November 22, 2017
IN THE COURT OF APPEALS OF THE STATE OF OREGON Debra (Kali) MILLER, Ph.D., Petitioner, v. BOARD OF PSYCHOLOGIST EXAMINERS, Respondent. Board of Psychologist Examiners 2013048; A158014 Submitted March 3, 2017. Debra (Kali) Miller, Ph.D., filed the briefs pro se. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, filed the brief for respondent. Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge. SHORR, J. Order revoking petitioner’s license to practice psychology and imposing a $5,000 fine reversed and remanded; order temporarily suspending petitioner’s license to practice psychology affirmed. Case Summary: Petitioner seeks reversal of two final orders of the Oregon Board of Psychologist Examiners (board), one which temporarily suspended her license to practice psychology following a hearing on the board’s issuance of an emergency suspension order, and another which permanently revoked her license to practice psychology and imposed a $5,000 fine. Petitioner challenges the emergency suspension order on the basis that the board’s determination was not supported by substantial evidence. She also challenges the permanent revocation order and $5,000 fine, which was decided on the board’s motion for summary determination, arguing that the board erred in concluding that issue preclusion barred petitioner from litigating factual issues that had already been decided at the hearing on the emergency suspension. Held: The board erred in applying issue preclusion and granting summary determination in the permanent revocation proceeding. Order revoking petitioner’s license to practice psychology and imposing a $5,000 fine reversed and remanded; order temporarily suspending petitioner’s license to practice psychology affirmed.
Cite as 289 Or App 34 (2017) 35
Petitioner seeks reversal of two final orders of the Oregon Board of Psychologist Examiners (board), one which temporarily suspended her license to practice psychology following a hearing on the board’s issuance of an emergency suspension order, and another which permanently revoked her license to practice psychology and imposed a $5,000 fine. Petitioner challenges the emergency suspension order on the basis that the board’s determination was not supported by substantial evidence. We reject that assignment of error without discussion. Petitioner also challenges the permanent revocation order and $5,000 fine, which was decided on the board’s motion for summary determination, arguing that the board erred in concluding that issue preclusion barred petitioner from litigating factual issues that had already been decided at the hearing on the emergency suspension. For the reasons that follow, we conclude that the board erred in applying issue preclusion and granting summary determination in the permanent revocation proceeding. We therefore affirm the order temporarily suspending petitioner’s license, but reverse and remand the order permanently revoking petitioner’s license and imposing a $5,000 fine. I. FACTUAL AND PROCEDURAL BACKGROUND The relevant facts, which are largely procedural, are taken from the board’s final revised order revoking petitioner’s license and imposing sanctions. In January 2012, petitioner, a licensed psychologist, began treating the client, a then nine-year-old boy. After several months of therapy, petitioner diagnosed the client with reactive attachment disorder (RAD) and recommended a number of exercises and techniques for the client and his parents. In September 2013, the client was hospitalized after he attempted to strangle himself, which prompted an investigation by the board into petitioner’s treatment of the client. A. The Emergency Suspension Proceeding In March 2014, the board issued an order of emergency suspension of petitioner’s license to practice psychology,
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under ORS 183.430(2) and OAR 137-003-0560(1).1 The emergency suspension order was based on the board’s determination that petitioner’s conduct and continued practice constituted a serious danger to public health or safety: “[Petitioner] failed to recognize or address [the client’s] symptoms of depression, and made a diagnosis of RAD [Reactive Attachment Disorder] even though [the client] did not meet the diagnostic criteria for RAD, either the inhibited or disinhibited type.
“* * * * *
“The techniques promoted by [petitioner] in regard to grade school aged children, to include bottle feedings (while sitting in a parent’s lap and maintaining eye contact), baby-birding, crawling on the floor, enforced sitting in a specified position, isolation from the family, and various exercises, are not supported by any valid psychological or physiological theory, and are not supported by empirical research, and may actually serve to increase emotional lability. The techniques recommended by [petitioner] in this case (or taught by unlicensed practitioners that [petitioner] referred her clients to) created the potential for misinterpretation by the parents and a high risk for physical and psychological damage to the child that could have contributed to [the client’s] feelings of hopelessness, which is a significant predictive factor for suicide.”
Petitioner requested a contested-case hearing on the emergency suspension order. That hearing took place before an administrative law judge (ALJ) over four days in ORS 183.430(2) provides, in part: “In any case where the agency finds a serious danger to the public health or safety and sets forth specific reasons for such findings, the agency may suspend or refuse to renew a license without hearing, but if the licensee demands a hearing within 90 days after the date of notice to the licensee of such suspension or refusal to renew, then a hearing must be granted to the licensee as soon as practicable after such demand, and the agency shall issue an order pursuant to such hearing as required by this chapter confirming, altering or revoking its earlier order.” OAR 137-003-0560(1) similarly provides: “If the agency finds there is a serious danger to the public health or safety, it may, by order, immediately suspend or refuse to renew a license. For purposes of this rule, such an order is referred to as an emergency suspension order. An emergency suspension order must be in writing. It may be issued without prior notice to the licensee and without a hearing prior to the emergency suspension order.”
Cite as 289 Or App 34 (2017) 37 August 2014. Petitioner, who was represented by counsel, testified, presented expert witnesses and exhibits, crossexamined witnesses, and submitted legal arguments to the ALJ. On September 4, 2014, the ALJ issued a proposed order that included 85 findings of fact. Based on those findings, the ALJ concluded that (1) petitioner’s acts and conduct with regard to the client and petitioner’s continued practice posed a serious danger to the public health or safety and (2) circumstances at the time of the hearing justified confirmation of the emergency suspension order. On September 22, 2014, the board issued a final order adopting the ALJ’s findings and conclusions and confirming the emergency suspension. B. The Permanent Revocation Proceeding On July 21, 2014, a few weeks before the hearing on the emergency suspension order, the board issued a notice of proposed disciplinary action to petitioner, seeking to permanently revoke petitioner’s license to practice psychology and to impose a $5,000 civil penalty. The notice alleged that petitioner’s treatment of the client constituted a violation of ORS 675.070(2)(d) and five ethical standards under OAR 858-010-0075.2 ORS 675.070(2)(d) provides: “(2) The board may impose a sanction listed in subsection (1) of this section against any psychologist * * * when, in the judgment of the board, the person: “* * * * * “(d) Is guilty of immoral or unprofessional conduct or of gross negligence in the practice of psychology, including but not limited to: “(A) Any conduct or practice contrary to recognized standard of ethics of the psychological profession or any conduct or practice that constitutes a danger to the health or safety of a patient or the public, or any conduct, practice or condition that adversely affects a psychologist or psychologist associate’s ability to practice psychology safely and skillfully. “(B) Willful ordering or performing of unnecessary tests or studies, administration of unnecessary treatment, failure to obtain consultations or perform referrals when failing to do so is not consistent with the standard of care, or otherwise ordering or performing any psychological service or treatment which is contrary to recognized standards of practice of the psychological profession[.]” Under OAR 858-010-0075, the board has adopted as its code of professional conduct the American Psychological Association’s “Ethical Principles of 2
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Petitioner requested a contested-case hearing on that notice. However, in December 2014, before the scheduled hearing before a different ALJ, the board moved for summary determination. The board argued that it was entitled to summary determination because the doctrine of issue preclusion prevented petitioner from relitigating the ALJ’s factual determinations made following the four-day hearing on the emergency suspension order. The board contended that the ALJ’s findings in that proceeding, which were approved by the board in its September 22 final order, were binding in the permanent revocation case, and thus no genuine issues of material fact remained to be litigated. The board then argued that, based on those findings, as a matter of law, petitioner had “engaged in immoral or unprofessional conduct or gross negligence in the practice of psychology,” in violation of ORS 675.070(2)(d), and had violated the five ethical standards alleged in the notice of proposed disciplinary action. Petitioner filed a written response to the board’s motion for summary determination, arguing that issue preclusion should not apply to a hearing on an emergency suspension order because the issues related to temporary license suspension are different from the issues related to permanent license revocation. Specifically, petitioner contended that she was not given an opportunity to address the allegations that she had “engaged in immoral or unprofessional conduct or gross negligence” and that she had committed several ethical code violations. Petitioner argued further that there were issues of fact that were in dispute, such as whether petitioner’s recommended treatments and techniques were appropriate, whether petitioner was responsible for any harm caused to the client, whether the board’s evidence was reliable, and whether the board’s evidence met the appropriate legal standard. The ALJ in the permanent revocation case determined that, although the legal issues in the two proceedings were different, they involved the “same set of operative Psychologists and Code of Conduct.” Petitioner was alleged to have violated the following five provisions of that code: (1) boundaries of competence; (2) bases for scientific and professional judgments; (3) avoiding harm; (4) use of assessments; and (5) informed consent to therapy.
Cite as 289 Or App 34 (2017) 39 facts.” And, because petitioner was given a full and fair opportunity to, and in fact did, litigate those facts, issue preclusion barred relitigation of the factual findings made by the ALJ and adopted by the board in the emergency suspension proceeding. The ALJ then concluded that those factual findings established the allegations and sanctions set forth in the board’s notice of proposed disciplinary action. In March 2015, the board issued a final order revoking petitioner’s license to practice psychology, and assessing a $5,000 civil penalty. In January 2016, the board, on its own motion, withdrew that order for purposes of reconsideration. The same day, the board issued a final revised order that affirmed the ALJ’s conclusion that issue preclusion applied in the revocation proceeding, barring relitigation of the facts determined by the board in the emergency suspension proceeding. The board concluded that petitioner had violated ORS 675.070(2)(d) by engaging in immoral or unprofessional conduct or gross negligence in the practice of psychology, as well as the ethical standards alleged in the notice of proposed disciplinary action. II. ANALYSIS Petitioner appeals the board’s final revised order in the permanent revocation proceeding, arguing that the board erred in concluding that issue preclusion barred relitigation of factual issues that had been determined at the emergency suspension hearing. “We review orders that result from the grant of summary determination for legal error.” Wolff v. Board of Psychologist Examiners, 284 Or App 792, 800, 395 P3d 44 (2017); see also ORS 183.482(8)(a) (we “may affirm, reverse or remand the order” if we find that the agency “has erroneously interpreted a provision of law and that a correct interpretation compels a particular action”). The issue here is whether the board erroneously applied the doctrine of issue preclusion in granting the motion for summary determination in the permanent revocation proceeding. “The doctrine of issue preclusion operates to prevent the relitigation of issues that have been fully litigated in a prior proceeding between the same parties[,]” Johnson & Lechman-Su, PC v. Sternberg, 272 Or App 243, 246, 355
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P3d 187 (2015), and can apply to issues of fact or issues of law, Drews v. EBI Companies, 310 Or 134, 140, 795 P2d 531 (1990). Issue preclusion applies when five requirements are met: “1. The issue in the two proceedings is identical. “2. The issue was actually litigated and was essential to a final decision on the merits in the prior proceeding. “3. The party sought to be precluded has had a full and fair opportunity to be heard on that issue. “4. The party sought to be precluded was a party or was in privity with a party to the prior proceeding. “5. The prior proceeding was the type of proceeding to which this court will give preclusive effect.”
Nelson v. Emerald People’s Utility Dist., 318 Or 99, 104, 862 P2d 1293 (1993) (citations omitted). “[T]he party asserting issue preclusion bears the burden of proof on the first, second, and fourth [Nelson] factors, after which the party against whom preclusion is asserted has the burden on the third and fifth factors.” Barackman v. Anderson, 214 Or App 660, 667, 167 P3d 994 (2007), rev den, 344 Or 401 (2008). Petitioner argues that the first, third, and fifth requirements were not met, and that the application of issue preclusion was fundamentally unfair. She argues that the board therefore erred in granting the motion for summary determination. The board contends that all five of the Nelson elements were met, and that the board correctly granted the motion for summary determination based on the binding factual findings made after the emergency suspension hearing. We agree with petitioner that the board erred in applying issue preclusion in granting the motion for summary determination, and focus our discussion on the third Nelson requirement—whether petitioner was afforded a full and fair opportunity to be heard on the issues related to the revocation proceeding. The board argues that petitioner had a full and fair opportunity to present her factual case at the four-day hearing on the emergency suspension order, noting that petitioner was represented by counsel and actively
Cite as 289 Or App 34 (2017) 41 participated in the hearing by presenting numerous witnesses and exhibits, cross-examining the board’s witnesses, and making arguments, including a written closing argument. Petitioner, however, contends that she litigated the emergency suspension allegations with the belief that there would be two separate hearings. She claims that she “had every reason to believe that she would have time to prepare a full defense against the new 7/21/14 allegations, the ethical allegations, the newly proposed loss of licensure and the addition of a $5000 fine.” She argues that, as a result, she was denied the opportunity to present testimony from all of her local and national experts, peer reviewed articles with theory and research to support her treatment plan, and evidence to show that she worked closely with the Department of Human Services in her treatment of the client. In determining whether petitioner had a full and fair opportunity to litigate factual issues during the fourday emergency suspension hearing, we consider fairness to the parties as a paramount concern. As we explained in Universal Ideas Corp. v. Esty, 68 Or App 276, 280, 681 P2d 1176, rev den, 297 Or 546 (1984): “In order to determine whether the parties received a full and fair opportunity to litigate, we make a particularized examination of the prior action. The investigation involves a policy judgment balancing the interests of an individual litigant against the interests of the administration of justice, and we decide where the balance is to be struck in any given case. If actual unfairness will result, [issue preclusion] should not be applied.”
