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The "Detectives"
Court-Appointed Custody Evaluators
Waste Judicial Resources and Parents' Fundshttp://www.thelizlibrary.org/therapeutic-jurisprudence/TheDetectives2.html
(Prior page, an illustration of the process and below, a conversation by psychologists)
Perhaps the primary reason psychologists and other mental health professionals should be mostly banned from the family court systems, except to answer limited and narrowly-defined questions actually within their areas of expertise, is that their presence does not add to the process, but rather, detracts from it and wastes court, lawyer, and litigant time and resources.
A discussion among psychologists on the PSYLAW-L listserve.
Date: Fri, 18 Dec 2009 16:53:58 -0700
From: MD
Subject: Collateral information
I'm involved in a case where a parent has an extraordinarily difficult history of accusations, crimes, and restraining orders and an extraordinary ability to look good on interview and on self-report tests. The attorney wonders if there are clear standards of practice to inquire about and to look at criminal history, collateral reports, and so on, when evaluating parental fitness. Do you have cites or quotes to that effect?
Michael, Ph.D., J.D., A.B.P.P. (Clinical)
Date: Fri, 18 Dec 2009 19:02:09 -0500
From: EM
Subject: Re: Collateral information
Michael,
I just had one similar and I think it is just a matter of shoe leather detective work. That and the PCL-R.
Eric, Ph.D., ABPP (Forensic)
Date: Fri, 18 Dec 2009 20:14:37 -0500
From: JS
Subject: Re: Collateral information
I routinely inquire about a parent's criminal history in parental fitness/custody cases.
Logically, criminal history relates to a parent's moral fitness, capacity to avoid getting locked up and thus abandoning the child, ability to instruct the child in making good decisions, etc.
I believe Jon Gould's book on custody evaluations provides some of the various standards that have been articulated by statute and case law in various jurisdictions and also by consensus among forensic evaluators, and my recollection is that criminal history figures in these.
Joe, Ph.D., J.D
Date: Fri, 18 Dec 2009 20:24:19 -0500
From: JR
Subject: Re: Collateral information
Getting only the criminal history or getting only one side in a conflict situation may not adequately describe the situation or the actual behavior. If I were using a criminal history I would want to do as one other person described and wear out some shoe leather & get a more complete description from as many parties as I could. Otherwise I would not put a lot of credibility in the criminal history alone. Almost nobody is neutral in these things & you can get a lot of bad information, including from the official documentation.
Jim
Date: Fri, 18 Dec 2009 21:09:38 -0700
From: MK
Subject: Re: Collateral information
Thanks for the replies so far. What I'm really looking for (and thanks, I'll find my copy of Jon Gould's book) is a cite that says one should ask for collateral documents, or at least ask the DSS worker if she has any concerns about the history she has obtained. The evaluators in this case look ridiculous, opining overall mental health. The question is whether they ought to have looked further. The Guidelines for evaluations in child protection matters suggest multiple data sources, but this seems to mean an interview, testing, and observation. Don't you think a psychologist who evaluates parental capacity in a DSS-involved case ought to ask the DSS worker what her take on the case is?
Michael, Ph.D., J.D., A.B.P.P. (Clinical)
Date: Fri, 18 Dec 2009 21:12:02 -0700
From: RM
Subject: Re: Collateral information
RE Don't you think a psychologist who evaluates parental capacity in a DSS-involved case ought to ask the DSS worker what her take on the case is?
Absolutely yes.
Bob, Ph.D.
Date: Fri, 18 Dec 2009 22:56:01 -0700
From: MK
Subject: Re: Collateral information
It seems strange that APA's Guidelines for Psychological Evaluations in Child Protection Matters doesn't say so.
Michael, Ph.D., J.D., A.B.P.P. (Clinical)
Date: Fri, 18 Dec 2009 22:59:38 -0700
From: RM
Subject: Re: Collateral information
But the Specialty Guidelines for Forensic Psychologists do
Date: Fri, 18 Dec 2009 23:57:19 -0700
From: MK
Subject: Re: Collateral information
Which section?
Michael, Ph.D., J.D., A.B.P.P. (Clinical)
Date: Sat, 19 Dec 2009 00:35:11 -0700
From: RM
Subject: Re: Collateral information
See section 11 of 2 attached drafts of the SGFP revisions.
See Section VI-C of the original SGFP.
All attached.
