Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT S.H.Y., ) ) Appellant, ) ) v. ) Case No. 2D19-4646 ) P.G., ) ) Appellee. ) ) Opinion filed March 26, 2021. Appeal from the Circuit Court for Hillsborough County; Denise A. Pomponio, Judge. Mark A. Sessums of Sessums Law Group, P.A., Tampa, for Appellant. Kim A. Hamill of Older, Lundy & Alvarez, Attorneys at Law, Tampa, for Appellee. SMITH, Judge. S.H.Y. (Mother) appeals the Supplemental Final Judgment on P.G.'s (Father) Amended Supplemental Petition to Modify Final Judgment and Corrected Parenting Plan as to Time-Sharing, Parental Responsibility, Child Support, and Other Relief and to Enforce Specific Provisions. The trial court determined that the psychotherapist-patient privilege under section 90.503, Florida Statutes (2019), which was raised for the first time by the psychotherapist at the final hearing, barred the psychotherapist from testifying altogether, even as to those privileged matters previously disclosed by the psychotherapist. Because the psychotherapist previously disclosed privileged matters at her prior deposition and an emergency hearing without claiming the privilege, any privilege as to those disclosures was waived and could not be reinvoked. Thus, the trial court erred in allowing the psychotherapist to belatedly raise the privilege to bar all testimony. However, because a waiver of the privilege is not irrevocable, the psychotherapist was permitted to reinvoke the privilege as to matters not previously disclosed. Accordingly, we reverse and remand for a new final hearing on the Father's petition. We need not reach the other issues raised by the Mother, finding the issue of the psychotherapist-patient privilege dispositive. Almost one year prior to the final hearing on the Father's petition and in advance of an upcoming emergency hearing, the Father issued a deposition subpoena duces tecum and served the minor child's treating psychotherapist. The notice accompanying the subpoena stated that the deposition was being taken "for purposes of discovery, for use at trial, and for any other purpose for which it may be used under applicable laws of the State of Florida." Other than some scheduling issues, the psychotherapist appeared at the deposition without objection, along with her counsel, and produced her entire file relating to her treatment of the minor child. The psychotherapist answered questions from both parties relating to her treatment of the minor child and the minor child's timesharing with the Father, and her counsel at times instructed her to answer when objections were made. At no time prior to or during the four-hour deposition did the psychotherapist or her counsel claim the psychotherapist- patient privilege. The psychotherapist later appeared the following month and testified -2- at an emergency hearing—again never raising the privilege. Almost one year later, on the morning of the final hearing on the Father's petition, the psychotherapist's counsel appeared and made an ore tenus motion for protective order on behalf of the subpoenaed psychotherapist due to a family emergency—the privilege was never mentioned nor claimed. Nor was the privilege claimed by the psychotherapist's counsel after the Father's counsel raised the issue of the exclusion of the psychotherapist's testimony based upon the privilege. The trial court granted the ore tenus motion without addressing the privilege. At the continuation of the final hearing, the psychotherapist filed a motion for protective order raising for the first time the privilege and requesting the trial court to appoint a guardian ad litem for the minor child. Interestingly, the psychotherapist's counsel neither invoked nor waived the privilege under section 90.503(3)(d), but instead argued that "this motion is just to bring to the court's attention that the minor child does have a right via guardian ad litem which has not been appointed in this case to determine whether he or she should waive that privilege." (Emphasis added.) The psychotherapist's counsel further argued that no waiver occurred prior because it was her understanding that the deposition was mandatory.1 After hearing further legal arguments from the Father and Mother, the trial court granted the motion holding that 1The Father also argued there was no waiver where the psychotherapist was under court order to appear for her deposition. Although there was a requirement by the court that the Mother be responsible for securing the psychotherapist's appearance at the