See also Minihan v. Stiglich, 258 Or App 839, 855, 311 P3d 922 (2013) (“Even where [the Nelson] elements are met, the court must also consider the fairness under all the circumstances of precluding a party.” (Internal quotation marks and citation omitted.)). We also consider the realities of litigation, including petitioner’s incentive to vigorously litigate the factual issues at the hearing on the emergency suspension order. See Thomas v. U. S. Bank National Association, 244 Or App 457, 472-73, 260 P3d 711, rev den, 351 Or 401 (2011) (applying issue preclusion, in part, because the plaintiffs were not
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denied the opportunity to fully and fairly litigate an issue, and noting that the plaintiffs “had every incentive to vigorously litigate the issue” in the first proceeding); Safeco Ins. Co. v. Laskey, 162 Or App 1, 11, 985 P2d 878 (1999) (noting that it is “not innately inequitable to enforce issue preclusion against an insured who has had a full opportunity, and every incentive, to prove liability in third-party litigation, but has failed to do so); see also Restatement (Second) of Judgments § 28(5)(c) (1982) (issue preclusion should not apply when “the party sought to be precluded * * * did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action”). Here, we agree with petitioner that she was denied a full and fair opportunity to litigate the facts related to the permanent revocation allegations. Even assuming, as the ALJ did, that the two proceedings involved the “same set of operative facts,” the potential sanctions petitioner faced in the permanent revocation proceeding were far greater than the sanctions she faced in the emergency suspension proceeding. When comparing the initial emergency suspension proceeding with the permanent revocation proceeding, there were vastly different potential stakes at issue and outcomes that could result. By their nature, one could result in only a temporary suspension of petitioner’s career as a psychologist, while the other could result in the end of her career and a costly fine. Under those circumstances, it is understandable that petitioner might not litigate with the same intensity, breadth, or depth in the former proceeding as in the latter. As petitioner notes, after she requested a hearing on the emergency suspension order, the board filed a separate notice of proposed disciplinary action seeking to permanently revoke petitioner’s license to practice psychology. That notice was filed only a few weeks before the emergency suspension hearing, and there was no indication that the board intended for the two proceedings to be combined in any way. Under those circumstances, petitioner’s belief that she would have an opportunity to present different witnesses and evidence at a new hearing on the more severe permanent revocation allegations was reasonable. Because petitioner did not have the same incentive to litigate the
Cite as 289 Or App 34 (2017) 43 facts at the emergency suspension hearing as she would during a hearing on the permanent revocation allegations, issue preclusion did not apply, and the ALJ erred in granting the board’s motion for summary determination.3 Order revoking petitioner’s license to practice psychology and imposing a $5,000 fine reversed and remanded; order temporarily suspending petitioner’s license to practice psychology affirmed.
3 Because we resolve this case under the third Nelson factor, we need not determine whether, by virtue of its temporary nature, the emergency suspension proceeding is “the type of proceeding to which this court will give preclusive effect.” Nelson, 318 Or at 104.
BEFORE THE BOARD of PSYCHOLOGIST EXAMINERS STATE OF OREGON
IN THE MATTER OF: DEBRA (KALI) MILLER, Ph.D.
) Agency Case No.: 2013-048 ) ) FINAL ORDER
HISTORY OF THE CASE On March 11, 2014, the Psychologist Examiners Board (Board) issued an Order of Emergency Suspension to Debra (Kali) Miller, Ph.D. (Dr. Miller or Licensee) based on a determination that Licensee’s continued practice constitutes a serious danger to the public health or safety under ORS 183.430(2). On June 9, 2014, Dr. Miller requested a hearing. On June 12, 2014, the Board referred the hearing request to the Office of Administrative Hearings (OAH). 1 The OAH assigned Senior Administrative Law Judge (ALJ) Alison G. Webster to preside at hearing. ALJ Webster convened a prehearing conference on June 26, 2014. Senior Assistant Attorney General Warren Foote appeared for the Board, and Attorney Paul Cooney appeared for Licensee. During the prehearing conference, the hearing was set for August 11 through 14, 2014. The parties stipulated to waive the 30 day deadline for completing the hearing and closing the evidentiary record specified in OAR 137-003-0560(3)(b). A hearing was held as scheduled on August 11, 12, 13 and 14, 2014 in Salem, Oregon. Senior Assistant Attorney General Warren Foote represented the Board and Attorney Paul Cooney represented Licensee. The following witnesses testified at the hearing: Dr. Miller; Debbie McGrath, RN; Christopher Brubaker, M.D.; Karen Berry, Board Investigator; Jennifer Bolsinger, DHS Case Worker; A.W., foster parent; Brian Allen, Ph.D., Board Consultant; Holly Crossen, Ph.D.; Ken Huey, LPC; Susan Scott; Arthur Becker-Weidman, Ph.D.; Myron Thurber, Ph.D.; Mark Coen, LCSW. At the close of the hearing, the parties stipulated to waive the 15 day deadline for issuance of the proposed order specified in OAR 137-003-0560(3)(c). The parties established September 9, 2014 as the deadline for issuing the proposed order. The record closed on August 15, 2014, upon receipt of the parties’ written closing argument. /// 1
In the referral, the Board notified OAH that the parties had conferred and jointly requested that the hearing start on August 11 or 18, 2014, and be scheduled for four consecutive days.
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ISSUES 1. Whether Licensee’s acts and conduct with regard to Client A and Licensee’s continued practice pose a serious danger to the public health or safety. ORS 183.430(2). 2. Whether circumstances at the time of the hearing justify confirmation, alteration or revocation of the Order of Emergency Suspension. EVIDENTIARY RULINGS The Board’s Exhibits A1 through A37 and Dr. Miller’s Exhibits R1 through R11 and R13 through R16 were admitted into the record without objection. The Board’s objection to Exhibit R12 was sustained and the document was excluded. 2 FINDINGS OF FACT 1. Licensee holds an active license to practice psychology in the State of Oregon. For the past 18 years, she has had a private clinical practice under the name of Corinthia Counseling Center, Inc., located in Portland, Oregon. Licensee’s practice focuses on children and adolescents with underlying trauma. About 80 percent of Licensee’s clients have what she considers “insecure attachment” issues. Licensee has diagnosed about one third of these clients with Reactive Attachment Disorder (RAD). Most of these clients have, in her assessment, a disinhibited type of RAD, 3 as a result of early childhood trauma or neglect, and most are currently living in happy and stable homes. (Test. of Miller.) 2. Licensee considers herself to be an expert in the diagnosis and treatment of RAD. For the past few years, she has presented a program titled, “Taming Tiny Tigers: Understanding and Treating Reactive Attachment Disorder (RAD)” at conferences around the country. (Test. of Miller; Ex. A28.) 3. As part of her training, Licensee has attended seminars featuring Elizabeth Randolph, Ph.D., 4 creator of the Randolph Attachment Disorder Questionnaire (RADQ), and 2
The Board objected to Exhibit R12, an opinion letter from Louis Cozolino, Ph.D., on timeliness grounds and the lack of opportunity to review or cross-examine the author. The exhibit was marked and accepted as an offer of proof for excluded evidence pursuant to OAR 137-003-0610(3).
As discussed in more detail infra, the 1994 Diagnostic and Statistical Manual of Mental Disorders, edition IV (DSM-IV) and the 2000 text revision (DSM-IV-TR) identified two categories of RAD, an emotionally withdrawn/inhibited subtype and an indiscriminately social/disinhibited subtype. In the 2013 DSM-V, these subtypes are defined as distinct disorders: RAD and Disinhibited Social Engagement Disorder. (Ex. A34; Test. of Allen.) 4
Dr. Randolph’s license to practice psychology was revoked by the California Board of Psychology in 1996. She now practices as a pastoral counselor. (Ex. A15 at 9.)
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Foster Cline, M.D., 5 co-author of the book, Parenting with Love And Logic, and other books on attachment disorders. In 2011, Licensee attended an intensive three day conference with Daniel Hughes, Ph.D., 6 on the treatment of children with RAD. (Ex. A12 at 3-5.) 4. Licensee also endorses, and uses in her practice, attachment therapies and methodologies recommended by author Nancy Thomas. 7 Several years ago, Licensee attended one of Ms. Thomas’ presentations on attachment disorders and was impressed by what she heard. Since that time, for the past seven or so years, Licensee has spent a week or more volunteering at Nancy Thomas Healing Hearts Camps in Oregon. The camps are designed to provide respite and training for children and families with attachment issues. (Test. of Miller; Ex. A28.) Licensee’s Treatment of Client A: 5. In December 2011, the father and stepmother of Client A sought out Licensee for treatment for Client A and his two siblings. At that time, Client A was almost 10 years old; his older sister was 11 years old and his younger sister was 8 years old. (Ex. A2.) The parents were looking for a therapist who specialized in RAD. They had tried other therapists without success, and internet research led them to Licensee’s practice. (Ex. A31 at 4-5.) 6. On December 16, 2011, Licensee’s administrative assistant sent Client A’s father and stepmother an information packet regarding Licensee’s practice. The packet included an introductory letter and forms to be completed prior to Licensee’s initial intake session. 8 The letter, addressed to the father and stepmother, stated in pertinent part, as follows: Since we keep Dr. Miller’s schedule full, we work new clients in on cancellations so there may be one-three [sic] weeks between appointments. If you are uncomfortable with such scheduling or if you cannot afford co-pays with Dr. Miller, you might consider working with either of the Licensed Professional Counselors, Hannah Fischer, LPC, LHMC at 503-680-2478 and Sara Kohlenberger, LPC, LHMC, at 360-690-6910. They have trained under Dr. 5
Dr. Cline is no longer practicing. In 1995, he received a Letter of Admonition from the Colorado Department of Regulatory Authority. The admonition was based on a Stipulation and Final Order of the Colorado Board of Medical Examiners addressing his use of Rage Reduction Therapy on patients diagnosed with severe attachment disorders. (Ex. A15 at 10.)
Dr. Hughes, a clinical psychologist, is the founder of Dyadic Developmental Psychotherapy, an intervention for children with attachment issues. (Ex. R2 at 11). He is also associated with the Attachment Center at Evergreen, Colorado. (Ex. A15 at 10.)
Nancy Thomas has no academic or professional credentials. She is a self-proclaimed therapeutic parenting specialist and author of several books on attachment and parenting techniques. (Ex. A15 at 10; test. of Allen.)
The forms included a Client Information sheet; a Child’s Intake Information form; a “RADQ Answer Sheet” (copyright 1988 from the Attachment Center Press); an “Attachment Symptom Checklist For Children Over 5” developed by Daniel Hughes and the Attachment Center at Evergreen; and a Time-Out Checklist (copyright 1982). (Ex. A2 at 1-9.)
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Miller and Nancy Thomas and continue to consult with them in the areas of trauma and attachment. * * * Dr. Miller, Ms. Fischer and Ms. Kohlenberger are all separate businesses and must be contacted individually. Our interns, Beth and Esther will be an excellent low cost option for those who do not have affordable insurance coverage or no insurance. Beth Duvall will be starting in January, 2012 as an intern. Her sessions will be $67 for the Intake and $50 for sessions with a sliding scale for those who qualify. In addition to her classes, she has taken specialized training and experience in working with RAD children and their families and Esther Prelog, MA, Registered Intern, at 503-267-3206 works both here and at The Four Rivers and is an excellent therapist for clients with no mental health insurance coverage. Until Ms. Prelog obtains her counseling license, insurance will not cover her sessions. Therefore, she charges on an income-based sliding scale beginning from $73 for intake and $65 for sessions down to $35 per session. Other interventions that Dr. Miller recommends are: Esther Prelog, MA, 503-267-3206, is a licensed facilitator for Love and Logic Parenting classes in Portland. All our therapists highly recommend Love and Logic Parenting for attachment disorders. Ms. Fischer at 503-680-2478 provides a support group for parents of children diagnosed with Reactive Attachment Disorder at the Four Rivers. ***** NEURODEVELOPMENTAL EXERCISES: When Dr. Miller began to work with trauma and attachment disorders, she advised various exercise programs for her clients depending on the child’s need. When she learned about neurodevelopmental (also called: neuro-re-organization) exercises which include creeping and crawling, she included this program in her advice. After about six months, she noted that about half of her clients were responding well to therapy and the rest were stuck. She realized that the responsive clients were the ones doing the neurodevelopmental exercises and she began to require that all her attachment disordered clients be doing this program. We refer you to three options: Susan Scott in Salem, OR at 503-851-9728; Emily Beard-Johnson who is available with appointment at 1-206-399-7658 or Nina Jonio who is 15 minutes away from our office in Gresham, OR at 1-206-9106088. Dr. Miller advises parents to begin this program as soon as possible. If you cannot afford both the neurodevelopmental program and therapy at the same time, she advises doing the exercises first and then, starting therapy after two-three
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months. If you [sic] child or schedule is challenging, you may choose to pay someone to help the child do exercises every day. Dr. Miller refers the parents of children with an [sic] trauma and/or attachment disorder and adults who have trauma and/or attachment issues to the seminars and classes produced by Drs. Ron and Nancy Rockey at 1-888-800-0574. In particular, she advises the class called “The Passenger” which is the first class in a series called “The Journey” and guides the individual through processing childhood experiences that are affecting the life of the adult. The Portland, OR contact for the classes is Audrey Woods at 503-252-2112. (Ex. A1.) In the letter, Dr. Miller offered the name of a respite provider, Kate Denny. She also recommended that the family attend a “Family Challenge Camp,” a behavior modification program designed by Nancy Thomas. (Id.) 7. On January 16 and 17, 2012, the father completed the intake information form and child behavior questionnaires for Client A. The father indicated, among other things, that Client A’s mother used drugs, likely methamphetamine, and had extreme stress during her pregnancy with Client A. The father also indicated that, in the first two years of his life, Client A experienced separation from his mother, out of home care, neglect and parental stress, including his mother’s depression. The father reported that Client A’s mother had a history of depression, anxiety, manic-depression, suicide attempts and drug use. On the intake form, the father listed a prior mental health provider (Ali Burr-Harris). The father described Client A as “unemotional, overly sensitive, needy, defiant, sad.” (Ex. A2 at 3.) As to discipline methods for Client A, the father reported that Client A was subject to loss of privileges (no frequency noted), jumping jacks (on a daily basis) and extra chores (on a daily basis). The father reported a trauma history of verbal abuse and lack of connection with his birth mother. The father reported that Client A exhibited the following symptoms: anger (internalized); control problems; lack of motivation; low self-esteem; anxiety; defiance; lying; depression; and low impulse control. (Ex. A2 at 2-5.) 8. The RADQ Answer Sheet contains a list of 30 behaviors, and asks the person completing the questionnaire to rate how often the child at issue engages in the listed behavior. Client A’s father marked that Client A “usually” (90 percent or more of the time) engaged in the following behaviors: acts overly cute and charms others to get them to do what he/she wants; acts overly friendly with strangers; acts amazingly innocent, or pretends that things aren’t that bad when he/she is caught doing something wrong; doesn’t seem to learn from his/her mistakes and misbehavior (no matter the consequences given, the child continues the behavior); doesn’t do well in school as he/she could with even a little more effort. (Ex. A2 at 6-7.) The father also reported that Client A “often” (75 percent of the time) did the following: has trouble making eye contact; has a tremendous need to control everything becoming very upset if things don’t go his/her way; deliberately breaks or ruins things; doesn’t seem to feel age appropriate guilt for his/her actions (seems to lack a conscious for his/her actions); seems unable to stop him/herself from doing things impulsively; tries to get sympathy from others by telling them that he has been abused and/or neglected; is a pathological liar (lies even when it would be easier to tell the truth, or lies about obvious or ridiculous things). (Id.)
