In the case below Judge Paula Hepner decides that a Court-Appointed Forensic expert could not withdraw from a case where the father of the child sued him in federal court, because forcing the child to be subject to a new forensic evaluation would not be in the child's best interest.
In the Matter of an Application of L L, PhD., to withdraw as the court-appointed, forensic expert A McK., Petitioner, against D M., Respondent.
FAMILY COURT OF NEW YORK, KINGS COUNTY
2009 NY Slip Op 29167; 24 Misc. 3d 684; 879 N.Y.S.2d 29; 241 N.Y.L.J. 79
April 17, 2009, Decided
PAULA J. HEPNER
Before the court is an Order to Show Cause filed on February 18, 2009 by the movant Dr. Louis L asking "to stay all proceedings in this matter, including the custody hearing, pursuant to CPLR 2201, pending the outcome and determination of the within application, relieving Dr. Louis L as the court-appointed, independent, neutral forensic evaluator in this matter and precluding his testimony at any further proceedings in this matter; and for such other and further relief as to the Court may seem just and proper." An affidavit of service attesting that Natalie Ragoo served the motion upon the Petitioner by overnight mail on February 19, 2009 was stamped as received by the court on February 24, 2009. Although Dr. L's original motion and his reply papers were served to 611 Naomi Street instead of 611 West Naomi Street, the Petitioner acknowledged receipt of the papers on February 20, 2009. The matter was scheduled for oral argument on February 23, 2009 and was adjourned at the request of the Petitioner to March 4, 2009 so that he could appear and participate in the argument on the motion.
At oral argument, Dr. L's attorney maintained that he is unable to continue on the case because he has a conflict of interest resulting from the Petitioner having sued him in federal court. As a consequence of being sued, Dr. L believes he has been placed "in the precarious position of having to render an objective professional opinion in this action, while simultaneously defending himself from [the Petitioner's] allegations against him in a different action." Dr. L relies upon the ethical principles of the Code of Conduct of the American Psychological Association which provide that psychologists must "refrain from taking on a professional role when personal, scientific, professional, legal, financial or other interests or relationship could reasonably be expected to…impair their objectivity, competence or effectiveness in performing their functions." Claiming that he is in a "multiple relationship" with the Petitioner because he is "in a professional role with [him] and at the same time in another role with the same person," he is unable to continue to serve as the forensic evaluator and defend himself in the federal lawsuit." Ultimately Dr. L wishes to be relieved from the case and discharged from any duty to submit his forensic report and testify at the custody trial. Dr. L cites no case law to support his position but does point to the fact that this Court has twice exercised its discretion to relieve two previously appointed forensic evaluators.
The Petitioner filed two sets of papers but neither addresses the merits of the motion nor do they offer any case law relevant to the issues to be decided. Instead, he focuses on the lack of timely notice and his need for an adjournment. At oral argument the Petitioner concurred with Dr. L's motion to be relieved referencing the principles of the American Psychological Association and arguing they prohibit Dr. L from continuing in this litigation. According to the Petitioner, Dr. L cannot wear two hats or be objective, and his opinion will be tainted because of the lawsuit he filed against him. The Petitioner intimated that Dr. L must be relieved of his duties in this case "or his license will be suspended." When asked by the Court if he intended to file a complaint against Dr. L, the Petitioner replied, "I have to consult with my attorneys but that is a possibility for sure." Additionally, the Petitioner argued that if Dr. L testifies in this proceeding about the Respondent, he will be improperly bolstering the testimony of the Respondent, who is a co-defendant in the federal lawsuit.
At oral argument the Respondent opposed Dr. L's motion to be relieved. Although the court's order directed an assessment of both parties, when the Petitioner repeatedly failed to participate, the order was modified on July 3, 2008 and Dr. L was instructed to proceed without him and prepare a parenting assessment of the mother. The Respondent urges the Court to find there is no reason to delay this case, which has been pending for more than a year, because she has paid her share of the cost of the evaluation and she, her husband and two children have cooperated.
At oral argument, the Attorney for the Child also opposed Dr. L's motion to be relieved. She maintained that because Dr. L has only been asked to prepare a parenting assessment of the mother, his testimony will never extend to the point of asserting an opinion about the father. Consequently Dr. L will not be testifying to any facts or opinions pertaining to the Petitioner and there is no ethical conflict barring Dr. L from submitting his report. Further, the child's attorney argues that if Dr. L is relieved, substantial delay will occur in seeking to find a fourth expert and, in all likelihood, given the litigiousness of the Petitioner, no other forensic evaluator would agree to take the case. Under these circumstances, control of the litigation will regress to the Petitioner which, counsel maintains, is the result intended by his conduct.
