IN RE: the Matter of WILLIE B. (1985)

A petition had been filed by the San Francisco Department of Social Services (the Department), in the juvenile court alleging parental neglect of Willie B., an 11–year–old minor. Willie was found to be a dependent ward of the court, and was committed to the Department which placed him in the home of his father and stepmother. And under direction of the Department, Willie thereafter participated in psychotherapy administered by a clinical psychologist. The Department thereafter by supplemental petition to the court indicated that the boy's placement in his father's home had not been in his best interest, and that his mother, living in Modesto, Stanislaus County, had no proper or stable home for him.

The mother contested the supplemental petition.

At the ensuing juvenile court hearing the psychologist, who had treated Willie, was called to testify. Claiming on Willie's behalf the psychotherapist-patient privilege of Evidence Code section 1014, his attorney objected to such evidence.

The Department had waived the privilege.

The court, concluding that the Department was the “holder of the privilege,” overruled the objection of Willie. The court stated: “I think it is in the best interest that the court know as much information as possible and I guess if I err, it will be in favor of at least being well informed and knowledgeable of what is happening that might concern the best interests of the minor.”

The psychologist testified and thereafter the juvenile court ordered that Willie remain in the care and custody of the Department, and that the case be transferred to Stanislaus County, the domicile of Willie's mother, with whom Willie was to be allowed a trial placement of one month.

Willie, by his appointed attorneys, has appealed from the juvenile court's decision “declaring him a dependent of the court, on the grounds that the court's order ․, disallowing his claim of psychotherapist-patient privilege, was in error.”

On his appeal Willie contends only that: “The minor patient, whether or not a dependent of the court, is the holder of the psychotherapist-patient privilege.”

We inquire into the validity of the contention.

Such privileges, of course, are of statutory creation.

Evidence Code section 1014, as relevant to the issue before us, provides:

“[T]he patient whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by: (a) The holder of the privilege.”

Evidence Code 1013, as here relevant, defines the “holder of the privilege,” in this manner.

“As used in this article, ‘holder of the privilege’ means: (a) The patient when he has no guardian or conservator. (b) A guardian or conservator of the patient when the patient has a guardian or conservator.”

Our inquiry turns to the question whether Willie had a “guardian.”

Willie, having been determined a dependent ward of the juvenile court (see People v. Sanchez, 21 Cal.2d 466, 471, 132 P .2d 810; Welf. & Inst.Code, §§ 601, 650), it necessarily follows that in legal contemplation the juvenile court became his guardian. As such, it became the court's duty “to secure for him custody, care, and discipline as nearly as possible equivalent to that which should have been given by his parents.” (Welf. & Inst.Code, § 202.)

In execution of its duty to “secure” such “custody, care, and discipline,” the juvenile court is empowered by the Juvenile Court Law to enlist the aid of “some association, society, or corporation embracing within its objects the purpose of caring for such minors” (Welf. & Inst.Code, § 362.5) and of such “psychiatrists, psychologists, or other clinical experts as may be required to assist in determining the appropriate treatment of the minor and as may be required in the conduct or implementation of such treatment.” (Welf. & Inst.Code, § 741.) The San Francisco Department of Social Services and the psychologist of the case before us, will reasonably be deemed to have been appointed under this statutory authority. And moreover, each will fairly be recognized as an agent, or arm, of the juvenile court.

“[T]he juvenile court may direct all such orders to the parent, parents, or guardian of a minor who is subject to any proceedings under this chapter as the court deems necessary and proper for the best interests of or the rehabilitation of the minor” (Welf. & Inst .Code, § 245.5), and “may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of such minor, including medical treatment.” (Welf. & Inst.Code, § 727 .) The above-noted Department and psychologist, will also reasonably be deemed to have been acting under such judicial directions.

And: “[I]n all cases in which there is filed a petition based upon alleged neglect or abuse of the minor, ․ the probation officer or a social worker who files a petition under this chapter shall be the guardian ad litem to represent the interests of the minor in proceedings under this chapter, unless the court shall appoint another adult as guardian ad litem.” (Welf. & Ins.Code, § 326.) Here the Department (an organization dedicated to social work) had filed the petition. It was accordingly Willie's guardian ad litem in the instant juvenile court litigation.

“The guardian ad litem is an officer of the court, and he has the right to control the lawsuit on the minor's behalf.” (De Los Santos v. Superior Court, 27 Cal.3d 677, 683–684, 166 Cal.Rptr. 172, 613 P.2d 233.)

The Department thus, as agent of the guardian juvenile court, or as guardian, or as guardian ad litem, became the “holder of the privilege” under Evidence Code section 1013. In any of such events Willie had no standing to raise the privilege.

The appeal is accordingly without merit.

ELKINGTON, Associate Justice.

RACANELLI, P.J., and HOLMDAHL, J., concur.