Date: Sat, 19 Dec 2009 07:18:04 -0500
From: SB
Subject: Re: Collateral information
Michael- I would bet that the info you find in Jon's book is applicable to CCE and parental fitness evals In the first case a dispute between two parents and in the second between the state and a parent, and issues of 'right" muddle the waters. It is not uncommon in a CCE, in these parts, for the court to state, basically get anything you need . The parent A tells me parent B has a long criminal history. Of course police reports are produced but no prosecutions. I would hate for someone to make a decision about my life based upon a police report. Kinda a violation of the 6th amendment. But my main point is that it is significant difference between custody and dependency and one cannot just transpose standards of practice from one area to the other....because one involves rights and the state.
Steve, Ed.D.
Date: Sat, 19 Dec 2009 07:28:10 -0500
From: GS
Subject: Re: Collateral information Jim,
I am wondering if I am understanding you correctly.
"...Otherwise I would not put a lot of credibility in the criminal history alone. Almost nobody is neutral in these things & you can get a lot of bad information, including from the official documentation."
How is "official documentation" unreliable? I don't do custody evals, but in SPE and others we do rely on records.
As I understand there is a movement in Kansas by defense attorneys to begin to challenge citing reference to old records in new reports. Record review is standard practice in my view. But I think that is FRE, and may not apply to States right?
Date: Sat, 19 Dec 2009 06:47:44 -0600
From: JK
Subject: Re: Collateral information
I would be highly surprised if this is not discussed in Jon's book. He talks about it when he presents.
Jeff, Ph.D.
Date: Sat, 19 Dec 2009 15:07:10 +0000
From: TC
Subject: Re: Collateral information
It is also important to inquire about the parent's experience of the aftermath, e.g., remorse, loss, insight, correctional treatment, and whether risk/need factors have been addressed or have changed. Longitudinal studies show work and relationship factors significantly in disistance from criminal and irresponsible behavior.
Tyler
Date: Sat, 19 Dec 2009 09:53:59 -0500
From: JS
Subject: Re: Collateral information
SB wrote: "I would hate for someone to make a decision about my life based upon a police report. Kinda a violation of the 6th amendment."
The 6th amendment generally applies only to criminal prosecutions. It usually does not apply to custody or other civil matters. Even in criminal cases, police reports and other out-of-court statements are admissible if a relevant hearsay exception applies, and the statement is not deemed "testimonial" (see Crawford v. Washington, 541 U.S. 36 (2004)).
Joe, Ph.D., J.D.
Date: Sat, 19 Dec 2009 10:08:24 -0500
From: SB
Subject: Re: Collateral information
I am not certain I understand your comment as to why the 6th amendment is not important in a CCE or PFE... maybe I am not being clear.
I understand the 6th amendment application to criminal matters, police reports are typically involved in criminal matters. the police report is merely the report of the arresting officer. Once criminal issues are brought into parenting evaluations , the evaluator has to be aware of all the criminal issues, that is why the 6th amendment is important here. often evaluators reify these reports when they prove nothing. guilt is determined by judges and juries. I offered to be careful in a CCE of PFE to use police report as collateral to show that anything might have happened or that someone was guilty of something.
I don't see why this is incongruous with such an evaluation. It is interesting how various collateral contact information , sometimes take on a life of their own.
Stephen, Ed.D.
Date: Sat, 19 Dec 2009 15:38:53 +0000
From: TC
Subject: Re: Collateral information
Sounds like that is a good reason to make a distinction between predictive validity/utility and legal factors.
Tyler
Date: Sat, 19 Dec 2009 10:29:56 -0500
From: JR
Subject: Re: Collateral information
But does legal mean ethical for making life impacting diagnosis or risk assessments by a psychologist, psychiatrist, or other professional. I would not want someone making those decisions by looking at files & taking them as fact if I was in that position.
Jim
Date: Sat, 19 Dec 2009 10:29:46 -0500
From: JS
Subject: Re: Collateral information
Steve,
Perhaps I misunderstood your point.
In what way did you mean that there was a 6th amendment violation in the custody/parenting context?
I understood your comment about the 6th amendment to be referring to the Confrontation Clause, the right of a criminal defendant to be confronted with the witness testifying against him. In a criminal case, a defendant might argue that a police report alone, without the testimony of the police officer making the report would be a violation of the sixth amendment right to confront witnesses.
In a civil case, as long as the police report (which is an out-of-court statement) is admissible hearsay (e.g., as a business record), there is no Confrontation Clause issue.
Any properly admissible and relevant record might be used in a custody/parenting matter (e.g., reports made by DSS caseworkers; medical records, etc.).
Joe, Ph.D., J.D.
