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In re Morris D.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 122
Docket:	Han-99-518
Submitted
on Briefs:	April 14, 2000
Decided:	June 29, 2000	

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.





In Re MORRIS D.



WATHEN, C.J.

	[¶1]  The mother of Morris D. appeals from the judgment entered in
the District Court (Ellsworth, Staples, J.) terminating her parental rights in
her son.  On appeal, the mother argues that the court erred when it denied
her pre-trial request to require Morris to testify at the termination hearing,
that the court impermissibly admitted a report prepared by her psychiatrist
over her objection that it was privileged, and that the evidence was
insufficient to support the court's findings.  We disagree and affirm.
	[¶2]  The present case is at least the second round of DHS
involvement in the care and custody of Morris.  The first round began in
1991 and resulted in the termination of Morris's father's parental rights. 
DHS, which had custody of Morris, also sought to terminate the mother's
parental rights at that time on the ground that the mother, who has been
diagnosed with bi-polar disorder, was unable to care for Morris.  The mother
had persistent problems with substance abuse; while under the influence of
alcohol, the medication to control her disease loses much of its effectiveness
and she becomes prone to violent, unpredictable mood swings.  The mother
also had a history of entering relationships with abusive, alcoholic men and
of failing to adequately protect Morris from these men.  Nonetheless, in
March of 1996, the court refused to terminate her rights.  DHS was ordered
to continue services and reunification attempts with the mother, while she
was ordered to "maintain sobriety, control of her Bi-polar disease and
avoidance of relationships with abusive men" as well as to continue
counselling.  The court indicated that if she complied with these
requirements for a year, Morris would return to her custody.  In May of
1997, the child protection petition was dismissed, and Morris returned to
his mother. 
	[¶3]  Morris, however, did not stay in his mother's care for long.  In
October, DHS heard that she was again with her abusive and alcoholic
boyfriend, that she had threatened to kill both Morris and Morris's dog, and
that she was again drinking on a daily basis.  DHS filed a new child
protection petition, thus commencing the present action.  Though she was
initially allowed to visit Morris, that privilege was revoked in April of the
next year when DHS learned that she had sexually abused Morris.  Four
months later, a jeopardy order was entered, and DHS filed a new petition to
terminate her parental rights.
	[¶4]  Prior to the hearing on the termination petition, the mother
requested that the court allow her to list Morris as a witness.  Both the
guardian ad litem and the State objected, and the court denied the motion. 
She also requested partial state funding for an additional psychiatric
evaluation.  The court agreed and Dr. Rassmussen performed the evaluation
of her, eventually preparing a written report of his conclusions.  After the
mother decided not to offer his testimony or report at the termination
hearing, the State offered the report as part of its case.  The mother
objected, arguing that the report was subject to the patient-psychotherapist
privilege.  The court overruled her objection. 
	[¶5]  At the hearing, the evidence indicated that Morris had been
repeatedly abused sexually, emotionally, and physically by his mother.  Much
of this abuse was the result of her inability to control either her illness or
her substance abuse.  She has repeatedly demonstrated her inability to
comply with the treatment prescribed for her bi-polar disorder.  She has
also been unable to control her drinking despite repeated court orders that
she do so, and, though she is currently engaged in treatment programs for
substance abuse, at least one expert opined that her history was "likely to
repeat itself with periods of sobriety and adequate functioning followed by
periods of substance abuse in which she is likely to exhibit a wide range of
manic symptoms . . . ."  There was also abundant evidence that while Morris
and his mother shared a bond, that bond was traumatic to Morris and
continued visits or reunification would be detrimental.  Furthermore, and
contrary to his mother's assertions, Morris indicated that "he was happy in
his current home, . . . that he was looking forward to the possibility of being
adopted," and that he did not think it was a good idea to return to his
mother's care.  Based upon these facts, the court found by clear and
convincing evidence that she was unable or unwilling to protect Morris from
jeopardy, that she had failed to make a good faith effort to reunify with
Morris, and that termination was in Morris's best interests.  The court
therefore entered an order terminating her parental rights.  The mother
appeals from that judgment.
	[¶6]  The mother first challenges the denial of her motion to require
Morris to testify.  We review the refusal to require the testimony of a child
for abuse of discretion, see In re Shane T., 544 A.2d 1295, 1297 (Me.
1988), and will evaluate the court's decision to determine if it has fairly
balanced the interest of the State in protecting the child with the interest of
the parents in maintaining custody.  See In re Priscilla S., 1997 ME 16, ¶ 3,
689 A.2d 593, 594-95.  Even if it were possible to credit the mother's
assertions about the substance of Morris's testimony,{1} and even if it were
possible to conclude that the State's interest in protecting Morris would not
be implicated by requiring him to testify,{2} the mother has failed to show
that she was prejudiced at all by Morris's absence from the courtroom. 
	[¶7]  The mother's principal claim of prejudice is based on her
assertion that Morris's presence at the hearing was necessary for the court
to learn of Morris's wishes regarding his future.  Section 4007(2) of the
Child Protection Act, however, abrogates the hearsay rule as it would apply
to reports of Morris's out-of-court statements.{3}  See 22 M.R.S.A. § 4007(2)
(1992).  As a result, the parties had an extensive ability to present Morris's
wishes regarding his placement without requiring his presence.  Indeed, in
this case, all parties, including the mother, took full advantage of Section
4007(2) and adduced substantial evidence about Morris's wishes.  Her
argument therefore is nothing more than the assertion that Morris's
presence alone at the hearing would be highly probative and that it was
prejudicial to her case to be unable to hear his voice.  The court did not
abuse its discretion in refusing to require Morris's testimony.
	[¶8]  She next argues that Dr. Rassmussen's report was privileged
and should have been excluded.  The psychiatrist-patient privilege did not
exist at common law and is a statutory creation.{4}  See State v. Lewisohn, 379
A.2d 1192, 1211 (Me. 1977).  In the child protection context, however, the
Legislature has eliminated the privilege she seeks to rely upon: "The . . .
physician and psychotherapist-patient privileges under the Maine Rules of
Evidence . . . are abrogated in relation to required reporting, cooperating
with the department or a guardian ad litem in an investigation or other child
protective activity or giving evidence in a child protection proceeding."  22
M.R.S.A. § 4015 (1992) (emphasis added).  The court properly admitted Dr.
Rassmussen's report.
	[¶9]  Finally, the mother argues that there was insufficient evidence
to support the termination of her parental rights.  We find no merit in her
contentions.
	The entry is:
					Judgment affirmed.


