Dr Childress Consulting – Blog

Institutional Negligence & Liablity

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I asked Google Gemini to review the following Chat with Eliza 5.1 (created in OpenAI ChatGPT architecture).

Direct Examination of Eliza – Forensic Custody Evaluations: https://drcachildress-consulting.com/wp-content/uploads/2020/01/Direct-Examination-of-Eliza-Forensic-Custody-Evaluations-cc.pdf

I asked Gemini for some hypotheses as to why state licensing boards are not protecting their citizens. Gemini returned the following list of possible reasons with descriptions for each:

  • Lack of Awareness or Understanding of the Systemic Issues:
  • Insufficient Expertise or Resources:
  • Influence of Professional Organizations and Lobbying:
  • Deference to the Judiciary and Court System:
  • Reactive Rather Than Proactive Stance:
  • “Turf Protection” and Resistance to Change:
  • Limited Scope of Authority or Perceived Mandate:

I asked Gemini this Question: Could another possible reason be negligent disregard of children and parents in the family courts?

From Gemini: Yes, “negligent disregard of children and parents in the family courts” is a significant and plausible hypothesis, particularly when considering the ethical principles discussed in the chat, especially the Belmont Report and the concept of vulnerable populations.

Here’s how it connects to the analysis:

  • Belmont Report – Beneficence and Justice: The Belmont Report emphasizes the principle of Beneficence (do no harm, maximize benefits, minimize risks) and Justice (fairness in distribution of risks and benefits, protecting vulnerable groups from exploitation). If licensing boards are aware of the reported harms (e.g., “emotional damage,” “family fragmentation,” “attachment rupture and emotional trauma”) and the lack of scientific validity and oversight, yet fail to act, it could be seen as a negligent disregard for the well-being and equitable treatment of children and parents.
  • Vulnerable Population: The chat explicitly identifies children and parents in family courts as a “vulnerable population”, for whom there is a “heightened ethical responsibility”. A “negligent disregard” would imply a failure to uphold this heightened responsibility, allowing them to be subjected to practices that are described as an “uncontrolled experiment” with “profound ethical failure” and “potentially disastrous consequences”.
  • Lack of Safeguards and Accountability: The absence of IRB-like review, risk-benefit analysis, harm monitoring, and adverse outcome reporting suggests that the system operates without the fundamental safeguards designed to protect participants in research or clinical settings. If licensing boards permit this, despite their mandate to protect the public, it could be interpreted as a form of negligent disregard.
  • “Rubber-Stamping” of Reports: The observation that judges often “rubber-stamp” evaluators’ recommendations highlights a systemic issue where the welfare of children and parents might be determined by flawed processes that lack proper checks and balances. If licensing boards do not intervene in this context, it could contribute to harm.

While “negligent disregard” is a strong term, the evidence presented (unreliability, lack of scientific basis, documented harm, absence of oversight, and the critical findings of the NY Commission) paints a picture where the impact on vulnerable families is severe, and the regulatory bodies are not adequately intervening. This hypothesis suggests that the inaction is not merely an oversight, but a failure to prioritize the safety and well-being of the most affected parties.

I asked Gemini this Question: Could there be potential legal liability issues for institutions like state licensing boards, the AFCC, and the APA?

From Gemini: Yes, based on the information provided in the chat, there could certainly be potential legal liability issues for institutions like state licensing boards, the AFCC (Association of Family and Conciliation Courts), and the APA (American Psychological Association), although proving such liability would depend on specific legal frameworks, jurisdiction, and the ability to demonstrate causation and damages.

