, mental illness or mental deficiency of the parent of such duration as to render it impossible to care for the child for extended periods of time.

“(b) Conduct toward any child of an abusive, cruel or sexual nature.” ORS 419.523(2).

Where, as in this ease, one of the parents has suffered an emotional illness to the extent of commitment, the juvenile court is and certainly should be concerned whether that illness would or would not have a serious effect on the minor children. Unfortunate as it may be, it is a fact that in some cases the parent’s illness could result in a dangerous situation for the child. The best way for the juvenile court to determine the welfare and safety of the children under such circumstances is to have the benefit of expert psychiatric evidence from those who have examined the. parent.^① To retain the privilege is to place upon the juvenile judge the tremendous responsibility of deciding the welfare and possibly even the safety of the children without knowledge of the most important facts.

I appreciate the argument that the psychiatrist-patient privilege is necessary in order to acquire full disclosure of all the patient’s problems and to provide for effective treatment of the patient. The consideration thus becomes a balancing of the policy behind the privilege and the importance of the evidence to the trial court charged with deciding the welfare of the children. As the Court of Appeals stated? the problem is one which should be considered by the legislature.^②

Holman? J.? joins in this opinion.

① There is no statutory authority for the juvenile court to appoint psychiatrists or psychologists to examine parents.

② The legislature has seen fit to create an exception to the physician-patient relationship by requiring the physician to report to the police his knowledge of the facts in child abuse cases. ORS 418.740 et seq. If such action is required after the fact, it is arguable that elimination of the privilege might allow the juvenile court the opportunity to prevent such tragic incidents.