Filed 12/16/16 Certified for Publication 1/17/17 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                              DIVISION FOUR


N.S.,
         Petitioner,
v.
SUPERIOR COURT OF CALIFORNIA,                                       A148694
COUNTY OF ALAMEDA,
                                                                    (Alameda County
         Respondent;                                                Super. Ct. No. HJ0800915703)
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
         Real Party in Interest.


         Petitioner N.S. is a nonminor dependent of the juvenile court. At a hearing held
after real party in interest Alameda County Social Services Agency (the Agency)
recommended that N.S.‟s dependency be dismissed, the Agency sought to have her
psychotherapist testify as to confidential communications. The trial court overruled
N.S.‟s objection, ruling she had waived the psychotherapist-patient privilege by putting
her mental state at issue. N.S. seeks a writ of mandate or prohibition prohibiting any
inquiry concerning any of the psychotherapist‟s confidential communications with N.S.
We shall grant the petition.
                                               I.   BACKGROUND
         N.S. was removed from the home of her legal guardian when she was 11 years old
and was placed in foster care. After she turned 18 in 2014, she remained under the




                                                          1
jurisdiction of the juvenile court as a nonminor dependent. (Welf. & Inst. Code,1
§ 11400, subd. (v).) The Agency‟s June 2014 status review report, which recommended
that N.S. be declared a nonminor dependent, noted that N.S. had been diagnosed with
posttraumatic stress disorder, attention-deficit/hyperactivity disorder, and depressive
disorder.2 She was participating in therapy and taking medication for these conditions.
The report indicated that N.S. was eligible for the nonminor dependent program because
she would be enrolled in high school or a GED program.
       In a September 2015 addendum report (addendum report), the Agency took the
position that N.S. qualified for extended foster care on the ground that a medical
condition, i.e., her mental health diagnoses, prevented her from attending secondary,
postsecondary, or vocational education, participating in an employment program, or
working at least half time. (§ 11403, subd. (b).) She had been previously diagnosed with
posttraumatic stress disorder, attention-deficit/hyperactivity disorder, and depressive
disorder, and had mood swings, violent outbursts, and difficulty planning. The Agency
recommended N.S. receive a supervised independent living plan. Attached to the
addendum report was a June 2015 letter from N.S.‟s therapist, Kristin Chan, stating that
N.S. had been receiving psychotherapy services since 2010, and that she struggled with
mental health and cognitive challenges that made it difficult for her to attend school or
obtain employment.
       The Agency changed its recommendation in February 2016. In a status review
report, the Agency recommended that N.S.‟s dependency be dismissed because her exact
whereabouts were unknown and she had not participated in any services. She had left her
placement in November 2015, and it was believed she was living at various friends‟
homes or on the streets. The social worker had met with her in August, September, and
November 2015 and January 2016. At the January meeting, N.S. admitted she was using



       1
           All undesignated statutory references are to the Welfare and Institutions Code.
       2
           This diagnosis occurred in 2013, when N.S. was still a minor.


                                              2
methamphetamine. She was not interested in treatment referrals or placement. She was
meeting with her therapist sporadically.
       The Agency‟s April 2016 “Termination Report” noted that N.S.‟s whereabouts
remained unknown—although the social worker had met with her twice—and that N.S.
had chosen not to avail herself of the placement services provided by the Agency. N.S.
was abusing methamphetamines, living in parks and homeless encampments, and not
attending to her mental health or medical treatment needs. She did not maintain regular
contact with the social worker or her therapist. When N.S. went to the Agency‟s office in
March to request assistance with transportation, she declined the social worker‟s offer of
assistance in finding treatment and housing.
       The report recounted that in April 2016, N.S. was picked up at a homeless
encampment for a meeting with her support team. When N.S. arrived, she was not
wearing shoes, she had lost a great deal of weight, her clothing was dirty, and it appeared
she had not showered for some time. At the meeting N.S. was unable to focus, displayed
moods ranging from angry to confused, had to be removed from the room several times
to calm her anger and agitation, and fell asleep throughout the meeting because she had
been using methamphetamines and had not slept in the past five days. When asked
whether she wanted to remain in the extended foster care program, she “was not able to
agree that she was willing to take part in the required program services at this time.”
According to the report, N.S. has been offered housing, substance abuse treatment
support, and options to get back on track with services, but these efforts have produced
no results.
       At the contested hearing on the Agency‟s recommendation that the dependency be
dismissed, the Agency called N.S. to testify during its case-in-chief. N.S. testified that
she saw her therapist, Kristin Chan, every week. She acknowledged she was using
methamphetamine and that the Agency had tried to get her to enter a treatment program,
which she did not believe would help her. She had discussed with her therapist her fear
of entering a detoxification facility. Her therapist had recently taken her to a hospital for
a medical clearance so she could enter a drug program. Her understanding was that she


