Month: January 2021

The Spread of Misinformation

Posted on by Shawn Wygant

In this continuation from PsychLaw.net’s earlier blog regarding the spread of misinformation, PsychLaw.net describes the damaging effect of testimony such as Silberg’s and why that testimony was not admissible in court.

K.M. v. S.M.M., New Jersey, 2011

In the New Jersey high-conflict case of K.M. v. S.M.M.,[1] a conscientious trial judge spent approximately 70 days over four years during 2006–2009 in hearings and issued numerous oral rulings and three separate comprehensive written opinions to detail an alienating mother’s manipulation and false allegations. [2]

Beginning in 2005 while the parties were separated, Mother obtained a temporary restraining order prohibiting Father from contacting her or the parties’ children, aged 3½ and 6.  As a result, the oldest was evaluated by a crisis mental health evaluator, and the evaluator recommended Father’s parenting time be restored.  Later, in 2006, when she answered Father’s complaint for divorce, Mother responded with allegations that Father had sexually abused the two children. These latest allegations were discredited, as the oldest child showed no signs of sexual abuse when she was evaluated just months before. In response to the investigation by the Department of Youth and Family Services (DYFS), however, the court directed that Mother’s parenting time with her children be supervised and also ordered the children see a therapist.

Undeterred, Mother’s allegations continued. Numerous law enforcement, DYFS, and mental health professionals became involved over the four years of this tragic story, with the professional child abuse specialists unanimously finding no signs of sexual abuse. One expert, while interviewing Mother and asking if she could “accept the possibility that any of the information” of sexual abuse was false, noted that “[Mother] proceeded to ‘faint’ in the therapist’s office. She lay down on the floor and did not get up or respond until the therapist announced to her that he was going to call 911.”[3] With another evaluator, Mother insisted Father had been diagnosed with an Axis II disorder, and when confronted with the fact that he had not, Mother was upset and refused to accept the fact.

Other expert evaluators interviewed Oldest Child and found her statements to be unreliable “because of her lack of sadness or anxiety when reporting the incidents.”[4] An experienced evaluator also noted that “neither child avoided physical contact with [Father] and were comfortable being close to him physically.”[5] Still other well-trained and experienced evaluators found the oldest to be “very prepped,” and were struck by the incongruity of Oldest Child’s “ease, comfortable demeanor in discussing very disturbing topics.”[6]

With evidence of Mother’s manipulation and false allegations mounting, Mother retained Dr. Silberg.[7] Father moved for an order in limine to exclude Dr. Silberg and her testimony. A 7-day N.J.R.E. 104 hearing was conducted with the testimony and evidence recorded in what the appellate court described as “painstaking detail.”

Father presented the testimony of an expert who opined that Dr. Silberg’s interview of the child and the report she issued “violated the mandated procedures adopted by their profession.”[8] The expert went on to testify that Dr. Silberg failed to consider the full gamut of source materials, and that “the sources Dr. Silberg utilized, the short interview with mother, the fifty-minute interview with [Child] and the behavioral checklist mother prepared were insufficient sources for a forensic interview leading to a scientifically reliable conclusion.”[9] As the attorney’s examination of Father’s expert revealed and the Court found, Dr. Silberg in her testimony may have violated APA ethical code and guidelines that require knowledge of the area and use of established science, as well as those that prohibit bias.[10]

After extensive voir dire, the trial court noted inter alia:

(1)  Before interviewing the child, Dr. Silberg spoke with Mother’s attorney, “who informed her of the ‘urgency’ in . . . issuing a report because father was seeking parenting time and [the] report was being used in support of mother’s opposition.”

(2) Prior to the interview with the child, Dr. Silberg spoke with Mother “for about twenty minutes about [Mother’s] sexual problems with father and that mother had told her it was consistent with what he did to the children.”

(3) Dr. Silberg had a “symptom checklist” that corroborated abuse, but it was the Mother, not the child, that responded to it.

(4) And, the only recording, audio, shut off many times during Dr. Silberg’s evaluation of the child.[11]

In entering his order excluding Dr. Silberg and her opinions, the trial judge noted:

The court finds Dr. Silberg’s conduct in doing an “urgency” interview was a deliberate attempt in haste to present [an] “opinion” to the court which had no scientific basis and clearly was not founded on the “totality of the circumstances” known to or should have been known to Dr. Silberg as mandated by the professional guidelines and requisite findings made by the New Jersey Courts …. Dr. Silberg by her interview tested no plausible “rival” hypothesis under the “totality of the circumstances” in this case.[12]

The court ultimately awarded sole custody to Father as well as attorney and expert fees of nearly two million dollars.

In the case M. v. S., Maryland, 2018, PsychLaw.net  shows how Silberg’s reports concerning PA affected this case.

