Justices Weigh Privacy Rights Against Best Interests of Childrenby Danielle Rodier
Pennsylvania Law Weekly
July 7, 1999
In considering what one justice called a "landmark" issue involving the privacy rights of parents accused of child abuse, the high court has ruled that a mother cannot be ordered to undergo psychological testing in conjunction with dependency proceedings. A majority of the justices said their decision preserved the constitutional right to privacy but two dissenters claimed the decision could pose a grave danger to dependent children and lowers the duty the state owes to them. Reversing the Superior Court, the justices ruled 5-2 in In the Matter of T.R., PICS Case No. 99-1247 (Pa. June 23, 1999) Flaherty, C.J.; Nigro, J., concurring; Zappala, J., concurring; Newman & Castille, J.J., dissenting (26 pages) that an allegedly abusive mother does not have to submit to court-ordered psychological testing. "It is one thing for the mother to agree to psychological evaluation and to voluntarily undergo instruction in self-improvement, but it is quite another for the state, in its paternalistic might, to order a psychological evaluation in violation of the mother's constitutional rights, presumably upon pain of imprisonment for contempt of court," Justice John Flaherty wrote for the majority. "The constitution is not a mere policy statement to be overridden by a sociological scheme for the improvement of society."
According to Flaherty's opinion, a mother identified as "A.W." was ordered by a trial court judge to undergo a psychological evaluation to determine if she was a fit parent. The Department of Human Services had discovered numerous pieces of evidence that indicated A.W. had abused her four children. A.W. protested the exam but finally submitted. The trial court judge granted DHS' request for a restraining order but its decision was not based on A.W.'s exam records, which were placed under seal pending a ruling on whether the court had properly ordered the exam. After the children were adjudicated dependant at a detention hearing, the trial court ruled that it did have the power to order A.W.'s psychological exam and she appealed to the Superior Court. The Superior Court affirmed, finding that a psychological evaluation was the least obtrusive way to obtain a sufficient amount of information to judge the quality of A.W.'s parenting skills and that there was no alternative.
PLENTY OF INFORMATION
On appeal to the state Supreme Court, A.W. argued that Section 6339(a) of the Juvenile Act only provides for a child to undergo psychological testing but not a parent. The lower appeals court had disagreed, saying that if A.W.'s argument were true, then trial courts would have no way to get the information they need to make an informed decision in certain dependency cases. But Flaherty said the case went into even more vital issues, like an individual's constitutional right to privacy and the right to be let alone, so the majority decided A.W. under Article 1 Section 1 of the Pennsylvania Constitution. The high court decided a similar case in 1978, In Re B, 394 A.2d 419 (Pa. 1978). In that case, a trial court judge tried to compel a mother's psychiatric records in order to make a decision on a delinquent child's placement but her psychiatrist refused to release them. The psychiatrist was held in contempt. On appeal, the justices reversed, finding the mother's privacy interests more compelling than the trial court's interests. The A.W. court made a comparable ruling. Flaherty disputed the Superior Court's reasoning that the trial court needed the records in order to make an informed decision by pointing out that the court already had a wealth of information concerning A.W.'s parenting skills at its disposal. "The children continued to be injured even though the department had attempted to assist the mother in caring for her children. Further, the department also points out that its attempts to assist the mother 'had failed,'" Flaherty said. Even DHS itself agreed there was an abundance of information that A.W. was an unfit parent, the justice said.
DISSENT: BEST INTERESTS TRUMP PRIVACY RIGHTS
In a lengthy dissenting opinion joined by Justice Ronald Castille, Justice Sandra Schultz Newman said the majority was misplacing its focus on privacy interest when the best interests of the child have more at stake. "By removing the child from his family, the government has assumed an awesome responsibility and it should be exacting and exhaustive in its investigation of the proper placement for the child," Newman wrote. Because a mistake in placement could result in dire consequences for the children, Newman said, the mother's privacy should not be considered so greatly. "The Commonwealth's interests in knowing the parent's current mental status, particularly where past neglect and abuse have led to repeated physical injury, outweighs the parent's privacy interests," she said. "In these cases, we should turn to an expert for advice concerning the psychological state of the parent." Newman said she also did not agree that A.W. was substantially similar to In Re because the latter case involved the lesser question of whether a delinquent child should serve his sentence and the court desired more expansive records into the mother's entire psychiatric history. "Here [in A.W.], however, the trial court did not compel an exhaustive review of A.W.'s psychiatric history or require an extensive investigation into her intimate emotions, fears and fantasies; instead, it ordered a 'targeted' psychological evaluation to garner an expert opinion on A.W.'s current mental status and ability to control her children and to protect them from harm," Newman said. Justice Stephen Zappala concurred in the result only. Justice Russell Nigro said in a concurring opinion that he agreed under the circumstances A.W. should not have been subjected to a psychological exam but in other cases a trial court judge should be able to draw a negative inference from a parent's refusal to undergo testing.