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9. The Attachment Symptom Checklist for Children Over 5 lists 25 symptoms and asks the person completing the form to mark “none,” “moderate” or “severe” for each of the listed symptoms. For Client A, the father rated the following symptoms as “severe”: superficially engaging and charming, phony; lack of eye contact especially on parental terms; lying about the obvious, crazy lying; lack of cause and effect thinking; persistent nonsense questions; incessant chatter; inappropriately demanding and/or clingy; extreme attempts to control and/or manipulate; and habitual disassociation or habitual hypervigilance. The father rated the following symptoms as “none”: not affectionate on parental terms (not cuddly); destructive to self or others; destructive to material things; accident prone; cruelty to animals; preoccupation with fire, blood and gore. (Ex. A2 at 8.) 10. On or about January 18, 2012, Licensee met with the father and stepmother for an initial clinical intake. The father reported that Client A was in fourth grade and had an average IQ. The father added, “If he tries he does really well.” (Ex. A2 at 10.) During that intake session, Licensee made the following notes as the father and stepmother discussed Client A’s symptoms: ↓ follow thru, admits does things to make [step-mother] mad, anger = stands rigid (will strong sit). Pass-agg, decreased motiv., sneaky, sev x/ day disobeys passively, “I forgot”. Neg self talk and decreased esteem, poor fine motor skills, anxiety = withdraw and quiet and won’t talk about it, “He’ll say OK and do what he wants”, Lies daily, “moping”, decreased interest in pos things. Decreased impulse control. Takes 30 minutes to fall asleep. (Ex. A2 at 10; Ex. A3 at 1.) The father and step-mother advised Licensee that Client A had not had any previous mental health treatment. 9 The father and step-mother also reported, among other things, that Client A had been subjected to verbal abuse by his mother and that he had witnessed domestic violence (including his mother striking his sister and the father). They also reported that Client A had an allergy to dairy milk. (Ex. A2 at 11; Ex. A3 at 1.) 11. On February 1, 2012, Licensee met with Client A. 10 During that session, Licensee diagnosed Client A with a “generalized anxiety disorder, 300.02.” She noted that Client A was a “self-proclaimed ‘worrier’” with “some OCD tendencies.” (Ex. A2 at 12; Ex. A3 at 2.) At that time, Licensee identified the following treatment goals for Client A: 1. Increase attachment with father; 2. Decrease passive-aggressive and increase verbalizing, especially of feelings; 3. Process loss of bio-mother and new step-mother addition; and 4. Disclose and 9
This was inaccurate and inconsistent with what the father had indicated on the intake form. In the fall of 2011, the father and stepmother had sought counseling for Client A with Dr. Ally Burr-Harris at the Children’s Program in Multnomah Village. (Ex. A31 at 3.) The father also did not, at the time, advise Licensee that Client A had been evaluated by Paul E. Guastadisegni, Ph.D. in September 2011. (Test. of Miller; Ex. A2 at 35-45.) 10
At the time of Licensee’s first meeting with Client A, the parents had just put Client A’s younger sister into a respite situation so she was no longer living with the family. (Ex. A12 at 13; test. of Miller.) Later in the year, the parents also sent Client A’s older sister to live elsewhere. (Test. of Miller.)
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process sister’s violence and out of home placement. (Id.) Licensee further noted: Multiple traumas – possibly RAD. She recommended treatment sessions once a week. (Id.) 12. On February 8, 2012, Licensee met with the father, stepmother and Client A. With Client A out of the room, they discussed the use of “strong sitting” as a disciplinary measure. 11 Father reported that Client A had been deliberately urinating all around the toilet, and had been taking too long to do his chores. With Client A in the room, they discussed, among other things, his fear that someone was always watching him through the window. Licensee suggested that Client A “talk out his anger” rather than “pee it out.” (Ex. A3 at 3.) 13. Licensee’s initial treatment sessions with Client A focused on sleep interventions, to shorten the time it took for Client A to fall asleep at night. Licensee suggested that the father and stepmother firm up Client A’s bedtime routine. She recommended that Client A shower or bathe two hours before bedtime, that the father or stepmother join him as he brushes his teeth to show him how to do it and to avoid arguments over whether he had done so. She also suggested that the father and/or stepmother read to him before bed. She also suggested that he have a flash light, or a night light, in his room for when woke and felt fearful in the dark. (Test. of Miller.) 14. At some point early on in the treatment, Licensee suggested putting an alarm or some type of monitor on Client A’s door, so that the father and/or stepmother would know when Client A left his room at night. The father and stepmother thought this was a good idea because they did not want Client A going into the kitchen and eating food he should not be eating. Licensee thought this was a good idea to help assuage Client A’s fears of an unknown and dangerous stranger coming into his room at night. Licensee also thought this a good idea for Client A’s safety because the father had mentioned that Client A’s older sister had on occasion been violent towards Client A. (Test. of Miller.) On February 15, 2012, Licensee wrote in her process notes, “Zero alarm yet, but dad closes door and he is telling me he’s sleeping good.” (Ex. A35 at 32.) 15. Also on February 15, 2012, with Client A out of the room, the father and stepmother reported that Client A was not changing his bed sheets and that he was hiding his dirty clothes under clean clothes. They also complained that Client A was not growing academically, and expressed dismay that his school did not have consequences for students not doing homework. With Client A in the room, Licensee discussed the use of “I statements.” She taught Client A to use “steel and spaghetti” (her term for a deep breathing exercise) to calm himself. (Ex. A3 at 4.) She also encouraged Client A to do jumps, or jumping jacks, as neurological exercises. She told Client A that he could jump 25 times which would earn points to shop on the prize shelf in her office. (Ex. A12 at 14.) 16. On or about February 18, 2012, on the recommendation and referral by Licensee, the father and step-mother took Client A to Susan Scott for a “functional neurological 11
“Strong sitting” involves the child sitting cross-legged with arms crossed and hands either on his or her shoulders or forming a hook up in front of the chest in a quiet space facing a wall. (Test. of Miller; Ex. A28 at 32.) The expectation is that the child will stay in this position for a few minutes (between 1 to 10 minutes depending on the child’s age), until he or she is calm and regulated enough to process. (Id.)
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evaluation.” 12 (Test. of Scott.) Ms. Scott interviewed the father and step-mother regarding their current concerns with Client A’s behavior. She questioned them about Client A’s developmental history. She then asked Client A to perform certain tasks – visual, tactile and motor tasks – to assess his neurological function. Based on Client A’s performance of those tasks, Ms. Scott determined that he had, among other things, difficulty with tactile perception, poor body awareness, restricted early mobility and incomplete development at certain areas of his brain. Based on her findings, she created a map of Client A’s brain function, showing areas of deficit and incomplete development. Ms. Scott also developed a neurological reorganization program, an in-home exercise regimen for Client A to do each day. These exercises, which included army crawling and knee crawling (later described as “tummy time”), were designed to emulate the developmental processes Client A may have missed due to stress or trauma as an infant. (Test. of Scott.) 17. Specifically, Ms. Scott recommended to the father and step-mother that Client A engage in approximately 50 minutes of physical activity each day, as follows: army crawling, twice a day for 10 minutes at a time; knee crawling, twice a day for 10 minutes at a time; vestibular stimulation, such as swinging, eight times a day for 15 seconds at a time; sensory stimulation, brief touching with different textures, 20 times a day for two to three seconds at a time; and patterning exercises, movement of the head and arms, for five minutes a day. Ms. Scott also recommended that Client A breathe into a paper sack 10 times a day for about a minute. She scheduled a follow up appointment to reassess Client A’s neurological function for May 10, 2012. (Test. of Scott.) 18. Licensee endorses neurodevelopmental exercises for her clients. Licensee believes that the purpose of neurological reorganization is to evaluate the brain. She believes the exercises help with symptoms. (Ex. A13 at 2.) She was not concerned that the father and stepmother were using jumping jacks as a form of discipline for Client A. Licensee believes that for a child with processing or neurological issues, doing a set of jumping jacks will help get oxygen to the brain and help calm the child. Licensee also believes that this exercise is good for depression or anxiety. (Ex. A12 at 6.) 19. Between February 1, 2012 and March 28, 2013, Licensee had approximately 20 sessions with Client A and/or members of his family. 13 On February 29, 2012, the father and stepmother reported that Client A was having accidents in his pants; that he was taking candy from friends and lying about it; and that he was stealing items, such as vitamins, while visiting his grandmother’s house. Licensee learned from the father and stepmother that when Client A came home from school, they expected him to go directly to his room, and remain in his room 12
Ms. Scott, who has no professional certifications or licensures, describes her practice as a non-medical, physically-based program to restore or develop brain function. (Test. of Scott.) 13
It is not evident from Licensee’s charts and session notes which family member attended which treatment session, or whether or when Client A was in or out of the room. (Exs. A3 and A25.) Licensee recalls meeting alone with Client A on approximately five occasions. (Test. of Miller.) More often than not, Licensee met with the father, stepmother and Client A together, or with the father and Client A together when the stepmother chose not to participate. On occasion (in July and August 2012), Licensee’s grandmother may also have attended the sessions. (Exs. A3 and A35; test. of Miller.)
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until the father got home from work later in the evening. Licensee also learned that the stepmother did not want Client A to refer to her as “mom.” Licensee learned that the stepmother did not want to provide any type of nurturing to Client A or his siblings. During the February 29, 2012 session, Licensee documented the following statements from the stepmother about Client A and his siblings: “They dominate our life . . . maybe that’s what I’m angry about,” “I need 100 percent for me,” and “I’m sick and they’re sick and they’re sick is trumping [illegible].” Licensee suggested that the stepmother at least greet Client A at the door, ask him about his day, check in with him periodically and offer him a snack. The father and stepmother rejected this idea, noting that because Client A was stealing and eating foods to which he had sensitivities, this was not an option. (Ex. A3 at 4; Ex. A25; Ex. A16 at 22; test. of Miller.) In the exceptions, counsel for Licensee stated that it was Licensee’s testimony that Client A’s father agreed to leave snacks out for Client A upon his arrival from school and a fruit bowl would be available at all times. 20. During a session on March 14, 2012, the father reported that Client A was not doing chores he was expected to do and was lying about doing them. With Client A in the room, they discussed an interaction that had occurred between the stepmother and Client A, in which Client A became angry and hurt. They also discussed Client A’s feelings towards his birthmother. (Ex. A3 at 4.) 21. During a session on March 22, 2012, Licensee learned that the stepmother had recently had a miscarriage and had been hospitalized. Licensee also learned that the father and stepmother had cleaned out Client A’s room and had disposed of (thrown away) most, if not all, his toys because of his “multiple thefts.” (Ex A3 at 5.) 22. By this point, Licensee realized that the father and stepmother had impulsivity issues and could be very harsh on the children. She suggested to them that their punishment (throwing away all of Client A’s toys) had exceeded his infraction. Licensee also recognized that the stepmother was very volatile and dysregulated. Licensee began to develop strategies to keep Client A and the stepmother away from each other. She suggested, for example, that they enroll Client A in an after school program so that he would get home later in the day. Licensee noted that the stepmother’s presence increased Client A’s anxiety, and that she had a way of ruining any positive or nurturing moments between the father and Client A. Licensee also saw that Client A would, at times, do things that he knew would provoke and/or agitate the stepmother. (Test. of Miller.) 23. In April 2012, Licensee had two sessions with the family. On April 6, 2012, they discussed, among other things, Client A’s need to continue with his jumping jacks and neurological reorganization exercises. Licensee also recommended increased snuggle time. On April 17, 2014, Licensee’s process notes state: “1st x in 2 weeks saw RAD. ‘It was a full RAD day.’” (Ex. A35.) On April 25, 2012, the father and stepmother reported that Client A’s older sister had gone to a respite home, and that “it was like a dark cloud had been lifted from all of us.” (Ex. A3 at 5.) The father and stepmother also reported that, since his sister left the home, Client A’s “incessant chatter” had increased. Licensee encouraged “lots of interaction on the parents’ terms” and “contact every 5-10 minutes.” She discussed I-statements and journaling with Client A. (Id.)
