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Published by the Indiana Office of Court Services

J.B. v. E.B., 34A04-1002-DR-110, __ N.E.2d __ (Ind. Ct. App., Oct. 20, 2010)

October 22, 2010 Filed Under: Civil Tagged With: Appeals, N. Vaidik

VAIDIK, J.
This is a child custody proceeding involving application of the counselor/client privilege. Mother and Father had a minor son and minor daughter. Mother was awarded physical custody of both children. Son touched Daughter inappropriately and was adjudicated a delinquent for sexual battery. He received counseling thereafter. His counselor frequently noted that he remained at high risk to reoffend. Father sought physical custody of Daughter as a result of the incident. At the custody modification hearing, Father offered into evidence Son’s counseling records. The trial court excluded the records, finding them inadmissible pursuant to the counselor/client privilege. The trial court declined to modify custody, and Father appealed. Indiana Code section 31-32-11-1 abrogates the counselor/client privilege in any judicial proceeding “resulting from a report of a child who may be a victim of child abuse or neglect or relating to the subject matter of the report or failing to report.” We conclude that this is one such proceeding and that the counselor/client privilege therefore does not apply. Accordingly, we find the trial court erred by excluding Father’s evidence. We reverse and remand.
MAY, J., and ROBB, J., concur.

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