                                               3
was eligible for extended foster care because there was a medical or mental reason she
could not attend school or have a job. In addition, she stated, she could not have a job
because she did not have glasses and could not see well and did not have identification.
       The Agency called Chan as a witness. Chan testified that she had been seeing
N.S. for therapy about once a week for the past year. Counsel asked whether Chan had
written a letter indicating that N.S. had a diagnosis that prevented her from participating
in services.3 When Chan responded that she had, she was asked what the diagnosis was.
At that point both she and N.S. asserted the psychotherapist-patient privilege. After
briefing and argument, the juvenile court concluded the privilege did not apply because
N.S. had put her mental state at issue. Accordingly, it ordered Chan to answer “pertinent
questions” posed by the Agency.4
       N.S. filed this writ petition seeking review of the order. We issued an alternative
writ directing the juvenile court to vacate its order or show cause why it should not do so.
The juvenile court did not vacate its order.




       3
          This is a description of the letter by the County‟s counsel; the letter itself is not
in the record.
       4
          The juvenile court‟s rationale was that the Agency alleged N.S. had not
participated in services and N.S. contended she could not “perform and participate” based
on a mental condition and thereby tendered the issue. This was not, however, the context
in which the issue arose, and it is clear from the record as a whole, as well as from the
briefing presented to this court, that the issue of N.S.‟s mental condition related directly
and narrowly to the question of whether she met the statutory criterion for eligibility
under section 11403, subdivision (b)(5). It appears the genesis of the court‟s erroneous
statement was counsel‟s characterization of the content of the letter as addressing N.S.‟s
inability to “participat[e] in any services.” But the record indicates that the proffered
letter was “similar” to a letter from Chan submitted to the juvenile court in September
2015, which expressly referred to N.S. as qualifying for services under “criteria five,
medical condition.”


                                               4
                                      II. DISCUSSION
   A. The Psychotherapist-Patient Privilege
       Evidence Code section 1014 provides that a patient has a privilege to refuse to
disclose, and to prevent another from disclosing, confidential communication between the
patient and his or her psychotherapist. “Confidential communication” means
“information . . . transmitted between a patient and his psychotherapist in the course of
that relationship and in confidence by a means which, so far as the patient is aware,
discloses the information to no third persons other than those who are present to further
the interest of the patient in the consultation, or those to whom disclosure is reasonably
necessary for the transmission of the information or the accomplishment of the purpose
for which the psychotherapist is consulted, and includes a diagnosis made and the advice
given by the psychotherapist in the course of that relationship.” (Evid. Code, § 1012.)
“It has been recognized that the intimate and sensitive nature of the communications
called for by [the psychotherapist-patient] relationship implicate constitutional as well as
statutory rights to privacy. [Citation.] In addition, the potential for disclosure of such
communications might well „deter persons from seeking needed assistance, or from
making the full disclosure upon which diagnosis and treatment depends.‟ [Citation.]”
(Simek v. Superior Court (1981) 117 Cal.App.3d 169, 177 (Simek).)
       However, this privilege is not absolute: “There is no privilege under this article as
to a communication relevant to an issue concerning the mental or emotional condition of
the patient if such issue has been tendered by,” inter alia, the patient. (Evid. Code,
§ 1016.) This exception to the privilege applies when the patient‟s own factual
allegations raise an issue, not when the patient does no more than joining an issue by
denying allegations. (Simek, supra, 17 Cal.App.3d at pp. 175-177.) That is, “the patient-
litigant exception of section 1016 of the Evidence Code compels disclosure of only those
matters which the patient himself has chosen to reveal by tendering them in litigation.”
(In re Lifschutz (1970) 2 Cal.3d 415, 427; and see Karen P. v. Superior Court (2011)
200 Cal.App.4th 908, 913 [a “patient „tenders the issue of his or her medical
condition . . . by initiating an appropriate pleading . . . ‟ ”].) “[T]he scope of the inquiry


