In Custody Battles, the Work of Mental Health Experts is Not Reviewed, Leaving Children At Risk

For New York families in custody fights, a “black hole” of oversight

Critics say a state office’s professed inability to review the work of mental health experts leave children at risk

JOAQUIN SAPIEN, PROPUBLICA

When Anna Frank lost custody of her 9-year-old son, she blamed her husband and the judge who decided the case in his favor.

She also faulted Barbara Burkhard, a psychologist appointed to evaluate the family and advise the court on the matter. According to Frank, Burkhard concluded — after meeting Frank once and without interviewing her son — that their claims of abuse were invented and that Frank had poisoned her child against his father.

Frank ultimately regained custody of her son, based partly on testimony from other psychologists who disputed Burkhard’s contentions. But before she did, she sought sanctions against Burkhard from the agency that oversees licensed psychologists in New York.

Frank’s densely detailed, 12-page complaint to the Office of Professional Discipline was never investigated, let alone acted upon.

“Due to our inability to access records or discuss the services rendered with this psychologist, we are unable to investigate this matter or to initiate disciplinary action based upon your complaint,” a letter from the office, from the spring of 2012, explained. “I am sorry we cannot be of more assistance to you.”

The office’s response was typical, a ProPublica examination shows.

Though psychologists who appear in New York’s Family and Matrimonial Courts help shape decisions of grave consequence — from custody to child protection to juvenile delinquency — their work is subject to little or no professional oversight, purportedly because the confidentiality of such proceedings makes them hard to penetrate even for regulators.

Several lawyers who have represented parents in such court cases say they and their clients have received similar responses when they’ve tried to pursue complaints against court-appointed psychologists with OPD.

“They rely upon a bureaucratic Catch-22 to avoid having to take a hard look at misconduct and take their responsibility of oversight seriously,” said Timothy Tippins, who wrote a 2016 article for the New York Law Journal on inadequate oversight of such evaluators. “You can’t make this bureaucratic bullshit up.”

Pace University law professor Merril Sobie, a former chair of the New York State Bar Association’s Committee on Children and the Law, has pressed OPD on what recourse exists for families who challenge the competence or objectivity of the psychologists in their cases. The agency has provided few answers.

“It’s a black hole,” Sobie said.

When ProPublica asked OPD several months ago to explain why it did not investigate complaints against psychologists working in family and matrimonial courts, officials responded with little more than a description of the office’s mandate and staffing. They declined requests for interviews.

This month, when we pressed again, the office — an arm of the New York Department of Education — issued a short statement indicating it was seeking more authority to gather information in such investigations:

The State Education Department investigates every complaint that alleges conduct constituting professional misconduct through its Office of Professional Discipline,” the statement said. “The Department’s ability to investigate court-appointed psychologists can be hampered because the records necessary to pursue such an investigation are, by law, private and open to inspection only upon permission of the Family Court. To help eliminate this potential obstacle to a thorough investigation, the Department is discussing with the New York State Legislature amendments to the law that would give our professional conduct officers greater access to court records. We will continue to pursue such an amendment this legislative session.

Without intervention by OPD, there’s virtually no place to take complaints against court evaluators.

Since 2008, New York City’s Appellate Court has had a committee that certifies the just over 200 psychologists and psychiatrists who get court appointments and can adjudicate complaints against them. Through June 2015, it had received 10 complaints and issued two admonitions.

But while the committee can bar problem practitioners from testifying in court, it has no authority over psychologists’ licenses. Moreover, court systems elsewhere in the state haven’t set up such committees, partly out of fear that certification requirements might dissuade qualified professionals from taking appointments in regions where practitioners are difficult to find.

“They didn’t want to put things in the way of getting people to do this work,” said Jacqueline Silbermann, a former top New York Matrimonial Court judge who was involved in setting up the city’s certification committee and pushed courts outside the city to do the same. “The bottom line is they didn’t.”

That leaves OPD, whose investigators are tasked with responding to complaints not only about the state’s nearly 14,000 licensed psychologists, but nearly 50 other kinds of professionals, from dentists to massage therapists.

The agency, also known as the Office of the Professions, has come under fire before for its weak enforcement. A 2016 ProPublica investigation found it had not implemented criminal background checks for nurses that are routine in other states and often took years to administer discipline. Critics say it is also impeded by its unusual structure. As part of the Department of Education, OPD comes under the state’s Board of Regents, whose primary responsibility is to oversee the state’s vast public education system, and needs board approval to impose its stiffest sanctions.

But in the case of Family and Matrimonial Court psychologists, OPD’s oversight is not so much flawed as it is absent entirely.

Since 1994, according to a review by ProPublica, only one evaluator who is today approved for court work in New York City has been disciplined by the state, and it is unclear whether that action had anything to do with work he may have done for the courts. Since Family and Matrimonial Court evaluators elsewhere in the state aren’t certified, it’s impossible to know if any have been disciplined.