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24. After providing treatment to Client A for a few months, Licensee recommended to the father that Client A undergo a neuropsychological evaluation. Licensee did so because she thought that Client A was doing the best that he could do in such a dysfunctional family situation. The father eventually provided Licensee with a copy of Dr. Guastadisegni’s September 2011 evaluation report. When he handed the report to Licensee, the father expressed his dissatisfaction with it and stated that Dr. Guastadisegni “did not understand” RAD. Licensee made a note to that effect on the first page of the report. (Test. of Miller; Ex. A13 at 1.) 25. In the neuropsychological evaluation report, Dr. Guastadisegni assessed Client A as having the following Axis I diagnoses: Anxiety Disorder Not Otherwise Specified; Attention Deficit Hyperactivity Disorder, Inattentive Type; Depression Not Otherwise Specified; Post Traumatic Stress traits; and Parent Child relation problem (mother-son). Dr. Guastadisegni had the following recommendations for Client A, among others: [Client A] has difficulty in assimilating new information when problem solving (i.e., shifting sets]. He needs to be educated about inhibiting responses when feedback tells him that a particular strategy does not work. It is important for parents and teachers to note that processing information for [Client A] is different than what they would expect from a typical child/student. He may have difficulty in processing past an event or action that just happened. Adults should make an attempt to be able to identify subtle clues about [Client A’s] frustration and takes these cues to intervene (e.g., ask him what is going on) or allow him more time to process. [Client A] needs structure and guidance when completing tasks, especially multi-step tasks. * * * He needs direction and assistance in learning to stop and examine his surroundings before proceeding with a task. He needs to develop an understanding as to how things relate to each other. He needs practice and reinforcement with this approach. I would encourage that some of his therapeutic involvement focus on how to implement social skills. It is likely that he already knows social skills and could easily verbalize appropriate behavior. Educating his parents about his brain functioning and ADHD is needed. [Client A] does have a problem and this interferes with his ability to smoothly transition and handle a typical amount of work for his age. * * * Provide immediate rewards and consequences for complying with instructions. Have the most demanding schedule in the morning. Schedule boring or repetitive tasks early in the morning. If possible, have him take all academic courses in the morning.
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Give frequent feedback, and use incentives rather than punishment. Avoid lengthy discussions with him. People working with him should act rather than talk. [Client A] will respond better to action, and have less patience to listen to long drawn out, (but often logical) explanations. (Ex. A2 at 43-45.) 26. At some point in May 2012, Licensee diagnosed Client A with RAD (inhibited type) and Oppositional Defiant Disorder (ODD) in addition to Generalized Anxiety Disorder. 14 (Test. of Miller; Ex. A2 at 12.) Licensee’s RAD diagnosis was based on Client A’s history of early childhood trauma and neglect, as reported by the father and stepmother; his current behaviors, as reported by the father and stepmother (including issues with taking and/or asking others for food, lying, withdrawing from family situations, having few, if any, friends, and inconsistent responses to physical contact); feedback from other sources regarding Client A and his family 15; and behaviors that Licensee observed during her treatment sessions. These included behaviors included Client A’s infrequent eye contact with his father and stepmother; occasional baby talking; choosing to play with baby toys, i.e., toys that were appropriate for much younger children in her waiting room; appearing inhibited, hypervigilant and occasionally exhibiting “frozen watchfulness”; asking irrelevant and hypervigilant questions; exhibiting inappropriate affect at times; and exhibiting ambivalent and contradictory responses to nurturing from his father and stepmother. (Test. of Miller; Ex. A16 at 6-9.) 27.
In a May 9, 2012 letter to the father, Licensee wrote as follows:
I am writing regarding [the three children], ages 8, 10 and 11 respectively, who I began seeing in January 2012. All three children have Reactive Attachment Disorder (RAD) which is caused by neglect, abuse and/or trauma in the first two years. All three also exhibit symptoms of Post-Traumatic Stress Disorder (PTSD). For these children to heal, they need continued high structure in their daily lives, regular therapy, stability and no ongoing trauma. In short, the adults in your children’s lives need to exemplify stability and honesty. As you know, these children need to be parented constantly with 14
The exact date that Licensee confirmed these additional diagnoses is not documented in Client A’s chart. Licensee also did not document in her chart notes the bases for her diagnoses of RAD and ODD, though she explained her reasoning and determination to the Board in her Response to the Board’s allegations, in her interview with the Board and in her testimony at hearing. (Exs. A12, A13 and A16; test. of Miller.)
In her response to the Board’s allegations, Licensee A stated as follows: Over time, prior to making these additional diagnosis, I interfaced with [Client A’s] paternal grandmother, staff at [Client A’s] school, multiple DHS caseworkers involved with the family, several respite care providers and both of [Client A’s] sister’s therapists.
(Ex. A16 at 5.)
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specialized parenting tools which address their specific needs and behaviors developed in a response to their early experiences. I applaud your continued efforts as you provide such an environment. (Ex. A2 at 25.) Licensee wrote this letter on the father’s request. The father had heard from the court that the children’s biological mother wanted to spend the summer with the children, and he did not want that to happen. (Ex. A13 at 5.) 28. On May 18, 2012, Client A’s father reported that it had been a “rough week” with Client A. Licensee learned that Client A had been eating food he should not be eating, which was causing him to cough and wheeze. The father and stepmother also reported that Client A had been asking his classmates at school for food. (Ex. A3 at 6.) According to the school’s principal, Client A was never mean about asking, he was just very persistent. He would ask his classmates for snacks during the morning, he would ask for food during lunch and would also, at times, ask a friend after school to bring him something specific the next day. Sometimes he would eat the food he had procured and other times he tossed the food in the trash. Licensee learned that Client A’s classmates were advised that Client A had allergies and some family things he was working on and it was best if they did not give him their food. (Ex. A2 at 18; test. of Miller.) 29. On May 23, 2012, Licensee’s process notes indicate that either the father or stepmother reported, “Everything has fallen apart.” They also reported that Client A had lied to his grandmother about his exercise program. He told her that he did not have to do his exercises on Saturday because it was his day of rest, and because she did not check, she did not have him do his exercises. Licensee’s process notes indicate as follows: “To teach them a lesson and elicit sympathy I got parents thinking errors handouts and with [Client A] used wrong versus right thinking.” (Ex. A3 at 7.) 30. On May 28, 2012, the stepmother contacted Licensee and asked that she provide information about Client A to Trillium Family Services, a provider of mental and behavioral healthcare for children and families. The father and stepmother wanted to place Client A in the day treatment program. (Ex. A2 at 20-21.) 31. At some point (the date or therapy session is not evident from Licensee’s process notes), Licensee recommended that the father and Client A engage in activities and/or exercises designed to promote attachment between father and son. Licensee went through a list of activities with the family, most of which the father and/or stepmother or Client A rejected. One of the recommended exercises that both the father and Client A were willing to try (and the stepmother did not appear to oppose) was bottle feeding. Licensee suggested that while the father and Client A were snuggling, the father take Client A in his lap, feed him warm chocolate milk from a baby bottle and look at him in a tender manner. Licensee also suggested that the father and Client A go to the store together so that Client A could pick out the baby bottle of his choice. (Test. of Miller; Ex. A13 at 2.) 32. “Baby-birding” was another exercise that Licensee recommended to make the interactions between Client A and his parents more positive. Licensee suggested that the father
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or stepmother place a sweet treat, such as a jellybean or small piece of chocolate, in Client A’s mouth at random times when Client A was calm and behaving appropriately. (Test. of Miller; Ex. A16 at 25.) Ordinarily, Licensee would have recommended that the father and Client A hug twelve times per day rather than engage in baby birding, but because the father reported that Client A was often resistant to hugs, she did not recommend a hugging intervention. Licensee was also aware of the stepmother’s desire not to hug Client A. (Ex. A16 at 26.) 33. Licensee had a session with the family on June 20, 2012. The father and stepmother came in with a detailed schedule for Client A’s activities and tasks at home. They mentioned that when the father got called out of town for work, Client A failed to comply with the schedule. They expressed dismay at Client A’s inability to do what he was supposed to do. They also reported that Client A was “playing all kinds of games since he got home . . . constant challenge, constant manipulations.” They discussed the stepmother’s frustrations in dealing with Client A and the fact that Client A was going to be staying at his grandmother’s for a while. Licensee recommended that the father and stepmother “stay neutral [with Client A] but give as much affirmation as possible.” (Ex. A3 at 7; Ex. A13 at 6-7.) 34. After that, from late June until some point in September or October 2012, Client A lived with his grandmother. In Licensee’s opinion, Client A was making good progress while living with his grandmother. (Ex. A13 at 5.) Licensee’s process notes from a session on July 10, 2012 indicate that Client A was still at respite with grandmother because the father was “not having [stepmother] watch them at all.” (Ex. A3 at 8.) During that session, Client A reported that when he “sees Dad cuddling [stepmother] he feels Dad loves her more.” (Id.) Licensee’s notes also reflect that Client A appeared nervous, so she had him on the father’s lap looking in the father’s eyes. Client A indicated that he felt sad when his father dropped him off at his grandmother’s house “because you are tired of me and you want to be by myselves [sic].” The father advised Client A that he was staying at his grandmother’s because his older sister had returned to the home, and Client A could not live with his sister until she got healthier. The father also advised Client A that the stepmother was too sick to care for him. (Ex. A35 at 23; Ex. A3 at 9.) 35. On July 19, 2012, Client A’s grandmother advised Licensee that she had no concerns with Client A’s behavior at her home, and that Client A “always excels when he’s the focus of attention.” (Ex. A35 at 22; Ex A3 at 9.) Licensee noted that other children having attention makes Client A “nervous, lonesome and mad.” (Id.) During this session, Client A discussed his past experiences with, and feelings toward, his birth mother. Licensee reviewed breathing exercises, journaling and “rump relaxers” as techniques to help calm Client A’s anxieties. (Id.) 36. Licensee had sessions with Client A and his father and/or grandmother on July 27, July 31, August 10, August 24 and September 5, 2012. During these sessions, Licensee learned that Client A was doing his neurodevelopmental exercises, jumping jacks and strong sits. The grandmother reported that Client A had a good attitude, that he was falling asleep quickly and beginning his schedule by himself in the morning. Client A reported, among other things, that he was missing his siblings. Licensee reviewed I statements, journaling, and relaxation techniques with Client A. (Ex. A35 at 19-21; Ex. A3 at 9-11.)
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37. When Client A returned to the father and stepmother’s home in September or October 2012, Licensee realized that she had “no leverage over this family.” (Test. of Miller.) Her treatment recommendations were not working and she was no longer comfortable continuing to treat this family on her own. She suggested to the father that he look to the Department of Human Services (DHS) for family services, such as proctor homes for Client A’s sisters, which could provide some relief for their situation. Thereafter, Licensee began working with DHS as a consultant, primarily for reasons related to Client A’s sisters. (Id.) 38. Licensee’s process notes reflect that she had a brief check in with Client A’s father on December 19, 2012. The father described the situation as “un-normal,” and advised that Client A was in school and after school care. The father noted that Client A had confessed that he had asked for food at school. Licensee recommended that they give Client A snacks for school. The father also reported that Client A’s older sister told Client A he was “a weak ugly little boy and would never have a girlfriend.” (Ex. A35 at 15; Ex. A3 at 12.) 39. During a session with Client A’s father on January 23, 2013, the father reported that Client A was “struggling . . . we worked for two and a half days to get him to empty the trash.” (Ex. A35 at 14.) The father also reported that Client A broke two ceramic planters outside the house on his way to school one day. (Id.) Licensee’s process notes indicate that “Dad hugged in bathroom sporadically.” (Id.) Licensee discussed journaling. She advised the father not to push Client A on academics but to focus on attachments. (Id.) 40. During a telephone session with the father and stepmother on January 30, 2013, they reported that Client A “is a lot more physically destructive than we thought” and that he “freaks out and denies everything.” (Ex. A35 at 13.) Licensee suggested that Client A was “scared and can consequence before he admits.” (Id.) The parents reported that Client A “gets to sit until he is honest with it.” Licensee suggested that they do experiments with letting Client A try screaming into a pillow, hitting a punching bag, tearing a phone book. She suggested they “discuss little, just acknowledge he had a big feeling.” (Id.) She also suggested that they have Client A continue to journal his feelings. (Id.) 41. On February 24, 2013, Licensee had a half hour session with Client A and his father. They discussed, among other things, Client A’s relationship with, and feelings about, his older sister. Client A noted that he was nervous around her because if he did not do things exactly the way she wanted she would hurt him or break one of his things. He added that she sometimes slapped him across the face. They discussed Client A’s mother telling the police and others, including Client A, that his father was a “child molester.” They discussed Client A’s reaction to that claim, that he “knew it wasn’t true.” (Ex. A35 at 11-12; Ex. A3 at 14.) With Client A out of the room, the father advised Licensee that “it’s all consuming” trying to help Client A. The father also noted that Client A had spontaneously apologized to his stepmother for the first time ever and that “he took responsibility for something he did . . . it’s a sliver.” (Id.) 42. On March 28, 2013, Licensee met with Client A and his father. The father reported that Client A was “still really struggling.” (Ex. A35 at 11; Ex. A3 at 14.) He added that things were going downhill and Client A was “still destroying things.” (Id.) The father
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mentioned that Client A was not doing his daily tasks and chores, such as taking a shower and making his bed. He added that he could not afford respite now, so they were trying in-home respite. The father also reported, among other things, that Client A refused showers for three weeks and it took “four days of sitting in spare time” for Client A to admit he had kicked the outdoor pots until they broke. (Ex. A35 at 10; Ex. A3 at 14.) During the session, Licensee made recommendations to address Client A’s reported destruction and reluctance to do his exercises. They discussed the strong sit and journaling. On this point, Licensee’s process notes document the following: Dad questioned who’s idea to strong sit. “U guys” I said me and explained several things. I encouraged journal to me if mad. Said no journal because “they said I’m writing for an audience” I said no problem. I’m audience and I don’t care if he believes what he writes – explained why it’s important to have him [illegible]. (Ex. A35 at 9.) 43.