return hearing on the emergency motion, we can find no court order mandating the psychotherapist to appear for her deposition. Even so, an order mandating the psychotherapist's appearance would not equate to a waiver of the privilege. In fact, we note that the Father is the one who subpoenaed the psychotherapist for deposition. Therefore, we find no merit in this argument. -3- the privilege was not waived, despite the Mother's objection; however, the trial court did not appoint a guardian ad litem. At the request of the Mother's counsel, the trial court conducted an in camera interview with the psychotherapist, which the trial court obliged noting that it would be sealed. Following the interview the trial court announced that her interview with the psychotherapist was "taken into account by the court, and the protective order will stand and she will not be testifying."2 Relevant to our analysis here are sections 90.503—the psychotherapist- patient privilege—and 90.507—waiver of privilege by voluntary disclosure. Section 90.503 was enacted in order "to encourage patients to seek treatment for mental and emotional conditions," by protecting these confidential communications from disclosure. Attorney Ad Litem for D.K. v. Parents of D.K., 780 So. 2d 301, 306 (Fla. 4th DCA 2001). Section 90.503 provides, in pertinent part: (2) A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient's mental or emotional condition, including alcoholism and other drug addiction, 2The Mother complains in issue four on appeal that the midtrial in camera interview of the psychotherapist shows that the trial court was "fundamentally biased against the Mother or in favor of equal timesharing." The trial court later granted the Mother's disqualification motion after the Mother filed the motion attaching the transcript of the trial court's in camera interview. We decline to reach this issue because the first issue is dispositive of this appeal. But we write here only to state that the actions of the trial court during the interview were unorthodox and not in keeping with the purpose of an in camera inspection once it is determined that a privilege applies and no waiver resulted. See Ricketts v. Ricketts, 45 Fla. L. Weekly D1479 *3 (Fla. 2d DCA June 19, 2020) (stating in a child custody dispute that, in conducting an in camera inspection, a trial court should determine whether any nonprivileged matters are relevant to a party's present ability to parent); see also D.H. ex rel. J.R. v. Dep't of Child. & Fams., 12 So. 3d 266, 271-72 (Fla. 1st DCA 2009) (stating that a trial court should remain impartial until it has heard all of the evidence). Furthermore, it is unclear from this record how the trial court barred the testimony of the psychotherapist, while at the same time took the interview "into account." -4- between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship. (3) The privilege may be claimed by: (a) The patient or the patient's attorney on the patient's behalf. (b) A guardian or conservator of the patient. (c) The personal representative of a deceased patient. (d) The psychotherapist, but only on behalf of the patient. The authority of a psychotherapist to claim the privilege is presumed in the absence of evidence to the contrary. Against this backdrop section 90.507 allows for waiver of the privilege: A person3 who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person, or the person's predecessor while holder of the privilege, voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication. This section is not applicable when the disclosure is itself a privileged communication. As evidenced by the clear language of section 90.503, the privilege inures to the patient and not the psychotherapist. Wray v. Dep't of Pro. Regul., 410 So. 2d 960, 961 (Fla. 1st DCA 1982) (holding that the privilege may only be waived by the patient or a person acting on the patient's behalf). When the patient is a minor, the law recognizes "that a child has a privilege in the confidentiality of her communications with her psychotherapist." Attorney Ad Litem for D.K., 780 So. 2d at 307-08 (holding that the 3"Under the general statutory definitions [in section 1.01(3), Florida Statutes (2019),] '[t]he word "person" includes individuals [and] children.' " Attorney Ad Litem for D.K., 780 So. 2d at 306 (second and third alterations in original). -5- seventeen-year-old patient had sufficient mental capacity to obtain her own treatment and assert the privilege herself). But where the minor lacks