Attorney for appellant: Joseph M. Baldacci, Esq. P O Box 1423 Bangor, ME 04402-1423 Attorneys for appellee: Andrew Ketterer, Attorney General Christopher D. Leighton, Asst. Atty. Gen. John H. Hawkes, Asst. Attorney General Matthew Pollack, Asst. Attorney General 6 State House Station Augusta, ME 04333-0006 Guardian ad Litem: Ellen S. Best, Esq. P O Box 386 Blue Hill, ME 04614-0386
FOOTNOTES******************************** {1} . Although the mother last had significant contact with Morris in April of 1998, she nonetheless claims he would have testified to a desire to return to her care permanently. Because the mother's assertions about how Morris would testify were based upon her own knowledge, the court would have been justified in concluding that she lacked a reasonable basis for her claims. We also note that the mother does not argue that Morris's statements were being unfaithfully reported to the court. Instead, she argues only that were he forced to appear, Morris would testify to a different desire for his permanent placement than that which he had expressed to his service providers. Even if she had alleged falsity on the part of the witnesses relaying Morris's statements, the correct procedure to address that issue would be to request that the court "interview [the] child witness in chambers, with only the guardian ad litem and counsel present," as provided by Section 4007(2) rather than attempting to put the child on the stand in open court. 22 M.R.S.A. § 4007(2) (1992). {2} . The evidence indicated that Morris had a traumatic bond with his mother and that he did not wish to hurt her but instead wished for her to get well. Nonetheless, Morris had repeatedly expressed his desire not to return to her care. The court could reasonably conclude that requiring Morris to affirm this desire in his mother's presence would cause him substantial additional trauma. Because we conclude that the mother has failed to demonstrate she was prejudiced, we do not need to address the level of prejudice that would be required to outweigh the State's significant interest in protecting Morris. {3} . The statute provides in pertinent part: "The court may admit and consider oral or written evidence of out-of-court statements made by a child, and may rely on that evidence to the extent of its probative value." 22 M.R.S.A. § 4007(2) (1992). {4} . The privilege is located in M.R. Evid. 503, which provides in pertinent part: "A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of the patient's physical, mental or emotional condition, including alcohol or drug addiction . . . ." M.R. Evid. 503(b).