111 So. 3d 420

In re Dawn G. CHADWICK v. LOUISIANA LICENSED PROFESSIONAL COUNSELORS BOARD OF EXAMINERS.

No. 2012 CA 0562.

Court of Appeal of Louisiana, First Circuit.

Dec. 21, 2012.

*421Steven E. Adams, Baton Rouge, LA, for Defendant/Appellant Louisiana Licensed Professional Counselors Board of Examiners.

Pamela J. Lormand, Todd J. Bialous, New Orleans, LA, for Plaintiff/Appellee Dawn G. Chadwick.

Before CARTER, C.J., GUIDRY, and GAIDRY, JJ.

GAIDRY, J.

Un this suit for judicial review of a licensing board decision, the board appeals a judgment modifying its order revoking a license. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

Dawn Chadwick, a licensed professional counselor, was appointed by the district court in September of 2006 to perform a custody evaluation in a suit for custody of a minor child where there were allegations of sexual abuse of the minor child by the child’s mother and her boyfriend (now husband). Ms. Chadwick met with the parties on many occasions in 2006 and 2007. Because the mother and her husband were displeased with their sessions with Ms. Chadwick, they purchased a digital recording device and began recording the sessions. A custody evaluation was also performed by another counselor at their request.

On July 23, 2007, the mother and her husband filed a complaint with the Louisiana Professional Counselors Board of Examiners (“the Board”), alleging professional misconduct and violations of the Louisiana Licensed Professional Counselors Code of Ethics by Ms. Chadwick. Specifically, they alleged that she conducted a custody evaluation despite the fact that she already had a counseling relationship with the child and one of the parents, in violation of LAC JeiLX^lOSCAXl),1 (F)(1),2 and (H);3 disclosed | .^confidential *422information, in violation of LAC 46:LX.2103(A)(1) and (C)(1)4 and 2105(A)(1),5 (5),6 (6),7 (7),8 (B)(2),9 and (D)(2)10 and (5);11 engaged in unprofessional behavior when interviewing the child and his mother and her husband for the custody evaluation, in violation of LAC 46:LX.2103(A)(1), J4_(C)(3),12 and (E)(1)13 and (2);14 and made false statements regarding court documents, in violation of LAC 46:LX.2105(D)(1)15 and *4232107(E)(3)16 and (F)(3).17

The Board conducted a hearing on the complaint on July 16, 2010. In addition to reviewing the audiotapes of the sessions recorded by the mother, the Board heard testimony from the mother and her husband; the father; the investigator who looked into the complaints against Ms. Chadwick; Dr. Rafael Salcedo, a forensic psychologist; Alicia Pellegrin, the counsel- or who evaluated the parties after Ms. Chadwick; and from Ms. Chadwick.

After the hearing, the Board made the following findings: Ms. Chadwick had no significant specific training as a custody evaluator or a family therapist; although Ms. Chadwick was hired to perform a custody evaluation, her sessions “clearly went beyond pure ‘evaluation’ and took on the status of a counseling relationship;” Ms. Chadwick’s actions of having the mother and child in the counseling room at the same time was “clearly improper;” Ms. Chadwick’s serving in the dual roles of custody evaluator and sex abuse evaluator was improper; Ms. Chadwick’s interview methods were improper; and although no disciplinary charges were brought on this infraction, it appeared that Ms. Chadwick improperly billed the parties’ insurance for “counseling” while performing a custody evaluation.

The Board concluded that Ms. Chadwick violated the rules applicable to counselors against dual relationships and conflicts of interest because she clearly had a therapeutic as well as evaluator relationship with the parents and child. The Board observed that Ms. Chadwick “has a total lack of awareness of the ethical issues, and does not appear to recognize the difference between her roles as an investigator, evaluator, and therapist.” The Board also found that Ms. Chadwick violated the rules against unprofessional behavior by interviewing the mother with the child in the room and by suggesting that the mother did not love the child in front of the child. The Board found there to be no mitigating factors to consider, based upon its observation that Ms. Chadwick’s testimony and demeanor at the hearing reflected a total lack of awareness of the complex ethical issues entailed and a complete lack of remorse for her actions and the harm which resulted.