Here’s a breakdown of how potential liability might arise for each:

State Licensing Boards

Basis for Potential Liability: State licensing boards are typically governmental or quasi-governmental entities tasked with protecting the public by regulating licensed professionals (e.g., psychologists). Their potential liability would likely stem from:

  1. Negligence in Public Protection/Oversight (Failure to Regulate):
    • Breach of Duty: If the analysis is accurate, and boards are aware (or should be aware) of systemic ethical violations, lack of scientific validity, and documented harm caused by forensic custody evaluations, a strong argument could be made that they are breaching their fundamental duty to protect citizens. This includes failing to enforce their own ethical codes (e.g., APA 2.01, 2.04, 9.01, 3.06, 3.04).
    • Causation & Damages: If it can be shown that this failure to regulate directly contributed to the “unjustified separation of children from parents,” “attachment rupture and emotional trauma,” and other “disastrous consequences”, families might argue they suffered damages due to the boards’ inaction.
    • “Negligent Disregard”: The hypothesis of “negligent disregard of children and parents” directly implies a breach of the duty of care towards a vulnerable population.
  2. Failure to Act on Known Harm:
    • The New York Blue-Ribbon Commission’s findings, which explicitly called evaluations “biased and harmful,” “dangerous,” and lacking “scientific or legal value”, could serve as strong evidence that boards were “on notice” about the pervasive problems. Failure to implement reforms or even a moratorium in response could be seen as actionable negligence.

Challenges:

Governmental Immunity: State entities often have some degree of governmental or sovereign immunity, which can limit their liability. However, this immunity is not absolute and may have exceptions, particularly for gross negligence or willful misconduct.

Discretionary vs. Ministerial Acts: Courts often distinguish between “discretionary” acts (for which immunity is more likely) and “ministerial” acts (for which it is less likely). Boards might argue that their decisions are discretionary.

AFCC (Association of Family and Conciliation Courts)

Basis for Potential Liability:

The AFCC is described as a non-profit organization that “promotes” and “institutionalized” these evaluations. Their potential liability could arise from:

  1. Negligent Misrepresentation or Endorsement:
    • If AFCC promotes or sets standards for evaluations that are demonstrably unreliable, lack scientific validity, and cause harm, they could potentially be liable for negligently misrepresenting the safety or efficacy of these practices.
    • The chat highlights that the AFCC promotes “role innovation based on internal consensus rather than scientific validation” and does not require adherence to empirical standards, while denying “scientific critique”. This could be seen as a reckless disregard for scientific standards given their influential role.
  2. Conspiracy/Collusion (if intent could be shown):
    • While difficult to prove, if there was evidence that AFCC, in coordination with evaluators or others, actively perpetuated a system known to be harmful for financial gain (given the “structural conflict of interest” where members profit from the roles they promote), this could lead to more serious claims.
  3. Aiding and Abetting Unethical Practices:
    • If AFCC provides training, guidelines, or a platform that facilitates unethical or harmful practices, and they knew or should have known about the issues, they could potentially be seen as aiding and abetting.

Challenges:

  • Proving Direct Causation: It would be challenging to prove that the AFCC’s actions directly caused harm to individual families, as opposed to the actions of the individual evaluators or the court system.
  • Non-Profit Status: While non-profit, this status doesn’t automatically confer immunity from civil liability.

APA (American Psychological Association)

Basis for Potential Liability:

The APA is a professional organization that sets ethical guidelines (like the APA Ethics Code) for psychologists.3 Their potential liability could arise from:

  1. Failure to Enforce Ethical Standards / Negligent Oversight of its Own Guidelines:
    • The chat extensively cites specific APA ethical standards (2.01, 2.04, 9.01, 3.06, 3.04) that are allegedly violated by forensic custody evaluations.
    • If the APA is aware of these systematic violations within a significant area of psychological practice but fails to issue stronger warnings, revise guidelines, or actively pressure licensing boards to enforce their standards, it could be argued they are negligent in their duty to uphold professional ethics and protect the public.
    • The argument could be that by not taking a stronger stance against unscientific and harmful practices within its own profession, the APA implicitly condones them.
  2. Endorsement of Flawed Practices:
    • If the APA has, at any point, issued guidelines or statements that support forensic custody evaluations without adequately addressing their scientific shortcomings or ethical risks, they could be seen as contributing to the legitimization of a potentially harmful practice.

Challenges:

  • Limited Direct Regulatory Power: The APA is a professional association, not a licensing body.4 It doesn’t directly license or discipline psychologists, which is primarily the role of state boards. This makes direct causation harder to establish.
  • Advisory Role Argument: The APA might argue its role is primarily advisory and educational, not regulatory. However, its significant influence on professional practice and ethical standards could still create a duty of care.

