Ex parte Cherry Grace Sims and Sharon K. Doviet, as guardian ad litem for D.S. and L.S., minor children,
Douglas Lawrence Sims In re: Cherry Grace Sims
Circuit Court, DR-12-846.02
PETITION FOR WRIT OF MANDAMUS
THOMPSON, PRESIDING JUDGE.
Grace Sims ("the mother") and Sharon K. Doviet
filed a petition for a writ of mandamus regarding a May 19,
2017, order of the Madison Circuit Court ("the trial
materials submitted in support of the petition for a writ of
mandamus indicate the following facts and procedural history.
The mother was divorced in 2012 from Douglas Lawrence Sims
("the father"). Two children were born of the
parties' marriage, and, as a result of the 2012 divorce
judgment, the mother and the father shared joint legal and
joint physical custody of the children. At the time of the
entry of the order that is the subject of this mandamus
petition, the two children, who are twins, were 10 years old.
August 29, 2016, the mother filed a petition to modify
custody of the parties' children in which she sought an
award of sole physical custody of the children. In September
2016, the father answered and counterclaimed, also seeking an
award of sole physical custody of the parties' children.
January 12, 2017, the mother filed a motion for the
appointment of a guardian ad litem to represent the children.
In that motion, the mother alleged that the children were
being treated by a psychologist. She argued that the
children's records of treatment with the psychologist are
privileged and that the children lack the authority to waive
that privilege because they are minors. The mother sought the
appointment of a guardian ad litem for the purpose of
determining whether the children could or should waive that
privilege. On that same day, January 12, 2017, the trial
court entered an order in which it granted the mother's
motion and appointed Doviet to serve as the children's
guardian ad litem. The trial court also ordered the parties
to share in the cost of paying Doviet's fees in serving
as the guardian ad litem.
18, 2017, the mother filed a motion to continue the hearing
on the merits, which was scheduled for four days later, on
May 22, 2017. In that motion to continue, the mother alleged
that, two days earlier, she had spoken with Doviet and had
learned that Doviet "had not made any attempt" to
obtain or review the psychologist's records pertaining to
the children and that, therefore, Doviet was "unable to
make any informed decision whether to waive the
psychologist-patient privilege" for the children so that
the mother could present evidence to the trial court
regarding "the treatment of the children, the
children's diagnoses, and the parents' interaction
with the psychologist." The mother argued that the May
22, 2017, hearing on the merits should be postponed so that
Doviet could have time to make a determination regarding
whether to waive the privilege; the mother maintained that
she was "unable to properly prepare for trial"
unless Doviet, as the children's guardian ad litem, made
the determination that the privilege should be waived.
19, 2017, the trial court entered an order denying the
mother's motion to continue the May 22, 2017, hearing. In
that order, the trial court stated, among other things, that
it would "not allow a guardian ad litem to waive a
minor's privilege" and that it could not find
authority that would permit a guardian ad litem to be allowed
access to a child's confidential records.
mother then filed, on May 19, 2017, a motion to stay the
scheduled hearing "pending the [mother's] filing a
petition for a writ of mandamus" in this court from the
trial court's May 19, 2017, order. On that same day, the
trial court granted the mother's motion to stay.
30, 2017, the mother and Doviet (hereinafter referred to as
"the petitioners") timely filed in this court a
joint petition for a writ of mandamus.
"We first note that mandamus is an extraordinary remedy.
It requires a showing that there is: '(1) a clear legal
right in the petitioner to the order sought; (2) an
imperative duty upon the respondent to perform, accompanied
by a refusal to do so; (3) the lack of another adequate
remedy; and (4) properly invoked jurisdiction of the
court.' Ex parte Alfab, Inc., 586 So.2d 889
"It is well settled that '[i]n cases involving the
exercise of discretion by a lower court, a writ of mandamus
may issue to compel the exercise of that discretion; however,
it may not issue to control the exercise of discretion
except in a case of abuse.' Ex parte
Ben-Acadia, Ltd., 566 So.2d 486, 488 (Ala. 1990)
Ex parte Allen, 655 So.2d 962, 963 (Ala. 1995).
issues the mother and Doviet identify in their petition for a
writ of mandamus relate to the children's
psychotherapist-patient privilege. See §
34-26-2, Ala. Code 1975 (providing that communications
between a client and certain mental-health professionals are
confidential and privileged). A child, the child's
parent, or the child's psychotherapist may assert the
psychotherapist-patient privilege, but only the child may
waive the privilege. Exparte T.O., 898
So.2d 706, 711 (Ala. 2004). In their brief submitted to this
court, the petitioners question whether a guardian ad litem
can access the psychological records a child he or she is
appointed to represent and whether a guardian ad litem may
waive, on behalf of his or her client (i.e., the child), the
child's psychotherapist-patient privilege. The
petitioners seek from this court a writ of mandamus directing
the trial court to enter an order allowing Doviet to access