that mental capacity, section 90.503(3) allows a patient's attorney, guardian, or psychotherapist to make that decision on the patient's behalf. While parents, as legal and/or natural guardians, have traditionally acted on behalf of minor children when making important decisions regarding a child's physical and mental health, the courts draw exception in child custody matters recognizing that the parents' interests may not always be aligned but rather conflict. See Brown v. Brown, 180 So. 3d 1070, 1072 (Fla. 1st DCA 2015) (stating that neither parent is authorized to waive or assert the privilege on behalf of the minor child when the subject matter of the litigation deals with the child's welfare); Attorney ad Litem for D.K., 780 So. 2d at 307 ("Where the parents are involved in litigation themselves over the best interests of the child, the parents may not either assert or waive the privilege on their child's behalf."). We first dispense with the Father's argument that strict statutory construction of sections 90.503 and 90.507 requires us to hold that the privilege cannot be waived by a psychotherapist because section 90.503 is silent as to waiver and because only the patient holds the privilege. Courts "[i]n analyzing the breadth of the privilege and scope of the waiver . . . have often analogized the psychotherapist-patient privilege to the attorney-client privilege." State v. Topps, 142 So. 3d 978, 980 n.3 (Fla. 4th DCA 2014). And so, the psychotherapist-patient privilege is no different than other statutory privileges and, thus, may not only be expressly waived but also even implicitly waived by "conduct or disclosure that is inconsistent with the maintenance of the privilege." Id. at 981 (citing McKinlay v. McKinlay, 648 So. 2d 806, 810 (Fla. 1st DCA -6- 1995) (applying the general body of law holding that statutory privileges such as psychotherapist-patient, lawyer-client, and accountant-client can be waived)); see also Hughes v. Schatzberg, 872 So. 2d 996, 997 (Fla. 4th DCA 2004) (holding in a child custody action that the trial court did not err in allowing the psychotherapist to testify without establishing waiver of the privilege where the mother had no standing to assert the privilege on the child's behalf); Arias v. Urban, 595 So. 2d 230, 232 (Fla. 3d DCA 1992) (stating that the parents were not acting on behalf of their son when they denied allegations in a negligent supervision suit and, therefore, could not waive the psychotherapist-patient privilege held by their son); Wray, 410 So. 2d at 961. The psychotherapist alone may exercise the privilege, so long as the psychotherapist is acting on behalf of the patient. See § 90.503(3)(d). This court recognized that under section 90.503(3)(d), because the privilege is already protected by the psychotherapist, there is no need for an appointment of a guardian ad litem. See Baron v. Baron, 941 So. 2d 1233, 1237 (Fla. 2d DCA 2006) (citing Hughes, 872 So. 2d at 998). In Hughes, the mother challenged a final judgment modifying a custody decree. 872 So. 2d at 996. The question addressed by the court was "whether the trial court erred in permitting the child's therapist to testify without establishing a waiver of the patient-psychotherapist privilege." Id. The issue of waiver had to do with the fact that the court had previously appointed a guardian ad litem pursuant to section 61.403, Florida Statutes (2002), but the guardian was not present at the hearing and had not previously asserted or waived the child's privilege. Id. at 998. There the court recognized that section 90.503(3)(d) permits the psychotherapist to assert the privilege holding: -7- Thus, Dr. Swan herself could have asserted the privilege had she thought that it was in her patient's interest to do so. She did not, most likely because a young child's welfare was at stake, and the information she obtained regarding the family both from the child and her parents was essential to the court for it to make a decision in the best interests of the child. Id. Here, as in Baron and Hughes, the record clearly establishes that the psychotherapist chose not to invoke the privilege on behalf of the minor child at several stages in this custody action: (1) when she was served with the deposition subpoena duces tecum; (2) when she appeared and testified at her deposition and produced records responsive to the subpoena; (3) when she appeared at the emergency hearing and testified giving her conclusions to the court; and (4) when her counsel initially