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FOR PUBLICATION

ATTORNEY FOR APPELLANT: CRAIG A. DECHERT Kokomo, Indiana

ATTORNEY FOR APPELLEE: DERICK W. STEELE Kokomo, Indiana

FILED
Oct 20 2010, 9:36 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
J.B., Appellant-Respondent, vs. E.B., Appellee-Petitioner. ) ) ) ) ) ) ) ) ) )

CLERK

No. 34A04-1002-DR-110

APPEAL FROM THE HOWARD SUPERIOR COURT The Honorable George A. Hopkins, Judge Cause No. 34D04-0907-DR-828

October 20, 2010 OPINION - FOR PUBLICATION

VAIDIK, Judge

Case Summary This is a child custody proceeding involving application of the counselor/client privilege. Mother and Father had a minor son and minor daughter. Mother was awarded physical custody of both children. Son touched Daughter inappropriately and was

adjudicated a delinquent for sexual battery. He received counseling thereafter. His counselor frequently noted that he remained at high risk to reoffend. Father sought physical custody of Daughter as a result of the incident. At the custody modification hearing, Father offered into evidence Son's counseling records. The trial court excluded the records, finding them inadmissible pursuant to the counselor/client privilege. The trial court declined to modify custody, and Father appealed. Indiana Code section 31-3211-1 abrogates the counselor/client privilege in any judicial proceeding "resulting from a report of a child who may be a victim of child abuse or neglect or relating to the subject matter of the report or failing to report." We conclude that this is one such proceeding and that the counselor/client privilege therefore does not apply. Accordingly, we find the trial court erred by excluding Father's evidence. We reverse and remand. Facts and Procedural History E.B. ("Mother") and J.B. ("Father") divorced in 2002. They had two minor children, daughter A.B., born November 8, 1998, and son W.B., born August 16, 1996. Mother was awarded physical custody of the children. The parents shared legal custody. Both parties ultimately remarried. In 2007, A.B. informed Father that W.B. touched her inappropriately. Father reported the incident to Child Protective Services. CPS investigated, and W.B. was 2

charged as a juvenile in Howard Circuit Court with Class D felony sexual battery. The juvenile court imposed a no-contact order between W.B. and A.B. A.B. moved in with her maternal grandparents for the pendency of the juvenile proceedings. Mother sought counseling for W.B. after the charges were filed. W.B. saw

licensed clinical social worker Chris Simpson beginning in November 2007. Simpson kept notes, completed written assessments, and wrote synopses of W.B.'s counseling sessions. Simpson regularly documented that W.B. "remains at high risk to reoffend." Respondent's Ex. H. W.B. admitted to the sexual battery charge and was adjudicated a delinquent in May 2008. He was placed on supervised probation and ordered to receive sex offender treatment. W.B. continued to see Simpson for counseling. Simpson sent periodic treatment status reports to W.B.'s probation officer. The reports described W.B.'s progress, summarized the results of his assessment tests, and provided professional recommendations. In a report dated May 8, 2008, Simpson opined that W.B. was "at HIGH RISK to reoffend" and recommended "that he have NO ACCESS to former or potential victims." Respondent's Ex. A. On January 9, 2009, Simpson wrote that W.B. "appears to be no less of a threat to community safety than he was when he started in therapy, and I remain extremely concerned for the safety of his sister/victim." Respondent's Ex. C. Nonetheless, W.B. was discharged from treatment in April 2009. His probation ended in May. Father requested that the juvenile court extend W.B.'s probation. He also asked that the no-contact order between A.B. and W.B. remain in effect. The juvenile 3

court denied Father's requests. W.B. was released from probation, the no-contact order was lifted, and A.B. returned from her grandparents' home to live with Mother and W.B. Father next filed a petition for modification of custody in Howard Superior Court. Father sought physical custody of A.B. His petition stated that W.B. had been convicted of a sexual battery involving A.B., and that A.B. was "in danger of future molestations due to the direct contact with W.B." Appellant's App. p. 28. The trial court convened a hearing on Father's petition in January 2010. Father introduced W.B.'s counseling records along with a recorded deposition of Chris Simpson. The records included Simpson's notes, summaries, risk assessments, and status reports. Father offered the evidence to show W.B.'s behavioral issues and demonstrate the threat W.B. posed to A.B. Mother objected, arguing that W.B.'s records were protected by the counselor/client privilege. The trial court agreed and excluded the evidence. The trial court found that the materials were privileged and that no exception to the counselor/client privilege applied. The trial court denied Father's petition to modify custody. The court concluded in part that "[A.B.] is older and in school. Both parents have remarried. While these changes are substantial, they are not a basis, without more, to modify custody." Id. at 44. The court also found that, although Father believed W.B. required more treatment, Father "did not introduce any evidence other than speculation to support his opinion." Id. at 42. Father now appeals.

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Discussion and Decision Father argues that the trial court erred in excluding W.B.'s counseling records pursuant to the counselor/client privilege. I. General Principles of Custody Determination / Modification Custody determinations are made in accordance with the best interests of the child. Ind. Code

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