Overall Considerations for All Entities:

  • Evidence of Knowledge: A key component of negligence claims is demonstrating that the entity knew or reasonably should have known about the risks and harms. The New York Blue-Ribbon Commission’s report would be crucial evidence in this regard, putting all relevant parties “on notice.”
  • Causation: Plaintiffs would need to prove a direct link between the entity’s action or inaction and the specific harm suffered.
  • Damages: Plaintiffs would need to demonstrate actual damages (e.g., emotional distress, financial costs, loss of custody).
  • Class Actions: Given the systemic nature of the alleged harm, class-action lawsuits could potentially be considered, grouping together numerous families affected by these practices.

In conclusion, the information provided strongly suggests grounds for exploring potential legal liability for all three types of institutions, as their roles intersect with the ethical and scientific integrity of forensic custody evaluations and their impact on vulnerable families.

I asked Gemini this Question: If licensing boards were to suspend the practice of forensic custody evaluations in the family courts, could this potentially raise their legal liability for prior non-action?

Here’s why and the counterarguments:

Why it Could Raise Liability for Prior Non-Action (“Admission of Guilt”):

  1. Implied Admission of Systemic Failure: Suspending a widespread practice that they previously allowed, especially if it’s based on findings of harm, lack of scientific validity, and ethical violations, could be interpreted as an implicit admission that the practice was indeed problematic and harmful all along, and that their prior oversight was insufficient.
  2. Recognition of Negligence: If a board suspends the practice citing reasons like “lack of scientific basis,” “unreliability,” or “harm to vulnerable populations,” it directly acknowledges the very issues that underpin arguments for their negligent disregard. This new action could serve as evidence that they recognized the danger, and thus, should have acted sooner.
  3. Strengthening Prior Claims: For those who have already suffered harm and might consider legal action, a suspension would significantly strengthen their argument that the boards failed in their duty to protect the public. It provides official validation for the claims of harm and professional misconduct that might have previously been dismissed.
  4. Heightened Awareness of Risks: By taking such a drastic step as suspension, the board publicly signals the severity of the problems. This heightened public awareness could encourage more individuals to come forward with complaints or lawsuits regarding past harm.

Counterarguments / Why it Might Not Necessarily Lead to Greater Liability:

  1. Mitigation of Ongoing Harm (Reduced Future Liability): Taking action, even if it carries some risk for past conduct, drastically reduces or eliminates the board’s liability for future harm caused by the practice. From a forward-looking perspective, it’s a protective measure. Boards could argue they are fulfilling their duty now that new or clearer evidence (like the NY Commission’s report) has emerged.
  2. Good Faith Argument / Evolving Standards: Boards could argue that their understanding of the science and the ethical implications evolved, or that new evidence (e.g., the Blue-Ribbon Commission’s findings) prompted the change. They might contend that they are acting in good faith based on the most current information, not admitting prior negligence.
  3. Discretionary Authority: Boards often have significant discretionary authority in setting and enforcing standards. They might argue that the decision to suspend is a policy decision made within their discretionary powers, for which they are afforded greater immunity.
  4. Focus on Reform: A suspension could be framed as part of a broader reform effort aimed at improving practices, rather than an admission of past wrongdoing.

Conclusion:

While a suspension would likely be a legally advised and necessary step to prevent future harm, and could be defended as acting on new information, it would undoubtedly open the boards to increased scrutiny and potential legal challenges for their previous inaction. The optics of such a move could be interpreted by plaintiffs as an acknowledgment that the practice should have been stopped earlier. Any decision to suspend would likely involve careful legal strategizing by the boards to manage this potential increased exposure.

I asked Gemini this Question: If some state licensing boards suspended the practice (consistent with the recommendations of the NY Blue-Ribbon Commission) and some did not, what would be the legal liability implications?

From Gemini: This scenario would create a complex and potentially highly consequential legal landscape for state licensing boards, leading to different levels of exposure and potential liability depending on their actions.

