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August 28, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Yesterday, I posted a piece about the case of Hopkins v. Hopkins in which a Nebraska trial court denied a father’s request for primary custody. His motion to modify was based primarily on the fact that the custodial mother was living with and had married a man who had been convicted of and served four years in the penitentiary for child sexual abuse. Nebraska law requires that such a situation constitutes a change in circumstances that requires a change in custody unless the non-movant (in this case the mother) proves that the sex offender poses “no significant risk of harm” to the children.

The trial court found that the sexual abuser, Thomas Rott, in fact posed no significant risk of harm to the two girls who are the daughters of Robert and Kyel Hopkins. The Court of Appeals agreed.

In my last piece I reprised the many problems with the testimony of Kyel and the two children on which those rulings were based. But that testimony was accorded relatively little weight by the trial judge. The testimony on which Judge Teri Harder placed “considerable weight” was that of therapist Joan Schwan, and it is that testimony that is most problematical.

Schwan’s evidence was to the effect that the two girls had been made aware of Rott’s background and that she monitored them to make sure there were no signs that he was “grooming” them for abuse. She pronounced herself satisfied that no abuse had occurred and that there was “no significant risk” that it would.

There are several problems with that testimony. The first is that, as acknowledged by both courts, Schwan has no experience with adult sex offenders. She counsels child sexual offenders, but not adult ones. Rott of course is an adult. Now, although the appellate opinion doesn’t say, I assume Robert had a lawyer and that he/she cross-examined Schwan. I further assume that any challenge to Schwan’s qualifications were overruled by Harder. Still, the question of her competency to testify regarding Rott’s potential threat to the girls is brought into question by Schwan’s lack of experience.

Far more important is that Schwan offered an opinion about Rott whom she’d never met and apparently never talked to. How did she determine that he presented no threat when her main sources of information about him were his wife, who had an obvious bias in the matter, and two minor girls one of whom has emotional and cognitive difficulties?

If Schwan ever stopped to consider where her information was coming from, neither court mentions the fact. Did she discount Kyel’s statements of fact at all? Did she consider the idea that two children caught between two warring parents might be less than forthcoming in their statements to her? Again, there’s no evidence in the appellate court’s opinion that she did.

But more damning still is that she apparently felt no compunction about rendering an opinion in a child custody case about a man she’d never met, spoken to, psychologically evaluated, interviewed, etc. Most importantly, that behavior on the part of a mental health professional violates various codes of ethics for the profession. For example, the American Academy of Child and Adolescent Psychology, tells practitioners that “the clinician must see a parent a sufficient number of times to render an informed opinion.” Presumably zero does not constitute “a sufficient number of times to render an informed opinion.”

Indeed, at least a dozen cases in which states have disciplined mental health professionals in recent years involved exactly that failure to gather information from all parties to a child custody case. It appears that Schwan could make it 13.

Worse still is the fact that, apparently, Schwan was “wearing two hats” when she gave her opinions in the Hopkins case. Among other things, that’s exactly the behavior that moved the State of New Jersey to permanently remove Marsha Kleinman from the roles of psychologists in that state.

Put simply, a mental health professional can wear the hat of “forensic” expert in a legal case or he/she can wear the hat of “treating” expert, but not both. Wearing both hats is a clear violation of the code of conduct, as Kleinman learned to her regret.

The reason for that is clear. If a court appoints a psychologist to serve in forensic capacity, he/she is permitted to render opinions about the legal nature of the case, e.g. whether a sex offender poses a significant risk of harm to children in the home. In order to do so, the expert must fully disclose that he/she is not treating anyone involved in the case, but there solely to come to and render an opinion in the case. He/she is on no one’s side and anything that’s disclosed to the expert can be revealed in court.

By contrast, a mental health professional who’s serving in the capacity of therapist may testify regarding the facts he/she knows, but may not render an opinion about the ultimate matters the court is required to decide. In the Hopkins case, Schwan was the children’s therapist, but also testified regarding the issue of whether Rott posed a “significant risk of harm” to the children.

Again, the AACAP puts it this way:

Performing a forensic evaluation expands and complicates the clinician's familiar role of diagnosing and treating psychiatric illness and raises the important issues of competence, agency, and ethics. It is extremely important for the clinician to understand the differences in roles and to keep these roles separate. Wearing "two hats" - therapist and forensic evaluator - with a family is inappropriate and complicates both the therapy and the evaluation (Bernet, 1983).

Did Joan Schwan violate applicable rules of ethics? Her failure to speak to either Rott or Robert Hopkins looks very much like she did. Although the appellate opinion is less clear on the matter, she seems also to have worn the two hats she’s specifically bound not to wear — those of the forensic and the treating psychologist.

Was Schwan hired by Kyel to do exactly what she did? She began seeing Alexus and Hadley some eight months after Kyel filed her motion to reduce Robert’s parenting time. And she rendered an opinion favorable to the person who was paying her. She did so having never met either Rott or Robert.

In short, she shielded herself from information that coujld have changed her opinion regarding Rott’s risk to the children. So she didn’t interview him, much less see him enough times for her to render an informed opinion. And of course she did no psychological testing of him that might have been a more reliable indicator of his propensity, or lack thereof, for future sexual abuse than the words of Kyel and the two children.

From where I sit, Schwan’s behavior, as described by the trial court, offers little indication of any intention to find the girls’ home environment anything but benign.

But neither court noticed or cared.

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