For those reasons, the Board unanimously found that Ms. Chadwick violated the rules applicable to counselors by clear and convincing evidence and ordered her license revoked. The Board further ordered that Ms. Chadwick could reapply for licensure after two years. Ms. Chadwick filed a petition for judicial review of the Board’s decision in the 19th Judicial District Court, in accordance with La. R.S. 37:1105(E).

After a review of the proceeding before the Board, the district court found that while Ms. Chadwick may have violated the rules prohibiting | (¡counselors from provid*424ing counseling to a family while also preparing an evaluation, the court found that “it was not done in bad faith or with any intent to break rules.” The court rendered judgment modifying the Board’s decision revoking Ms. Chadwick’s license to instead provide for a three-month suspension of her license, retroactive to the date of the revocation by the Board.

The Board appealed the district court’s judgment, asserting that the court applied an incorrect standard of review and thus erred in setting aside the Board’s sanction and substituting its own judgment for that of the Board.

DISCUSSION

The Board is a statutorily-created entity within the Louisiana Department of Health and Hospitals. La. R.S. 37:1104. The Board was created for the purpose of regulating the activities of persons who render mental health counseling services to the public. La. R.S. 37:1102. It has the authority to license mental health counselors and may also take disciplinary action against licensed counselors, including revoking or suspending any license issued by it. La. R.S. 37:1105(E). Pursuant to the mandate of La. R.S. 37:1105(D), the Board adopted the Code of Ethics of the American Counseling Association. It has also adopted rules and regulations which set out the procedures to be followed by the Board when disciplinary hearings are held. The Louisiana Mental Health Counselor Licensing Act provides that the Board shall withhold, deny, revoke, or suspend any license issued or otherwise discipline a licensee upon proof that the licensee has violated the code of ethics adopted by the Board. La. R.S. 37:1110(A)(3).

Any person aggrieved by a ruling of the Board may appeal to the district court for the parish of East Baton Rouge. La. R.S. 37:1105(E). The district court conducts its judicial review pursuant to La. R.S. 49:950, et hseq., the Administrative Procedure Act (“APA”). That review is confined to the record, but upon request, the court shall hear oral argument and receive written briefs: La. R.S. 49:964(F). The agency decision can only be reversed or modified by the reviewing court if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

La. R.S. 49:964(G)

An “arbitrary” decision shows disregard of evidence or the proper weight thereof, while a “capricious” decision has no substantial evidence to support it or the conclusion is contrary to substantiated competent evidence. Cedyco Corp. v. Dept. of Natural Resources, 07-2500, p. 6 (La.App. 1 Cir. 7/23/08), 993 So.2d 271, *425275. Where the law allows for the agency or tribunal to exercise discretion, the statute’s plain language concludes that such exercise must be neither abusive nor clearly unwarranted. Id.

In modifying the Board’s decision on judicial review, the district court did not make a finding, as required by La. R.S. 49:964, that the Board’s conclusions were arbitrary or capricious or an abuse of discretion. Rather, the court found that while Ms. Chadwick appeared to have violated the rules, |sshe did not seem to have done so intentionally or in bad faith. However, La. R.S. 37:1110(A)(3) provides that the Board shall withhold, deny, revoke, or suspend a license upon proof that the licensee has violated the code; no mention is made of good or bad faith. We find ample evidentiary support in the record for the Board’s findings and conclusions, and the Board’s exercise of discretion in revoking Ms. Chadwick’s license was well within their statutory authority, as provided by La. R.S. 37:1110(A)(3). Thus, the district court erred in modifying the Board’s decision on judicial review.

CONCLUSION

The judgment of the district court modifying the Board’s decision revoking Ms. Chadwick’s license, to instead provide for a three-month suspension, is reversed. Costs of this appeal are assessed to Ms. Chadwick.

REVERSED.

Chadwick v. Louisiana Licensed Professional Counselors Board of Examiners
111 So. 3d 420

Case Details

Name
Chadwick v. Louisiana Licensed Professional Counselors Board of Examiners
Decision Date
Dec 21, 2012
Citations

111 So. 3d 420

Jurisdiction
Louisiana

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