                                               5
permitted depends upon the nature of the injuries which the patient-litigant himself has
brought before the court.” (Lifschutz, 2 Cal.3d at p. 435.)
   B. Extended Foster Care
       “At the discretion of the juvenile court, a dependent minor who has a permanent
plan of long-term foster care may continue to receive services as a nonminor
dependent . . . when he or she turns 18 if the nonminor dependent has a transitional
independent living case plan. [Citations.]” (In re Aaron S. (2015) 235 Cal.App.4th 507,
515, fn. omitted.) A nonminor may continue to receive assistance up to age 21 if, in
addition, one or more of the following conditions is met: “(1) The nonminor is
completing secondary education or a program leading to an equivalent credential. [¶] (2)
The nonminor is enrolled in an institution which provides postsecondary or vocational
education. [¶] (3) The nonminor is participating in a program or activity designed to
promote, or remove barriers to employment. [¶] (4) The nonminor is employed for at
least 80 hours per month. [¶] (5) The nonminor is incapable of doing any of the
activities described in subparagraphs (1) to (4), inclusive, due to a medical condition, and
that incapability is supported by regularly updated information in the case plan of the
nonminor . . . .” (§§ 11403, subd. (b), 11400, subd. (v)(1).)
       Section 11403 specifies procedures to be followed to maintain a nonminor‟s
eligibility for extended foster care. Under subdivision (c), “[t]he social worker . . . shall
verify and obtain assurances that the nonminor dependent continues to satisfy at least one
of the conditions in subparagraphs (1) to (5), inclusive, of subdivision (b) at each six-
month transitional independent living case plan update. The six-month case plan update
shall certify the nonminor‟s eligibility pursuant to subdivision (b) for the next six-month
period.”
       An “All County Letter No. 11-69” (the All County Letter) from the State
Department of Social Services regarding the extended foster care statutory scheme (Stats.




                                              6
2010, ch. 559, § 1 et seq., p. 2735 (Assem. Bill 12)),5 explained that to satisfy the fifth
eligibility criterion of section 11403, subdivision (b), two determinations must be made:
first, the nonminor dependent must have a medical condition, and second, the condition
must render the nonminor unable to do any of the activities described in subparagraphs
(1) through (4). A “medical condition” is “a physical or mental state” that limits the
dependent‟s ability to participate in those activities. The All-County Letter went on:
„Verification that a nonminor dependent cannot consistently meet the full requirements of
subparagraph (1) to (4) can be satisfied by written documentation by a healthcare
practitioner which explains that one of the reasons that the nonminor is unable to meet
the criteria of subparagraphs (1) to (4) is because he or she has a „medical condition‟ as
defined in this subsection. . . . [¶] The nonminor dependent is deemed eligible for
extended benefits under this section upon a verification of eligibility for such a
condition. . . . [¶] The nonminor dependent, unless incapable, is responsible for
obtaining and providing the social worker or probation officer with one of the following:
(1) the written verification from a healthcare practitioner stating that the nonminor
dependent has a medical condition and that he or she cannot consistently meet the full
requirements of subparagraphs (1) to (4) . . . .”
       If the juvenile court holds a hearing at which it considers terminating jurisdiction
over a nonminor, a county welfare department must “[s]ubmit a report describing
whether it is in the nonminor‟s best interests to remain under the court‟s dependency
jurisdiction” and, if the agency recommends termination of jurisdiction, “submit
documentation of the reasonable efforts made by the department to provide the nonminor
with the assistance needed to meet or maintain eligibility as a nonminor dependent, as
defined in paragraphs (1) to (5), inclusive, of subdivision (b) of Section 11403.” (§ 391,
subd. (b)(2) & (3).) The court must continue the dependency of a nonminor dependent
who meets the statutory definition and who wishes to remain subject to dependency