E A McK. was born on November 24, 1997. The custody litigation over who will parent this child began in 2000 in Pennsylvania after the parties separated and continues to this day. During the pendency of the Pennsylvania and New York cases, the Petitioner has filed lawsuits in the federal courts for the Eastern District of Pennsylvania, for the Southern and Eastern Districts of New York and has filed a series of repetitive allegations in various court papers filed in the instant proceeding, including one for recusal of the undersigned, all of which charge each of the Caucasian defendants with discrimination and conspiracy to systematically deprive this African-American Petitioner of his civil and constitutional rights. On this record, it is evident that the Petitioner's modus operandi is to thwart a full presentation of the evidence by ensnaring anyone who becomes involved with the Respondent or the child in a web of litigation and paralyzing.
Two important principles dictate the result reached by the court on this motion, the first being that the Petitioner cannot be permitted to impair or impede the progress of this custody proceeding by holding hostage the parties and the witnesses. "The right of access to the courts is neither absolute nor unconditional…[and] the right to appear pro se is not unlimited" (Spremo v Babchik, 155 Misc 2d 796, 802, 589 N.Y.S.2d 1019 [Sup Ct Queens County 1992], aff'd 216 AD2d 382, 628 N.Y.S.2d 167 [2d Dept 1995], cert den 516 U.S. 1161, 116 S. Ct. 1048, 134 L. Ed. 2d 194 . While "[p]ublic policy mandates free access to the courts…a litigious plaintiff pressing a frivolous claim can be extremely costly to the defendant and can waste an inordinate amount of court time, time that…the trial courts can ill afford to lose" (Sassower v Signorelli, 99 Ad2D 358, 359-360, 472 N.Y.S.2d 702 [2d Dept 1984]).
The undersigned could not find any reported decisions concerning a forensic expert who sought to be relieved after being sued by one of the litigants. There is an analogy to be drawn, however, to the line of cases where a litigant seeks recusal of a judge and then sues the judge when the decision is unfavorable to them. In these instances, courts have held that "[a] litigant cannot be allowed to create a sham controversy by suing a judge without justification, and then use that sham as a means for achieving a judge's recusal. To hold otherwise would be to give the litigant a license under which the judge would serve at their will" (Spremo v Babchik, 155 Misc 2d at 799-800). This is what has happened in the case of Dr. L.
The second and most important principle is that the child is entitled to finality. Dr. L has reviewed court records and school records, has made a home visit, has conducted office interviews with the Respondent, her husband and her two children, and has administered psychological testing to her and the subject child. Upon receipt of his report, the trial can begin. Relieving Dr. L, when his assessment is done, and subjecting the child and her family to a second evaluation would be emotionally stressful, psychologically harmful and disruptive to the child's sense of security and well-being. If this scenario were to be repeated at the end of the second assessment which, given this Petitioner's history, is more probable than not, relieving Dr. L will have been an exercise in futility. This Court believes it would be an abuse of discretion to require the child and her family to undergo a second evaluation when the alleged deficiency in Dr. L's assessment is the result of the Petitioner's own conduct (Rosenblitt v Rosenblitt, 107 AD2d 292, 294, 486 N.Y.S.2d 741 [2d Dept 1985]).
In Meirowitz v Meirowitz (96 AD2d 1030, 1031, 466 N.Y.S.2d 434 [2d Dept 1983]), the Second Department reiterated the standard to be applied by the courts in making an initial custody determination when it held that "the paramount concern in all custody matters is the best interests of the child" (Eschbach v Eschbach, 56 NY2d 167, 436 N.E.2d 1260, 451 N.Y.S.2d 658 ; Miller v Pipia, 297 AD2d 362, 746 N.Y.S.2d 729 [2d Dept 2002]). The case law is replete with decisions espousing the principle that delay is not in the best interests of the child (Matter of Emily I., 50 AD3d 1181, 854 N.Y.S.2d 792 [3d Dept 2009] and Matter of Beverly SS, 132 AD2d 825, 827, 517 N.Y.S.2d 618 [3d Dept 1987]; 11 Matter of Aisha T., 55 AD3d 435, 866 N.Y.S.2d 628 [1st Dept 2008] and Matter of Jazminn O'Dell P., 39 AD3d 235, 833 N.Y.S.2d 67 [1st Dept 2007]); 12 Matter of Joyce T., 65 NY2d 39, 478 N.E.2d 1306, 489 N.Y.S.2d 705 ). 13 The professional literature is in accord with this principle as well (Laura LL. v Robert LL., 186 Misc 2d 642, 719 N.Y.S.2d 823 [Fam Ct Albany County 2000]). 14 In light of the Petitioner's predilection for litigating every detail of this case, ostensibly to preserve and protect his relationship with his daughter, it is evident that this litigious posture has only distanced him from his daughter for nine precious years of her life. What this child is learning from all of this litigation is that every relationship she has and every life she touches will turn to stone, not gold. By the time the multitude of complaints, motions, counter-claims, appeals and collateral attacks are eventually decided, the child's entire minority may be consumed and the possibility of the Petitioner and his daughter having any relationship destroyed. It is unconscionable for the court to permit this to happen and certainly not in the child's best interests.