In M. v. S.,[13] Mother and Father had one child “J.” born in January 2010 and their divorce was finalized in December 2011. Under the terms of the 2011 decree, Mother was awarded sole physical custody of J., both parties shared legal custody, and Father was to be allowed visitation. Following their separation, Mother began to make allegations that Father had assaulted her and abused J. None of these allegations was substantiated by law enforcement or social services.[14] However, as protective orders had issued with many of these new allegations, Father was denied visitation with J. repeatedly and for extended periods of time.[15] During the time that Father did not see him, J. had become uncontrollable, was aggressive to others, and had been expelled from his preschool for behavioral reasons[16]. By January 2015, the circuit court had had enough and issued an order finding Mother in “willful contempt” for her “failure to permit” Father access to his child.[17]

Then, Mother sought out Dr. Silberg for therapy for J. and in July 2015, Dr. Silberg first requested Father not visit the child “for a couple of weeks,”[18] which turned into five months.[19] Then in contrast to a report from a court-ordered psychological evaluator, Dr. Silberg issued a report concluding that J. suffered from posttraumatic stress disorder (PTSD).[20] The court ordered another evaluation from an experienced psychologist who concluded that J. suffered from disruptive behavior disorder but saw no evidence of abuse or anything that would have suggested abuse.[21]

The judge appointed a best interest attorney (BIA) for J. and in October of 2015 a custody evaluation was ordered.  As part of the evaluation, a meeting that included the BIA, Father, Mother, the evaluator, and the child was scheduled in December 2015.[22] Mother defied the Court’s specific order to drop J. off at the front of the courthouse, parked “some distance away,” and when the evaluator and the child’s BIA found them, 5-year-old J. ran away.[23] Instead of going after the child, Mother telephoned Dr. Silberg “while recording the incident on her cell phone.”[24] A deputy sheriff finally caught the child who “started screaming” and punching the deputy, and told his mother upon his return that he “wouldn’t let them trick me.”[25]

As a result of Mother’s remarkable conduct, Father and the BIA filed a joint motion for emergency hearing alleging: “J.’s best interest had been ignored, that Dr. Silberg had breached applicable standards of care and should be replaced as J.’s therapist.”[26] The next day the judge entered an order regarding Christmas visitation.[27] Mother ignored parts of it, but finally delivered the child to Father in the evening, and over the next two days, Father was never alone with J. as there were always other family members present or they were in public.[28]

A subsequent second court-ordered visit, for New Year’s Day 2016, was missed because Mother reported that 6-year-old J. had been yelling and screaming so violently that he was taken to the hospital. During that hospitalization, Dr. Silberg filed a report with Child Protective Services (CPS), alleging that Father had abused J. during the Christmas visit when Father was never alone with J.  Like all of Mother’s previous allegations, CPS thoroughly investigated this latest complaint, and as the judge wrote, the allegations were simply “ruled out.”[29] Days after the child’s hospitalization, the Court placed J. in the temporary legal and physical custody of his paternal uncle and aunt, and in their care J. displayed a marked improvement in behavior.[30]

The court then conducted a nine-day trial ending in May 2016. She went through reams of documents and heard from numerous witnesses.[31] Several witnesses described Mother’s emotional outbursts, melt-downs, and psychiatric illness.[32] According to the record, a psychiatrist who was ordered to evaluate the parties hypothesized that Mother’s emotional behavior and distortion of other people’s motives could trigger some of J.’s anger and emotional turmoil.[33]

During her testimony, Dr. Silberg opined that the child suffered from PTSD as a result of father’s physical and sexual abuse.[34] The court was concerned with Dr. Silberg’s refusal to accept alternative explanations for J.’s issues and expressed concern that Dr. Silberg seemed “unpersuaded” by the fact that J.’s “behavioral difficulties, acting out, disclosures of abuse, meltdowns, needs for psychiatric intervention, et cetera, had all but disappeared since J. was placed with his aunt and uncle.”[35] The judge noted that this seemed to have no impact on Dr. Silberg, who was completely credulous even for the most ridiculous statements the child made, “such as the dog unlocking the closet door.”[36]

The court also described Dr. Silberg as clearly biased, not credible, and with compromised professional boundaries.[37] Perhaps most striking, the judge characterized as a “most glaring example” of untruthful statements Dr. Silberg’s description of the scene when the child ran away at the courthouse, where Dr. Silberg described, contrary to other evidence, that Mother was “very appropriate in her talking to J. in encouraging him to please go to the appointment.”[38] The court countered: “This is clearly not what happened. I saw the video.”[39]