       5
         We take judicial notice of the All County Letter dated October 13, 2011.
(<http://www.dss.cahwnet.gov/lettersnotices/entres/getinfo/acl/2011/11-69.pdf> [as of
Dec. 16, 2016].) (Evid. Code, § 452, subd. (c).)


                                              7
jurisdiction unless “the nonminor is not participating in a reasonable and appropriate
transitional independent living case plan” or unless after reasonable and documented
efforts, the nonminor cannot be located. (§ 391, subd. (c)(1)(B); In re Nadia G. (2013)
216 Cal.App.4th 1110, 1118.) The party seeking to terminate jurisdiction bears the
burden of proof. (In re Robert L. (1998) 68 Cal.App.4th 789, 794.)
   C. N.S. Did Not Tender the Issue of Her Mental Condition in the Litigation
       The issue before us is a narrow one: On the question of whether N.S. continues to
meet the eligibility requirement of section 11403, subdivision (b)(5), did N.S. tender the
issue of her mental condition so as to waive the protection of the psychotherapist-patient
privilege for her communications with Chan, including Chan‟s diagnosis? The Agency
contends that N.S. did so when she (1) testified she believed she was eligible for
extended foster care due to a medical condition and (2) tried to enter into evidence a letter
written by Chan that purports to provide an update concerning her mental condition.
       The court in In re M.L. (2012) 210 Cal.App.4th 1457, 1472-1476, considered the
circumstances in which a party waives the psychotherapist-patient privilege. The county
children and family services department there had filed a dependency petition on behalf
of two children, alleging the mother‟s mental incapacity. (Id. at p. 1461.) The juvenile
court ordered the release of the mother‟s previously-existing psychiatric records to the
department and allowed them to be introduced into evidence. (Ibid.) The appellate court
reversed the jurisdictional finding. (Ibid.) In doing so, the court observed: “[T]here can
be no serious contention that merely by contesting the allegations against her, mother
tendered the issue of her psychiatric condition, thus waiving the privilege attached to her
confidential psychiatric records. Rather, the department tendered the issue of mother‟s
mental health by filing the petition with the attached allegations; otherwise, the holder of
the privilege would be placed in the proverbial „Catch-22‟ whereby she would have to
either admit the allegations against her, and suffer any attached consequences, or deny
the allegations, thereby opening up her confidential records to disclosure and
admissibility.” (Id. at p. 1472.)



                                             8
       The court in In re M.L. distinguished In re R.R. (2010) 187 Cal.App.4th 1264,
1279, on the ground that in the dependency proceeding in In re R.R., the father himself
had placed before the court the issue of his drug use and was therefore not entitled to
assert that recent medical records showing substance abuse were privileged. (In re M.L.,
supra, 210 Cal.App.4th at pp. 1473-1474.) The court went on: “Here, contrary to In re
R.R., mother did not independently come to the department and declare her mental
wellness. Rather, the department had already filed a petition alleging she had mental
health issues, it came to mother to interview her regarding those allegations, and mother
simply answered many of the department‟s questions. Mother was not reporting issues
tangential to the substance of the petition in order to curry favor from the department;
instead, she was simply responding to the allegations regarding her mental status already
made by the department. . . . Thus, mother did not tender her mental health status as an
issue such that she waived the confidentiality of her privileged psychotherapist-patient
records.” (Id. at p 1474.)
       The reasoning of In re M.L. is persuasive here. The Agency had previously taken
the position that N.S. was eligible for extended foster care under the fifth criterion of
section 11043, subdivision (b). It later sought to terminate N.S.‟s dependency on the
ground that her whereabouts were unknown and she was not participating in services.
During the Agency‟s case-in-chief, N.S. was asked to describe the purpose of the
extended foster care program; she replied that she had been told there were five eligibility
criteria, such as being in school or having a job; when asked if she had a job, she
responded, “No. But I was told that I‟m under the fifth criteria.” When asked her
understanding of the fifth criterion, she replied, “I was told that there‟s a medical or
mental reason why I don‟t have to have a job or be in school. Plus I—because I can‟t
have a job because I don‟t have my glasses. I can‟t even see.”
       This testimony, made in direct response to the Agency‟s questioning, cannot
properly be construed to mean N.S. herself tendered the issue of her mental state. (See In
re Lifschutz, supra, 2 Cal.3d at p. 427; In re M.L., supra, 210 Cal.App.4th at pp. 1473-
1474.) Exceptions to the psychotherapist-patient privilege are narrow, and we must