In a March 28, 2013 letter to the father, Licensee wrote as follows:
I am writing concerning [the three children]. At this time, I recommend that each child have separate placements away from home. Due to the trauma and neglect they suffered when young, they have developed coping skills that have been and are hurtful to their relationships with each other. Currently we are focusing on developing and strengthening their attachment to you as their primary caregiver. Until they have secure attachment with you, they will not feel safe dealing with their past injuries from others and/or between themselves. Therefore, please continue to keep each child in a separate placement and focus on developing that essential trust and attachment with yourself. I look forward to the children being able to visit each other. This will depend on their acknowledging if they have physically or emotionally harmed each other and if they are strong enough to share emotions if they become frightened or angered by a sibling’s behavior. (Ex. A2 at 34.) This letter was written at the father’s request, in response to DHS’ attempts to bring all three children home at the same time. The father did not want all three children in the home together because he had occasional travel out of town for work and the stepmother was not willing or able to be a caretaker to the children. (Ex. A13 at 9.) 44. On April 11, 2013, Licensee met with Client A’s father without Client A. The father reported that it was still pretty much the same with Client A. He advised that Client A “did his laundry and took a shower then put his sheets where he knew they don’t go,” though he had previously been doing this correctly for months. (Ex. A35 at 8; Ex. A3 a 15.) The father reported that Client A was being “passive aggressive.” (Id.) Licensee asked how their attachment was going, and the father reported, “Not well.” (Id.) Licensee documented that the father “hasn’t been snuggling and baby birding.” (Id.) Licensee also documented that she “gave
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ideas regarding cuddle time, rare sugar, talk about baby things (how named, first time saw, etc.).” (Id.) The father also reported that Client A had gotten mad and scratched himself because he did not like what had been offered for dinner, and that he was wearing dirty clothes instead of clean ones. (Id.) During this session, Licensee recommended that Client A come in for regular treatment. The father expressed concern about the cost of treatment. (Ex. A16 at 16.) 45. On April 16, 2013, the father asked Licensee for approval to send Client A to a respite home. In an email to Licensee’s assistant, the father wrote: We had a complete meltdown with [Client A] last week and needed to take him to a motivational respite provider. She only takes kids that the therapist is on board with this type of program. Her name is Beth Hudson and her and Dr. Miller know each other so I did not think it would be a problem. Would it be possible to get a quick email letter [sic] her know that Dr. Miller approves of the placement? It can be sent to me or directly to her if you have her email address. Thank you so much. (Ex A2 at 23.) Licensee subsequently left a message for the father advising that she did not recognize the name of this respite provider. (Id.) 46. On May 2, 2013, Licensee again met with the father alone. The father reported that Client A had been in “motivational respite” with “Beth” for the past two weeks. The father reported that Beth saw no authenticity in Client A, and that he had pooped into a bucket instead of in the toilet on two occasions. The father also reported that Client A had done about $1, 000 in damage to the respite provider’s house. The father told Licensee that he was “trying to give [Client A] a shot.” (Ex. A35 at 7; Ex. A3 at 16.) The father discussed spending time with his younger daughter, the stepmother’s reluctance to have the younger daughter in the home, and issues involved with having Client A and his sister together for visits. (Id.) 47. On May 8, 2013, Licensee had another session with just the father. The father reported that Client A had been doing well with his neurological reorganization exercises while in respite, but not since his return home. The father reported that Client A loves showering, and he asked whether it was okay to say no to showers if Client A refuses to do a job. Licensee advised “not generally maybe one time every two weeks if he’s doing something important.” (Ex. A35 at 6; Ex. A3 at 16.) Licensee also documented the following in her process notes: “Taught babybirding. Bottle time daily!” (Id.) The father reported a huge breakthrough with Client A’s behavior toward the stepmother when they picked him up from respite. Licensee recommended that the father and stepmother help pattern. Licensee encouraged having the stepmother bring Client A a bottle and say “I hope it’s ok I added a little extra.” (Id.) She recommended that the stepmother join the father and Client A during bottle feeding time and that she put lotion on Client A’s feet, pat his leg, etc. and judge his reaction. The father also advised Licensee that Client A had damaged his bedroom door, so the father took it off. The father said that Client A denied damaging the door, but he was positive Client A did it. The father also reported that he had “gone over his room with a fine tooth comb.” (Id.)
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48. Licensee’s process notes from May 8, 2013 also reflect that the father advised that he was pulling Client A’s sisters “out of DHS involvement” and that the older sister was going to stay with another caregiver and the younger sister was going to the grandmother’s. (Ex. A35 at 5; Ex. A3 at 17.) Though it is not evident from Licensee’s records, 16 Licensee understood at the close of this session that the father was going be taking the children to therapists provided by DHS, and she would not be providing therapy to the family and/or Client A any longer. (Test. of Miller; Ex. A16 at 32.) 49. On July 29, 2013, Licensee attended a meeting that Client A’s respite provider, Beth Houston, 17 also attended. During that meeting, Ms. Houston made statements about Client A’s respite stay, which Licensee documented and placed in Client A’s chart. Licensee noted the following: He’s so manipulative . . . busy blaming everyone . . . he lies. Journals and says lies in his journals. She had write and shredded w/o looking at it 2x. Had write truths and put unread in truth box. “He did damage at my house . . . pulled out all the flowers . . . he put a hole in the wall so he could talk to the other respite kid. (Ex. A35 at 4; Ex. A3 at 17.) 50. On September 19, 2013, Licensee documented in Client A’s chart a telephone conversation she had with Licensee’s father. The father advised Licensee that “Last Friday [Client A] tried to strangulate himself” and added “Personally, I think it’s to get me to change his program.” (Ex. A35 at 5; Ex. A3 at 17.) The father reported that “For the first time [Client A] is at a school where if they give him homework they expect him to do it . . . he doesn’t like wearing a uniform.” (Id.) The father also reported that Client A had spent three months total in respite with Beth Houston, and that he was seeing Dr. Gil Winkelman for labs. 18 The father advised that Client A had “serious liver problems in his bloodwork,” which the father attributed to Client A’s mother “dosing him with Benadryl and using meth when pregnant.” (Id.) Licensee recommended that Client A be checked for “heavy metals.” (Id.) The father also reported that he had been encouraging Client A to drink more fluids, and that they had left a jar in his room for him to urinate into at night, which Client A used to deeply scratch himself. The father also 16
Licensee wrote in her process notes: “DHS bringing in their own therapists.” (Ex. A35 at 6.)
This is the same person referred to as “Beth Hudson” in finding 45 above.
Between June 25, 2013 and September 4, 2013, the father and stepmother took Client A to see Gil Winkelman, N.D., for naturopathic treatment of Client A’s behavioral issues. On the initial visit, the parents advised Dr. Winkelman that Client A had been self-harming, stealing and/or gorging on food, lying and manipulating. Dr. Winkelman determined that Client A “likely has an imbalance somewhere in body” and that he “may be having failure to thrive issues related to biological mom’s drug use.” Dr. Winkelman recommended that Client A drink clear, filtered water daily. He also recommended castor oil packs 20-40 minutes each day for four days each week. (Ex. R16 at 1-2.) On August 14, 2013, Dr. Winkelman noted that Client A’s labs suggested a mild liver issue, possibly some adrenal dysfunction. (Id. at 8.) Dr. Winkelman’s chart notes also reflect that during the 11 office visits, he spent a significant amount of time counseling both the parents and Client A regarding behavior. (Id.)
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advised Licensee that Client A was in the hospital, and that the hospital staff thinks that Client A is “horribly anxious and horribly depressed.” (Id.) Licensee’s chart note concludes: Tried to kill himself because Dad made drink water and try to urinate every 15 minutes and Dad laughed because kept blowing nose. [Stepmother] found him pulling pjs around his throat. He screamed when [stepmother] pulled free. (Ex. A35 at 3; Ex. A3 at 17-18.) 51. Licensee’s intention in recommending the bottle feeding exercise was to help Client A regulate, to desensitize him to touch and eye contact and to help him feel safe. Licensee is aware of research suggesting that sucking can be very soothing. In Licensee’s assessment, the intervention was appropriate because she believed that Client A’s developmental age was somewhere between one and three years old. Licensee talked with the father and Client A about the fact that the father had not been able to hold Client A during key times in the child’s development, and the bottle feeding exercise gave Client A an opportunity to have his father hold and smile at him. Client A was willing to participate in this exercise and mentioned how he liked to be rocked and have hot chocolate. Licensee did not foresee that this exercise might be misused, or that Client A would experience shame or humiliation as a result of the bottle feeding. (Ex. A13 at 11; test. of Miller.) 52. Licensee recommended baby birding in part because Client A “was very food motivated and this intervention had the additional bonus of having him match the experience of eye contact and parental attention with something very positive to him.” (Ex. A16 at 26.) In Licensee’s experience, most children find baby birding a fun and positive experience, and Client A, at age 9 or 10, was no exception. Licensee believes that the intervention was only instituted for a week or two. She did not specifically talk with Client A about it, and Client A did not mention it further during subsequent treatment sessions. (Id.) 53. Licensee did not consider Client A to be manipulative. Rather, she viewed him as anxious and somewhat developmentally delayed. At times during her contact with the family, Licensee considered reporting the parents to DHS but did not do so. Although she was concerned about the parents’ controlling nature and their lack of follow through with her suggested modifications and interventions, Licensee relied on the fact that DHS was already involved with the family for reasons related to Client A’s siblings. (Test. of Miller.) Client A’s Suicide Attempt, Psychiatric Hospitalization and Placement in Protective Custody: 54. On September 13, 2013, after Client A attempted to strangle himself, the father brought Client A to the hospital for evaluation of his self-harm behavior. The father reported that Client A’s self-harming behavior had been escalating over the past couple of weeks to the point that the father feared for Client A’s safety. Client A told the emergency department doctor and the hospital’s social worker that he wanted to kill himself. He stated that he was angry because his father kept telling him every 10 minutes to use the restroom and was laughing at him because he was blowing his nose frequently. Client A advised that he had tried to strangle
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himself at least four times in the past week, but stopped when it started to hurt his jaw. He also reported that he was scratching himself with a plastic lid when he got angry, but that did not make him feel better. He asserted that he may try to harm himself again if he was sent back home. Client A was admitted to Providence Portland Medical Center on a guardian hold. (Ex. A5 at 2-9.) 55. The father advised the hospital staff that Client A was just acting out, and he expressed concern that Client A would be “rewarded” for these behaviors during his hospital stay. The father wanted Client A to have a gluten and dairy free diet 19 and to not be permitted to watch television while in the hospital. (Ex. A5 at 5-6; test. of McGrath; test. of Brubaker.) The father also told hospital staff that he did not want Client A to play and have fun with the other children on the ward. (Test. of McGrath.) 56. Upon his admission, Client A’s affect was somewhat blunted and flat. He was anxious and worried, and struggled with his emotions. As time went on and he got more comfortable, he became more joyful. Client A began to open up to the hospital staff. He said that he loved his father, and he wanted to learn to love what his father loved – his stepmother. He appeared motivated to get better. His behavior was appropriate. He made eye contact with others, and was polite and social. (Test. of McGrath.) 57. At the hospital, Client A was evaluated by Christopher Brubaker, M.D., a psychiatric fellow and Tan Duy Ngo, M.D., a psychiatrist, who diagnosed him with Depressive Disorder, NOS and a parent-child relational conflict. Client A’s treating physicians did not endorse RAD as a diagnosis. (Ex. A5 at 140-143; test. of Brubaker.) On September 18, 2013, Dr. Brubaker noted that Client A’s “behavior here remains discordant from reports from home, indicating need for further diagnostic eval in milieu given severely suicidal behavior at home.” (Ex. A5 at 135.) Dr. Brubaker also noted “given difficulty of parent and child interaction, interpersonal conflict likely contributes to a great deal of [Client A’s] difficulty, and in-home therapy at a minimum of 2x/week is indicated. His likelihood of completed suicide is much greater if he is discharged home before this is in place, and this has been noted to parents.” (Id.) 58. During a September 18, 2013 meeting with the family, Drs. Ngo and Brubaker advised Client A’s father that Client A was anxious and depressed and needed intensive family counseling with his father and stepmother. The father stated that he did not feel he could safely manage Client A in his home without watching him 24 hours a day, seven days a week. The father also expressed his belief that Client A needed residential treatment. Drs. Ngo and Brubaker explained to the father that they did not agree with this plan, and could not support it. They recommended instead in-home parenting support and guidance and family therapy. When Client A entered the meeting, he was very anxious, but was able to talk about his emotions and fears. Sarah Kaiser, the hospital’s social worker, who was also in attendance in the meeting, documented the dynamic between Client A and his father as follows: [Father] seemed to have a hard time trusting anything [Client A] said and often responded in a way that seemed to shut [Client A] down. I explained to [Client 19
Hospital staff later contacted Client A’s pediatrician, who had no record of testing Client A for gluten and dairy intolerance. (Test. of Brubaker; Ex. A5 at 97.)