A skilled attorney preparing a voir dire could use the judge’s description of Dr. Silberg’s conduct to inquire into violations of the APA guidelines and its ethical code by letting bias affect her work, being untruthful and not using established science in presenting her professional opinion.[40] Indeed, after observing Dr. Silberg’s conduct, Judge Kramer wrote:

“The court finds Dr. Silberg’s testimony was not credible. She appears to have compromised her professional boundaries …. She gave advice to Mother that was personal and had no relevance to J.’s treatment …. There were statements in her report that were untrue and clearly biased toward Mother.”[41]

On the day the trial ended, Judge Kramer issued an order that Father would have sole legal and physical custody of J. and that Mother would be entitled to supervised visitation, which could only occur during therapy sessions with J.’s treating therapist, no more than once every two weeks.[42]

_______________________________________________________________________________________________________________

[1] K.M. v. S.M.M., No. A-0135-09Tf, 2011 WL 3176534, supra note 76 (N.J. Super. Ct. App. Jul. 28, 2011).

[2] Id.

[3] Id. at * 8.

[4] Id. at *9.

[5] Id.

[6] Id. at * 10.

[7] Id.

[8] Id. at *24-25.

[9] Id.

[10] Ethical Principles & Standards, supra note 47, at C, D, 2.03, 2.04, 9.01. Specialty Guidelines, supra note 48, at 2.02.

[11] K.M., 2011 WL 3176534, at * 22.

[12] Id. at * 23. For specific ethical rules an examining attorney could argue that Dr. Silberg may have violated see Ethical Principles & Standards, supra note 47, at D, 2.03, 2.04, 5.01, 9.01. Specialty Guidelines, supra note 48, at 2.02, 9.03, 11.01.

[13] Marks v. Schenk, No. 13-C-10-85215, 2018 WL 775420, at *1 (Md. Ct. App. Feb. 5, 2018).

[14] Id. (“Ever since [entry of the custody decree] Ms. [] had made numerous allegations that Mr. [] had abused J. and had assaulted her. None of those allegations had ever been substantiated. As a result of those repeated allegations, protective orders were granted, and Mr. [] was denied visitation with their son repeatedly and over extended time periods.”)

[15] Id.

[16] Id.

[17] Id. at *2.

[18] Id.

[19] Id.

[20] Id.

[21] Id. Note that after this experienced psychologist earned her doctorate with an emphasis on young children, she completed an internship and a two-and-a-half-year postdoctoral fellowship at the John Hopkins University School of Medicine – Department of Pediatrics and the prestigious Kennedy Krieger Institute – Department of Behavioral Psychology.  She went on to become a staff psychologist, then Director of Clinical Services for the Behavior Management Clinic at Kennedy Krieger. During her tenure at the Institute, she provided direct clinical supervision and ongoing training of graduate level externs, doctoral level interns and postdoctoral fellows.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id. at *3.

[28] Id.

[29] Id. at *7 n. 11.

[30] Id. at *3.

[31] Id. at *7 n. 11.

[32] Id. at *8-9 (“Mother … herself had been diagnosed with PTSD, has apparently suffered from that since she was a teenager …. A number of witnesses … testified about witnessing Mother having emotional outbursts or meltdowns in the past.”)

[33] Id. at *9.

[34] Id. at *7-8.

[35] Id. at *8.

[36] Id. at *8-9.

[37] Id. at * 9.

[38] Id.

[39] Id.

[40] Ethical Principles & Standards, supra note 47, at D, 2.04, 5.01.

[41] Marks, 2018 WL 775420, at *9.

[42] Id. at *6-7. The record is clear that the court heard from and trusted the opinions of many professionals in the case: Ms. Elizabeth Benitz, the visitation supervisor; Reagan Kinnear, Ph.D., the clinical psychologist from the Kennedy Krieger Institute; Doris Meredith, a social worker from the Howard County Department of Social Services and Douglas W. Heinrichs, M.D., the psychiatrist who evaluated the parties.

The Spread of Misinformation Regarding Parental Alienation: A Case Study of Dr. Robert Geffner and Dr. Joyanna Silberg

Posted on by Shawn Wygant

At  PsychLaw.net,  we are aware that there are very many people who are misinformed and who spread this misinformation throughout the psychiatric and legal communities. The recently published book, Parental Alienation — Science and Law, provides many examples of misinformation regarding PA, which have typically been published in journal articles and books intended for mental health and legal professionals.  The chapter authors have identified the misinformation and refuted it through the use of scientific studies and peer reviewed professional literature.  Here, we provide examples of misinformation that have been presented in legal settings, especially by psychologists.  There are numerous examples of psychologists failing to comply with the APA’s standards and guidance.  We use Robert Geffner, Ph.D., and Joyanna Silberg, Ph.D., as examples of psychologists who have presented questionable testimony in legal settings.  On the bright side, there are experienced attorneys and judges who have been able to recognize problems in time to exclude unreliable, unhelpful, or unqualified testimony. While some of this unwanted “expertise” is captured in voir dire, other problems can be discovered during cross-examination or by a savvy trial court.