                                              9
construe them liberally in favor of the patient. (In re M.L., at p. 1474; Lifschutz, 2 Cal.3d
at p. 437.) N.S. did no more than describe accurately her understanding of the basis for
her continued dependency, consistent with the Agency‟s own earlier conclusion that her
mental health condition prevented her from attending school, participating in an
employment program, or working at least half-time. The Agency cannot compel a waiver
of her psychotherapist-patient privilege simply by asking her the basis for its own
recommendation that she remain in foster care.
       We are equally unpersuaded by the Agency‟s suggestion that N.S. waived the
privilege by seeking to admit her therapist‟s letter. Before Chan testified, the Agency‟s
counsel told the court that she would question Chan about a letter she had prepared if the
letter were admitted into evidence. N.S.‟s counsel informed the court that Chan “[wrote]
a letter in February and submitted another one yesterday to the County and she is here
and [the Agency‟s counsel] and I are both in possession of the letters.” The Agency
called Chan as its witness. Agency counsel asked her whether she had written a letter
indicating that N.S. had a diagnosis that prevented her from participating in any services,
and Chan responded in the affirmative. Although the letter was not entered into
evidence, N.S.‟s counsel told the court that it was similar to the letter attached to the
September 2015 report.
       From this record, it appears that N.S. did no more than provide the documentation
contemplated by the All-County Letter, which specifies that a healthcare practitioner may
verify that a dependent cannot meet the requirements of subparagraphs (1) through (4) of
section 11403, subdivision (b) because of a medical condition by providing written
documentation. Nothing in the statutory scheme suggests that by providing the required
verification, a dependent waives the psychotherapist-patient privilege. (See San Diego
Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1092 [waiver of
psychotherapist-patient privilege “ „must be a voluntary and knowing act done with
sufficient awareness of the relevant circumstances and likely consequences.‟ [Citation.]”)
Indeed, the All-County Letter itself indicates that a dependent‟s privacy should be
respected, stating: “To the extent possible, verification for all 5 conditions should be


                                              10
obtained in a manner that respects the nonminor dependent‟s privacy . . . and without
asking the nonminor to obtain any special documentation that may impinge on his/her
privacy.”
       We conclude that N.S. has not tendered her mental health condition and therefore
has not waived the psychotherapist-privilege as to her confidential communications with
Chan, including Chan‟s diagnosis. (Evid. Code, § 1012.) In reaching this conclusion, we
also reject the Agency‟s additional argument that the Agency and the court will be unable
to verify the eligibility requirement without information from the therapist, particularly
where, as here, it is the Agency‟s position that it is N.S.‟s substance abuse, and not her
mental health condition, that prevents her from meeting the criteria of section 11403,
subdivisions (1)-(4). The Agency has provided no authority suggesting that its asserted
need for such information obviates the privileged nature of N.S.‟s communications with
her therapist. This case is not akin to In re Kristine W. (2001) 94 Cal.App.4th 521, in
which a minor‟s patient-psychotherapist privilege was permitted to be invaded for the
limited purpose of gathering information to ensure minor was receiving appropriate
services. Here, N.S. is not a minor and the purpose of the inquiry is not to ensure N.S. is
receiving suitable services, but to garner additional information about the nature and
effects of her mental condition. Further, as our high court has explained, “[P]rivileges
under the Evidence Code have the effect of shielding otherwise relevant, and in some
cases crucial, information from disclosure, based upon a legislative determination that the
benefits served by the privilege outweigh the advantages that might be obtained in the
absence of the privilege.” (People v. Gonzalez (2013) 56 Cal.4th 353, 374-375.)6
       The County also argues that Chan‟s testimony is “crucial for the court to make an
informed determination regarding whether N.S. is complying with a reasonable and
appropriate transitional independent living case plan,” which is the ground alleged for