Date: Sat, 19 Dec 2009 10:36:13 -0500
From: SB
Subject: Re: Collateral information
I am concerned about the misuse of collateral information, particularly police reports in CCE and PFE. I have reviewed numerous reports where police reports, not convictions, were cited as a problem in parenting. I have also reviewed numerous reports where police information statements were taken to mean that the person was guilty of the alleged offense.
In fact, in my criminal work I have seen misuse of police reports as well. I also want to be very clear that there is a second issue.. A PFE is a sta$ involved issue and a CCE is not.
Steve
Date: Sat, 19 Dec 2009 10:44:05 -0500
From: JS
Subject: Re: Collateral information
The first issue is whether we should allow collateral information such as police reports, therapist records, teachers' and pediatricians' statements, etc. to be considered in a custody/fitness matter.
If we decide that it should be considered becaue it is ultimately more helpful than not, then there is the possiblity that this collateral information might be mis-used.
But the problem of potential misuse is separate from admissibility. The potential misuse could be addressed through cross-examination, the admission of countervailing evidence, and by the other means through which evidence is tested. Furthermore, the trier of fact is usually free to assign whatever weight, if any weight, to that particular piece of evidence.
Joe, Ph.D., J.D.
Date: Sat, 19 Dec 2009 10:32:04 -0500
From: GD
Subject: Re: Collateral information
Michael wrote I'm involved in a case where a parent has an extraordinarily difficult history of accusations, crimes, and restraining orders and an extraordinary ability to look good on interview and on self-report tests. The attorney wonders if there are clear standards of practice to inquire about and to look at criminal history, collateral reports, and so on, when evaluating parental fitness. Do you have cites or quotes to that effect?
The following is from DeClue, G. (2006). What I Learned about Assessing People Who Have Been Convicted of Sexual Offenses from the Presidents of the United States of America. J. Sexual Offender Civil Commitment: Science and the Law, 1, p.99-123. at http://www.soccjournal.org/
You might be able to adapt parts of the article to evaluating parental fitness.
One of the first rules in journalism is to KNOW before you SPEAK and WRITE. (Anonymous)
Similarly, forensic evaluators must consider the facts carefully before rendering an opinion. We should rely on primary documents (such as the arrest reports, witness statements, sworn statements at trial or deposition, and official court records such as judgments and sentences). When primary documents are not available, we should request them. On those occasions when the primary documents are ultimately unavailable, we should a) clearly present the limitations of the data if we express an opinion, and b) refrain from expressing an opinion when there is insufficient reliable data to support one. Meanwhile, we must recognize that other professionals may have inadvertently presented a nonfact as a fact, whether by reporting unchecked statements by the offender or via simple mistakes or carelessness.
The takehome message is that when reviewing records as part of an evaluation for civil commitment, we must treat secondary sources not as facts but as leads to be confirmed or disconfirmed by checking with the primary documents. And any document that was created from the offenders self report should be treated with the same degree of skepticism that one would apply to the offenders direct report to the evaluator.
In order to do good forensic psychology casework in the context of civil commitment of a person who has previously been convicted of sexual offenses, thepractitioner must do good investigative journalism. Part of a forensic psychologists job is to gather and analyze data. The psychologist must consider the reliability of the information, and must be vigilant to avoid propagating myths deliberately planted or sown inadvertently. Whenever possible, primary documents should be obtained. When it is impossible to obtain primary documents, the evaluator should note that, and the evaluator should identify the lack of primary documents as a potential source of error in the report and/or testimony.
Date: Sat, 19 Dec 2009 10:51:47 -0500
From: EM
Subject: Re: Collateral information
Doesn't it all depend on what else you can find out? We always use our judgment in giving weight to data. Is a bundle of police reports that seem to indicate that a parent has an ongoing drug problem more or less important that a teacher stating that the parent shows up for after school activities and is pleasant in his/her interactions with school personnel? I guess it depends.
Eric, Ph.D., ABPP (Forensic)
Date: Sat, 19 Dec 2009 10:41:41 -0500
From: GD
Subject: Re: Collateral information
... Kinda a violation of the 6th amendment. ...
This Sixth Amendment?
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
Date: Sat, 19 Dec 2009 09:55:17 -0600
From: AK
Subject: Re: Collateral information
Criminal history is an essential part of a child custody evaluation, as Joe suggests.
From Ackerman, M.J. & Kane, A.W. (2005). Psychological experts in divorce actions. New York: Aspen Law and Business: Psychological Experts in Divorce Actions, http://www.loislaw.com/pns/tcresult.htp?alias=ASPSYEDA, Chapter 16 Criminal History [self-promoting table of contents omitted]
Andrew, Ph.D.