appeared at the final hearing requesting protection due to a family emergency. But cf. Yarborough v. Lewis, 652 So. 2d 834, 835 (Fla. 2d DCA 1994) (holding that a physician who had consistently asserted the privilege throughout his medical malpractice did not waive the psychotherapist-patient privilege regarding his alcohol treatment when he advised his family of his whereabouts). We next consider whether these actions of the psychotherapist were sufficient to waive the privilege and if so to what extent was the privilege waived. The Father argues that the trial court did not commit error where the psychotherapist timely raised the privilege at the continued final hearing prior to testifying. On the other hand, the Mother argues a complete waiver of the privilege, and thus, the privilege once waived cannot be later "reinvoked," as to matters previously disclosed. See H.J.M. v. B.R.C., 603 So. 2d 1331, 1334 (Fla. 1st DCA 1992); see also Bolin v. State, 793 So. 2d -8- 894, 898 (Fla. 2001) ("[I]nformation revealed after a privilege is waived [and] cannot be concealed by reinvoking the privilege."). We agree with the Mother. An objection based upon privilege must be raised "as soon as the confidential nature of the communication [becomes] apparent." Jenney v. Airdata Wiman, Inc., 846 So. 2d 664, 669 (Fla. 2d DCA 2003); see also Tibado v. Brees, 212 So. 2d 61, 64 (Fla. 2d DCA 1968) (holding that the husband waived privileged spousal communications when he appeared voluntarily and testified at his deposition without objection). While waiver of a privilege is not irrevocable, reinstatement of the privilege is incapable of protecting privileged matters previously disclosed. See Kramer v. State, 294 So. 3d 343, 349 (Fla. 4th DCA 2020); see also Sajiun v. Hernandez, 226 So. 3d 875, 882 (Fla. 4th DCA 2017) (stating that the party who originally waived the privilege could not later reinvoke the privilege as to evidence previously admitted and waived); Garbacik v. Wal-Mart Transp., LLC, 932 So. 2d 500, 503 (Fla. 5th DCA 2006) (holding that the petitioner revoked his waiver of privilege when he withdrew his claim for mental anguish); Hamilton v. Hamilton Steel Corp., 409 So. 2d 1111, 1114 (Fla. 4th DCA 1982) ("[O]nce the privilege is waived, and the horse [is] out of the barn, it cannot be reinvoked."). But see Fla. R. Civ. P. 1.285(a) (providing the procedure when the privilege may be asserted after an inadvertent disclosure). However, any waiver is limited and is not so broad-sweeping to encompass privileged communications not already disclosed. See, e.g., Hicks v. State, 276 So. 3d 127, 128 (Fla. 1st DCA 2019) (quashing an order requiring production of psychotherapist's therapy notes, where psychotherapist testified in deposition, but not as to therapy notes). In the instant case, the psychotherapist first raised the privilege in the -9- motion for protective order filed on the eve of the continuation of the final hearing. This can hardly be said to be timely as to the prior disclosures in her deposition and at the prior emergency hearing. Therefore, the belated attempt to have the court appoint a guardian ad litem to determine whether to waive the privilege had no effect on those matters previously disclosed—the horse was already out of the barn. See Hamilton, 409 So. 2d at 1114. Therefore, our opinion here is limited to the issue of the waiver of the psychotherapist-patient privilege as to those privileged matters previously disclosed by the psychotherapist and in no way reaches the evidentiary or admissibility issues that may arise at the retrial of this case. Because a waiver of the psychotherapist-patient privilege is not irrevocable, the psychotherapist was well within her authority to assert the privilege as to matters not previously disclosed. Accordingly, because the psychotherapist waived the psychotherapist- patient privilege under section 90.503(3)(d) by choosing to testify and produce her file at her deposition without objection and by choosing to testify at the emergency hearing without objection, the trial court erred in precluding the psychotherapist from testifying altogether at the final hearing on the Father's petition. Accordingly, we reverse and remand for a new trial. On remand the trial court, although not required, may consider appointing a guardian ad litem to determine whether to assert or waive the privilege as to additional privileged matters not previously disclosed and waived. Reversed and remanded. NORTHCUTT and LaROSE, JJ., Concur. - 10 -