John v. Faitak

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          APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CV-16-106], HONORABLE JOHN C. THREET, JUDGE

         Cullen & Co., PLLC, Little Rock, by: Tim Cullen, for appellant.

         Dover Dixon Horne PLLC, by: Todd Wooten, Trey Cooper, and Monte D. Estes, Little Rock, for appellee.

          OPINION

         WAYMOND M. BROWN, Judge.

          Appellant appeals from the circuit court’s order granting summary judgment in favor of appellee. On appeal, appellant’s sole argument is that appellee is not entitled to immunity for acts that exceed the scope of his appointment. We affirm.

          Appellant and Megan Bolinder conceived I.J. out of wedlock and he was born on March 12, 2010. The parties ended their relationship a couple of months later in May 2010. Thereafter, their less-than-stellar co-parenting relationship led them to litigation over custody of I.J. Bolinder was awarded custody of I.J., subject to appellant’s visitation, in the circuit court’s February 9, 2012 order. In its October 9, 2013 temporary order, the circuit court ordered both appellant and Bolinder to undergo a psychological examination by appellee at their own expense. In its February 27, 2014 order, the circuit court ordered appellant and Bolinder to submit themselves to monthly mediation sessions with appellee "to work toward the goal of learning how to have reasonable and respectful communications and the establishment of trust between the parties." Appellee was also referred to as a "counselor" in the order and the sessions were referred to as "counseling."

         During a session on May 29, 2014, in response to appellant’s question of why

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Bolinder is the better custodial parent, appellee answered "[b]ecause you have a narcissistic personality disorder. I’m withdrawing the schizoid and going with narcissistic." This statement was made in Bolinder’s presence. Appellant notified appellee by email that appellant had filed a complaint against appellee with the Arkansas Psychology Board (APB) on June 27, 2014.^[1] Though there had been email correspondence between Bolinder and appellee regarding appellant’s interactions with I.J. prior to June 27, 2014, there began to be email correspondence between Bolinder’s attorney, Kristin Pawlik, and appellee thereafter. Pawlik and appellee’s email correspondence dealt with the effect of appellant’s complaint on the sessions and whether the sessions "[had] accomplished anything."

          According to one October 16, 2015 email from appellee to Pawlik, the APB "[had] warned [him] to have no further involvement" with the case, appellant, or Bolinder. Appellee further informed Pawlik that "[w]hile [the APB had] not substantiated any of [appellant’s] accusations against [appellee], they have determined that [appellee] was engaged in a ‘multiple relationship’ by acting as an evaluator and then a therapist. [He was] supposed to be one or another, not both." Appellee advised that further contact could result in suspension of his license, which he could not afford, so he would not be able to testify at the upcoming hearing.

          On January 6, 2016, a consent agreement with letters of reprimand from the APB was filed against appellee. It found that

[Appellee] did admittedly engage in violations of [American Psychological Association (APA) ] Ethical Standard 3.10(d) [ (Informed Consent) ] and 10.01(a)[ (Informed Consent to Therapy) ]. [Appellee] has not admitted violating APA Ethical standard 3.05(a) [ (Multiple Relationships) ]. The admitted actions constituted violations of the forgoing enumerated Statutory, Regulatory, and APA Ethical Standards. The Board agrees to treatment of the allegation of an APA Ethical Standard 3.05(a) as a non-admission by the [appellee] even though it believed there was also probable cause for a finding of a violation of that 3.05(a) Standard.

          Appellee was then sanctioned with a letter of reprimand for the admitted violations; a fine of $ 2,000.00; and six hours of face-to-face continuing education "pertaining to psychological ethics with particular incorporation of ...