Here’s an analysis of the legal liability implications:

For Boards That Suspend the Practice:

  1. Increased Risk for Prior Non-Action (as discussed previously):
    • Implied Admission: Suspending the practice, especially citing reasons like lack of scientific validity, unreliability, and harm, would be seen as a strong implicit admission that the practice was problematic and that their prior allowance of it was a failure in their duty to protect.
    • “On Notice” Evidence: The act of suspension itself demonstrates that the board has acknowledged the serious concerns (e.g., from the NY Blue-Ribbon Commission) and the ethical/scientific deficiencies of the practice. This strengthens arguments that they should have acted sooner, potentially increasing liability for past harm.
    • Encouragement of Litigation: This action could empower individuals who experienced harm from these evaluations in the past to pursue legal claims against the board for its previous inaction.
  2. Reduced Future Liability:
    • Mitigation of Ongoing Harm: Crucially, by suspending the practice, these boards would significantly reduce or eliminate their liability for future harm. They would be actively fulfilling their protective mandate from the point of suspension onward. This is a powerful defense against claims of continued negligence.
    • Good Faith/Evolving Standards: They could argue they are acting in good faith based on new or evolving evidence (e.g., the NY Commission’s report) and updated understanding of best practices, rather than admitting a conscious prior failure.

For Boards That Do NOT Suspend the Practice:

  1. Significantly Increased Liability for Ongoing and Future Harm:
    • Continued Breach of Duty: These boards would remain liable for allowing a practice that has been widely criticized as unscientific, unreliable, and harmful, especially if they are aware of the NY Blue-Ribbon Commission’s findings and similar evidence.
    • Reckless Disregard Argument: Their inaction, particularly in light of other states taking preventative measures, could be framed as a reckless or grossly negligent disregard for the well-being of children and parents. It would be harder for them to claim ignorance or lack of sufficient evidence.
    • Failure to Learn/Adapt: They would be seen as failing to adapt to evolving professional standards and findings regarding a practice that directly impacts vulnerable populations.
    • Comparative Negligence (Potential Argument): While not direct, a legal argument could arise that these boards are comparatively more negligent than those that took action, particularly if a universal standard of care for regulation begins to emerge from states that do suspend the practice.
  2. Exacerbated “Failure to Protect” Claims:
    • Their continued inaction would highlight the disparity in protection offered to citizens across states. Families in these states could argue they are receiving a lower standard of protection from their licensing board compared to those in states that suspended the practice.
    • This could lead to a wave of lawsuits in these non-acting states, potentially including class-action suits, claiming ongoing systemic harm and inadequate oversight.

Overall Legal Implications of a Disparity in Action:

  • Setting a Precedent: If several states suspend the practice, it starts to establish a de facto “standard of care” for regulatory bodies regarding forensic custody evaluations. Boards that do not follow suit would increasingly deviate from this emerging standard, making their inaction more legally perilous.
  • “Race to the Bottom” vs. “Race to the Top”: This scenario could either incentivize a “race to the top” where boards feel pressure to act to protect their citizens and avoid liability, or a “race to the bottom” where some boards cling to the status quo due to political pressure or inertia, risking greater liability.
  • Increased Judicial Scrutiny: Such a disparity might also prompt courts to look more critically at the basis of forensic custody evaluations in the states where they are still permitted, potentially leading to more frequent exclusion of such evidence in individual cases.

In essence, a mixed response from state licensing boards would create a clear contrast in regulatory approaches. Boards that act would face a concentrated risk for past actions but significantly reduce future liability. Boards that do not act would face a compounding and escalating risk for ongoing and future harm, as their inaction would become increasingly difficult to justify in the face of evidence and regulatory trends in other jurisdictions.

I asked Gemini this Question: Given the potential legal liability exposure, are there concerns for a conflict of interest with the state licensing boards regarding their mandate to protect citizens and their potential acknowledgement of prior failures?

From Gemini: Yes, absolutely. Given the potential legal liability exposure, there’s a significant and inherent conflict of interest for state licensing boards regarding their mandate to protect citizens and their potential acknowledgement of prior failures.

