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Dane County Department of Human Services v. Lisa B.2/1/2001
ted upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.").
. Lisa also cites as error the trial court's rulings regarding her deposition and the release of records from Glenn's therapist. She claims that "the right to remain silent ... does apply in CHIPS and TPR cases ...." Lisa's assertion is correct but incomplete. It is true that the Fifth Amendment privilege against self-incrimination "`can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory.'" In re Gault, 387 U.S. 1, 47 (1967) (citation omitted). The privilege may only be claimed in civil proceedings, however, when "a witness has a real and appreciable apprehension that the information requested could be used against him in a criminal proceeding." Grant v. State, 83 Wis. 2d 77, 81, 264 N.W.2d 587 (1978). "The fear of self-incrimination must be `real and appreciable,' `not merely imaginary possibility of danger.'" Id. at 82 (citation omitted).
. Lisa points to no questions which engendered a "real and appreciable apprehension" on her part that she would be charged with a crime based on her responses. Although we can envision questions of that nature which might be put to a parent in the course of TPR proceedings, such as inquiries regarding uncharged abuse or neglect, Lisa cites none here.
. Next, regarding the issue of medical releases, we note that the department ultimately dropped its pre-trial request that Lisa execute releases regarding records of her participation in various court-ordered counseling and therapy programs, concluding that it could "get that information in without the releases." Thus, the only adverse ruling on the issue of releases came after trial but before the dispositional hearing. Lisa had refused a request to execute a release to allow a therapist who had been treating Glenn "since 1996" to provide information to the department relevant to disposition of the TPR. Lisa argued that as Glenn's parent she had the authority under Wis. Stat. § 905.04(3) to claim a privilege on Glenn's behalf to not release information regarding his treatment and therapy. The trial court disagreed and ordered the release, stating:
And the reason I'm doing this, and I'm absolutely certain that it is required at this point, disposition is a completely different part of the entire termination of parental rights process. There is no jury. The court has to consider every bit of information it can get its hands on in terms of determining the best interests of the child. And I would be greatly handicapped if I did not have access to information generated by the therapist who's been treating this child. I can't think of many more pieces of evidence or information that would be more essential to the court in terms of Glenn's present and future well-being.
. We conclude that the court did not erroneously exercise its discretion in ordering the release of information from Glenn's therapist for purposes of the dispositional hearing. Wisconsin Stat. § 48.426(2) provides that " he best interests of the child shall be the prevailing factor considered by the court in determining the disposition" of TPR proceedings. Under subsec. (3) of that statute, a court is required to consider "the health of the child" in determining his or her best interests. We agree with the department and the trial court that the statutory directive that a court must determine a child's best interests when deciding on a disposition in TPR proceedings could be effectively thwarted if a parent were allowed to block the court's access to a child's medical and treatment records under Wis. Stat. § 905.04(3). We conclude, as did th
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