L. Pittman v. Bureau of Professional and Occupational Affairs ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Laurie S. Pittman, Ph.D., :
:
Petitioner :
:
v. : No. 1007 C.D. 2018
: Argued: March 12, 2019
Bureau of Professional and :
Occupational Affairs, State :
Board of Psychology, :
:
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: June 12, 2019
Laurie S. Pittman, Ph.D. (Petitioner) petitions for review of the June
25, 2018 order of the Bureau of Professional and Occupational Affairs (Bureau),
State Board of Psychology (Board) suspending Petitioner’s license to practice
psychology with the suspension immediately stayed in favor of no less than three
years of supervised probation. We affirm.
I. Background
The underlying facts, as found by the Board, are as follows.
Petitioner has worked as a licensed psychologist in the Commonwealth of
Pennsylvania since 1997. She routinely performs custody evaluations and has
conducted nearly 100 throughout her career.
In 2013, the married parents of three minor children (Mother and
Father) were in the process of divorcing and shared joint legal custody of their
children. Mother scheduled an appointment for a custody evaluation with
Petitioner on November 22, 2013. During intake, Mother indicated that the
custody evaluation was required in order for her children to attend court-ordered
therapy.
Petitioner was aware that consent from both parents is required to
perform a custody evaluation and knew that Mother and Father were involved in a
contentious divorce. At the time of the scheduled appointment, Petitioner entered
the lobby and found that only Mother and the children were present. Mother
immediately handed Petitioner photographs showing injuries to one of the
children’s backs. After seeing these photos, Petitioner no longer intended to
perform a custody evaluation, but instead determined that she was a mandated
reporter of suspected child abuse.1
Petitioner then individually interviewed the three children and
Mother, who each described similar instances of abuse by Father. Mother also
expressed ongoing frustration about the divorce proceeding. The interviews lasted
a total of six hours. Petitioner did not obtain Father’s consent to evaluate the
children or attempt to evaluate Father before, during, or after the interviews with
Mother and the children.
Thereafter, Petitioner drafted a nearly 50-page report titled, “Custodial
and Psychological Report of [Mother], [children]” (Custodial Report). In the
1
See Section 6311(a) of the Child Protective Services Law (CPSL), 23 Pa. C.S. §6311(a),
defining mandated reporters of suspected child abuse as including persons licensed to practice in
any health-related field under the jurisdiction of the Department of State.
2
Custodial Report, Petitioner made the following recommendations: (1) all family
members receive therapy in order to heal from the abuse and divorce; (2) an x-ray
be taken of the youngest child’s back; (3) Mother be awarded sole custody of the
children; (4) Father be prohibited from spending time with the children until first
receiving psychotherapy; and (5) if Father receives psychotherapy, his therapist
should coordinate with the children’s therapist to determine if and when Father is
ready to make amends. Petitioner did not include a disclaimer in the Custodial
Report limiting the extent of her findings and recommendations in lieu of obtaining
Father’s consent or evaluation. She did not attempt to contact Father before,
during, or after writing the Custodial Report.
Petitioner filed a report of suspected child abuse to the Pennsylvania
Department of Human Services, ChildLine and Abuse Registry (ChildLine). She
did not provide ChildLine with a copy of the Custodial Report; however, she did
give a copy of the Custodial Report to Mother. See Board 7/25/2018 Opinion at
14. Ultimately, ChildLine concluded that the report of suspected child abuse was
unfounded. Mother was not awarded sole custody of the children per Petitioner’s
recommendation, and the shared custody agreement between Mother and Father
remained in place. As of the date of the Board’s hearing, there were no further
allegations of abuse in the present matter.
Christopher A. Connolly, a Professional Conduct Investigator II for
the Pennsylvania Department of State, Bureau of Enforcement and Investigation
was assigned to investigate a complaint and determine whether Petitioner engaged
in unprofessional conduct. He completed a final investigation report for this case.