       6
         N.S.‟s counsel suggested to the juvenile court that if it needed more information
on N.S.‟s mental state, the court or the Agency could appoint an evaluator to assess her.
We express no view on the propriety of such a procedure or any other mechanism that
might be available to the Agency or the court.


                                             11
terminating extended benefits under section 391, subdivision (c)(1)(B). We decline to
address the argument because that question is not before us. The question, as defined by
the County, is whether the trial court erred in ordering that “[N.S.]‟s psychotherapist may
testify regarding whether [N.S.] has a medical condition that satisfies the nonminor
dependent requirements pursuant to [] section 11403, subdivision (b).” (Italics added.)
The issue of N.S.‟s eligibility for extended benefits with respect to other criteria—such as
whether she meets the placement requirements for eligibility under section 11402 or
whether she has failed to participate in her case plan—is distinct from the privilege issue
that is before us.7
       We emphasize the limited nature of our ruling here, which is restricted to the
question of whether N.S. has put her mental condition at issue by responding to questions
posed by the Agency in its case-in-chief with respect to her eligibility under section
11403, subdivision (b), and by submitting documentation in accordance with the All
County Letter. We express no opinion on N.S.‟s contention that, once a health care
practitioner has provided written documentation that a medical condition limits a
dependent‟s ability to participate in the other eligibility criteria, neither the Agency nor
the court has discretion to conclude the nonminor does not have such a condition.
                                       III. DISPOSITION
       The petition for writ of mandate is granted. The juvenile court is directed to
vacate its June 7, 2016 order to the extent it requires Chan to testify as to confidential
communications in response to questions relating to whether N.S. has a mental condition
that satisfies the criterion of section 11403, subdivision (b)(5).




       7
          This is consistent with N.S.‟s position that the letter from Chan was provided
pursuant to section 11403 subdivision (c), viz., to verify that she continues to satisfy one
of the criteria of subdivision (b). N.S. also argues that resolution of the issue of whether
she failed to participate in services, “or other questions posed at a hearing held pursuant
to Section 391 [] do[] not require any inquiry into N.S.‟s confidential communications
with her psychotherapist.”


                                              12
                                 _________________________
                                 Rivera, J.


We concur:


_________________________
Reardon, Acting P.J.


_________________________
Streeter, J.




                            13
Filed 1/17/17

                         COURT OF APPEAL, FIRST APPELLATE DISTRICT
                                   350 MCALLISTER STREET
                                  SAN FRANCISCO, CA 94102
                                         DIVISION 4




N.S.,
Petitioner,
v.
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA,
Respondent;
ALAMEDA COUNTY SOCIAL SERVICES AGENCY,
Real PartY in Interest.

A148694
Alameda County No. HJ0800915703



BY THE COURT:


         The written opinion which was filed on December 16, 2016, has now been certified for
publication pursuant to rule 8.1105(b) of the California Rules of Court, and it is ordered published in the
official reports.




Date: _____January 17, 2017________          ____________Ruvolo,______________________ P.J.



                                                     1
Trial Court:                          Alameda County Superior Court


Trial Judge:                          Honorable Willie Lott, Jr.


Counsel for Petitioner:               Bay Area Legal Aid, Whit A. Griffinger, Linnea Forsythe, Sheela
                                      Ramesh


Counsel for Petitioner in Juvenile    East Bay Children’s Law Offices, Kristen Mateer, Rob Waring,
Dependence Court                      Elizabeth Aleman


Counsel for Real Party in Interest:   Office of the County Counsel, Samantha Stonework-Hand




                                                  2
