Since 1997, Candice Schwager has been serving Texas with the single purpose of making a difference. Candice is currently offering a complimentary 30 minute consultation to those in need of legal representation. Call (832) 315 - 8489 or e-mail firstname.lastname@example.org
I hate to say it, but there is no way in God’s green earth I would turn the decision of my child’s wellbeing over to a psychologist whose values do not remotely resemble mine, much less do I know if they have a clue. You could get a great conservator doctor or a liberal Einstein alien who believes nothing that you do and so, will you simply roll the dice on your child and your future? Utter stupidity. Work it out. What in the world does a scientist know about real life as opposed to theory? This isn’t a science experiment.
Child custody evaluations are the most frightening, harrowing things I have witnessed in family courts and they are also prohibitively expensive so I would avoid them like the plague. With the undergraduate work I have done in this area combined with family counseling exposure, I simply do not believe even the best family counselors can meet with a child a few times and the parents for what amounts to mere hours and make decisions that alter their lives forever. I have seen this work tragically in cases where a parent is an undiagnosed psychopath or person with a manipulative personality disorder. Salespeople are excellent at putting on a mask and becoming someone their are not.
Many times in a custody proceeding, the case will hinge on statements the children have made to the mental health professional. That is a landmine waiting to happen because depending on the day your child is having or events that just blew up between you and your child, your life could be ruined or drastically differ. Let’s say your client comes into your office and has a lengthy story about everything the kids say upon return from Dad’s home.
The children allege the step mother is mean, Dad leaves them alone with her, she has a pad lock on the refrigerator, she forces them outside while her own children remain indoors drinking tea from gold plated cups and eating crumpets. You get the idea, and if you have not heard this story in your practice yet, you will. The bottom line is the children are being affected and there may or may not be enough evidence to prove the children would be better in the other parent’s home. Your client knows her children. She knows they are miserable.
You ask the question, “what counselor are they seeing?” And she says “no one.” You see your case go down the tubes. The statements of the children are likely not to come in under these circumstances. (although you should research exceptions to hearsay because you may be able to argue state of mind, or that the statements are not being used to prove truth of the matter asserted, just the unhappiness of the child. But good luck with that once the Judge hears “Little Suzy told me…” ). So, many times, the lawyer will direct the client to a mental health professional.
So, why can a mental health professional testify to what Little Suzy said and your client cannot? Statements made to an LPC, if foundation is properly laid, can be admissible. Texas Rules of evidence bars the introduction of a statement made to prove of the truth of the matter asserted. Texas Rules of Evidence 801 and 802. (For instance, a child says the sky was blue that day. If the issue at hand was the color of the sky, that is hearsay. However, if the purpose of the use of the statement is to show the child was outside that day, the statement may not be hearsay. At least that is what I would argue.) the nightmare is that eyewitness testimony is inherently unreliable so we are now going to try this twice removed? I have also seen lazy court appointees who don’t care about the families but the money. Their reports are half baked and disastrous outcomes result.
So if a case is heavily reliant on the testimony of the LPC, the first step is to overcome the hearsay. Pursuant to Texas Rules of Evidence 803(4), allows for testimony of a statement “Made for Medical Diagnosis or Treatment. The statement must be made for–and is reasonably pertinent to–medical diagnosis or treatment; and describes medical history; past or present symptoms or sensations; their inception; or their general cause.” Technically each and every statement is subject to this scrutiny and unless the statement was used to make the diagnosis and prescribe treatment, it is not admissible. For example, if a child says in passing, my dad is mean, the prudent practioner will establish that the LPC used the statement to make diagnosis and prescribe treatment.
Further, a professional is the only person who can offer an opinion, make the diagnosis, or prescribe a treatment for the child. So, now you have the counselor secured, or any other mental health professional. How do you qualify the witness as an expert? I would ordinarily think a better practice would be using medical professionals who know the child. but that isn’t done.