The Bureau of Enforcement and Investigation also requested that psychologist,
David J. LaPorte, Ph.D, review the case. In 2016, Dr. LaPorte issued an expert
3
report detailing his review of the investigative findings, and other relevant
documents. On April 12, 2017, amended on September 26, 2017, the Board issued
a four-count order to show cause (OSC) against Petitioner alleging violations under
the Professional Psychologists Practice Act (Act).2 The alleged violations were
based on Petitioner’s issuance of an improper custody evaluation.
In Counts I, II, and III of the OSC, the Bureau alleged that Petitioner
was subject to discipline under Section 8(a)(9) of the Act3 for failing to comply
with American Psychological Association (APA) standards in violation of Ethical
Principle 3(e) of the Board’s regulations, 49 Pa. Code §41.61.4 Specifically, the
Bureau alleged in Count I that Petitioner violated Section 9.01(b) of the APA
Ethical Principles of Psychologists and Code of Conduct (APA Code) by providing
a psychological opinion about Father without first evaluating him or making an
2
Act of March 23, 1972, P.L. 136, No. 52, as amended, 63 P.S. §§1201-1218.
3
Section 8(a)(9) permits the Board to revoke or suspend a license for “[v]iolating a
lawful regulation promulgated by the board, including, but not limited to, ethical regulations, or
violating a lawful order of the board previously entered in a disciplinary proceeding.” 63 P.S.
§1208(a)(9).
4
Ethical Principle 3(e) of the Board’s regulations provides:
As practitioners and researchers, psychologists act in accord with
American Psychological Association standards and guidelines
related to practice and to the conduct of research with human
beings and animals. In the ordinary course of events, psychologists
adhere to relevant governmental laws and institutional regulations.
Whenever the laws, regulations or standards are in conflict,
psychologists make known their commitment to a resolution of the
conflict. Both practitioners and researchers are concerned with the
development of laws and regulations which best serve the public
interest.
49 Pa. Code §41.61.
4
effort to evaluate him;5 in Count II that Petitioner violated Section 903 of the APA
Specialty Guidelines for Forensic Psychology (APA Guidelines) by failing to
clarify the limitations of her opinions without Father’s evaluation;6 and in Count
5
Section 9.01(b) of the APA Guidelines, concerning Bases for Assessments, provides:
(b) Except as noted in 9.01(c), psychologists provide opinions of
the psychological characteristics of individuals only after they have
conducted an examination of the individuals adequate to support
their statements or conclusions. When, despite reasonable efforts,
such an examination is not practical, psychologists document the
efforts they made and the result of those efforts, clarify the
probable impact of their limited information on the reliability and
validity of their opinions, and appropriately limit the nature and
extent of their conclusions or recommendations. []
APA Code, Section 9.01(b), see 49 Pa. Code §41.61, Ethical Principle 3(e).
Additionally, Section 9.01(c) states:
When psychologists conduct a record review or provide
consultation or supervision and an individual examination is not
warranted or necessary for the opinion, psychologists explain this
and the sources of information on which they based their
conclusions and recommendations.
APA Code, Section 9.10(c); see 49 Pa. Code §41.61, Ethical Principle 3(e).
6
Section 9.03 of the APA Guidelines provides:
Forensic practitioners recognize their obligations to only provide
written or oral evidence about the psychological characteristics of
particular individuals when they have sufficient information or
data to form an adequate foundation for those opinions or to
substantiate their findings (EPPCC Standard 9.01). Forensic
practitioners seek to make reasonable efforts to obtain such
information or data, and they document their efforts to obtain it.
When it is not possible or feasible to examine individuals about
whom they are offering an opinion, forensic practitioners strive to
(Footnote continued on next page…)
5
III, that Petitioner violated Section 3.10(b) of the APA Code by failing to obtain
Father’s consent before evaluating the children.7 Additionally, in Count IV, the
Bureau alleged that Petitioner violated Section 8(a)(11) of the Act8 by failing to
conform to the standards of acceptable and prevailing psychological practice.
(continued…)
make clear the impact of such limitations on the reliability and
validity of their professional products, opinions, or testimony.
When conducting a record review or providing consultation or
supervision that does not warrant an individual examination,
forensic practitioners seek to identify the sources of information on
which they are basing their opinions and recommendations,
including any substantial limitations to their opinions and
recommendations.