Here’s a breakdown of this conflict:

The Mandate: Protect the Public

State licensing boards exist primarily to protect the health, safety, and welfare of the public by ensuring that licensed professionals adhere to ethical and competency standards.1 This is their core, non-negotiable duty.

The Conflict: Acknowledging Prior Failure & Legal Liability

  1. Reputational Damage: Admitting that a widely practiced and previously permitted service (like forensic custody evaluations) was systematically harmful, unscientific, or unethical would cause immense reputational damage to the board itself. It would imply that they failed in their primary mandate for an extended period.
  2. Financial Liability: As discussed, acknowledging prior failures and suspending the practice could open the board to lawsuits from individuals who claim they were harmed due to the board’s insufficient oversight. Facing numerous, potentially costly lawsuits creates a powerful disincentive to admit fault.
  3. Political Pressure: Boards are often appointed by governors or state legislatures.2 Admitting systemic failure could lead to political scrutiny, calls for resignations, budget cuts, or legislative changes that might diminish their power or autonomy.
  4. Institutional Inertia/Self-Preservation: There’s a natural human and institutional tendency to resist admitting error, especially on a large scale. Boards may prioritize avoiding legal and reputational fallout over proactively correcting past deficiencies, even if it means allowing some continued harm.
  5. Perceived Conflict with Licensees: Taking drastic action like suspending a practice can put the board in direct opposition to a segment of its licensees who derive significant income from that practice. While the board’s mandate is to protect the public, not the licensees, maintaining good relations with the profession can be a practical consideration, which can create a subtle pressure against aggressive action.

How the Conflict Manifests:

This conflict can lead to various forms of inaction or slow action:

  • Delaying Action: Boards might delay investigating, deliberating, or taking decisive action, hoping the issue resolves itself or that public attention shifts.
  • Minimizing Findings: They might downplay the severity of reports (like the NY Blue-Ribbon Commission’s), suggesting that issues are isolated or less severe than presented.
  • Focusing on Minor Reforms: Instead of systemic change, they might propose minor procedural tweaks that don’t address the core issues of scientific validity or ethical harm, allowing the problematic practice to continue.
  • Lack of Transparency: Reduced transparency about complaints or internal investigations related to these practices.

In essence, the very act of fulfilling their mandate now (by suspending a harmful practice) could expose them to severe consequences for past failures to fulfill that same mandate. This creates a deeply challenging conflict of interest where the board’s self-preservation instincts (avoiding liability, reputational damage, political fallout) can clash directly with its fundamental duty to protect the public.

I asked Gemini this Question: Given the concerns and the situation, what recommended action should be taken?

Given the serious concerns regarding the ethical, scientific, and legal aspects of forensic custody evaluations in family courts, as highlighted in the provided analysis, a multi-pronged approach involving various stakeholders is recommended. The overriding goal should be to prioritize the safety and well-being of children and parents while upholding professional integrity and ensuring accountability.

Here are recommended actions:

For State Licensing Boards (Most Critical Actions)