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A] and [father] that their communication style was closed rather than open and coached them a bit on how to have their communication be more open. While both seemed willing to engage differently with each other, [Client A] appeared very anxious about this while [father] appeared skeptical, Certainly [father’s] skepticism was influencing [Client A’s] anxiety. To [Client A’s] benefit, he was able to talk about his passive aggressive behavior at home, about his tendency to need assistance from his father and stepmother in getting some chores done, and about his resistance to some of the attachment treatment suggestions that have been made by various therapists. [Father] seemed very rigid in his thinking and in his expectations, and this author was left feeling that [Client A] would likely not succeed at home, given [father] and [stepmother’s] expectation that he will fail. (Ex. A5 at 131.) 59. Following this meeting, Client A’s father called the unit seeking to take Client A out of the hospital because he felt that Client A was being allowed to do too many things that were fun, and not enough that were serious, which would make his return home more difficult. Dr. Brubaker spoke with the father and mentioned that insurance would not cover Client A’s hospitalization if Client A was discharged against medical advice. The father eventually decided to allow Client A to remain in the hospital. (Ex. A5 at 131; test. of Brubaker.) 60. At the hospital, Client A began to open up about the conditions at his home and his parents’ expectations of him. Client A reported, among other things, that his parents had placed an alarm on his door to prevent him from leaving the room at night; that he had to urinate into a jar in his room rather than go to the bathroom; that his parents made him drink water; and that they bought food but did not give him what they were eating. Client A also reported that his stepmother and occasionally his father hit him with an open hand across the face and head, hard enough to leave a mark; that he is expected to call his stepmother “Queen A*****”; and that he is frequently required to do chores before he is allowed to eat. (Exs. A5 at 94-96; Ex. A6; Ex. A7.) 61. Client A’s statements, some of which the father confirmed, raised concern with hospital staff and prompted a call to DHS regarding neglect and emotional abuse. The caller advised DHS that Client A had not been exhibiting manipulative or disruptive behaviors at the hospital. Rather, Client A had been very well behaved, and acted like a child that had been raised in a military setting. The caller noted that Client A had been waking up at 5:30 a.m. each day, and making his own bed at the hospital. (Exs. A6 and A7 at 3.) 62. On September 20, 2013, DHS Child Welfare Investigator Jennifer Bolsinger interviewed Client A at the hospital. Client A reported, among other things, that his father and stepmother think everything he does is wrong, and he cannot please them. He reported that he spends the majority of time in his room waiting to be called down for dinner; that he is made to eat dinner alone before his parents eat; that his meals consist of a tin of sardines and a protein shake for breakfast, turkey sandwich, carrots and nuts for lunch, and usually chicken, vegetables
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and pasta for dinner. He reported that he was not allowed snacks, and that he had been pulled out of school the previous year for “stealing people’s lunches.” (Ex. A8 at 1; Ex. A10 at 2; test. of Bolsinger.) Client A again reported that he has to urinate in a jar in his room and if he has to defecate, he needs permission to use the bathroom. (Id.) 63. During the interview, Client A also advised Ms. Bolsinger that his parents believe he has RAD and he had been working with Licensee regarding the disorder. Client A described bottle feeding with his father. When Ms. Bolsinger asked Client A what he thought of that activity, he stated that it was confusing because “I’m not a baby.” (Ex. A8 at 2; Ex. A10 at 2; test. of Bolsinger.) He also reported that he felt his father would “smile a fake smile” at him during the bottle feeding. He also described how he was required to crawl on his tummy and then on his knees, “40 minutes together of crawling like a baby.” He confirmed that he was required to address his stepmother as “Queen A*****” to “show her respect.” He also mentioned that he had gone to Idaho for respite during the summer, where every day consisted of shoveling gravel and cutting wood with a saw. (Id.) 64. On September 24, 2013, Ms. Bolsinger and a law enforcement officer interviewed the father and stepmother in their home. During the interview, the father related how they had taken the children to Licensee for treatment of RAD. The father advised that Licensee told them that they first needed to “get compliance” because the children’s “big issue is feeling like they need control.” (Ex. A8 at 4; Ex. A10 at 5.) The parents stated that Licensee recommended that they put alarms on the doors of the children’s rooms. They also stated that Licensee “taught us what to do when they wouldn’t comply – they either do jumping jacks or a trampoline. It helps stimulate the brain.” (Id.) The parents added that they also use “strong sitting – which activates both sides of the brain.” (Id.) They added that Licensee recommended “no less than 12 hugs a day.” The parents confirmed that Licensee recommended bottle feeding, crawling on hands and knees, “tummy time,” sitting in a car seat and “tactile therapy.” (Id.; test. of Bolsinger.) 65. During the interview, Ms. Bolsinger asked the parents what Licensee had recommended to address the stigma of an 11 year old boy being bottle fed, sitting in a car seat and crawling like a baby. They responded that there was no stigma because Client A understood it is therapy. When Ms. Bolsinger expressed concern that Client A would likely interact with other children and realize that his peers at school were not engaged in such activities, the parents were adamant that this was prescribed therapy and Client A would not discuss it at school. (Ex. A8 at 4; Ex. A10 at 5-6; test. of Bolsinger.) 66. The parents reported that Licensee told them that in situations where, as in the case of Client A and his sisters, there is more than one child who has experienced trauma, the children are likely to form a “trauma bond,” which impedes improvement for the children individually. The said that Licensee described to them how the older child will be the role model to the younger two and exhibit unhealthy – while formerly necessary – coping skills that the younger children will mimic. The parents explained that this was why they had not allowed Client A contact with his siblings recently. (Ex. A8 at 5; Ex. A10 at 6.) 67. Ms. Bolsinger noted that, throughout her discussion with the parents, they had not said anything positive about any of the children until she specifically asked them about Client
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A’s strengths. The parents repeatedly described the children as “manipulative” and “noncompliant.” (Ex. A8 at 4; Ex. A10 at 6.) The described Client A as “triangulating” and intentionally destructive. (Id.) They described his strengths as “intelligent and perceptive,” but then added, “that strength is something that causes harm.” (Id.) 68. During the interview, the parents confirmed that they had placed the “pee jar” in Client A’s room because “he would get up 3-4 times nightly to go to the bathroom and the alarm would go off.” They added that they took the jar away after Client A used the lid to harm himself, but they replaced it with a bucket. The parents also confirmed that Client A was to address the stepmother as “Queen,” explaining that it was inappropriate for him to call her mom and inappropriate for him to use her first name only, because using only her first name supports the notion that the child’s “opinion is the same as an adult’s – and that leads to entitlement – it’s part of a lack of respect.” (Ex. A8 at 6; Ex. A10 at 7; test. of Bolsinger.) 69. Ms. Bolsinger noted that the father and stepmother’s home was very clean and orderly. She asked to see Client A’s room, which had had minimal furnishing, only a mattress (without bedding) up against the wall and a desk without a chair, and no personal effects whatsoever. When Ms. Bolsinger asked where Client A’s belongings were, the stepmother responded that “his bear is in the wash.” (Ex. A8 at 6; A10 at 8; test. of Bolsinger.) They explained that Client A did not have a box spring because he was “stashing” things in there, and he did not have any toys in the room because he could harm himself with them. They showed Ms. Bolsinger Client A’s “things,” which were in the garage and consisted of crayons and pencils and couple of containers of Legos. (Id.) 70. Following Ms. Bolsinger’s interview with the father and stepmother, DHS took Client A into protective custody. In her report, Ms. Bolsinger noted as follows: Upon return to the living room, I informed [stepmother] and [father] that my concerns warranted taking protective custody. I expressed concern regarding the methods of working with [Client A] that they have been using in the home. I acknowledged that these methods, according to [Client A, the stepmother and father] have been therapeutically recommended by Dr. Miller, but expressed concern that all of the people providing services to the children are somehow affiliated with Dr. Miller, so there is no room for a second opinion. I also stated that [stepmother] and [father] themselves told me these methods weren’t working – so I was unclear why they continued to practice them. [Father] at this point went to get a pad of paper and started recording notes. [Stepmother] stated she is frustrated with people thinking that they are not trying to be good parents. They had several very specific questions for myself and [the law enforcement officer] about potential decisions, charges, etc. I repeatedly stated this was very early on in the process, and I could not give specifics as far as a timeline, other than the PS portion of 30-60 days to complete an assessment. [Father] voiced that he did not believe [Client A] would be well served by a foster placement. (Ex. A8 at 6-7; Ex. A10 at 8.)
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71. In a September 25, 2013 Shelter Order issued in the Washington County Circuit Court, the court found that Client A’s “father has engaged in both the physical abuse and emotional abuse of the child. He is unable to safely parent or address the child’s mental health needs.” (Ex. A5 at 283-87). 72. Since his discharge from the hospital in late September 2013, Client A has been living in a foster home. While he was initially somewhat quiet, reserved and guarded, he has flourished in foster care. He is able to give and accept affection, including hugs. He has not had any behavioral issues at school. Other than struggling a bit in math, his grades have been mostly Bs and Cs. He is involved in Boy Scouts and a Sunday school youth group. His foster parents consider him to be a “sweet, honest, compassionate and conscientious kid.” (Test. of A.W.) Expert Opinions on the Diagnosis and Treatment of RAD: 73. Reactive Attachment Disorder is a clinical disorder “that defines distinctive patterns of aberrant behavior in young children who have been maltreated or raised in environments that limit opportunities to form selective attachments.” (Ex. A23 at 1.) According to the DSM-IV-TR, the essential feature of RAD is “markedly disturbed and developmentally inappropriate social relatedness in most contexts, beginning before age 5 years” that is distinguishable from pervasive developmental disorders and is the result of “pathogenic care.” 20 (Ex. A32; Ex. A23 at 4.) The DSM-IV and DSM-IV-TR identify two subtypes of RAD, one in which the child displays and inability or unwillingness to engage in appropriate social interactions (inhibited type) and one in which the child displays “indiscriminate sociability” toward individuals with whom the child is unfamiliar (disinhibited type). The inhibited pattern of RAD is exceedingly rare. 21 (Ex. A32; Ex. A23 at 5; test. of Allen; test. of Brubaker.) It is only found in cases of extreme deprivation. (Test. of Allen.) 74. The attachment behaviors used to diagnose RAD change markedly with a child’s development. In infants and preschoolers, studies to assess a child’s attachment to a particular caregiver have recognized four patterns of attachment – secure, avoidant, resistant, and disorganized. Generally, securely attached infants explore their environments while in the presence of their attachment figures, they may be distressed by the departure of the caregiver, and will greet the caregiver in a positive, often comfort-seeking way upon his or her return following a brief separation. Infants displaying insecure attachments explore less frequently than secure infants. They may or may not be distressed by the separation, but they tend to refuse or ignore caregiver attempts to comfort them when reunited. (Test. of Allen; Ex. A18 at 2.) In school-age children, however, there exists relatively little research examining what is, or is not, normal attachment behavior. “Defining what behaviors in 12 year olds, for instance, are analogous to proximity seeking in toddlers is difficult. Even developmental attachment research 20
The child must have experienced pathogenic care as evidenced by at least one of the following: (a) persistent disregard for the child’s emotional needs for comfort and stimulation; (b) persistent disregard of the child’s basic physical needs; and (c) repeated changes of primary caregiver that prevent formation of suitable attachments. (Ex. A24 at 2.) 21
In the DSM-IV, the inhibited type of RAD is described as “a persistent failure to initiate or respond in a developmentally appropriate fashion to most social interactions.” (Ex. A24 at 2.)
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has no substantially validated measures of attachment in middle childhood or early adolescence, leaving the question of what constitutes clinical disorders of attachment even less clear.” (Ex. A23 at 6.) 75. Some practitioners practicing “attachment therapy” have unilaterally expanded the definition of RAD or created a broader category of “attachment disorder,” but there is no such recognized disorder in the DSM. Available research does not support this expanded definition of RAD or attempts to assess for attachment disorder. Moreover, the symptoms that these attachment therapy practitioners attribute to an attachment disorder – a variety of problematic behaviors 22 – are often included under other diagnostic categories, such as ODD, PTSD or conduct disorder. (Ex. A18 at 5; test. of Allen.) 76. The American Academy of Child and Adolescent Psychiatry (AACAP), a professional association dedicated to facilitating psychiatric care for children and adolescents in the United States, has warned about using this expanded definition for diagnosing RAD: Claims that many children with a diagnosis of attention-deficit/hyperactivity disorder and bipolar disorder, in fact, have RAD highlight the problems with diagnostic precision in this area (Levy and Orlans, 2000). In effect, DSM-IV-TR criteria have been largely transformed by groups of clinicians such that psychopathic qualities such as shallow or fake emotions, superficial connections to others, lack of remorse, and failures of empathy are viewed as core features of RAD (Levy and Orlans, 1999, 2000). There is certainly evidence that some maltreated children exhibit both disruptive behavior disorders and disturbances in interpersonal relatedness. Historical accounts of so-called “affectionless psychopaths” detail the challenges that children deprived by institutionalization are alleged to present (Wolkind, 1974), although this construct was never validated. Furthermore, foster and adoptive parents who care for such children can become overwhelmed by managing remorseless aggression. Although some of these children may have met criteria for RAD as young children, few are described as either indiscriminate or inhibited in their social relationships. There are two significant problems with the trend toward stretching the criteria for RAD to extend the diagnosis to older children. First, diagnostic precision is lost when signs such as oppositional behavior and aggression are viewed as aberrant attachment behaviors in older children. To say that these children do not have ODD or CD because their behavior is better explained by negative attachment experiences is to suggest an etiological pathway that can be neither proved nor disproved. Second, untested alternative therapies, loosely based on the proposed etiological model for RAD in older children, have been developed and implemented, 22
Symptoms such as “superficially charming; aggression; lying; cruelty to animals; lack of morals; false allegations of abuse; hypervigilance; stealing; lack of cause-and-effect thinking; preoccupation with fire, blood, and gore; destructive to self, property or others; not affectionate on parents’ terms; learning problems; abnormal eating patterns; and persistent nonsense questions, among others.” (Ex. A18 at 5.)
