Vol. 51 — Shrinks Gone Wild 2
A legal note from Marshal Willick about pervasive problems in Nevada with Mental Health Professionals (“MHPs”) involved with the court system.
For over a year, we have been increasingly alarmed at how MHPs have been given latitude, and accorded deference, entirely out of keeping with their training, expertise, abilities, knowledge, or legitimate function. Lawyers, and especially judges, have been failing in their duty to ensure that the input of psychologists in court decisions is restricted to a correct and quite limited place in legal proceedings. It is lazy, if not irresponsible, to give such practitioners any authority beyond their competence, and doing so has been harmful to too many innocent people for too long.
A number of problems have been evident for some time. In February, 2011, Legal note No. 34, “Shrinks Gone Wild,” posted at http://willicklawgroup.com/newsletters, lamented the “gross and pervasive failure of various mental health professionals to perceive and fill their proper place in the legal process.” The primary focus of that note was on custody and relocation decisions.
It noted that courts were bound to specific statutory factors and criteria, but that MHPs were often asked to provide input into such decisions without knowledge of any such legal factors, or standards. The MHPs are most often called on to perform tasks such as child interviews on contested questions of fact or full-blown custody evaluations, but they are also are being called on to perform tasks that are given titles that presume some scientific basis for the activity, such as “parenting coordinator” or “reunification therapist” – even if no objective standards for such tasks even exist.
A disturbing trend was identified in legal note No. 34, in which MHPs sought to exceed their range of competence – which is applying appropriate objective and subjective tests and reporting the results of those procedures to the court, perhaps accompanied by an opinion (where called for) of the “psychological best interests” of an affected child or other person.
Such informed opinion as to “psychological best interest,” accompanied by any objective data uncovered by a mental health professional as to the ability of the parents to function (generally, or specifically as care-givers), gives a trial court one piece of information (among many others) that it must weigh in making family law decisions.
The note cautioned that some MHPs appeared to misconstrue their role in legal proceedings, ceasing to see themselves as contributing a piece to a puzzle, and instead very improperly seeing themselves in the role of decision-makers, even when entirely ignorant of the factors required to be weighed, or standards required to be applied. If anything, these problems appear to be worse with MHPs lacking doctoral credentials, as if such practitioners seek to compensate for lack of education and training with greater assertions of claimed authority.
The dangers of this self-aggrandizing arrogance, to the parties, their children, and the legal validity of the court process, were spelled out in some detail in legal note No. 34. That note urged lawyers, and especially judges, to be far more jealous in safeguarding the legitimacy of the processes by which legal decisions are reached, and suggested a couple of mechanisms for doing so.
But the situation appears to be worse – considerably worse – than was suggested there, to the point that the family court should entirely terminate the use of such MHPs for nearly all court proceedings until structural deficiencies with their education, assignments, and reports have been adequately addressed.
II. THE CASE GIVING RISE TO DISCOVERY OF THE PROBLEM
A. BASIC CASE FACTS
Recently, a case at trial primarily concerned the custody, visitation, and support of three children. The father had been in a physical altercation with the eldest of the children, and had, at best, a strained relationship with the two others. His behavior during the case led to issuance of a TPO by the mother against him and an order of supervised visitation, which continued during the year his antics in and out of court caused the case to be prolonged. Ultimately, he did a few weeks at the detention center for TPO violations, with much more time suspended.
But he claimed in court that he wanted to maintain a relationship with the children. A psychologist did a full outsourced evaluation, recommending appointment of a “parenting coordinator” and a “reunification therapist,” and urging intensive psychological intervention and counseling for the father (expected to last 18 months or so), upon the successful completion of which unsupervised visitation might be resumed. The evaluator predicted prospects for success as “poor.”
The judge adopted the evaluator’s recommendation, ordering that “upon successful reunification with the minor children, [father] may request expanded visitation with the minor children.” The judge tried to set up a reasonable process, whereby the “parenting coordinator’s general authority” allowed for the resolution of disputes regarding the implementation of the custody order, the schedule, or parenting issues, provided that the resolution did not involve a substantive change to the custody order. If a major change was contemplated (for example, from supervised visitation to unsupervised visitation) and was agreed to by the parties, it was to be put in writing, with a specific start date and laying out of ground rules, and be run by counsel for approval.