To be admissible, the proponent must demonstrate: (1) that the expert is qualified; and (2) that the expert’s testimony is relevant and reliable. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001); Robinson, 923 S.W.2d at 556; see also Kraft, 77 S.W.3d at 807. Tex. R. Evid. 702. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
The Supreme Court of Texas adopted the United States Daubert construction of the Federal Rules of evidence and the Texas Court of Criminal Appeals decision in Kelly in Gammil v. Jack Williams Chevrolet, Inc. Gammil v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720. The Court stated that “[i]n order to constitute scientific knowledge which will assist the trier of fact, the proposed testimony must be relevant and reliable.” Id.
“The requirement that the proposed testimony be relevant incorporates traditional relevancy analysis under Rules 401 and 402 of the Texas Rules of Civil Evidence. Id. To be relevant, the proposed testimony must be “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” Id. Evidence that has no relationship to any of the issues in the case is irrelevant and does not satisfy Rule 702′s requirement that the testimony be of assistance to the jury. Id. It is thus inadmissible under Rule 702 as well as under Rules 401 and 402.” Id.
In addition to being relevant, the underlying scientific technique or principle must be reliable. Scientific evidence which is not grounded “in the methods and procedures of science” is no more than “subjective belief or unsupported speculation.” Id. Unreliable evidence is of no assistance to the trier of fact and is therefore inadmissible under Rule 702.” Id.
“There are many factors that a trial court may consider in making the threshold determination of admissibility under Rule 702. These factors include, but are not limited to:
- the extent to which the theory has been or can be tested;
- the extent to which the technique relies upon the subjective interpretation of the expert;
- whether the theory has been subjected to peer review and/or publication;
- the technique’s potential rate of error;
- whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and
- the non-judicial uses which have been made of the theory or technique.” Id.
Trial courts may consider other factors which are helpful to determining the reliability of the scientific evidence. The factors a trial court will find helpful in determining whether the underlying theories and techniques of the proffered evidence are scientifically reliable will differ with each particular case. Id. However, a distinction has developed in civil cases. Nenno v. State, 970 S.W.2d 549, 561 (Court of Crim. App. 1998). There was a portion of Nenno that was overruled and when you pull the case up in Westlaw, it has a red flag. However, Courts have continued to use the factors the Court held in that case for the purposes of testing the reliability of a soft-science expert witness.
“[i]n 2010, this Court, with a different composition, issued a unanimous opinion in which the Nenno factors were applied in testing the reliability of a soft-science expert witness in a termination case. See In re S.R., No. 10–10–00063–CV, 2010 WL 4983484, at *2, 2010 Tex. App. LEXIS 9681 at **4– 6 (Tex. App.—Waco Dec. 8, 2010, pet. denied) (mem. op.). However, the S.R. opinion did not reference this Court’s prior J.B. opinion. See generally id. Nevertheless, a fair reading of this Court’s more recent pronouncement in S.R. yields a finding that we apply the Nenno factors to evaluate soft-science testimony in civil cases. See id. 2010 WL 4983484, at *2, 2010 Tex. App. LEXIS 9681 at **4–6. As such, it would appear that S.R. effectively overruled J.B. with respect to the analysis used to evaluate soft-science testimony in civil cases.”
While the Texas Supreme Court has not adopted the Nenno factors like they did Gammil, several Courts apply the Nenno factors in family law cases. In the Interest of J.R. 2016 WL 6128159 (Tex. App. –Waco 2016). There were three criteria set forth in Nenno to assist the courts in determining soft science testimony. Those factors were (1) whether the area of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies upon or utilizes the principles involved in that field. Nenno v. State 970 S.W.2d 549, 561 (Court of Crim. App. 1998). The Court also noted that where the Daubert Robinson factors do not seem applicable, the analytical gap test should be applied in addition to the Nenno factors. That test is essentially evaluates the gap between the experts ultimate conclusion and the data and methodology utilized.”
My best advice is stay away from these evaluations. You are likely to regret it and it’s a 50/50 toss up unless you don’t interview well.