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Ex parte Sims

Alabama Court of Civil Appeals

August 25, 2017

Ex parte Cherry Grace Sims and Sharon K. Doviet, as guardian ad litem for D.S. and L.S., minor children,
v.
Douglas Lawrence Sims In re: Cherry Grace Sims

         Madison Circuit Court, DR-12-846.02

          PETITION FOR WRIT OF MANDAMUS

          THOMPSON, PRESIDING JUDGE.

         Cherry 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 court").

         The 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.

         On 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.

         On 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.

         On May 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.

         On May 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.

         The 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.

         On June 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.[1]

"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 (Ala. 1991).
"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) (emphasis added)."

Ex parte Allen, 655 So.2d 962, 963 (Ala. 1995).

         The 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 the ...


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