APA Guidelines, Section 9.03; see 49 Pa. Code §41.61, Ethical Principle 3(e).
7
Section 3.10(b) of the APA Code states:
(b) For persons who are legally incapable of giving informed
consent, psychologists nevertheless (1) provide an appropriate
explanation, (2) seek the individual’s assent, (3) consider such
persons’ preferences and best interests, and (4) obtain appropriate
permission from a legally authorized person, if such substitute
consent is permitted or required by law. When consent by a legally
authorized person is not permitted or required by law,
psychologists take reasonable steps to protect the individual’s
rights and welfare.
APA Code, Section 3.10(b); see 49 Pa. Code §41.61, Ethical Principle 3(e).
8
Section 8(a)(11) permits the Board to revoke or suspend a license for:
Committing immoral or unprofessional conduct. Unprofessional
conduct shall include any departure from, or failure to conform to,
the standards of acceptable and prevailing psychological practice.
Actual injury to a client need not be established.
(Footnote continued on next page…)
6
Petitioner filed a response to the OSC denying the Bureau’s
allegations. Petitioner asserted that each of the three children separately reported
numerous instances where Father physically, psychologically, and emotionally
abused them, Reproduced Record (R.R.) at 268,9 and stated that she was provided
with documentary evidence supporting these abuse allegations. Petitioner averred
that once Mother handed her photos of suspected child abuse, she was no longer a
neutral custody evaluator but an advocate for the children as a mandated reporter
of suspected child abuse under Section 6311 of the CPSL, 23 Pa. C.S. §6311.10
A hearing was held before the Board. The Bureau’s expert, Dr.
LaPorte, testified that once Petitioner became a mandated reporter, she should have
stopped the custody evaluation because she could no longer maintain neutrality
and, by her own admission, had become an “advocate” for the children. Dr.
(continued…)
63 P.S. §1208(a)(11).
9
But see R.R. at 414 (Petitioner’s testimony that during her interviews of the three
children, the daughter told Petitioner that unlike her brothers, she had not been abused).
10
Petitioner also argued that the Superior Court has already recognized her status as a
mandated reporter; as such, she was entitled to statutory immunity and did not violate the APA
Code. In a separate and unrelated action, [Father] v. Pittman, 150 A.3d 58, 68 (Pa. Super.
2016), Father sued Petitioner for defamation and negligence for producing the recommendations
and conclusions within her Custodial Report. Our Superior Court denied Father’s request for
Petitioner’s records of interviews with Mother and the children, as both irrelevant and
confidential under the CPSL, and thus, not discoverable. In its analysis of Father’s defamation
claim, the court stated that while Petitioner initially came into contact with Mother and the
children as a neutral third-party custody evaluator, she became a mandated reporter of abuse
when she obtained information of their alleged abuse. In this disciplinary proceeding, Petitioner
asserted that the Board erred in failing to apply collateral estoppel to the Superior Court’s finding
that she acted as a mandated reporter. We note that Petitioner’s status as a mandated reporter
was not disputed in this matter.
7
LaPorte testified that psychologists are “not hired to be advocates,” and there is no
written requirement that psychologists become “advocates” for the children in
making a mandated report of suspected child abuse. Dr. LaPorte explained that in
contentious custody cases, it is very common for one parent to alienate children
against the other. He continued that without evaluating both parents, Petitioner
had an incomplete understanding of the case. He stressed that these were
allegations of abuse and stated that these pictures of suspected abuse could have
been photo-shopped. Citing the “Grossman ruling,”11 Dr. LaPorte stated that
because Father shared custody of the children, Petitioner needed Father’s consent
to conduct the custody evaluation. R.R. at 355-56, 360, 363, 373-75, 385, 394-96,
402.
Dr. LaPorte described the distinction between a mandated reporter
gathering information to make a report of suspected child abuse and investigating
as a “gray” area absent specific guidelines from the Board. Nevertheless, Dr.