The father had names he insisted upon for both the “parenting coordinator” and the “reunification therapist.” While this seemed rather suspicious, both names appeared on the court’s “approved list” of mediators, parenting coordinators, and outsourced evaluators, indicating expertise in the relevant areas, and were accepted.
B. WHAT THE MHPS DID DURING THE CASE
Inexplicably, without a recommendation to or permission from the Court, the two MHPs talked between themselves, and within weeks of appointment, after two or three short sessions with the father, unilaterally decided to permit the father unsupervised visitation with the two littlest children, in an unsecured setting (a restaurant) with no one observing. We later found out that they had not bothered reading the file sent to them – not even the outsourced evaluation or controlling orders – but had relied upon the father’s “explanation” of the record.
One of them – ignoring the years of TPOs and the mother’s safety concerns, directed the mother to stay in an unsecured, unsupervised waiting room where the father was present, refusing to separate the parties, on the basis that the former TPO had just expired, and “it is important for the children to see that there is no danger or need to worry about being in the same area as their father.” Naturally, the father took full advantage of the opportunity, and immediately began lying in wait out of sight of the waiting room camera, in the hallway when the mother went to the restroom, so he could verbally accost her when she returned to the waiting room.
Without any kind of objective testing, or investigation into complaints of the father’s continued stalking, harassment, and vandalism directed toward the mother, or discussions with counsel, the “reunification therapist” concluded that “it is recommended at this time that [the father] begin unsupervised visitation” with the two youngest children, suggesting that he have access to them “in a park setting or area where the children have room to be more active and engage in positive activities with their father.” Zero safety parameters were mentioned, or apparently even crossed the mind of the reunification therapist.
When counsel found out about what the MHPs were doing, and protested that it violated the supervised visitation order and put children at risk, the reaction by the “professionals” was not to actually do anything about their own actions or to protect the children, but instead to “circle the wagons” and complain about how counsel was “interfering” with “their authority.”
Three weeks later, the father was arrested on felony charges of sending agents or toxins through the mails. The ensuing search of his residence revealed evidence that he was next targeting the homes of the outsourced evaluator, the trial judge, and counsel. The mother obtained a new TPO because of the father’s ongoing stalking and harassment.
Astonishingly, the MHPs entirely ignored the father’s arrest and impending felony prosecution, the constant misbehavior at the visits they had arranged, the TPO – and the host of outrageous conduct by the father that led to issuance of that TPO – and anything else that might actually have to do with the safety and welfare of the children involved, their mother, or the common sense of reconsidering in light of those developments whether it made sense to provide any further services.
Instead, informed of all these developments, the MHPs saw no reason to change any of their recommendations for unsupervised contact. Without even copying counsel, one of them fired off a screed addressed to the trial court judge, basically complaining about “interference and accusations by the counsel involved in this case.”
Almost unbelievably, they both wrote to the judge (who by then had recused for inability to be free of bias in the case, given the threats to him personally), actually professing to believe that if they get parties to agree to whatever they suggest, MHPs are not required to obey court orders. They also quietly conceded that in this case they had not actually taken the time to read the court orders, but complained (despite counsel’s four letters providing all relevant court orders) that the order for supervised visitation “was not made clear.”
But the pair’s written submissions were even more outrageous. They admitted openly that “it is not unusual” for the MHPs to ignore court orders for supervision at will, a history ascribed to the (false) belief that “that is how the PC process is designed to work.”
Perhaps the highlight of their astonishing ignorance of the court process came in recounting that they “explain” to people that “when a PC is ordered, attorneys actively disengage from the process unless a strong need arises to return to Court.” One of them actually complained that “[the mother] addressed several concerns she had with her attorney, instead of coming directly to the PC.”
