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Sims v. Sims (Ex parte Sims)
Citation: 261 So. 3d 1207Docket: 2170301
Court: Court of Civil Appeals of Alabama; March 23, 2018; Alabama; State Appellate Court
Cherry Grace Sims and Sharon K. Doviet, the children's guardian ad litem, petitioned for a writ of mandamus to challenge a November 14, 2017, order from the Madison Circuit Court. This petition marks their second appearance before the court, following the earlier case Ex parte Sims, 246 So.3d 155 (Ala. Civ. App. 2017), which outlined the background: Sims divorced Douglas Lawrence Sims in 2012, sharing joint legal and physical custody of their twin children. In August 2016, Sims sought sole physical custody, which prompted the father to counterclaim for the same. On January 12, 2017, Sims requested the appointment of a guardian ad litem, citing the children's ongoing psychological treatment and the claim that their treatment records were privileged, contending that the children could not waive this privilege due to their minority. The trial court appointed Doviet as guardian ad litem on the same day. Subsequently, on May 18, 2017, Sims filed a motion to postpone a scheduled hearing, arguing that Doviet had not reviewed the children's psychological records and was therefore unprepared to decide on waiving the privilege. The court denied this motion, leading to the joint petition for a writ of mandamus filed by Sims and Doviet on June 30, 2017. The court denied their petition, noting they did not establish that anyone had invoked the psychotherapist-patient privilege for the children or that Doviet had been denied access to the psychological records. The court concluded that the prior order merely indicated the likely ruling if Doviet sought to review the records. On November 9, 2017, Doviet filed a new motion in the trial court to access the children's confidential psychological records. Doviet filed a motion claiming that the children's psychological treatment might be relevant to a custody dispute and sought permission from the court to review the psychologist's records to assess the potential waiver of the psychotherapist-patient privilege. No evidence was provided to show that the psychologist had denied any requests related to this matter. The father opposed the motion, while the mother supported it. On November 14, 2017, the trial court denied Doviet's motion, reasoning that a guardian ad litem cannot waive a minor's privilege. Subsequently, the mother successfully moved to stay proceedings pending a petition for a writ of mandamus regarding the court's order. Doviet and the mother filed a petition for a writ of mandamus, which closely resembled a prior petition in Ex parte Sims. However, there was no indication that Doviet had been denied access to the children's records or that the privilege was asserted or attempted to be waived. The court highlighted that the concept of ripeness is crucial in determining whether a dispute is justiciable and noted that Doviet's motion was essentially a request for a declaratory judgment on the rights concerning the privilege. Ultimately, the court found that the current petition did not present a justiciable controversy and did not demonstrate a clear legal right to the requested relief, resulting in the denial of the petition. All judges concurred in this decision.