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sometimes with tragic results. Just as parents were separated from their autistic children in the 1950s because it was thought that the parents' aloofness had caused the disorder, parents of older children whose aggressive symptoms are presumed to be attachment related have been encouraged to physically restrain their children for purposes of reattachment or expose them to other coercive “treatments.” (Ex. A23 at 6.) 77. The AACAP has also developed practice parameters for the assessment and treatment of children and adolescents with RAD. Among other things, the AACAP recommends, as a clinical guideline, that the treatment provider assess the caregiver’s attitudes toward and perceptions about the child in selecting the appropriate treatment. As for treatment, the AACAP recommends, as a minimum standard, that after ensuring that the child is in a safe and stable placement, effective attachment treatment must focus on creating positive interactions with caregivers. (Ex. A23 at 10-11.) 78. The AACAP does not endorse interventions that involve coerced holding or techniques that promote regression for attachment difficulties because these interventions have no empirical support: It has been hypothesized that the development of aggression in children who have experienced early attachment disruptions is a fear response and that an attachment-promoting response is to “break through” fear and resistance with physical holding of the child (Cline, 1992). Furthermore, the therapies designed to provide “corrective attachment experiences” for those same children, particularly those with symptoms of CD and OCD, have been advocated (Levy and Orlans, 2000), despite the absence of empirical evidence that these interventions are safe or efficacious (Mercer, 2001, 2002). These treatment approaches are based on the assumption that caregiver behaviors believed to facilitate attachment in early childhood also facilitate attachment in school-age children. Consequently, school-age children are pushed to make direct eye contact and stimulated and soothed as if they were infants (Levy, 2000). There are also reports of regressive therapies in which children are bottle fed and tightly held. In fact, there is no evidence that parent or therapist behaviors appropriate for infants are appropriate for older children. (Ex. A23 at 11-12, emphasis added.) 79. A Delphi Poll, titled “Discredited Assessment and Treatment Methods Used with Children and Adolescents,” published this year in the Journal of Clinical Child & Adolescent Psychology, indicates that many allegedly attachment-promoting therapies have been largely discredited. This includes treatment techniques such as “triggering anger therapy” and “holding therapy.” 23 (Ex. A27 at 5; test. of Allen.) Though some believe that the use of holding 23
Therapeutic holding is the act of holding a child in an attempt to recreate the conditions believed necessary to develop a secure attachment denied the child earlier in life or to convince the child that his or her attempts to keep caregivers at a distance are no longer effective. These holding sessions may also use
Final Order - In the Matter of Debra (Kali) Miller, Ph.D. Page 25 of 33
techniques without coercion or intentional provocation may be an effective attachment-based treatment for children, a panel of more than 100 experts in the field of psychotherapy have identified such holding therapy as “probably discredited.” (Ex. A19 at 3.) This technique has also been categorized as “potentially harmful treatment” in a widely cited review. (Id.) 80. The use of “age regression techniques,” therapies that intentionally treat the child as if he or she were a younger age (interventions such as cradling, rocking and bottle feeding), also lack empirical support and have potentially harmful consequences. (Test. of Allen.) A narrow emphasis on the child’s social-emotional development may result in the application of techniques the child is capable of understanding as intended for younger children, regardless of whether the technique is coercive. The ramifications of this knowledge are numerous: shame, anger, frustration, guilt, and sadness, to name a few. (Ex. A19 at 3, emphasis added.) 81. Like the AACAP, the American Professional Society on the Abuse of Children (APSAC) has examined current practices related to the theory, evidence, diagnosis and treatment of children described as having attachment-related conditions and problems. In a 2006 report, the APSAC Task Force made recommendations for indicated and contraindicated assessment and treatment practices related to children with alleged attachment disorders. The APSAC Task Force determined, among other things, as follows: a. Treatment techniques or attachment parenting techniques involving physical coercion, psychologically or physically enforced holding, physical restraint, physical domination, provoked catharsis, ventilation of rage, age regression, humiliation, withholding or forcing food or water intake, prolonged social isolation, or assuming exaggerated levels of control and domination over a child are contraindicated because of risk of harm and absence of proven benefit and should not be used. ***** c. Intervention models that portray young children in negative ways, including describing certain groups of young children as pervasively manipulative, cunning, or deceitful, are not conducive to good treatment and may promote abusive practices. In general, child maltreatment professionals should be skeptical of treatments that describe children in pejorative terms or that advocate aggressive techniques for breaking down children’s defenses. *****
forced eye contact, rocking movements, soothing voices or other techniques thought important to the establishment during infancy. (Ex. A19 at 3.)
Final Order - In the Matter of Debra (Kali) Miller, Ph.D. Page 26 of 33
e. State-of-the-art, goal-directed, evidence-based approaches that fit the main presenting problem should be considered when selecting a first-line treatment. Where no evidence-based option exists or where evidence-based treatment options have been exhausted, alternative treatments with sound theory foundations and broad clinical acceptance are appropriate. Before attempting novel or highly unconventional treatments with untested benefits, the potential for psychological or physical harm should be carefully weighed. f. First-line services for children described as having attachment problems should be founded on the core principles suggested by attachment theory, including caregiver and environmental stability, child safety, patience, sensitivity, consistency, and nurturance. Shorter term, goal-directed, focused, behavioral interventions targeted at increasing parent sensitivity should be considered as a first-line treatment. (Ex. A25 at 11-12, emphasis added.) 82. In short, there are no empirically validated treatments for RAD. (Test. of Allen; Ex. R5 at 38.) A 2004 review by the State of Kansas Department of Social and Rehabilitation Services discussing best practices in the area of treating attachment difficulties concluded as follows: In light of significant concerns about effectiveness and ethics of holding therapies, best clinical practices for children diagnosed with RAD are guided by principals of trauma treatment and abstain from holding the child for purposes other than immediate safety. Although the national ATTACh organization supports noncoercive holding, it remains a matter of interpretation where “therapeutic” or “nurturing” holding ends and coercive practices begin. Because of the risk of causing harm through traumatization or re-traumatization, holding therapies should be avoided in favor of less intrusive methods. Attachment based interventions should aim to improve the caregiver’s capacity to serve as a secure base, and to increase reciprocity or attunement of child and caregiver. It stands to reason that such interventions can be offered without routinely engaging in holding practices when therapists are appropriately trained and can modify established methods of child therapy to meet the specific needs of a client. Treatment should ensure the child’s physical and emotional safety, avoid dysregulation, and support, involve, educate and train caregivers so that reciprocity/attunement between caregiver and child can be increased. (Ex. R5 at 49-50, emphasis added.) 83. Brian Allen, Psy.D., a clinical child psychologist, is an expert in the assessment and treatment of maltreated and traumatized children and the use and abuse of attachment theory in clinical practice. (Ex. A17.) In Dr. Allen’s opinion, Licensee lacks a clear understanding of RAD and, as a result misdiagnosed Client A with the disorder. In Dr. Allen’s assessment, Client
Final Order - In the Matter of Debra (Kali) Miller, Ph.D. Page 27 of 33
A did not present with symptoms meeting the DSM-IV criteria for RAD, either subtype. Significantly, Client A did not display a persistent failure to initiate or respond in most social interactions, nor the inability to exhibit appropriate selective attachments. Although Client A may have exhibited symptoms consistent with other disorders (e.g., PTSD or conduct disorder) Client A does not, in Dr. Allen’s opinion, have RAD. There exists, between Client A and his parents, a “parent-child relational problem,” a diagnosis recognized in the DSM-V. (Test. of Allen.) 84. Of greater concern to Dr. Allen than Licensee’s misdiagnosis of Client A is her treatment recommendations for Client A, along with her failure to follow up with Client A and the parents regarding how her recommended treatments were being implemented. In Dr. Allen’s opinion, the interventions that Licensee recommended to Client A’s father and stepmother (specifically, bottle feeding, baby-birding, an alarm on Client A’s door, the neurological functional neurological evaluation and the neurological reorganization exercise regimen) are not only lacking in empirical evidence, but they also had high potential to cause harm to Client A. The parents used Licensee’s recommendations as power assertive parenting techniques, which contributed to Client A’s feelings of hopelessness, guilt, shame, humiliation and frustration. Licensee also created the potential for harm in the way that she explained and endorsed certain interventions, such as strong sitting, which she knew the parents were using to discipline Client A. In Dr. Allen’s opinion, strong sitting and other power assertive parenting techniques are contraindicated in treating children with attachment issues. (Test. of Allen.) 85. In short, Dr. Allen faults Licensee for using a nonscientific approach to treatment and for recommending techniques that are not responsive to the emerging research in the treatment of attachment theory. Other concerns that Dr. Allen identified with Licensee’s practice included her charting practices and her introduction letter to potential clients, in which she makes recommendations and referrals to other providers, especially unlicensed providers, for treatment of RAD. In the case of Client A, for example, Licensee recommended a neurodevelopmental exercise program and the family’s participation in a Nancy Thomas camp without having met with Client A for an initial intake and without having any the opportunity to assess the family dynamic. As for her charting practices, Dr. Allen noted that Licensee failed to document Client A’s progress, failed to document the basis for her diagnoses, and failed to document her assessment, including whether her recommended treatment techniques were working in Client A’s case. (Test. of Allen.) CONCLUSIONS OF LAW 1. Licensee’s acts and conduct with regard to Client A and Licensee’s continued practice pose a serious danger to the public health or safety. 2. Circumstances at the time of the hearing justify confirmation of the Order of Emergency Suspension.
Final Order - In the Matter of Debra (Kali) Miller, Ph.D. Page 28 of 33
OPINION The authority for agencies to issue emergency suspension orders is found at ORS 183.430(2) and OAR 137-003-0560. Under the statute, the agency may suspend or refuse to renew a license without a hearing in any case where it finds “a serious danger to the public health or safety and sets forth specific reasons for such findings.” ORS 183.430(2). The statute further requires that a hearing be granted to the licensee as soon as practicable after a timely demand for hearing. OAR 137-003-0560 provides, in relevant part, as follows: If the agency finds there is a serious danger to the public health or safety, it may, by order, immediately suspend or refuse to renew a license. For purposes of this rule, such an order is referred to as an emergency suspension order. An emergency suspension order must be in writing. It may be issued without prior notice to the licensee and without a hearing prior to the emergency suspension order. OAR 137-003-0560(1). In this case, the Board issued an Order on Emergency Suspension to Licensee on March 11, 2014. The suspension has remained in effect to the present time. The Board has the burden of establishing by a preponderance of the evidence the findings set out in the Emergency Suspension Order. ORS 183.450(2) (“The burden of presenting evidence to support a fact or position in a contested case rests on the proponent of the fact or position”); Harris v. SAIF, 292 Or 683, 690 (1982) (general rule regarding allocation of burden of proof is that the burden is on the proponent of the fact or position); Metcalf v. AFSD, 65 Or App 761, 765 (1983) (in the absence of legislation specifying a different standard, the standard of proof in an administrative hearing is preponderance of the evidence). Proof by a preponderance of the evidence means that the fact finder is persuaded that the facts asserted are more likely than not true. Riley Hill General Contractor v. Tandy Corp., 303 Or 390, 402 (1987). In the Emergency Suspension Order, the Board found, among other things, as follows: Licensee failed to recognize or address Client A’s symptoms of depression, and made a diagnosis of RAD even though Client A did not meet the diagnostic criteria for RAD, either the inhibited or disinhibited type. ***** The techniques promoted by Licensee in regard to grade school aged children, to include bottle feedings (while sitting in a parent’s lap and maintaining eye contact), baby-birding, crawling on the floor, enforced sitting in a specified position, isolation from the family, and various exercises, are not supported by any valid psychological or physiological theory, and are not supported by empirical research, and may actually serve to increase emotional lability. The techniques recommended by Licensee in this case (or taught by unlicensed practitioners that Licensee referred her clients to) created the potential for
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misinterpretation by the parents and a high risk for physical and psychological damage to the child that could have contributed to Client A’s feelings of hopelessness, which is a significant predictive factor for suicide. Emergency Suspension Order at 2, 4. The evidence adduced at hearing bears out the Board’s findings. First, as Dr. Allen persuasively explained, 24 Client A did not meet the diagnostic criteria for RAD, as he did not demonstrate evidence of markedly disturbed and developmentally inappropriate social relatedness in most contexts. The conclusion that Licensee misdiagnosed Client A with RAD is supported by Dr. Guastadisegni’s September 2011 evaluation report as well as the September 2013 assessment of Drs. Ngo and Brubaker, the psychiatrists who treated Client A at Portland Providence Medical Center. 25 Dr. Guastadisegni diagnosed Client A with anxiety, ADHD and depression along with PTSD traits and a parent-child relation problem (mother-son). The psychiatrists diagnosed Client A with a depressive disorder and parent-child relational conflict. The psychiatrists ruled out RAD as a diagnosis, recognizing that Client A’s psychological issues likely resulted from the interpersonal conflicts with his father and stepmother rather than pathogenic care in his early years. Second, Licensee concedes that she recommended the following treatments for Client A, then a 10 year-old boy: bottle feeding, baby-birding, a monitoring alarm on his bedroom door, strong sitting and Susan Scott’s neurological reorganization exercise regime (including “tummy time” exercises). The evidence persuasively establishes that these treatment techniques lack valid scientific theory and empirical support. The evidence also demonstrates that these treatment techniques have the potential for harm in school-aged children, as they may cause the child to experience feelings of hopelessness, shame, anger, frustration and/or guilt. 26 In other words, as set out in the Emergency Suspension Order, the Board has shown that the treatment techniques that Licensee recommended and/or endorsed for Client A are “not supported by any valid psychological or physiological theory, and are not supported by empirical research, and may actually serve to increase emotional lability.”
Dr. Allen’s expert opinions regarding Licensee’s assessment and treatment of Client A are comprehensive and well-reasoned and therefore entitled to the most weight. See Somers v. SAIF Corp., 77 Or App 259 (1986) (where there is a dispute between medical experts the court will give more weight to those medical opinions that are well-reasoned and based on complete information).
Although Dr. Winkelman, a naturopath, apparently endorsed RAD as a diagnosis for Client A, this assessment, documented in his initial June 25, 2013 visit with the parents and Client A, was based on the intake form and the parents’ reported history, rather than any substantive evaluation of Client A. Given the circumstances, and the lack of evidence regarding Dr. Winkelman’s background and expertise in diagnosis and treatment of mental disorders, his opinion is entitled to little weight.