This was not a slip of the tongue, or a fluke. The MHP went into considerable detail on the point:
[The mother] assured this provider that she was not trying to circumvent the PC process by speaking with her attorney without consulting with me first, and she appeared to understand that she needed to direct all future concerns to me . . . .
[The mother] once again contacted her attorney instead of bringing up any concerns or issues with this PC. This attorney interference is a blatant disregard for my position on this case. . . .
I once again discussed with [the mother] that she cannot circumvent the PC process and collude with her attorney without first attempting to address the issues with me first [sic]. . . . It appears that [the mother] once again went directly to her attorney instead of addressing her issues with this PC.
Their submissions to the Court revealed an apparent total ignorance of the Constitutional right of all persons to confer with counsel of their choice. See, e.g., Gideon v. Wainwright, 83 S. Ct. 792 ((1963) (noting that such access, unimpaired and unimpeded, was guaranteed by the 14th Amendment); Morales v. Turman, 326 F. Supp. 677 (E.D. Tex. 1971) (noting the fundamental nature of the right to confer with counsel of one’s own choosing).
Better comprehension of basic legal principles should be expected – and demanded – of any high school student making it through Civics class. To not just believe, but actually commit to print, that it is possible for a party to a legal action to “collude” by consulting with their own counsel reflects a depth of legal illiteracy intolerable of any “professional” having any connection with the court system.
There was even more. The “parenting coordinator” professed to perceive no distinction between (on one hand) a court order allowing submission of a recommendation to the Court to alter custodial orders, and (on the other) the parenting coordinator simply changing custody and visitation at will. The self-important pretense of authority was astounding, including the assertion that “unsupervised visits are a part of the process of reunification, and it is up to the reunification therapist to decide when that part of the process should begin.”
Finally, the parenting coordinator claimed to have achieved elevation to judicial authority from misreading the form order of appointment. This alone indicates with fair clarity that the form order (which was largely put together by various psychologists) needs a pretty drastic overhaul to prevent similar future delusions of authority.
By the time we got to court to have the successor judge formally remove those two “professionals” from any further responsibilities, they were blithely not just proceeding with their prior plans, but had taken it upon themselves to attempt to “negotiate” between the parties the mother’s relocation request (despite their total ignorance of the legal parameters of such a request) and had even decided to address economic issues between the parties – all without even notifying counsel that they were attempting to do any such things.
III. THE COURT’S “APPROVED LIST” IS WORSE THAN A FARCE
Staggered by the display of ignorance of the Court process (and complete failure of common sense) set out in the letters from the MHPs to the trial judge and their other actions, I met with the folks who maintain and distribute the “approved list” for such MHPs – the Family Mediation Center.
Contrary to the apparent belief of many judges, FMC does no vetting, monitoring, or approval of the persons placed on the “approved list” at all, beyond providing a suggested minimum of psychological continuing education courses. But even that is illusory. Apparently, those who have been providing such “services” for years – however ignorant, misinformed, and misguided they might be – are “grandfathered” onto the “approved list” so they don’t have to take any additional training. The decision to do so was made out of no valid policy that anyone was able to articulate. None is apparent.
No legal training or instruction of any such persons – even to ensure that they understand the orders appointing them or know their place in the court system and process – is even offered. FMC made it clear that it has no time or money to do any such instruction, but suggested that if someone (else) takes the time and makes the effort to volunteer to put together a seminar, this deficiency might be addressed by way of voluntary additional training courses in the future – if any MHPs actually decide to attend such a seminar.
In fact, FMC claims that it has no “resources” with which to even attempt to evaluate the competence, training, experience, ability, or qualifications of anyone on their “approved” list. That makes the list much worse than useless – it makes the list a sham, and the lawyers and judges relying on it complicit in placing innocent parties in the hands of some uninformed incompetents who could directly place them in harm’s way.
The “specialties” listed on the “approved list” do not even appear to have any objective existence. So far as can be determined, there is no such thing as a “reunification therapist,” for example – no training, certification, approved methodology, objective benchmarks for success or failure, or peer review appear to exist.