TESTIMONY BY ROBERT GEFFNER, PH.D.

Dr. Geffner has a Diplomate in Clinical Neuropsychology, is Board Certified in Couple & Family Psychology, and is an editor of a handful of peer-reviewed journals. An outspoken PA denier, Dr. Geffner has published several articles challenging the validity of PA.[1] Were education and experience the only criteria for admitting expert testimony, Dr. Geffner would appear to be well-qualified to provide an opinion in PA cases. Through proper examination and voir dire, however, several instances where Dr. Geffner attempted to proffer problematic unreliable testimony were identified, and his proposed testimony discredited.  Here are illustrations for attorneys developing voir dire questions.

In re Adoption of Joshua S., California, 2005 [2]

The California case of In re Adoption of Joshua S. involved the adoption of an artificially inseminated child by the same-sex partner of the mother. Approximately 13 months after their second child was born but before his adoption was completed, the parties’ relationship eroded to the point that the partner left the family residence.[3] During proceedings by the partner to enforce an adoption agreement entered while the two were still a couple, Mother alleged the agreement was the result of “fraud or duress,” and she later obtained a “domestic violence restraining order” against her former partner.[4]

The trial court ultimately concluded that it was in the child’s best interests that the adoption go forward[5]. In doing so, it rejected the testimony of Mother’s expert on domestic violence, Dr. Geffner, which it found to be “interesting in the abstract but not applicable to the best interest determination … [as] there is no evidence that these boys are being exposed to any continuing domestic violence.”[6]

“No evidence” of the domestic violence alleged by Mother is an important phrase in this opinion. It appears she hired Dr. Geffner to bolster her claim.[7] While it is not clear if the complete lack of evidence—“no evidence”—was adduced by a prepared cross-examiner, Dr. Geffner’s testimony would have been exposed by an adequate voir dire.  Did they inquire into Dr. Geffner’s methods, including whether he had examined the people involved or simply relied on a record review?[8] Did the attorney then contrast his method and preparation with the clear finding of “no evidence?” In any event, the trial court’s rejection of Dr. Geffner’s opinion was affirmed by the three-judge panel of the California Fourth District Court of Appeal.[9]

Dr. Joyanna Silberg is a psychologist, Senior Consultant for Child and Adolescent Trauma with the Sheppard Pratt Health System, and Executive Vice-President of the Leadership Council on Child Abuse & Interpersonal Violence. She has written and edited books on child abuse and trauma and is a PA denier who frequently speaks and presents on the topic. Like Dr. Geffner, on paper it would appear that Dr. Silberg is qualified to provide an opinion on PA. However (also like Dr. Geffner), savvy trial courts and litigators have revealed on numerous occasions that her knowledge or her methods or her familiarity with and reliance on the actual facts of the case were insufficient to enable her to provide reliable expert testimony. Here are some cases in which Silberg testified that demonstrate this that we at  PsychLaw.net have found.

Volodarsky v. Tarachanskaya, Maryland, 2006

In Volodarsky v. Tarachanskaya, a mother waged a years-long campaign of unsubstantiated allegations and alienation from the moment of the child’s birth.[10] Mother’s various claims included that the child would return from Father’s care smelling of smoke, hungry, and bruised, and that Father physically and sexually abused the child.  And with each new allegation, Mother unilaterally suspended visitation. As each allegation was returned unsubstantiated by investigating social workers, Mother continued to withhold visitation, and eventually the court ordered a psychiatric evaluation of both parents. Mother was revealed to have “little insight into her part in the current situation …, sees all of the difficulties as related to [Father],” and had no compunction against using the courts to interfere with his visitation.[11]

Mother hired Dr. Silberg, who seemed to confirm Mother’s allegations, perhaps to rehabilitate Mother’s position. Dr. Silberg testified to clear “evidence” that Father was abusing the child, and testified that “it is simply impossible to explain the level of symptoms that [Child] is suffering from …. [T]he child is seriously at risk of abuse,” and that the child’s statements were “so vivid and accurate that only real experience could produce these reports.”[12] After that testimony was presented, the cross-examiner could argue that Dr. Silberg may have violated the APA guidelines and ethical codes related to dishonesty, giving professional opinions about people they haven’t met, and bias.[13]

Father countered Dr. Silberg’s testimony with that of two experts. Shockingly, one expert testified that the child only reported abuse when Dr. Silberg, whom the child identified as “mommy’s friend,” was mentioned. In Volodarsky, the court found that Father was not sexually abusing the child.[14]