Even Licensee’s witness Ken Huey, LPC, the director of a residential treatment center for traumatized and maltreated children and adolescents, testified that he would not recommend crawling exercises, bottle feeding and baby-birding for school-age children given the potential for humiliation, embarrassment and shame to the child. (Test. of Huey).
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Third, the evidence demonstrates that the treatment techniques that Licensee recommended and/or endorsed created the potential for misinterpretation by the parents and a high risk of harm to Client A specifically. The Board has shown that, more likely than not, Licensee’s recommended interventions, as implemented by Client A’s father and stepmother, contributed to Client A’s feelings of hopelessness. After meeting with the family, Licensee soon realized that Client A’s father and stepmother were controlling and had impulsivity issues. Licensee knew that the father and stepmother could be, and had been, unduly harsh in disciplining Client A. She knew, for example, that they had removed all of Client A’s toys from his room and threw them away. She knew that they expected Client A to remain isolated in his room in the afternoons after school. She knew that the step mother was emotionally unstable and that the father was willing to put the stepmother’s needs over those of Client A. She knew that the father and stepmother perceived Client A as a liar and manipulator, no matter what. Given these circumstances, Licensee should have foreseen the significant likelihood that the father and stepmother would misinterpret or misuse her recommended treatment techniques to the detriment of Client A. Licensee should have recognized that the parents would use these techniques to assert power over Client A and/or to shame or humiliate him into compliance rather than to secure the attachment between father and son. Furthermore, during her treatment sessions with Client A, Licensee had an ethical obligation to follow up with him as to how the recommended interventions were being implemented and how he was feeling about them. At the hospital after his suicide attempt, Client A opened up to staff and the DHS investigator about the circumstances that contributed to his feelings of anger and despair. He discussed, among other things, how his parents had placed an alarm on his door to prevent him from leaving the room, how he was required to crawl like a baby for 40 minutes daily, how he was confused by the bottle feeding because he was “not a baby,” and his father would “smile a fake smile at him” during the bottle feeding. The fact that Client A’s parents also employed other control techniques that Licensee did not know about or endorse (such as withholding food, forcing him to drink water, requiring him to urinate into a jar in his room and requiring him to refer to the stepmother as Queen A*****) does not excuse Licensee’s use of unproven, disfavored and largely discredited interventions in her treatment of Client A. Licensee knew enough about the father and stepmother’s propensity for harsh parenting such that she should have had serious concerns about their ability to appropriately implement her treatment recommendations. Licensee contends that she should not bear responsibility for Client A’s actions in September 2013 or for the actions of his parents leading up to this incident because her treatment of Client A ended months earlier. Regardless of whether Licensee terminated the therapeutic relationship with the family in May 2013, the fact remains that the parents continued to use (or misuse) Licensee’s recommended interventions along with the other control techniques. For example, on her last session with the father, on May 8, 2013, Licensee’s notes reflect that she “taught baby-birding” and recommended “bottle time daily.” (Ex. A35 at 6.) Licensee suggested having the stepmother involved in the bottle feeding activity by bringing the bottle to Client A, and by rubbing, touching or patting him and judging his reaction. (Id.) As noted above, at the hospital, Client A identified bottle feeding, the alarm on his door, and having to spend 40 minutes daily “crawling like a baby” as treatments his parents were using on him at home. In short, while Licensee’s recommended interventions and treatment techniques may
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have not been a direct cause of Client A’s suicide attempt, they undoubtedly contributed to his feelings of hopelessness, shame and anger. Licensee put tools (i.e., unscientific and largely discredited treatment methods) into the parents’ hands which the parents used to Client A’s detriment. She fell below the standard of care in diagnosing Client A with RAD and, more importantly, in recommending treatment interventions that included bottle feeding, baby-birding, a monitoring alarm on his bedroom door, a neurological reorganization exercise regime and strong-sitting as a disciplinary measure. As set out above, under the APSAC treatment standards, attachment techniques involving age regression and/or exaggerated levels of control over a child should not be used because of the risk of harm and absence of proven benefit. (Ex. A25 at 11.) Furthermore, because she was using these unconventional and untested treatment techniques, Licensee had an obligation to carefully weigh the potential for psychological harm to Client A. She failed to do so. The evidence persuasively demonstrates that these treatment techniques had the potential to cause and, more likely than not, did cause psychological harm to Client A. It is Licensee’s lack of insight – her failure to recognize or appreciate that her assessment and treatment of Client A not only fell below the standard of care but also carried a significant risk of harm to the child – that makes Licensee’s continued practice a serious danger to the public health or safety. For this reason, the Emergency Suspension Order should be confirmed. EXCEPTIONS On September 15, 2014, counsel for Licensee filed written exceptions with the Board in regard to the Proposed Final Order issued by ALJ Webster. In exception 11, counsel for Licensee notes that in paragraph 19, the ALJ made reference to A25, which has nothing do to with Licensee’s chart notes. The Board agrees. The reference, as counsel suggests, should be to A35. The Board makes that correction in this Final Order. Counsel for Licensee also points out in paragraph 19 that Licensee testified that Client A’s father said he would leave snacks out for Client A upon his arrival from school and a fruit bowl would be available at all times. The Board agrees with this observation, and will include this in paragraph 19 of this Order. Counsel for Licensee also states that in paragraph 19 the process note making reference to a “full RAD day” in A 35 (4/17/12) was a quote from Client A’s father. The Board believes this is an accurate observation. Counsel contends in exception 28 that Dr. Brian Allen was not qualified to testify as to whether Client A had RAD and argues that he lacked the expertise to offer that opinion. Although Dr. Allen did not meet Client A and did not conduct an evaluation of him, he did review all the relevant exhibits in the case, to include Licensee’s process notes, the neuropsychological evaluation by Dr. Guastadisegni and the records from Providence Portland Medical Center pertaining to Client A. Dr. Allen has been published in the use and abuse of attachment theory in clinical practice (see A18 and A19), and has extensive clinical experience. The Board recognizes Dr. Allen as an expert in his field and finds that he is and well qualified to testify and provide his opinion, to include addressing Licensee’s diagnosis of RAD in regard to Patient A and the treatment modalities that she recommended. The Board rejects exception 28. In Exception 29, counsel contends that she did not utilize coercive treatment methods in any of her treatment modalities and that she trained the parents to watch out for signs of distress. This misses the point that the treatment modalities that she provided to the parents of this 11 year old
Final Order - In the Matter of Debra (Kali) Miller, Ph.D. Page 32 of 33
service is the day it was mailed, not the day you received it. If you do not file a petition for judicial review within the 60 days’ time period, you will lose your right to appeal.
Final Order - In the Matter of Debra (Kali) Miller, Ph.D. Page 34 of 34
BOARD OF PSYCHOLOGIST EXAMINERS
STATE OF OREGON
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In the Matter of the License to Practice as a Psychologist of: DEBRA (KALI) MILLER, Ph.D.
) AGENCY NO: OBPE #2011-029 ) ) ) NOTICE OF PROPOSED TERMS OF ) SUPERVISION
The Board of Psychologist Examiners (Board) is the state agency responsible for
licensing and disciplining psychologists, and for regulating the practice of psychology in the
State of Oregon. Debra (Kali) Miller, Ph.D., (Licensee) is licensed by the Board to practice
psychology in the State of Oregon.
The Board proposes to impose the following terms of supervision:
Licensee must meet monthly with a practice supervisor for a minimum of two
years, who must be an Oregon licensed psychologist and be approved in advance
by the Board’s designee. The supervisor will submit quarterly written reports to
the Board in regard to Licensee’s practice and the quality of Licensee’s charting.
After two years, Licensee may submit a written request to the Board, with a
written recommendation from his practice supervisor, to terminate or modify the
terms of supervision.
21 22 23 24 25
Licensee must successfully complete course work pre-approved by the Board’s Executive Director. 2.
The Board’s proposal to impose terms of supervision is based on the following alleged facts that constitute violations of ORS 675.070 and the specified ethical standards:
26 PAGE 1 –NOTICE OF PROPOSED TERMS OF SUPERVISION – DEBRA (Kali) Miller, Ph.D.
BB, an adult male, and LB, an adult female, are the divorced parents of now 7
year old JB. The parenting plan and final order for the dissolution of their
marriage was filed on December 18, 2007 in Clark County, Washington. This
dissolution order assigned joint custody and shared parenting time to BB and LB,
and provided the mother, LB, with primary physical custody for JB. Non-
emergency health care decisions were to be made jointly. On February 6, 2010,
an allegation was filed with the Washington Department of Social and Health
Services that BB had engaged in sexual conduct toward JB. As a result, JB was
not allowed to share custody with his daughter, JB, for a number of months. After
an investigation, the allegation was determined to be “unfounded.” A similar
report was subsequently filed with the Oregon Department of Human Services
(DHS), which conducted a CARES NW evaluation of JB, and issued a report in
March 2010. The report closed the case as unfounded, and stated in the body of
the report that BB and LB shared custody for JB.
On October 8, 2010, LB met with Licensee to discuss JB. Based upon a review of
records to include the March 2010 CARES report and discussions with LB,
Licensee formulated a diagnosis, to include post-traumatic stress disorder
(PTSD), Undifferentiated Somatoform Disorder, and rule-out General Anxiety.
Licensee met with JB for the first time on October 13, 2010, and began to provide
a course of therapy for JB. In her therapy session with JB, Licensee utilized her
own trauma indicators checklist and methodology to determine that JB may have
been sexually abused. Licensee’s methodology to determine whether a child has
suffered abuse is not current. Licensee also states that trauma is stored in the right
hemisphere of the brain, she attaches significance to the brain chart of Dr. Amen,
and asserts that a child that looks up to the right and then back at the interviewer
26 PAGE 2 –NOTICE OF PROPOSED TERMS OF SUPERVISION – DEBRA (Kali) Miller, Ph.D.
has been coached. She has also stated that a child that can draw and easily
express themselves on paper are being truthful.
Licensee formulated treatment goals for JB, to include “process sexual disclosures
& discontinue inappropriate sexual acting out.” Licensee continued to meet with
JB for a series of therapy sessions. On October 27, 2010, BB wrote to Licensee
and asked “to meet with you in person to share my side of the story.” Licensee
did not respond to this letter. On February 19, 2011, BB signed an informed
consent form in regard to Licensee providing treatment to JB. On February 21,
2011, BB wrote a letter to Licensee asking to meet in regard to his daughter, JB.
BB enclosed a copy of his psychosexual evaluation report, a polygraph report, and
the parenting plan, and asked for her findings in regard to JB as well as a copy of
JB’s file. Licensee failed to respond to this letter. BB finally met with Licensee
on February 23 and 24, 2011, and again on March 2, 2011. BB sent another letter
on March 9, 2011 (this time by certified mail) to Licensee requesting a copy of
JB’s records. Licensee failed to respond until May 4, 2011, when she replied by
letter to BB and provided an explanation of her conduct.
The Board alleges that the acts and conduct of Licensee described above constitute
violations of the following statutes, rules, and Ethical Standards (ES’s) as more fully explained
ES 2.03 (Maintaining Competence), as adopted by the Board, in that Licensee
relies upon her own methodology and unreliable sources in assessing whether a
child has suffered sexual abuse,
ES 2.04 (Bases for Scientific and Professional Judgments), as adopted by the
Board, in that Licensee used her own methodology in formulating an assessment of
JB. Licensee’s belief that trauma is stored in the right hemisphere of the brain, her PAGE 3 –NOTICE OF PROPOSED TERMS OF SUPERVISION – DEBRA (Kali) Miller, Ph.D.
reliance upon the brain chart of Dr. Amen, her belief that a child that looks up to
the right and then back at the interviewer has been coached and her conclusion that
children that can draw and can easily express themselves on paper are being
truthful are not grounded upon established scientific and professional knowledge
of the profession.
ES 3.04 (Avoiding Harm), as adopted by the Board, in that Licensee failed to
respond to BB’s request that she respond to his letters and appeared to favor the
interests of LB over that of BB during her series of therapy sessions with JB, and
failed to take reasonable steps to avoid harm to the relationship between JB and
10 11 12
her father, BB. 4. The Board has authority to suspend and to impose other sanctions and terms of probation
upon Licensee’s license to practice psychology in Oregon pursuant to ORS 675.070(1); ORS
675.110(4) and (12); and OAR 858-010-0075. The Board has authority to investigate complaints
under ORS 675.110(8). The Board reserves the right to amend this Notice and impose additional
sanctions as allowed under the Board’s authority.
Licensee has the right, if Licensee requests, to have a formal contested case hearing
before an Administrative Law Judge to contest the matter set out above, as provided by Oregon
Revised Statutes 183.310 to 183.550. At the hearing, Licensee may be represented by an
attorney and subpoena and cross-examine witnesses.
6. If Licensee requests a hearing, the request must be made in writing to the Board, must
be received by the Board within thirty (30) days from the mailing of this notice, and must be
accompanied by a written answer to the charges contained in this notice. Before
commencement of the hearing, Licensee will be given information on the procedures, right of PAGE 4 –NOTICE OF PROPOSED TERMS OF SUPERVISION – DEBRA (Kali) Miller, Ph.D.
representation and other rights of parties relating to the conduct of the hearing as required
under ORS 183.413-415. 7.
If Licensee fails to request
within 30 days, or fails to appear at the hearing
scheduled, the Board may issue a final order by default and impose the proposed suspension against
Licensee. Licensee's submissions to the Board to-date regarding the subject of this disciplinary case
and all information in the Board's files relevant to the subject of this case automatically become part
of the evidentiary record of this disciplinary action upon default for the purpose of proving
facie case. ORS 183.417(4).
BOARD OF PSYCHOLOGIST EXAMINERS
of Psychologist Examiners
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2t 22 23
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PAGE 5 -NOTICE OF PROPOSED TERMS OF SUPERVISION
DEBRA (Kali) Miller, Ph.D.