In other words, as near as can be determined, the list – and the alleged “specializations” on it – are nothing more than meaningless self-proclaimed hype. No court should appoint any such person to any such task without first conducting an evidentiary hearing at which a detailed examination can be made of what training, expertise, methodology, practice, peer-review, standards, and measuring mark would be used for the proposed services.
It will almost certainly become readily apparent at such a hearing that virtually every one of the MHPs proclaiming their abilities on that list have no legitimate basis for any of their observations or plans, nevertheless have the ability to satisfy the legal standard of legitimacy of their intentions and methodology. See Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993), setting out the minimum standards for scientific legitimacy of a practice or procedure. These factors include: (1) “whether a theory or technique . . . can be (and has been) tested”; (2) “whether the theory or technique has been subjected to peer review and publication”; (3) “the known or potential rate of error”; and (4) general acceptance in the scientific community. Daubert, 509 U.S. at 593-594.
And the Daubert standard applies to other experts besides scientists; Daubert’s general holding setting forth a trial judge’s general “gatekeeping” obligation applies not only to testimony based on “scientific” knowledge, but also to testimony based on “technical” and “other specialized” knowledge. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999).
Where that standard is not met, such “experts” should not even be allowed to testify in court proceedings, nevertheless be vested with delegations of judicial authority. The on-the-fly and off-the-cuff snake oil being peddled by MHPs in Nevada family court comes nowhere close to that minimum standard, and should not be tolerated as any part of any “court-sanctioned” process, nevertheless be ordered as if it reflected some legitimate methodology leading to some legitimate result.
IV. A CAUTIONARY TALE FROM WASHINGTON STATE
Is there anyone who did not read about the Powell case in Washington? Briefly, the mother disappeared. The father was named a “person of interest” in the case, but law enforcement was still “investigating” two years after the mother vanished. The children had been living with the mother’s parents, but the father – insisting on his “parental rights” – was granted twice-weekly supervised visitation at his home.
On one such day, Powell sent his attorney a three-word message: “I’m sorry. Goodbye.” When the supervisor arrived, he grabbed the kids, shoved the supervisor out the door, and then took a hatchet to both children, after which he blew up the house with the children and himself inside. The news story referenced similar cases from elsewhere, where a parent killed children during court-ordered visitation that had been provided despite a history of stalking or threats against the other parent.
The newspaper reports quoted the administrators of the local agency providing child visitation, expressing that they didn’t “think there’s anything else we could have done.” Attorneys quoted in the story had no problem coming up with “more the court could have done,” such as starting its analysis with a focus on child safety rather than viewing all custody and visitation cases through the lens of how to preserve a parent’s right if at all possible.
In short, the Powell children “fell through the cracks” and died because the judge and other professionals involved were more concerned with providing access and “maintaining relationships” than with the safety and welfare of those children. The story remarked on the “resistance” among family court judges to assessment of risk factors in family law cases, since they are not criminal cases, but also noted that “criminals have families.”
V. JUDGES CAN’T – AND SHOULDN’T – DELEGATE JUDICIAL POWER
It’s very tempting for family court judges to try to find some mechanism to free themselves from the endless squabbling of intractable parties. Here in Nevada, such efforts have resulted in the creation of entirely made up “specialties” such as “reunification therapist” and “parenting coordinator.” In other places, judges have attempted to delegate judicial authority to guardians ad litem or others lacking legal qualification – and have committed reversible error.
In Van Schaik v. Van Schaik, 24 A.3d 241 (Md. Ct. Spec. App. 2011), the trial court was faced with the common situation of parents demonstrating a persistent inability to communicate and resolve differences without court intervention. In response, the court entered an order requiring them to communicate through e-mail except in emergencies, and directed that “any contentious matters or disputed e-mail issues” be forwarded to an appointed attorney for the children (a designation similar to a guardian ad litem), to review. If the parties were unable to reach agreement on “any disputed matter regarding the minor children” within 24 hours, the attorney was directed to act as “tie-breaker” and resolve the dispute.