L.S. v. C.T., South Dakota, 2009

In the South Dakota case of L.S. v. C.T.,[15] Mother and Father separated when Child was just three months old. Child resided primarily with Mother in another state, and Mother began making allegations of sexual abuse by Father when Child was age two. Investigations were conducted by law enforcement and child protective services in both states, with all determining the allegations were unfounded. Just over a year later, Mother made new allegations of sexual abuse.  There were no other indications of abuse, and the second CPS investigation was returned “unsubstantiated.”[16]

Nine months later, Mother made a third allegation of sexual abuse, and this last was tried over three days, during which 16 witnesses testified. Mother testified that Child reported to her that Father fondled and “poked” at Child’s genitalia and that, when Child returned from visitation with Father, she would “demonstrate how she tried to resist the abuse by holding her legs together.”[17] On the other hand, a senior investigator who looked into these latest allegations of abuse testified that he had concluded after his interview with the child, whose statements varied and contradicted one another, “that there is a high probability that she has been led.”[18] 

This opinion was mirrored by another investigator, who had concluded that Mother was trying to “sabotage”[19] the parent–child relationship. The experienced investigator also testified Mother traveled to various law enforcement, child protection agencies, child advocacy centers, and medical personnel in South Dakota and Nebraska to find someone who would identify child abuse.[20]

The child also displayed other symptoms of alienation, including that she “could not indicate one good quality about her father.”[21] As this evidence of manipulation and alienation piled up, Mother hired Dr. Silberg who met with the child once, the day before testimony.[22] Dr. Silberg testified that per the “testing” used, Child’s scores were “literally off the charts”[23] in comparison to other children who had been sexually abused, and that Child was a “severely traumatized child with an inordinate number of symptoms of both trauma and sexual preoccupation.”[24] Dr. Silberg further opined that “it would be dangerous even for supervised reunification because the child presumes that the abuse must have been okay if nobody is saying anything to them about it.”[25]

It is likely that Dr. Silberg’s testimony would have been excluded if a proper voir dire had occurred.  For example, the prepared cross examiner could endeavor to show that Dr. Silberg may have violated the professional guidelines and ethical codes that require knowledge, using established science in the area of work, and prohibiting distorting evidence and intentionally misstating facts and bias.[26] Luckily, an experienced forensic examiner fully countered Dr. Silberg’s L.S. v. C.T. testimony. The trial court refused to sustain Mother’s latest allegations and ruled against the protective order Mother was requesting.[27]

________________________________________________________________________

[1] See e.g. A.H. Sandoval & Robert Geffner, PAS/PAD versus negative parental influence or toxic denigration, Am. Prof. Soc. of the Abuse of Child. Advisor (Special Issue) (2019 accepted for publication).

[2] In re Adoption of Joshua S., No. D045509, 2005 WL 2885809 (4th Dist. Cal. App. Nov. 3, 2005).

[3] Id. at *2.

[4] Id.

[5] Id. at *16.

[6] Id.

[7] If true, this would potentially violate ethical principles and standards that prohibit bias, intentional misstatement of facts and distorting evidence in a report. Ethical Principles & Standards, supra note 47 and Specialty Guidelines, supra note 48, at 1.01, 9.01 and 11.01.

[8] The reader is reminded that psychologists should not provide opinions of the psychological characteristics of people they haven’t met, and also that when a record review is solely relied on, the psychologist must explain this and its limitations. Ethical Principles & Standards, supra note 47, at 9.01. However, psychologists may conduct a record review, for which “an individual examination is not warranted or necessary,” but they must “explain this and the sources of information on which they based their conclusions or recommendations.” Id. Moreover, “forensic practitioners [must] strive to make clear the impact of such limitations on the reliability and validity of their professional products, opinions, or testimony.” Specialty Guidelines, supra note 48, at 9.03.

[9] In re Adoption of Joshua S., No. D045509, 2005 WL 2885809, at *17 (4th Dist. Cal. App. Nov. 3, 2005).

[10] Tarachanskaya v. Volodarsky, 897 A.2d 884 (Md. Ct. Spec. App. 2006), rev’d on other grounds, 916 A.2d 991 (Md. 2007).

[11] Tarachanskaya, 897 A.2d at 889; Volodarsky v. Tarachanskaya, 916 A.2d 991, 993, 994(Md. 2007)

[12] Tarachanskaya, 897 A.2d at 891.

[13] Ethical Principles & Standards, supra note 47, at C, 5.01, 9.01.

