## Facts

- A juvenile-welfare petition alleged that William Daymude sexually abused his 13-year-old daughter.
- A juvenile court ordered the daughter admitted to an in-patient psychiatric facility and ordered family counseling as a dispositional service.
- The facility’s treatment program included individual and group therapy sessions facilitated by James Walker, a certified clinical mental health counselor working with the hospital under a psychiatrist’s supervision.
- During counseling, Daymude made disclosures relating to alleged sexual abuse.
- The State later charged Daymude with child molesting, criminal deviate conduct, and incest based on the same underlying allegations.
- In the criminal case, the State sought to depose Walker about Daymude’s counseling disclosures.
- The trial court overruled Daymude’s privilege objection and ordered Walker to answer questions about counseling communications.
- Daymude pursued an interlocutory appeal.

## Issues

1. Whether statements made by a criminal defendant to a mental health counselor during court-ordered family counseling are protected by a counselor/psychotherapist–patient privilege.
2. Whether participation in counseling ordered as part of a juvenile-welfare disposition constitutes a waiver permitting the State to compel the counselor’s testimony in a later criminal prosecution.

## Decision

- The appellate court reversed the interlocutory order compelling Walker to answer deposition questions about counseling communications.
- The court held Daymude’s communications to Walker during the court-ordered counseling were privileged and not discoverable by the State in the criminal case.
- The court rejected the argument that compliance with court-ordered counseling waived the privilege.

## Legal Principles

- Confidential therapeutic communications made to a covered mental health professional (or an equivalent member of a supervised treatment team) are protected from compelled disclosure.
- Court-ordered participation in counseling, standing alone, does not waive a statutory mental-health privilege.
- Services ordered in a juvenile-welfare proceeding to rehabilitate and protect the child are not converted into investigative tools for a related criminal prosecution by later attempts to compel therapist testimony.
- Privileges protecting therapeutic confidentiality are construed to preserve candid participation in treatment where the legislature has created such protections.

## Conclusion

The court held that privileged communications made during family counseling ordered in a juvenile-welfare proceeding could not be compelled from the counselor in a subsequent criminal prosecution, and it reversed the trial court’s order requiring the counselor to testify about those communications.


Daymude v. State, 540 N.E.2d 1263 (Ind. Ct. App. 1989)