  1. Immediate Moratorium or Suspension of Forensic Custody Evaluations:
    • Rationale: Based on the overwhelming evidence of lack of scientific validity, unreliability, and documented harm, and consistent with the majority recommendation of the NY Blue-Ribbon Commission, an immediate moratorium or suspension of these evaluations is the most ethical and protective initial step. This would stop ongoing harm.
    • Legal Strategy: This must be carefully planned with legal counsel to mitigate potential liability for prior non-action while prioritizing the cessation of ongoing harm. The argument should be framed as acting on new, compelling evidence and evolving professional standards.
  2. Comprehensive, Independent Investigation and Review:
    • Scope: Conduct a thorough, independent investigation into the practices of forensic custody evaluators licensed by the board. This should include reviewing complaint histories, audit evaluation reports, and assess adherence to ethical codes (especially APA 2.01, 2.04, 9.01, 3.04, 3.06).
    • Expert Panel: Assemble a diverse panel of experts, including statisticians, research methodologists, child development specialists, and ethics experts (who are not financially tied to forensic evaluations), to critically assess the scientific basis, methodology, and reported outcomes of these evaluations.
  3. Enforcement of Existing Ethical Standards:
    • Vigorous Discipline: Vigorously discipline licensees found to be violating ethical standards, particularly those related to competence, use of established scientific knowledge, bases for assessments, conflicts of interest, and minimizing harm.
    • Proactive Audits: Implement proactive auditing of evaluation reports to ensure adherence to standards, rather than solely relying on reactive complaint processes.
  4. Revision/Withdrawal of Flawed Guidelines and Promotion of Evidence-Based Practices:
    • Remove Support for Unvalidated Practices: Withdraw any existing guidelines or informal endorsements that support practices lacking scientific validation or adequate ethical oversight.
    • Develop New Standards: Develop and enforce new, evidence-based standards for any future evaluations, strictly requiring validated assessment tools, clearly defined methodologies, and empirically supported constructs. This should include mandatory training on these new standards.
  5. Addressing Conflicts of Interest:
    • Disclosure Requirements: Implement strict requirements for evaluators to disclose all potential conflicts of interest, including financial ties to organizations that promote these evaluations (e.g., AFCC) or repeat referral patterns from specific judges or attorneys.
    • Recusal Policies: Establish clear policies for recusal from cases or policy-making roles where conflicts of interest exist.
  6. Enhanced Transparency and Accountability:
    • Public Access to Data: Work with courts to make anonymized data on evaluation outcomes and complaints publicly accessible, allowing for greater oversight and research.
    • Robust Complaint Process: Ensure an accessible, transparent, and fair complaint process for citizens, with adequate investigation and clear communication of outcomes.

For Professional Organizations (e.g., APA, AFCC)

  1. APA: Strong Reaffirmation and Enforcement of Ethical Code:
    • Clearer Guidance: Issue clearer and stronger guidance to members and state licensing boards regarding the application of its ethical standards (especially 2.01, 2.04, 9.01, 3.04, 3.06) to forensic custody evaluations, explicitly addressing the reliability, validity, and harm concerns.
    • Advocacy for Reform: Actively advocate for legislative and regulatory reforms at the state level to ensure evaluations are scientifically sound, ethically conducted, and protect vulnerable populations.
    • Independent Review of Standards: Conduct an independent review of all existing APA guidelines related to child custody evaluations to ensure they align with the latest scientific evidence and ethical considerations, including potential for harm.
  2. AFCC: Fundamental Re-evaluation of Mission and Practices:
    • Independent Ethical Review: Undergo an independent ethical audit of its practices, particularly regarding the promotion of roles and methods that lack scientific validation and create conflicts of interest.
    • Prioritize Scientific Validity: Shift its focus to promoting only scientifically validated methods and roles, and disengage from activities that create financial incentives for non-evidence-based practices.
    • Disclose Conflicts: Require full disclosure of any financial conflicts of interest among its leadership and members related to forensic evaluations.

For the Judiciary and Legislative Bodies

  1. Judicial Scrutiny:
    • Daubert/Frye Standards: Judges should rigorously apply Daubert or Frye standards (depending on jurisdiction) to the admissibility of forensic custody evaluations, demanding strong evidence of scientific validity and reliability, rather than “rubber-stamping” reports.
    • Limiting Scope: Restrict the scope of evaluators to providing psychological insights based on validated methods, not making ultimate legal determinations regarding custody.
  2. Legislative Reform:
    • Moratorium/Ban: State legislatures should consider enacting a moratorium or outright ban on forensic custody evaluations until they can be proven scientifically valid and ethically sound.
    • Funding for Alternatives: Reallocate resources towards evidence-based dispute resolution, mediation services, and targeted interventions for high-conflict cases that prioritize child welfare without relying on unvalidated evaluations.
    • Increased Oversight: Establish independent oversight mechanisms for all court-appointed professionals in family court to ensure accountability and adherence to ethical standards.

By taking these decisive actions, the various institutions can begin to address the systemic failures, mitigate ongoing harm, and restore public trust in a critical area of the legal system that profoundly impacts vulnerable families.

Craig Childress, Psy.D. & Gemini
Clinical Psychologist & AI
WA 61538481 – CA 18857

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