In re C.I.

Notice:  This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.

                                No. 88-409


In re C.I., Juvenile                         Supreme Court

                                             On Appeal from
                                             District Court of Vermont,
                                             Unit No. 2, Franklin Circuit

                                             January Term, 1990

Joseph J. Wolchik, J.

Howard E. Van Benthuysen, Franklin County State's Attorney, and Jo-Ann
   Gross, Deputy State's Attorney, St. Albans, for appellee State of Vermont

Steve Dunham, Public Defender, St. Albans, for appellant C.I.


PRESENT:  Allen, C.J., Peck, Gibson and Dooley, JJ.


     GIBSON, J.   This is an appeal by C.I., a juvenile, from an order of
the Franklin Superior Court declaring him to be a child in need of super-
vision (CHINS) pursuant to 33 V.S.A. { 632(12)(C).  We affirm.
     The CHINS petition was filed on January 13, 1988, and a preliminary
hearing was held on January 21, 1988, at which time father, mother and C.I.
all entered denials to the petition; the court ordered that temporary
placement of the child remain with the mother.  A merits hearing was
convened on February 5, 1988, but was continued at the request of the mother
prior to the taking of any evidence.  Further hearings were held on March 9,
March 16, April 5 and April 13, 1988.  On April 15, 1988, the court found
that C.I. was CHINS because he was beyond the control of his mother.  In its
disposition order, the court awarded legal custody of C.I. to his mother,
with protective supervision by the Department of Social and Rehabilitation
Services (SRS).  C.I. thereafter filed the present appeal.
     C.I. argues first that the trial court lost jurisdiction when it failed
to commence a "hearing on the merits" within fifteen days of the filing of
the petition.  33 V.S.A. { 647(a) states in pertinent part:
            At the time of the filing of the petition, . . . the
          court shall fix a time for a hearing thereon, which, if
          the child is in detention or shelter care, shall not be
          later than fifteen days after the filing thereof . . . .

     The time schedules presented in the statute are directory, not
jurisdictional; thus, a failure to comply with the time requirements does
not automatically divest the trial court of jurisdiction or result in the
voiding of the CHINS adjudication or the disposition order.  In re M.C.P,
___ Vt. ___, ___, 571 A.2d 627, 637 (1989); In re J.R., ___ Vt. ___, ___,
570 A.2d 154, 157 (1989).  In any event, the facts do not support C.I.'s
theory that the hearing was untimely.  When the CHINS petition was filed on
January 13, 1988, C.I. was living at home, and he continued to live at home
until January 28, 1988, when he was placed in a foster home.  It was then
that C.I. first came under "detention or shelter care," within the meaning
of { 647(a).  The merits hearing was convened February 5, 1988, well within
the time prescribed by the statute.  On February 20, 1988, C.I. was
returned to his mother's home, where he remained until shortly before the
April 13 hearing.
     Appellant argues that there was no "significant" hearing until March 9,
1988, and that the period in consideration under { 647(a) should be the
period between January 28, 1988 and March 9, 1988.  We disagree.  Although
no evidence on the merits was presented until April 5, 1988, the merits
hearing was duly convened on February 5, 1988, at which time certain
preliminary matters, including the mother's request for a continuance, were
discussed with the court.  Since fewer than fifteen days had elapsed from
January 28, 1988, the statute was therefore met. See In re R.S., 143 Vt.
565, 569-70, 469 A.2d 751, 754 (1983) (statutory period was complied with
where merits hearing, convened within fifteen days of filing petition, was
continued to allow parties additional time to prepare).
    The statute's application does not depend on whether a particular
hearing is "significant," and this case is an illustration of why it should
be interpreted according to its plain meaning.  The hearings on March 9 and
March 16 dealt exclusively with preliminary matters, including the issue
raised by C.I. of whether Dr. Clifford Rivers, a clinical psychologist,
should be allowed to testify about the February 29, 1988 session he had with
C.I. and his mother.  Central to the appeal is the hearing held on April 5,
1988, when evidence was first presented on the merits of the petition.  A
key witness on that date was Dr. Rivers, who testified as to the unmanage-
ability of C.I., based on his counseling sessions with the juvenile and his
mother, both individually and together.  Dr. Rivers had begun counseling in
January, 1985, and continued in that role on a regular basis until March 5,
1987.  After the CHINS petition was filed, Dr. Rivers met again with C.I.
and his mother on February 29, 1988, at the request of the deputy state's
attorney, in order to become familiar with the then-existing situation, and
he testified about this session as well as the prior sessions.  C.I. had
every right to question the propriety of that testimony, but may not be
heard to argue that his doing so rendered the hearings on March 9 and 16
"significant" for purposes of { 647(a), whereas the hearing on February 5,
which dealt with other preliminary issues, including a motion for continu-
ance, was "insignificant."
     C.I. next contends that the court erred in receiving the testimony from
Dr. Rivers relating to the February 29, 1988 session, because it was
arranged by the deputy state's attorney without notifying C.I.'s attorney,
in violation of D.R. 7-104(A)(1).  The disciplinary rule is clear that a
lawyer representing a client "shall not . . . [c]ommunicate or cause another
to communicate on the subject of the representation with a party he knows to
be represented by a lawyer in that matter unless he has the prior consent of
the lawyer representing such other party or is authorized by law to do so."
(Emphasis supplied.)  The State argues that a juvenile is not an adverse
party to the State in a CHINS proceeding within the meaning of D.R. 7-
104(A)(1).  We do not agree.  The fact that the State is acting as parens
patriae when it initiates a CHINS proceeding does not mean that those
opposing the petition are not adverse parties.  It is not the State's
underlying motive nor the fundamental purpose behind the legislation under
which the State acts that determines the adverseness of parties in liti-
gation.  It suffices for parties to be adverse that "'[t]he issue must be
proffered by one and controverted by the other.  They must be arrayed on
opposite sides of the issue . . . .'"  Williams v. Evans, 220 Kan. 394,
___, 552 P.2d 876, 880 (1976) (quoting Pearlman v. Truppo, 10 N.J. Misc.
477, 478-79, 159 A. 623, 624 (1932)) (emphasis in original).
     Even assuming a violation of the disciplinary rule, however, it does
not follow that the testimony should have been excluded automatically. (FN1)
There was never any question that Dr. Rivers had been counseling both the
child and the mother at the direction of SRS and that SRS involvement was
clear at all times from the time counseling began in 1985 through the next
two years.  Nor can there be any question but that Dr. Rivers would have
been allowed to testify about what he knew about the child or the mother as
a result of those counseling sessions.  In Re M.M., ___ Vt. ___, ___, 569 A.2d 463, 465-66 (1989); see Betty J.B. v. Division of Social Services, 460 A.2d 528, 531 (Del. 1983); Matter of M.C., 391 N.W.2d 674, 676 (S.D. 1986).
But it is clear in the present case that the error with respect to the
February 29, 1988 counseling session was inadvertent and harmless.  The
doctor had been extensively involved in the family's dynamics, and his
interview with C.I. and his mother basically served to update the evaluation
he had previously made in the ordinary course of his counseling, at the
behest of SRS.  Three other witnesses were presented at the merits hearing
by the State, all of whom testified to the same problems discussed by Dr.
Rivers in his testimony.  Had Dr. Rivers simply continued in his counseling
role, without prompting from the deputy state's attorney, or had he
testified on the basis of the other testimony presented, D.R. 7-104(A)(1)
would not have been implicated at all.
     In Trans-Cold Express, Inc. v. Arrow Motor Transit, Inc., 440 F.2d 1216
(7th Cir. 1971), a case heavily relied upon by appellant, the trial court
refused to admit the transcript of the defendants' investigator's report,
which had been obtained in violation of a pretrial order and while the
investigator falsely purported to represent plaintiff's employer.  In
affirming the trial court's ruling, the Seventh Circuit stated:
            Appellants' basic argument is that the overriding
          importance of disclosing the truth justified their pre-
          trial tactics.  In the long run, truth will be better
          served by orderly straightforward procedures than by
          deception and attempted surprise.  We find no injustice
          in the fact that their stratagem misfired.