LaPorte testified that Petitioner’s use of extensive testing and recommendations
were unnecessary actions for a mandated reporter. He also acknowledged that he
had not filed a report of suspected child abuse with ChildLine since it was
established; however, he explained that such reports were previously made to a
local agency and that the law has essentially remained the same. R.R. at 351, 376-
77, 395, 397, 401.
In sum, Dr. LaPorte opined that Petitioner performed an improper
custody evaluation in violation of APA standards because she did not: evaluate
11
See Grossman v. State Board of Psychology, 825 A.2d 748, 759 (Pa. Cmwlth. 2003)
(holding that when both parents share legal custody of a child, the consent of both parents is
needed with respect to major decisions).
8
Father; gather information from a wide variety of sources as required for custody
evaluations; perform the kind of evaluation necessary to make recommendations
concerning custody or mental health treatment for Father; or qualify the limitations
of her data without Father’s evaluation. Dr. LaPorte also testified that while
Petitioner could have recommended that the youngest child see a physician, she did
not have the professional competence to recommend the performance of medical
procedures, such as x-rays. R.R. at 357, 359, 361, 391-92, 401.
Petitioner testified that she initially intended to perform a custody
evaluation during the scheduled appointment. She said she believed that Mother
had contacted Father about the custody evaluation and that Father was expected to
attend. She recognized that consent from both parents is necessary to perform a
custody evaluation in matters of joint custody and admitted that she did not contact
Father herself. Petitioner stated that when she entered her office lobby to meet the
family on the date of their appointment, Mother “immediately presented pictures
that showed injuries to a child’s back,” a timeline of allegations of abuse, police
reports, and other documents. R.R. at 411-13, 427, 430-32, 439.
Petitioner said that after seeing the photos depicting suspected child
abuse, she “switched gears;” she no longer intended to perform a custody
evaluation as a neutral third party, but was now an advocate for the children
conducting a mandated report of suspected child abuse. Petitioner said that she
could not obtain Father’s consent because he was the alleged perpetrator in her
report of suspected child abuse and ChildLine reports are intended to be
confidential. R.R. at 413-14, 416-17, 427-29, 440.
Petitioner testified that she interviewed Mother and the children to
gain information necessary to make a report of suspected child abuse to
9
ChildLine.12 Petitioner stated that she asked the children a variety of questions,
such as what they liked best about Mother and Father’s respective houses, and she
inquired further about their experiences of alleged abuse by Father. Petitioner
stated that she required this much information in order to call ChildLine because
ChildLine “asks if you’ve done evaluations, assessments, [etc].” R.R. at 417, 419,
424, 434.13
Throughout her testimony, Petitioner stressed that she drafted the
Custodial Report to give to the referring therapist to obtain court-ordered therapy
for the children. She described a tension between her belief that the children truly
needed therapy and the referring therapist’s position that therapy could not be
administered without a custody evaluation, stating that she “couldn’t do the
custody evaluation because it became about mandated reporting.” Petitioner
maintained that she did not conduct a custody evaluation but instead made a report
of suspected child abuse. R.R. at 424, 428, 435, 443, 447.14
12
Section 6313(b) of the CPSL, 23 Pa. C.S. §6313(b), sets forth the information to be
provided in the ChildLine report.
13
Petitioner stated that filing a report to ChildLine over the phone can take anywhere
from 20 minutes to an hour and that her call to ChildLine concerning the present matter took
approximately 20 minutes. R.R. at 407.
14
Several Board members questioned Petitioner about the distinction between a custody
evaluation and a ChildLine report, and their exchange reads, in relevant part:
DR. ERICKSON: [] I saw within your [Custodial R]eport that
there were a number of test results that you presented. What
relevance did that have if this test is – if this [Custodial R]eport
was simply a mandated reporting report?
(Footnote continued on next page…)
10
(continued…)
[PETITIONER]: Because the Court-ordered therapist said she
couldn’t do therapy for the children until there was a custody
evaluation. And the children needed therapy.
DR. ERICKSON: But this wasn’t a custody evaluation. That’s
your contention.
[PETITIONER]: Correct. But it was for the court-ordered
therapist, who said she couldn’t do the therapy.
DR. ERICKSON: But I thought this was a mandated reporter
report. Isn’t that your position?