Turning to whether a conflict of interest exists that would prevent Dr. L from remaining on this case, the Court concludes there is none. Conflicts of interest between parties and witnesses arise when "confidential or privileged matter is disclosed by the moving party to [*6] the expert" (Friedrich v Blasz, 11 Misc 3d 1068[A], 816 N.Y.S.2d 695, 2006 NY Slip Op 50432[U] [Sup Ct Erie County 2006]). 16 Having been hired as the court's expert, Dr. L is not in privity with either of these parties. Having never spoken to the Petitioner, Dr. L is not in receipt of any confidential or privileged information from him. Even if the Petitioner had participated in the sessions with Dr. L, the very nature of a forensic evaluation lacks any guarantees of confidentiality. "The public policy upon which the privilege of confidentiality is based yields to the need for relevant information by the Court charged with the duty as
parens patriae of providing for the best interests of infants who are the subjects of a contested custody litigation" (Coderre v Coderre, 1990 WL 312774 [Sup Ct Suffolk County 1990]). A conflict of interest can also arise when a witness has a "personal interest in the event" or its outcome (Zinn v Jefferson Towers, Inc., 14 AD3d 398, 789 N.Y.S.2d 7 (1st Dept 2005]) or has "competing loyalties" (Gilly v City of [**692] New York, 69 NY2d 509, 508 N.E.2d 901, 516 N.Y.S.2d 166 ). This is the premise underlying Dr. L's motion. Case law, however, does not hold that interested persons are automatically disqualified from appearing in a case (McDermott v Manhattan Ear, Eye & Throat Hospital, 15 NY2d 20, 203 N.E.2d 469, 255 N.Y.S.2d 65 ). When this occurs, cross-examination can ferret out "any possibility of bias" (Kaye v Kaye, 11 AD3d 392, 784 N.Y.S.2d 47 [1st Dept 2004]) and the trier of fact will evaluate the weight to be given
to the testimony proffered in light of the individual's "disposition to the truth."
Dr. L's continued participation in the case will not place him in violation of the rules of professional conduct for the American Psychological Association. Since Dr. L has never seen, interviewed or assessed the Petitioner, he is "not in a professional role" with him. Since Dr. L has not done any work with the Petitioner, he is not in a position to testify about him. Dr. L will only be testifying about his assessment of the Respondent, and the fact that he is a defendant in a lawsuit filed by the Petitioner will not affect his "objectivity, competence or effectiveness" in regard to her. The Petitioner's "conclusory beliefs" are "insufficient grounds to disqualify the expert appointed by the court" (Schairer v Schairer, 192 Misc 2d 155, 745 N.Y.S.2d 410 [Sup Ct Nassau County 2002]). Accordingly, it is
ORDERED that the motion of Dr. L to be relieved as the court-appointed forensic expert is denied; and it is further
ORDERED that Dr. L is to submit his parenting assessment of the Respondent to the court on or before April 27, 2009 so that this case can proceed to trial; and it is further
ORDERED that the Respondent's cross-motion for sole custody (Motion # 2 on Supplemental A) is adjourned for trial; and it is further
ORDERED that the motion by the attorney for the child to preclude the Petitioner from challenging Dr. L's assessment, opinions, testimony, recommendations or the admissibility of his report on the grounds that it is incomplete, one-dimensional and represents only the uncontradicted views of the mother and child is granted; and it is further
ORDERED that any issues not addressed or disposed of in this decision and order are deemed to be denied; and it is further
ORDERED that the matter is adjourned to April 29, 2009 at 11:00 a.m. for the selection of new trial dates. The Court has arranged a telephonic "meeting place" for that date and time. The Petitioner and all counsel are to telephone this number (1-888-795-xxxx) at 11:00 a.m. and when prompted, to enter ID number 15xx to "attend the meeting;" and it is further
ORDERED that the Clerk is to fax or e-mail and mail copies of this decision and order to all counsel and the parties.
Dated: April 17, 2009
Brooklyn, New York
PAULA J. HEPNER, A.J.S.C.