On appeal, the trial court was reversed for “delegating to a non-judicial person decisions regarding child visitation and custody.” 24 A.3d at 245. The specific defect identified by the appellate court was the absence of a mechanism for judicial review or modification, making it a definitionally overbroad delegation.
The form order for parenting coordinators in use in Nevada family court tries to avoid the specific error of having no mechanism for review (see “Model Order for Appointment of Parenting Coordinator (draft),” posted at http://willicklawgroup.com/clark-county-bench-bar-committee). However, parenting coordinator appointments in Nevada usually create a larger error – attempting to make “special masters” out of persons entirely ignorant of the legal process or their role in it.
The problems addressed in this writing are not an isolated problem, and not just about a specific case, or a couple of rogue mental health professionals. Multiple attorneys have written in complaining about therapist parenting coordinators who seem clueless about the legal structure in which they operate, and the role they are called upon to perform. The problems are endemic.
We have observed that much too often, therapist MHPs misperceive their role and intended function. Instead of applying court orders and assisting in the resolution of low-level disputes to try to keep them out of the courtroom, many therapists just can’t seem to help themselves – they try to “fix” the people they are working with, rather than trying to get orders enforced. For that reason (among others), most parenting coordinator appointments should be made to lawyers, not mental health professionals; that topic will be given greater attention in a separate legal note.
VI. VIOLATIONS OF STATUTES AND LIKELY BOARD ACTIONS
NRS 641A.310 provides for the “denial, suspension, or revocation of license” of a psychologist who renders or offers services outside the area of his or her training, experience, or competence, or commits unethical practices contrary to the interest of the public, or engages in unprofessional conduct, or engages in “negligence, fraud, or deception in connection with services he or she is licensed to provide pursuant to this chapter.”
Of course, most of those violations require a “finding” that they have occurred “as determined by the Board.” The various mental health professional licensing bodies, however, seem to perceive their responsibility as pretty much limited to ensuring educational credentials, and apparently believe that responsibility for how practitioners interact with the court system is the court’s responsibility.
The egregious negligence – and worse – detailed above has been reported to the licensing authorities of both “professionals” involved, but nothing seen to date indicates that those bodies have any particular interest in looking out for the safety of children or others subjected to such processes. I’m not holding my breath waiting for the relevant licensing authorities to do . . . anything.
VII. FAMILY COURT ADMINISTRATION LIKEWISE DUCKS RESPONSIBILITY
As noted above, FMC asserts that it has no “resources” to allocate to such non-core functions as verifying that the people it places on its “approved” list have any information, training, or experience in the tasks advertised (nevertheless any common sense).
Court administration, informed of the history and problem, responded that “we are not in a position to police providers that meet the minimum qualifications to provide services to the family court” – even if those “minimum qualifications” are self-declared and totally un-reviewed.
In other words, parties and counsel are entirely on their own, and should not expect any attempt by the judiciary at assistance in ensuring that clients and their children are receiving competent MPH services.
VIII. MINIMUM QUALIFICATIONS AND TRAINING THAT SHOULD BE REQUIRED
Failing to read the controlling court orders, failing to follow them once read, placing innocents directly into harm’s way, ignoring obvious safety issues arising during services, and directing people not to speak to their own lawyers without obtaining “permission” from therapists to do so are all unfathomable displays of arrogance and ignorance.
As a general matter, psychologists and other MHPs interacting with the court system seem to be unaware of the very limited roles they are to actually play in the court process. They seem oblivious to the legal, ethical, and common sense requirements and limitations of duties when acting as “parenting coordinators” and “reunification therapists.”
While inability to comprehend court orders is probably not fixable, unwillingness to obey them is susceptible to being addressed. Before any MHP is permitted “appointment” by court order to any formal role in addressing parties before the court, they should be required to obtain a minimal level of instruction as to the relevant law, rules, and orders governing their appointment, and demonstrate adequate comprehension of the rules governing their appointed tasks.