Id. at 1220.  The present case bears no relationship to the facts in Trans-
Cold Express.  There was no dissembling and no attempted surprise.  On the
contrary, the deputy state's attorney's contact with Dr. Rivers, though in
error, arose in the context of Dr. Rivers' extensive prior association with
C.I. and his family on behalf of SRS.  Clearly, the deputy state's attorney
should have abandoned the mode of informality once the CHINS petition was
filed.  But there is no suggestion of intentional misconduct on her part
and, based on the entire record in this case, no evidence that the testimony
resulted in prejudice to C.I.'s position.
     Finally C.I. argues that Dr. Rivers' testimony about him and his mother
should have been barred because it violated their doctor-patient privilege
as information acquired by a psychologist "in attending a patient in a
professional capacity" within the meaning of 12 V.S.A. { 1612(a). (FN2) C.I.
also relies on V.R.E. 503(a)(6). (FN3) C.I. may not claim a privilege on behalf
of his mother; the privilege is personal to the patient and "may be claimed
by the patient, his guardian or conservator."  V.R.E. 503(c).  In any event,
C.I.'s mother clearly waived the doctor-patient privilege when she opposed
the CHINS petition.  In re M.M., ___ Vt. at ___. 569 A.2d  at 466 n.5; see
Mattison v. Poulen, 134 Vt. 158, 161, 353 A.2d 330 (1976).
     The same authority applies to C.I. himself, who opposed the CHINS
petition, thereby placing his own mental health in issue.  V.R.E. 503(d)(3)
provides no privilege "as to a communication relevant to an issue of the
physical, mental, or emotional condition of the patient in any proceeding in
which he relies upon the condition as an element of his claim or defense."
The physical, mental and emotional well-being of C.I. were very much an
issue in this proceeding; the impact of the home environment on the
juvenile lies at the heart of any CHINS proceeding.  Dr. Rivers' testimony
was both relevant and important as it bore on this issue, and to decide that
it should have been excluded would place an unnecessary impediment in the
path of the court, which is charged with the responsibility of determining
whether the juvenile is in fact in need of care or supervision.
     Affirmed.

                                        FOR THE COURT:


                                        ___________________________________
                                        Associate Justice




FN1.      This case does not raise, and we do not consider, the direct
enforcement of D.R. 7-104(A)(1).  See A.O. 9, { 1.


FN2.    12 V.S.A. { 1612(a) states:
               (a) Confidential information privileged.  Unless
          the patient waives the privilege or unless the privilege
          is waived by an express provision of law, a person
          authorized to practice medicine or dentistry, a
          registered professional or licensed practical nurse, or
          a mental health professional as defined in 18 V.S.A. {
          7101(13) shall not be allowed to disclose any
          information which he acquired in attending a patient in
          a professional capacity, and which was necessary to
          enable him to act in that capacity.


FN3.     V.R.E. 503(a)(6) states:
               (6) A communication is "confidential" if not
          intended to be disclosed to third persons, except
          persons present to further the interest of the patient
          in the consultation, examination, or interview; persons
          reasonably necessary for the transmission of the
          communication; or persons who are participating in
          diagnosis and treatment under the direction of a
          physician, dentist, nurse or mental health professional,
          including members of the patient's family.