Date: Sat, 19 Dec 2009 08:56:57 -0700
From: MK
Subject: Re: Collateral information
I read that twice and missed it. Thanks!
Michael, Ph.D., J.D., A.B.P.P. (Clinical)
Date: Sat, 19 Dec 2009 10:58:03 -0500
From: SB
Subject: Re: Collateral information
Much of what you say makes sense,but the issue in both custody and particularly in dependency is often there is no cross-examination. (Even when there is a court appearance)
Particularly in dependency cases when there is a form of mediation. The recommendations of the PFE are made part of the case plan; parents consent to dependency (a little like criminal defendants taking a plea) so, often the evaluator should be more knowledgeable about all the confounding issues. And of course , when does such evals in the context of a state agency, either as a contractor , employee or just plain taking referrals the rates are so low (in many places) that much is overlooked and the evaluation is not as extensive as it should be. In a CCE the litigants are paying and typically there is the opportunity for a much more comprehensive evaluation. Of course in a CCE the recommendations involved time sharing and parenting plans and in a PFE the recommendations range from parental rights, supervised visitation, mandated tx, etc. But then again (cyncism coming) folks involved in PFE are typically indigent and have little voice; while folks in CCE can often afford A list lawyers, evaluators and rebutters.
Date: Sat, 19 Dec 2009 11:03:51 -0500
From: SB
Subject: Re: Collateral information
yes thats the one. the one that says how guilt is established, and it not thru police reports steve
Stephen, Ed.D.
Date: Sat, 19 Dec 2009 09:07:38 -0700
From: MK
Subject: Re: Collateral information
Thanks. That will help.
And thanks to all who responded.
Michael, Ph.D., J.D., A.B.P.P. (Clinical)
Date: Sat, 19 Dec 2009 11:11:44 -0500
From: JS
Subject: Re: Collateral information
I agree that we should be careful about drawing negative inferences from ambiguous or irrelevant data. A custody litigant or a parent charged with child abuse/neglect might have old arrests/convictions that conceivably do not reflect his current state of social functioning. Or, he might have a stack of recent domestic incident reports that simply reflect the fact that the other parent angrily files baseless reports at every opportunity.
Still, the process of evaluating the quality of collateral data and assigning proper weight to them is part of our daily forensic work. When it goes wrong, it's not the data's fault, it's our fault.
Joe, Ph.D., J.D.
Date: Sat, 19 Dec 2009 11:20:41 -0500
From: JS
Subject: Re: Collateral information
As state involvement in a particular legal action increases, and as the interest at stake becomes more basic and important (e.g., right to rear one's child as one sees fit, etc.), our constitutional system tends to becomes more concerned about equal protection and due process issues.
So, parents accused of abuse/neglect often have the right to an attorney if they cannot afford one, have the right to a hearing and to cross-examination, the right to appeal, etc. Parents subject to a termination-of-parental-rights petition have even greater protections.
Still, criminal charges represent the sine qua non of state action, and there are many protections and rights that apply in criminal actions that do not apply in non-criminal contexts.
Joe, Ph.D., J.D.
Date: Sat, 19 Dec 2009 11:29:03 -0500
From: SB
Subject: Re: Collateral information
I have been working in the dependency arena for too many years, I guess. This is a good description of how it is supposed to be.
It just ain't so and with that I will leave this topic to others to continue discussing.
Stephen, Ed.D.
Date: Sat, 19 Dec 2009 08:43:34 -0800
From: CM
Subject: Re: Collateral information
After that enigmatic email, I really want a discussion. In depenency cases, the resources are so limited. How can anyone do an adequate job.
Sent from my iPhone, Ph.D.
Date: Sat, 19 Dec 2009 11:48:56 EST
From: SB
Subject: Re: Collateral information
After that enigmatic email, I really want a discussion. In depenency cases, the resources are so limited. How can anyone do an adequate job.
I agree . It is almost impossible. My experience is that one has to be very clear about the limits of the work that can be done. This has to be explicit in both taking the referral and when writting the report. The demands of the work are extreme and the resources extemely limited. In the districts in which I used to do a lot of work in Florida , the psychologists who did such work were some of the most experienced psychologists. The rate for an evaluation had not changed in 15 plus yrs. when some folks increased their rates , referrals stopped dead. Now much less experience folks are used for such evaluations. My practice still does a minimal amount and the rate is equivalent to semi pro bono work.
Other states have more resources and the work is not that limited.
Steve, Ed.D.
Date: Sat, 19 Dec 2009 10:57:25 -0600
From: JK
Subject: Re: Collateral information
Jim your assumption is that Examiners will toad them as fact. Some will, but good ones will add the data to the pile and weigh the info against other data.