An outline suggesting such a minimum course of instruction has been created and circulated. It includes some basic Constitutional principles, such as the priority of the right to confer with counsel, and basic parameters of federal Constitutional law, such as the liberty interest and due process rights specified in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (fit parents have a right to limit visitation of their children with third persons; between parents and judges, the parents should be the ones to choose whether to expose their children to certain people or ideas).
The suggested course also includes basic features of Nevada statutory law, including the relevant custodial factors under NRS 125.480, and at least an overview of NRS chapters 125, 125A, 125B, 125C, and 125D. Obviously relevant is the basic law regarding domestic violence and temporary protective orders, and the Nevada law of relocations.
Similarly, the law relating to MHPs and special masters, and limitations on the roles MHPs may play under guidelines promulgated by the APA, ABA, AAML, and others, are a given as to relevance. Deserving special mention are the details, and meaning, of the form appointment order. The distinction between “best interest” and “psychological best interest” apparently requires instruction.
Testing adequate to ensure not just exposure to, but comprehension of, these basic concepts seems like a more-than-necessary precaution. Those MHPs that do not want to learn anything about the law and court system are free to retain that ignorance – but they should not be referred anyone, for any purpose.
Nevada obviously has a serious problem with the MHPs involved with the family court system. Judges need to do more – lots more – to control the MHPs appointed or referred for any tasks of any kind, with a particular eye toward curbing their outrageous assertions of alleged authority. At minimum, the form appointment order requires an overhaul to eliminate any implied invitation for megalomania.
In the meantime, every judge making a referral to any MHP for any service must make it clear that the MHP is to never, EVER gut, countermand, or ignore a court order. If they want to make recommendations, peachy, but they are to take no actions that could conceivably result in harm to anyone without a recommendation going to the court and counsel, being reviewed, and actually obtaining a later order.
As to the apparently made-up “specialties” peppering the court “approved” list, such as“reunification therapist,” all such referrals should cease, effective immediately, until someone actually establishes that there is a methodology that has a consensus of professional opinion as to validity and reliability sufficient to pass a Daubert challenge.
All professionals hoping to have their name included on the “tell people to hire me” list should be adequately trained and experienced. Court administration should be ordered by the judges to figure out who to put in charge of such vetting, and get it done. Grandfathering should be eliminated, effective immediately. Whatever material, training, and methodology the professionals claim to be following for any surviving “specialties” should be made available for counsel to peruse so strong and weak points may be presented to judges ahead of time.
Until there is a much better vetting of the entire process, from “getting on the list” to completion of “therapy,” and someone of responsibility is put in charge of making sure every single step in that process is valid (scientifically and legally), the court should not be exposing innocent parties (and their children) to it. At minimum, an immediate moratorium should be put on any further such referrals until some semblance of a safety-oriented and responsible protocol is established.
Will the court system actually do any of these things? It would appear that the “not my table” attitude has now been expressed by everyone in any position of responsibility, in or out of the court. Apparently, until there is media attention after a child is killed, no one involved perceives any priority, so until there are some dead kids on the deck, remedial action as to our processes will not even be talked about.
Given the level of negligence, incompetence, and obliviousness to obvious safety concerns identified above, that occurrence is a question of “when,” not “if.” At that juncture, this write-up will primarily be useful to provide questions for reporters, directed at those who could have – but chose not to – do anything about it.
X. QUOTES OF THE ISSUE
“More good things in life are lost by indifference than ever were lost by active hostility.”
– Robert Gordon Menzies.
“Litigation: A machine which you go into as a pig and come out of as a sausage.”
– Ambrose Bierce, The Devil’s Dictionary.
“Is life not a hundred times too short for us to stifle ourselves?”
– Friedrich Nietzsche.
This legal note is from Marshal S. Willick, Esq., 3591 E. Bonanza Road, Ste 200, Las Vegas, NV 89110. If you are receiving these legal notes, and do not wish to do so, let me know by emailing this back to me with “Leave Me Alone” in the subject line. Please identify the email address at which you got the email. Your State would be helpful too. In the mean time, you could add this to your email blocked list. And, of course, if you want to tell me anything else, you can put anything you want to in the subject line. Thanks.