[PETITIONER]: Yes.
DR. ERICKSON: Okay. So I’m still not clear as to the relevance
of the psychological test data being in the report.
[PETITIONER]: Because ChildLine often will ask, have you done
assessments?
DR. ERICKSON: And in your experience, ChildLine is competent
to interpret psychological tests such as these?
[PETITIONER]: Well, that’s why I wrote what the numbers
meant, what the tests – what the T-scores and the percentiles
meant.
***
DR. SPAYD: I think I’m actually just rephrasing Dr. Erickson’s
question, just to be clear. It’s my understanding that you believe
your [Custodial R]eport had two functions, both as a mandated
reporter, and to the court-ordered therapist.
[PETITIONER]: Yes.
DR. SPAYD: This kind of hybrid – ?
(Footnote continued on next page…)
11
Petitioner testified that she made recommendations in the Custodial
Report without interviewing or treating Father because all of the children described
abuse by Father, the children did not want to stay in Father’s household, and, if
therapy was recommended for everyone but Father, Father would be further
alienated from the family. Petitioner testified that after she filed the ChildLine
report, she gave Mother a copy of the Custodial Report, explaining that she did so
because Mother was representing herself in the divorce and custody proceedings.
R.R. at 434, 444.
Mother also testified at the hearing and primarily spoke about Father’s
alleged abuse of the children. Mother stated that she notified Father about the
custody evaluation, prior to the appointment with Petitioner, but Father did not
respond. R.R. at 450-58, 470.
In its June 25, 2018 decision, the Board found that Petitioner
evaluated the children and made custody and treatment recommendations based on
allegations of abuse without obtaining Father’s consent or allowing him to first
(continued…)
[PETITIONER]: Yes.
DR. BRADLEY: [] But you did not submit a copy of this
[Custodial R]eport to ChildLine? Your report was only verbal at
the time?
[PETITIONER]: They didn’t ask me for the [R]eport. I don’t
know why that was. I told them that I had it, but they didn’t ask
for the copy. Again, this was before 2015, when everything
became streamlined. And you could go online and you could like
type in all of the information. So you were up to the mercy of who
you were talking to on ChildLine.
R.R. at 443-47.
12
respond and supply crucial information. The Board determined that Petitioner did
perform a custody evaluation, not just a report to assist in the mandated reporting
of suspected child abuse.
Based on those findings, the Board sustained all four counts against
Petitioner and ordered that her license to practice psychology be indefinitely
suspended, with the suspension indefinitely stayed pending no less than three years
of probation under the condition that she have a Board-approved practice
supervisor. The Board concluded that while there is no direct evidence that
Petitioner is a danger to the public as a therapist, she is a danger to the public as a
forensic therapist because her actions put a parent and potentially other parents in
positions where they might lose custody of their children because of an improperly
conducted custody evaluation. The Board ordered Petitioner to pay a civil penalty
of $5,000 and successfully complete at least 30 hours of remedial education on the
topic of forensic psychology prior to seeking reinstatement to unrestricted status of
her license.
On November 15, 2018, Petitioner filed an emergency motion for stay
with the Board, which the Board denied on December 6, 2018. The Board’s order
stated that it “shall be effective immediately,” but notes that the probation, civil
penalty, and continuing education shall commence on January 7, 2019.
On December 28, 2018, Petitioner filed an emergency application for
stay or supersedeas, injunction pending review, peremptory mandamus, and other
relief with this Court, claiming that the Board posted its June 25, 2018 order on a
Commonwealth website and informed various insurers that she is on probation.
She asserted that these actions caused her to lose patients and credentialing with
insurers. Petitioner claimed that if the Board’s order was not stayed, the
13
information remained on the website, and the letters to the insurers are not
retracted, she would be unable to engage in her profession without the possibility
of incurring further sanctions. Following argument, by order dated January 4,
2019, this Court granted her requested relief finding that she had met the standard
enunciated in Pennsylvania Public Utility Commission v. Process Gas Consumers
Group, 467 A.2d 805 (Pa. 1983). As a result, all sanctions imposed by the Board’s
June 25, 2018 and December 6, 2018 orders were stayed.
