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MANDAMUS - CHILD'S PSYCHOTHERAPIST-PATIENT PRIVILEGE - RIPENESS - EX PARTE CHERRY GRACE SIMS

Ex parte Cherry Grace Sims, [Ms. 2160753, Aug. 25, 2017] __ So. 3d __ (Ala. Civ. App. 2017). In this unanimous decision by Presiding Judge Thompson, (Pittman, Thomas, Moore, and Donaldson, JJ., concur), the court denies the petition for writ of mandamus sought by the mother and the children’s guardian ad litem in a child custody proceeding. The mother had sought appointment of a guardian ad litem for the purpose of determining whether the children could or should waive their psychotherapist-patient privilege. In denying the mother’s motion to continue the hearing on merits of the custody modification motion, 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.” Ms. *4. In their mandamus petition, the mother and the guardian ad litem sought a writ of mandamus directing the trial court to allow the guardian ad litem to access the children’s confidential psychological/counseling records.

The court denied the petition because “[t]he petitioners fail to demonstrate, however, that they sought in the trial court the relief requested in this court.” Ms. *6. The court noted the trial court’s observation in the order denying the continuance, that “it would not allow a guardian ad litem to waive the psychotherapist-patient privilege on behalf of a minor child ....” Ms. *7 (emphasis in the original). The court concluded that the underlined language merely

[I]ndicat[ed] the trial court’s opinion on an issue that might be presented to it in the future. Thus, the petitioners have not demonstrated that there was any controversy before the trial court privileged that might be asserted with regard to the children’s psychological-counseling records. Our supreme court has stated that “matters that may or may not occur in the future are not matters in controversy.”

Ms. *7-8, quoting Case v. Alabama State Bar, 939 So. 2d 881, 884-85 (Ala. 2006). Finally, the court noted that writs of mandamus are not issued “based on mere speculation as to the possible occurrence of future events.” Ms. *8. Ex parte Flexible Products Co., 915 So. 2d 34, 41 (Ala. 2005)(internal quote marks omitted).

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