[14] Tarachanskaya, 897 A.2d at 892-894; Volodarsky, 916 A.2d at 1001. Note that in addition to the potential ethical violations for which Dr. Silberg could have been examined previously identified, she also could have been questioned about her duty to minimize foreseeable harm. Ethical Principles & Standards, supra note 47, at 3.04.

[15] L.S. v. C.T., 2009 SD 2, 760 N.W.2d 145 (S.D. 2009).

[16] Id. at ¶ 6, 760 N.W.2d at 147.

[17] Id. at ¶ 9, 760 N.W.2d at 148.

[18] Id.

[19] Id. at ¶ 7, 760 N.W.2d at 147.

[20] Id. at ¶ 20, 760 N.W.2d at 150.

[21] Id. at ¶ 30 n. 8, 760 N.W.2d at 153.

[22] Id. ¶ 13, 760 N.W.2d at 148.

[23] Id. ¶ 13, 760 N.W.2d at 148-49. Note, the record is unclear but Dr. Silberg may have been describing Mother’s responses to Friedrich’s Child Sexual Behavior Inventory, which is not intended to make the diagnosis of CSA by itself.  The CSBI is a questionnaire, listing 36 behaviors, which are thought to be associated with sexualization.  It asks a parent to “Please circle the number that tells how often your child has shown the following behaviors recently or in the last 6 months.” Each behavior may be rated as: “never”; “once monthly”; “1–3 times monthly” or “at least once weekly.” William N. Friederich et al., Child Sexual Behavior Inventory: Normative and Clinical Comparisons, 4 Psychol. Assessment  303-311 (1992). In high-conflict families, use of the CSBI with one of two polarized parents is subject to serious concerns about validity and reliability. For a discussion of the various types of validity and reliability, see Demosthenes Lorandos & Terence W. Campbell, Benchbook in the Behavioral Sciences:  Psychiatry – Psychology – Social Work 359, 373 (2005).

[24] L.S., at ¶ 13; 760 N.W.2d at 149.

[25] Id.

[26] Ethical Principles & Standards, supra note 47, at C, D, 2.03, 2.04, 9.01. Specialty Guidelines, supra note 48, at 2.02.

[27] L.S., at ¶ 33, 760 N.W.2d at 155. See also Ethical Principles & Standards, supra note 47, at C, D, 2.03, 2.04, 5.01. Specialty Guidelines, supra note 48, at 11.01.

Successful Expert Voir Dire Using the Three-Step Process

Posted on by Shawn Wygant

PsychLaw.net expounds the use of a three-step process to voir dire a proffered expert in proceedings involving PA. The following is taken from the 2014 Colorado custody case, D.T. v. N.O.  Although the court refused to enforce its evidentiary rules, a voir dire was conducted, which revealed the expert was unqualified and the proposed opinion was unreliable.

1.Test the proffered expert’s knowledge of relevant literature. 

In D.T. v. N.O., Father’s legal team began its voir dire by cross-examining the proffered expert’s knowledge of the data of the discipline by inquiring into the expert’s knowledge of the most well-known researchers and publications on the subject of PA, including:

(1)  the Family and Children’s Evaluation Team in Colorado and their published research examining 600 cases between 1975 and 1995[1]

(2)  the Family and Children’s Evaluation Team follow-up study published in the peer reviewed American Journal of Forensic Psychology describing additional information about the evaluation team’s PA findings[2]

(3)  the American Bar Association study, Children Held Hostage (1991)[3]

(4)  the recent revision of the classic Children Held Hostage (2013)[4]

(5)  the peer reviewed follow-up study child psychiatrist Richard Gardner conducted regarding his early work on the concept of PA[5]

(6)  the recent book, Parental Alienation: The Handbook for Mental Health and Legal Professionals (2013)[6], and

(7)  Dunne and Hedrick’s early work on PA published in the peer-reviewed Journal of Divorce and Remarriage.[7]

The expert, who was literally sitting in Colorado where some of this seminal research had been done, had no knowledge of any of these. Moreover, the expert was unable to support her opinion that PA was merely a concept designed to help abusive men take children away from protective mothers and the witness had no knowledge of texts written by women who had been victimized by fathers who manipulated children away from them, including:

(8)  books by Jill Egizii[8], Barbara Dircksen[9], Jennifer McBride[10], and television personality Pamela Richardson[11].

Similarly,

(9)  The expert could not defend her claim that judges did not support the concept of one parent alienating a child from another.