II. Discussion
As a “person licensed or certified to practice in any health-related
field under the jurisdiction of the Department of State,” Petitioner indisputably
qualifies as a mandated reporter under Section 6311 of the CPSL. 23 Pa. C.S.
§6311. Mandated reporters are obligated to notify ChildLine upon a suspicion of
child abuse by filing a report. 23 Pa. C.S. §6313(a)(1)-(2). Section 6318 of the
CPSL generally provides that a person who makes a report of suspected child
abuse in good faith shall have immunity from civil and criminal liability.15
15
Section 6318(a) of the CPSL states:
(a) General rule.--A person, hospital, institution, school,
facility, agency or agency employee acting in good faith shall
have immunity from civil and criminal liability that might
otherwise result from any of the following:
(1) Making a report of suspected child abuse or making a referral
for general protective services, regardless of whether the report is
required to be made under this chapter.
(2) Cooperating or consulting with an investigation under this
chapter, including providing information to a child fatality or
near-fatality review team.
(Footnote continued on next page…)
14
On appeal,16 Petitioner argues that the Board erred by failing to afford
her immunity in this proceeding under Section 6318(a) of the CPSL because her
interviews with Mother and the children and the Custodial Report were necessary
to fulfill her responsibility as a mandated reporter of child abuse. We disagree.
By its plain language, Section 6318(a) provides immunity from civil
and criminal liability to persons who, acting in good faith, make a report of
suspected child abuse. To be clear, the Board did not impose discipline based on
Petitioner’s filing a report of suspected abuse with ChildLine. Rather, the Board’s
order is based on Petitioner’s conducting interviews and issuing a Custodial Report
in a manner that violates the Act and the Board’s regulations. Section 6318(a) of
the CPSL does not authorize a licensed psychologist to disregard professional
standards as required by the Act and the Board’s regulations.
(continued…)
(3) Testifying in a proceeding arising out of an instance of
suspected child abuse or general protective services.
(4) Engaging in any action authorized under section 6314
(relating to photographs, medical tests and X-rays of child subject
to report), 6315 (relating to taking child into protective custody),
6316 (relating to admission to private and public hospitals) or
6317 (relating to mandated reporting and postmortem
investigation of deaths).
23 Pa. C.S. §6318(a).
16
Our scope of review is limited to a determination of whether there has been a violation
of constitutional rights, whether errors of law were committed, or whether necessary findings of
fact made by the Board are supported by substantial evidence. Morris v. State Board of
Psychology, 697 A.2d 1034, 1035-36 (Pa. Cmwlth. 1997).
15
Moreover, while Petitioner testified that she gathered information
from Mother and the children that was necessary to make a report to ChildLine, the
information she collected far exceeded the information identified by Section
6313(b) of the CPSL, which states as follows:
(b) Contents of report.-- A written report of suspected
child abuse, which may be submitted electronically, shall
include the following information, if known:
(1) The names and addresses of the child, the child’s
parents and any other person responsible for the child’s
welfare.
(2) Where the suspected abuse occurred.
(3) The age and sex of each subject of the report.
(4) The nature and extent of the suspected child abuse,
including any evidence of prior abuse to the child or any
sibling of the child.
(5) The name and relationship of each individual
responsible for causing the suspected abuse and any
evidence of prior abuse by each individual.
(6) Family composition.
(7) The source of the report.
(8) The name, telephone number and e-mail address of
the person making the report.
(9) The actions taken by the person making the report,
including those actions taken under section 6314 (relating
to photographs, medical tests and X-rays of child subject
to report), 6315 (relating to taking child into protective
custody), 6316 (relating to admission to private and
public hospitals) or 6317 (relating to mandated reporting
and postmortem investigation of deaths).
16
(10) Any other information required by Federal law or
regulation.[17]
(11) Any other information that the department requires
by regulation.
