Paul E Part II: Quasi-Judicial Immunity for Court-Appointed Professionals

by Annette Burns on July 2, 2018

In a recent post, I discussed the Court of Appeals’ April decision in Paul E. v. Courtney F. and how it affects what a trial court can do in making decisions for children when the parents can’t.  A third aspect of that case involved the court’s ability to grant quasi-judicial immunity to a court-appointed therapist providing services for a family.    In Paul E., a therapist was appointed to treat the child and the court made statements about the therapist acting as a treating professional and not as an advisor to the court.  The court specifically stated “I don’t envision it as a forensic appointment.  . . .   I’m looking at this not that the expert . . . is really working so that they can provide information for [the court] to resolve disputes. .  .   I do not want an expert that’s reporting to [the court] and then [the court] is refereeing disputes.”  The trial court then issued an order appointing a therapeutic interventionist, which included status as a quasi-judicial appointment, and therefore immunity.

The Court of Appeals found that the appointment of this expert did not withstand judicial scrutiny under ARS 25-405B, as that statute clearly contemplated the appointment of an expert to guide the court.  Only those professionals appointed to serve and aid the court are permitted judicial immunity under 405B.   In contrast, a treating therapist performs a non-judicial function that does not justify immunity.  The treatment is not intimately related and essential to the performance of judicial functions (citing a Colorado case).   In this case, therefore, the trial court erred in conflating the roles of a therapist (who serves the needs of the patient) with a judicial advisor, who serves the court.

The statements made about the therapeutic interventionist in Paul E. were specific and made it clear that the court was not requesting that this particular therapist advise the court; in fact, the court stated that it did not want to be involved in refereeing any disputes of the parents.    The Paul E. decision likely has not affected quasi-judicial immunity which is routinely conferred on a therapeutic interventionist who routinely reports to the court, is usually required to submit specific reports on a schedule, and whose reports or recommendations often lead to the court setting a hearing on specific issues.

Similarly, the court’s appointment of a “gender therapist” (separate from the child’s therapist) also did not confer judicial immunity, as the gender therapist’s role was ongoing and not related to any issue remaining before the court.    When there is no issue pending before the court, an appointment under 25-405B does not apply.  A takeaway from this ruling is that any time an ongoing therapeutic interventionist or any type of mental health professional who is appointed in a role to advise the court, the court must also have ongoing jurisdiction over a pending issue, such as parenting time enforcement.   Most therapeutic interventionists appointed under 25-405B are handing ongoing parenting time issues (such as parental estrangement and enforcement of parenting time orders), so the TI’s reports and usefulness to the court are evident.

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