At a 2012 public hearing, Nancy Erickson, one of the attorneys who represented Frank, called OPD’s approach to overseeing psychologists one of the court system’s most troubling aspects.

“This refusal of OPD means that psychologists who are incompetent or even corrupt can continue to make money by doing custody evaluations that could end up misleading the courts and harming children and their families,” she said.

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The tumultuous saga of the Frank family provides as good a window as any into court evaluators’ pivotal role in custody cases.

Anna Frank had filed for divorce in 2007 in Suffolk County Supreme Court, which handles matrimonial matters. She says her husband of 16 years, Michael Frank, was prone to screaming fits and physical aggression. Police records show she called local officers to complain of physical abuse several times as the marriage unraveled. Each parent had had the other arrested over domestic disputes. Their young son allegedly bore witness to their violent fights and later said he, too, suffered abuse at the hands of his father.

Michael Frank denies ever abusing either his wife or son, and insists the police reports were based on false allegations.

Anna Frank, though, did get a one-year order of protection against her husband and sought to dissolve the marriage. The Franks then came before Suffolk County Supreme Court Judge Andrew Crecca, with Anna seeking custody of her son, child support, and what she deemed her share of the family’s finances and Michael, the primary breadwinner, seeking to protect his assets and gain full custody of his son himself.

To sort through the competing accusations, the judge appointed Barbara Burkhard. Burkhard’s company, Child and Family Psychological Services, P.C., had provided therapeutic services to children since 1999 under a contract with Suffolk County’s Department of Social Services. (Burkhard did not respond to repeated emails and phone messages regarding this story.)

In the Frank case, Burkhard started out in 2008 functioning as what’s known as the Franks’ “parenting coordinator,” where she would oversee transfers of the child by his warring parents.

Then Judge Crecca took the somewhat unusual step of appointing Burkhard to complete a forensic psychological evaluation of the family. Normally these roles are kept separate in order to avoid preconceived notions on the part of the evaluator.

In January 2009, Burkhard was part of a chaotic dispute involving the Franks. Anna was supposed to drop her son off at Burkhard’s office so he could be picked up by Michael. But he refused to get out of her car. Burkhard tried to speak with the boy in the car. He was crying, yelling, telling her he did not want to go. He said his father had abused him, sexually and physically. When the boy’s father arrived, he, too, tried to talk to him in the car. In a terror, the boy got out of the car and darted across a busy street. With some coaxing from Burkhard’s staff, the boy came back and embraced his mother, insisting he go home with her. The police arrived and questioned everyone at the scene and the boy went home with his mother.

Based on what she saw, Burkhard recommended in a “preliminary report” that the boy be removed from his mother’s care immediately. She determined that what the boy needed most was more time with his father, outside of his mother’s sphere of influence. She recommended that Michael Frank receive temporary, sole custody while the divorce proceedings progressed. The judge followed her recommendation.

Anna Frank felt the actions were unfounded and unfair and that the court had essentially awarded sole custody to her husband based on a single episode. Burkhard never interviewed her, or her son, and now, in Anna Frank’s view, the psychologist was putting him in harm’s way.

And according to court records, the boy did suffer. His behavior and state of mind deteriorated after that. Usually a strong student, his grades began to decline. Rather than completing assignments, he’d scrawl all over them that he wanted to see his mother. He complained to teachers and social workers that his father had beaten him with a belt and locked him in a basement. His behavior grew increasingly erratic. He tried to run away. He broke windows. He urinated and defecated around the house. Social workers with Child Protective Services became a regular presence at the boy’s home, but their reports echoed Burkhard’s belief that Anna Frank was encouraging the boy to make false allegations of abuse.

Burkhard, in report after report, told the court the boy had become “enmeshed” with his mother, potentially succumbing to something akin to what’s known as “Parental Alienation Syndrome.” Burkhard’s reports suggested his mother may have convinced him to make up abuse allegations, in order to heighten her chances of winning custody.

Burkhard had the boy evaluated by more mental health professionals, and Judge Crecca decided the boy should be removed from both parents and live at a residential treatment center called Little Flower, in Wading River, about 30 minutes from where the Franks lived. He first came to the home in December 2009.

Over the next few years, Frank said she spent every penny she had battling her husband in court to get her son back. She lost her job as a school psychologist after Child Protective Services filed a neglect charge against her — deeming her responsible for her boy’s fear of his father. The school, she said, decided she couldn’t work with children with such a charge pending against her.

“They tried to strip me of everything I cared about,” Frank said, in a recent interview. “It was devastating.”

She said she supported herself by taking jobs in retail, making a meager $10 an hour after growing accustomed to an $80,000 annual salary.

She said Little Flower came to believe her son was telling the truth about his father all along and helped her regain custody.

In January 2010, Little Flower delivered a report to the court stating that the boy’s relationship with his father remained deeply strained and that his psychiatrist was concerned about the boy’s tales of abuse.