23 Pa. C.S. §6313(b).
Further, although Petitioner avers that her actions were for the benefit
of ChildLine, she testified that she did not provide a copy of the Custodial Report
to ChildLine and that she gave Mother a copy in order for her to obtain court-
ordered therapy for the children. Petitioner contends that she could not obtain
Father’s consent or evaluation because ChildLine reports are meant to be
confidential. However, substantial evidence, including Petitioner’s own testimony,
supports the Board’s findings that Petitioner actually performed a custody
evaluation in order for the children to receive court-ordered therapy.
Petitioner alternatively argues that if this Court was to find that she
did perform a custody evaluation, Father’s consent was not required under the
“bona fide emergency” exception recognized in Grossman. In Grossman, the
mother’s attorney hired a psychologist, Dr. Grossman, to review another
psychologist’s recommendation of joint custody. Dr. Grossman asked the
mother’s counsel to obtain the father’s consent, but evaluated the child without
first confirming that the father had consented.
Upon learning of Dr. Grossman’s actions in interviewing the child, the
father contacted Dr. Grossman and ordered him to stop seeing the child; however,
Dr. Grossman again met with the child. Dr. Grossman did not produce a formal
17
Subsection (10) of Section 6313(b) of the CPSL was added by the Act of April 15,
2014, P.L. 417, after Petitioner evaluated Mother and the children and issued the Custodial
Report.
17
report of his findings, but he provided feedback about the meetings to the mother’s
attorney. After the Montgomery County Common Pleas Court became aware that
Dr. Grossman had met with the child without first obtaining the father’s consent,
the court ordered that both parents be prohibited from having another professional
evaluate the child without consent from the other parent. Dr. Grossman testified in
the custody trial and the Board issued an OSC, which resulted in the suspension of
Dr. Grossman’s license.
On appeal, we stated the following:
Dr. Grossman argues that he was investigating possible
child abuse, and consequently, did not have to obtain the
consent of [the father] before he met with [the child] on
July 14, 1996. The Board noted that where there is a
“bona fide emergency” a psychologist need not obtain
the consent of both parents in the performance of a
custody evaluation. The Board cited allegations of
sexual abuse or a child’s threat of suicide as examples.
825 A.2d at 759. Like the Board, this Court recognized the existence of an
emergency exception, and agreed that it did not apply to Dr. Grossman’s actions.
Instead, we held that in matters of shared custody, consent from both parents is
required for major decisions before evaluating the child.
Throughout her brief, Petitioner asserts that she was faced with a
“bona fide emergency” as contemplated in Grossman. However, she cites no
evidence to support these assertions. Consequently, we reject her contention that
the Board’s decision is in conflict with our holding in Grossman.
III. Conclusion
In joint custody matters, consent from both parents is required to
perform a custody evaluation. See Grossman; see also APA Code, Section
18
3.10(b); 49 Pa. Code §41.61, Ethical Principle 3(e). The Board found that
Petitioner performed a custody evaluation without first obtaining Father’s consent.
The Board also determined that Petitioner issued a nearly 50-page report, titled in
part, “Custodial Report,” in which she made psychological evaluations about the
entire family and advocated that Mother be awarded sole custody and Father be
denied access to the children until first undergoing psychotherapy. The Board
noted that Petitioner admittedly made no efforts to evaluate or contact Father. The
Board found that Petitioner failed to obtain information from both parties and did
not have a complete picture when making the custody evaluation, which is
particularly concerning in the context of a contentious custody proceeding.
Similarly, the Board found that Petitioner failed to limit the nature of her findings
within the Custodial Report.
The evidence of record supports the Board’s findings that Petitioner’s
conduct in interviewing the children and making the Custodial Report violated
various sections of the APA’s Code and Guidelines in violation of Ethical
Principle 3(e) of the Board’s regulations and acted in an unprofessional way that
departed from acceptable and prevailing standards of psychological practice. The
depth and breadth of the interviews Petitioner conducted far exceeded that
necessary to make a report of suspected abuse to ChildLine. The immunity from
civil and criminal liability afforded under Section 6318 of the CPSL to persons
making a good faith report of suspected child abuse is not relevant to the Board’s
authority to take disciplinary action based on findings of professional misconduct.
Accordingly, we affirm.