Jeff
Date: Sat, 19 Dec 2009 12:26:15 -0500
From: JR
Subject: Re: Collateral information
I have received back channel queries about my questioning the credibility of criminal justice data. Some people think that a conviction is a conviction. I say it is much more complex & you really have to examine the source of the data to get an accurate idea of what goes on. There is a large CJ literature on this that many psychologists/psychiatrists do not normally access.
Just look at the number of reversed convictions based on DNA evidence. It is clear that errors were made & a conviction does not always mean that the behavior was reported properly. Many family court & misdemeanor cases don't go to review/appeal because the people don't have the resources. It is anyone's guess how many of those cases are mistaken decisions. Nobody really reviews those cases even in the CJ community.
Even on this list, I have questioned the use of CJ history in some of the risk assessment actuarials & have received some heated defense of those actuarials & the CJ history as a component of them.
Your decisions are only as good as your data. Lousy data will increase the errors. All I am saying is that people's lives are impacted by those errors.
Jim
Date: Sat, 19 Dec 2009 10:27:19 -0700
From: MK
Subject: Re: Collateral information
Even in Colorado, home of what is affectionately known as the psychologist's relief act (the termination statute requires the court to hire an expert of the parent's choosing), it's hard to find psychologists who will work for the prices offered. I have offered to supervise any licensed psychologist for a small percentage of their pay, just to facilitate the work. Medicaid pays $450 for a psychological evaluation, which isn't bad for clinical work when you can rely on parental reports, but forensic work requires a lot of collateral work, and then it isn't even clear that Medicaid should pay if the evaluation is for a legal purpose. Also, oddly, the low set (not hourly) fee is more appealing later in one's career when you can bang out a good evaluation in a few hours, but by then, you don't need to work for Medicaid rates. Earlier in one's career, it can take 10 or 15 hours to do a psychological evaluation of a child.
Michael, Ph.D., J.D., A.B.P.P. (Clinical)
Date: Sat, 19 Dec 2009 12:42:53 EST
From: SB
Subject: Re: Collateral information
Medicaid pays $450 for a psychological evaluation
$450.00 WOW... you may get Florida psychologists flying in to do a bunch.....
DCF in some districts in Florida pays $250.00 for a psych eval.... In Florida psychologists cannot independently accept medicaid. The only way for a psychologist to accept medicaid is via one of the privatized medicaid agencies.This does not happen very often. Many of the public clinics apparantly bill Medicaid for the referred psych eval... my practice had a significant problem with those clinics because their was incidence of diagnosis of the person so they could bill and some form completion that indicated we were employees if the clinic. After I pointed out the problems with this and got a very non reception response , we quickly terminated our relationship. Massachussetts used to (what is now 20 yrs ago) allow Medicaid billing for DSS psych evals, independently. Now the only dependency evals I do are basically rebuttal evals , when the DCF evaluation seems inadequate to the newly retained attorney. When I was doing more DCF evals I would often go to court to testify and the DCF lawyer would examine me, the GAL lawyer would ask one or two questions and the lawyer appointed for the parent who ask NOTHING.. I mean nothing. I see similar problems emerging on the criminal side as well, with the current constraints in funding and budget cutting. I see the day coming when competency evals in criminal cases will consist of reports that are check offs-- accepatable/not acceptable of the statutory elements.
Stephen, Ed. D.
Date: Sat, 19 Dec 2009 09:59:10 -0800
From: CM
Subject: Re: Collateral information
And even if you could afford to do the evalution for that amount, out of the goodness of your heart as in probono work, how would you be able to bill medicaid for an evaluation that is specific to a court procedure, as in an evaluation regarding parenting capacity, or a child involved in termination of parental rights?
Cathie, Ph.D.
Date: Sat, 19 Dec 2009 12:24:44 -0600
From: FJ
Subject: Re: Collateral information
Carefully and well put, Joe. Unfortunately, I have discovered that dispassionate legal analysis, however correct, is often troubling to the non-lawyer. Consider, for example, the oft puzzled response to the fact that the 5th Amendment does not apply in civil cases.... As well as the peculiar casuistry that distinguishes between use and admissibility. Clear to me, because it trades on my native OCD character.
Floyd, JD, PhD
Date: Sat, 19 Dec 2009 14:07:12 -0500
From: SB
Subject: Re: Collateral information
When I practiced in Mass. Medicaid specifically permitted these evals and psychologists to independently bill, but that was 15 plus yrs ago. Insurers can choose what they want to pay for.. we just have to know the rules.
Steve, Ed. D.
$$
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