She also was unaware of

(10)  Judge Michelle Lowrance’s work-book with Leland Grove, Illinois, Alderman Jill Egizii[12]

(11)  Toxic Divorce: A Workbook for Alienated Parents by Canadian psychologist Kathleen Reay[13]

(12)  the first International Conference of Parental Alienation held in Frankfurt, Germany, in October 2002[14]

(13)  the 47th annual conference of the Association of Family and Conciliation Courts (held in Denver, Colorado), Traversing the Trail of Alienation[15]

(14)  the 500 U.S. and Canadian cases from 1985 through the date of the examination where PA was essential to the outcome[16]

(15)  the peer-reviewed research of scientist Joan Kelly on the scientific basis of the educational program called Family Bridges even though that was what the Father in the case was asking for.[17]

We at PsychLaw.net believe that this lack of knowledge should have been sufficient to disqualify this proposed expert.

  1. Reveal the proffered expert’s inadequacies from prior court appearances.

In D.T. v N.O., the father’s team then examined earlier court appearances that the expert had attempted, and how the expert was described in court opinions.  Before doing so, the cross-examiner elicited from the proffered expert that she had “maybe once” been excluded from a proceeding, but the witness dissembled that she couldn’t “recall.”  Then the witness identified two cases in which she described the reasons for her exclusion as unrelated to her qualifications or credibility[18]. She also directly testified: “Every other time … my methodology has been accepted.”[19] Voir dire revealed that this was not accurate.

On voir dire, Father’s team showed that the expert had been excluded in a Maryland case where the child had referred to the expert as “mommy’s friend,” and the court had found that the expert was actually a trigger for the child to make allegations. The Maryland court was also concerned that despite the fact that the expert relied solely on Mother and documents for her “research,” the expert opined that the child was abused and the father was the abuser.[20] Not only did this demonstrate bias, but this conduct also suggested violations of several other ethical principles and guidelines.[21]

When confronted with a New Jersey case in which expert was excluded[22], the expert said it was only because: (1) the tape recorder she used would turn off periodically and (2) the trial judge threatened to put her in jail if she gave thorough answers.[23] On voir dire it was revealed that the court entered “painstaking” findings that included that this expert had engaged in “a deliberate attempt to circumvent the scientific requirements” and was not an “open, neutral and objective” forensic psychologist.[24] During voir dire, the examining attorney inquired whether the expert’s opinion seemed to run afoul of ethical duties of accuracy and honesty in both cases.  Voir dire further inquired into whether the expert may also have violated the APA’s proscription against giving opinions in areas where the expert had insufficient information and knowledge.

Other cases by this expert were also brought up in o, which together established a pattern of providing opinions far beyond the scope of the information reviewed—which was precisely what the father’s team attempted to show in D.T. v. N.O.[25] Between the pattern of providing ill-informed opinions and the expert’s lack of candor in the present case, the expert should have been excluded.

3.Test the proffered expert’s knowledge of the facts of the present case.

The expert, who was supposed to be providing an opinion on the Family Bridges educational program for reconciling alienated children and their target parents, could not identify any foundation, treatise, peer-reviewed article, book chapter, or appellate report to support her opinion concerning the program.[26] This lack of knowledge of the precise program at issue rendered the expert’s opinion unhelpful, and should have been enough to exclude them.

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[1] Transcript of Hearing at 219-20, D.T. v. N.O., No. 10 CR 13 (Gunnison Co., Colo. Dist. Ct. Jan. 27, 2014) [hereinafter Tr. (1/27/14)]. Leona Kopetski, Identifying Cases of Parental Alienation Syndrome Part 1, 27 Colo. Law. (2) 65-68 (1998). Leona Kopetski, Identifying Cases of Parental Alienation Syndrome Part 2, 27 Colo. Law. (3) 61-64 (1998).

[2] Tr. (1/27/14), supra note 49, at 220. Deirdre Rand, Randy Rand & Leona Kopetski, The Spectrum of Parental Alienation Syndrome, 23 Am. J. of Forensic Psychol., no. 1, 2005, 15-43.

[3] Tr. (1/27/14), supra note 49, at 221, 229. Stanley S. Clawar & Brynne Rivlin, Children Held Hostage: Dealing with Programmed and Brainwashed Children (1991)

[4] Tr. (1/27/14), supra note 49, at 221. (After testifying “No, I am not” familiar with the 2013 revision, Silberg testified, “I would like to see it.”) Stanley S. Clawar & Brynne Rivlin, Children Held Hostage: Identifying Brainwashed Children, Presenting a Case, and Crafting Solutions (2d ed. 2013).

[5] Even though the proposed witness Dr. Joyanna Silberg testified to being unfamiliar with this publication, Silberg expressly testified that Gardner “never did any research.” Tr. (1/27/14) at 221-22. Gardner was a highly-regarded researcher, and his publications are numerous. See Richard A. Gardner, Should Courts Order PAS Children to Visit/Reside with the Alienated Parent? A Follow-Up Study, 19 Am. J. of Forensic Psychol., no. 3, 2001, 61-106. Dr. Gardner and his research in high-conflict cases was credited more than any other single author in the American Psychological Association, Guidelines for Child Custody Evaluations in Divorce Proceedings, 49 Am. Psychol. 677, 677-680 (1994). Gardner’s work on parental alienation was also cited more than any other single researcher in Clawar and Rivlin’s 2013 revision. Clawar & Rivlin, supra note 52.