MICHAEL H. WOJCIK, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Laurie S. Pittman, Ph.D., :
:
Petitioner :
:
v. : No. 1007 C.D. 2018
:
Bureau of Professional and :
Occupational Affairs, State :
Board of Psychology, :
:
Respondent :
ORDER
AND NOW, this 12th day of June, 2019, the order of the Bureau of
Professional and Occupational Affairs, State Board of Psychology, dated June 25,
2018, is AFFIRMED. The stay granted by this Court’s January 4, 2019 order is
LIFTED.
__________________________________
MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Laurie S. Pittman, Ph.D., :
Petitioner :
:
v. : No. 1007 C.D. 2018
: Argued: March 12, 2019
Bureau of Professional and :
Occupational Affairs, State Board :
of Psychology, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE SIMPSON FILED: June 12, 2019
Because I believe the statutory grant of immunity in Section 6318 of
the Child Protective Services Law (CPSL), 23 Pa. C.S. §6318, is broader than that
applied by the Majority, I respectfully dissent. I would vacate the adjudication of
the Bureau of Professional and Occupational Affairs, State Board of Psychology
(Board), which imposed discipline and a “civil penalty” on Laurie S. Pittman, Ph.D.
(Petitioner), and remand for an express determination on whether she acted in good
faith.
Section 6318(a) of the CPSL provides that a person who makes a report
of suspected child abuse in good faith shall have immunity from civil and criminal
liability.1 The Majority treats this broad grant of immunity as inapplicable to
1
Section 6318(a) of the Child Protective Services Law states:
professional licensing matters. Majority Op. at 15. However, by its terms, the
immunity provision applies to “civil and criminal liability.” 23 Pa. C.S. §6318(a).
This case was not a criminal proceeding; rather, it was a civil proceeding, with civil
law burdens of proof, to which the immunity applies. Any doubt about this
interpretation is dispelled by the Board’s imposition of a “civil penalty” of $5,000
upon Petitioner in its order.
Moreover, the grant of immunity applies to making a report of
suspected child abuse “regardless of whether the report is required to be made under
this chapter.” 23 Pa. C.S. §6318(a)(1). This statutory language broadens the
(a) General rule.--A person, hospital, institution, school,
facility, agency or agency employee acting in good faith
shall have immunity from civil and criminal liability that
might otherwise result from any of the following:
(1) Making a report of suspected child abuse or making
a referral for general protective services, regardless of
whether the report is required to be made under this chapter.
(2) Cooperating or consulting with an investigation
under this chapter, including providing information to a child
fatality or near-fatality review team.
(3) Testifying in a proceeding arising out of an instance
of suspected child abuse or general protective services.
(4) Engaging in any action authorized under section
6314 (relating to photographs, medical tests and X-rays of
child subject to report), 6315 (relating to taking child into
protective custody), 6316 (relating to admission to private
and public hospitals) or 6317 (relating to mandated reporting
and postmortem investigation of deaths).
23 Pa. C.S. §6318(a) (emphasis added).
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immunity grant beyond the information to be included in a formal report under
Section 6313 of the CPSL, 23 Pa. C.S. §6313, and beyond the immediate
circumstances of the reporting. The Majority’s conclusion to the contrary is reached
without discussion of the broadening language referenced above. See Majority Op.
at 16-17.
In my view, this is exactly the type of situation to which the broad grant
of immunity applies. Because the General Assembly desired more reporting of
suspected child abuse under the CPSL, it granted immunity to good faith reporters
to protect against second-guessing years later by persons removed from the
exigencies of the moment. The broad grant of immunity also protects good faith
reporters from strategic retaliatory lawsuits and other attempts to intimidate them–
efforts which can occur in civil litigation like the instant child custody case. The
after-the-fact professional analysis here only serves to chill the duty of good faith
reporting.
No one argues that Petitioner acted with any improper motive here, but
the Board made no finding as to Petitioner’s state of mind. The Board acted as
though the statutory immunity provision was mere surplusage. I respectfully
disagree with that approach, and I would remand for the Board to consider the
“general rule” statutory immunity and to determine whether Petitioner acted in good
faith.
ROBERT SIMPSON, Judge
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