[6] Tr. (1/27/14), supra note 49, at 222, 224.  Parental Alienation: The Handbook for Mental Health and Legal Professionals (Demosthenes Lorandos et al. eds., 2013).

[7] Tr. (1/27/14), supra note 49, at 229. John Dunne & Marsha Hedrick, The Parental Alienation Syndrome: An Analysis of Sixteen Selected Cases, 21 J. of Divorce and Remarriage 21-38 (1994)

[8] Tr. (1/27/14), supra note 49, at 233. Jill Egizii, The Look of Love (2010).

[9] Tr. (1/27/14), supra note 49, at 233-34. Barbara Dircksen, Parental Alienation is Abuse: One Mother’s Nightmare and Her Fight for Justice (2012).

[10] Tr. (1/27/14), supra note 49, at 234. Jennifer McBride, Childless Parent: “Snapshots” of Parental Alienation (2012).

[11] Tr. (1/27/14), supra note 49, at 234. Pamela Richardson, A Kidnapped Mind: A Mother’s Heartbreaking Memoir of Parental Alienation (2006).

[12] Tr. (1/27/14), supra note 49, at 234. Jill Egizii & Michele Lowrance, Parental Alienation 911 Work Book (2012).

[13] Tr. (1/27/14), supra note 49, at 235-36. Kathleen Reay, Toxic Divorce: A Handbook for Alienated Parents (2011).

[14] Tr. (1/27/14), supra note 49, at 236. Wilfrid von Boch-Galhau et al., The Parental Alienation Syndrome: An Interdisciplinary Challenge for Professionals Involved with Divorce (unpublished) (Frankfurt, Germany (Main) October 18-19, 2002).

[15] Traversing the Trail of Alienation: 47th Annual Conference, Denver, Colorado, Association of Family and Conciliation Courts http://www.afccnet.org/Portals/0/PublicDocuments/2010_january.pdf  (last visited Mar. 9, 2019).

[16] Tr. (1/27/14), supra note 49, at 247.

[17] Tr. (1/27/14), supra note 49, at 239. Joan B. Kelly, Commentary on “Family Bridges: Using insights from Social Science to Reconnect Parents and Alienated Children” (Warshak, 2010), 48 Fam. Ct. Rev. 81-90 (2010).

[18] Tr. (1/27/14), supra note 49, at 200-01.

[19] Transcript of Hearing at 34, D.T. v. N.O., No. 10 CR 13 (Gunnison Co., Colo. Dist. Ct. Jan. 28, 2014) [hereinafter Tr. (1/28/14)].

[20] Volodarsky v. Tarachanskaya, 916 A.2d 991, 997 (Md. 2007) (“Her disclosures to Ms. Dizard only came after [Silberg’s] name was introduced… whom Greta characterized as ‘mommy’s friend.’”). Note, too, that Dr. Silberg wrote in a book, that a psychologist or other mental health expert “cannot testify about people you have not met. . .” Joyanna L. Silberg, The Child Survivor: Healing Developmental Trauma and Dissociation 216 (New York, Routledge 2013). See also Ethical Principles & Standards, supra note 47, at 9.01. Specialty Guidelines, supra note 48, at 9.03.  Maryland Department of Health and Mental Hygiene Board of Examiners of Psychologists, Maryland Code of Ethics, Child Custody Evaluation 10.36.09.05(C) (2) [hereinafter COMAR Child Custody Evaluation Code] (identifying that psychologists should not “[r]ender an opinion concerning the psychological functioning or custodial fitness of a individual involved in the custody proceeding who has not been personally evaluated by the psychologist during the current child custody evaluation.”) (emphasis added).

[21] See Ethical Principles & Standards, supra note 47, at 9.01; Specialty Guidelines, supra note 48, at 9.03; COMAR Child Custody Evaluation Code, supra note 68.

[22] K.M. v. S.M.M., No. A-0135-09Tf, 2011 WL 3176534 (N.J. Super. Ct. App. Jul. 28, 2011).

[23] Tr. (1/28/14), supra note 67, at 34, 78-79.

[24] Id.  at 58, 63-64.

[25] Doe v. Roe, No. NNHFA094037658, 2012 WL 2899327 (Feb. 2, 2012); L.S. v. C.T., 2009 SD 2, 760 N.W.2d 145 (S.D. 2009).

[26] Tr. (1/27/14), supra note 49, at 198.