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Denham v. Delaware Board of Mental Health and Chemical Dependency Professionals

Superior Court of Delaware

November 30, 2017

LAURIE ANN DENHAM, Appellant,
v.
DELAWARE BOARD OF MENTAL HEALTH AND CHEMICAL DEPENDENCY PROFESSIONALS, Appellee.

          Submitted: August 4, 2017

         On Appeal of the Delaware Board of Mental Health and Chemical Dependency Professionals, AFFIRMED.

          Gary W. Alderson, Esquire, Elzufon Austin & Mondell, P.A., Attorney for Appellant, Laurie Ann Denham.

          Zoe Plerhoples, Esquire, Deputy Attorney General, State of Delaware Department of Justice, Attorney for Appellee, Delaware Board of Mental Health and Chemical Dependency Professionals.

          OPINION AND ORDER

          FERRIS W. WHARTON, JUDGE.

         I. INTRODUCTION

         Appellant Laurie Ann Denham ("Denham") filed a Notice of Appeal on February 10, 2017, requesting judicial review of the January 12, 2017 order by the Delaware Board of Mental Health and Chemical Dependency Professionals ("Board"). Denham contends that the Board erred in revoking her professional mental health counselor license.

         In considering this appeal, the Court must determine whether the Board's decision to revoke Denham's professional mental health counselor license is supported by substantial evidence and free of legal error. Upon consideration of the pleadings before the Court and the record below, the Court finds that there is substantial evidence to support the Board's ruling, and the Board did not err in reaching its decision. Accordingly, the Board's decision is AFFIRMED.

         II. FACTUAL AND PROCEDURAL CONTEXT

         Denham is a Delaware-licensed professional counselor of mental health ("LPCMH").[1] Between November 2013 and July 2015 Denham provided mental health services to a client, A.I., at Pike Creek Psychological Center, and then at her own practice, Touching Hearts Psychological Center.[2] A Hearing Officer found Denham violated the National Board for Certified Counselors' Code of Ethics ("the Ethics Code") in providing such services. Denham appeals that finding. Denham was previously disciplined by the Board in January 2016 for ethics violations, including a breach of confidentiality.[3]

         In 2013, client A.I. was referred to Denham to assess and treat A.I.'s PTSD and anxiety. In 2014, while treating A.I., Denham began to socialize regularly with A.I. outside of therapy. In April 2014, Denham contacted A.I. for reasons unrelated to therapy and asked A.I. to pray for her friend.[4] The next night, at A.I.'s suggestion, the two went out for drinks.[5] The two often went out for dinner, drinks, and therapy sessions.[6] During these dinner sessions, the two would have regular conversations; yet, Denham was paid for her professional services.[7]

         Over the next several months, Denham frequently emailed, Facebook messaged, and text messaged A.I. outside of therapy.[8] However, between May 2014 and August 2014, Denham did not document any of A.I.'s weekly therapy sessions in her records. Over the entire course of treatment with A.I., Denham did not document their social communications, including their outside meetings, their text and email messages, or social media contacts.

         In July 2014, Denham asked A.I. to follow and take pictures of the estranged wife of Denham's boyfriend.[9] In August of 2014, Denham scheduled a sensory therapy session with A.I. to occur on the beach.[10] Denham advised A.I. that they would meet at 5:45; work on sensory therapy until 7:30; and "end with 'mind cool down' with a glass of wine as [they] watch the sun set."[11] Denham asked A.I. to bring the wine, and they consumed the entire bottle.[12] The two often drank alcohol during therapy sessions.[13] Between May 2014 and August 2014, Denham did not document any of A.I.'s weekly therapy sessions in her records.[14] Over the entire course of treatment with A.I., Denham did not document their social communications, including their outside meetings, their text and email messages, or social media contacts.[15]

         In January of 2015, Denham started a charity and asked A.I. to join to utilize her photographic talents.[16] A.I. agreed, took photos at events, and served as the administrator of the charity's Facebook page. However, A.I. was not compensated for her work.[17] In addition, at Denham's request, A.I. photographed the wedding of Denham's son and a family photo shoot for Denham's sister-in-law.[18] In April of 2015, A.I. and her husband helped Denham move, and stored some of Denham's furniture in their basement.[19] In May of 2015, A.I. penned a multitude of intimate writings for Denham including a poem and Denham's proposed eulogy.[20] On July 9, 2015, Denham and A.I. met at a restaurant to discuss boundary issues.[21] Denham informed A.I. that she could not maintain the therapeutic relationship in light of Denham's inability to remain objective.[22] A.I. begged Denham not to abandon her, but when A.I. became upset Denham walked out of the restaurant, leaving her.[23] The next day, Denham texted A.I., recommending A.I. find a new therapist, but did not make a referral.[24]

         Following the abrupt termination of the client-therapist relationship, A.I. sought emergency treatment with her psychiatrist, Karen McCormick, followed by a new therapist, Colleen McGinnis.[25] Both McCormick and McGinnis filed professional complaints against Denham with the Division of Professional Regulation ("DPR").[26] In response, Denham asked A.I. to write a letter to McCormick and McGinnis retracting what she said about Denham.[27] In September of 2015, Denham sent A.I. a Facebook message stating that Denham could only save her license and livelihood if A.I. retracted her statements.[28] A.I. declined, and on September 18, 2015, Denham met A.I. outside of A.I.'s school and threatened to tell people that A.I. was "'crazy' and needed to go to the 'crazy house' and that she would lose her children."[29]

         In October of 2015, Denham formally responded to the DPR complaint in writing, stating, "Other than the continuity of care and/or clinical treatment, A.I. and I have not been in a social environment as a result of friendship or any other relationship other than a therapeutic relationship."[30] Yet, soon thereafter, Denham and A.I. made plans to see a favorite band together at a bar.[31] At the bar a third party took a photo of the two hugging, tagged them in the photo, and posted it on Facebook.[32] Dawn Schatz ("Schatz"), Denham's landlord and a licensed mental health professional, saw the picture and recognized A.I. as Denham's client.[33]Schatz took a screen-shot of the photo and submitted it to DPR with a complaint regarding Denham's lack of professional boundaries.[34]

         In response to the Schatz complaint Denham told the DPR investigator that she and A.I. had gone to the bar separately.[35] Denham knew that this was a lie, however.[36] Denham then repeatedly asked A.I to lie to the DPR investigator about their evening out at the bar.[37] A.I. refused and the two exchanged hostile Facebook messages, culminating in A.I. accusing Denham of blackmailing her.[38] Later, A.I. asked Denham to retrieve her furniture from A.I.'s home. Denham responded by accusing A.I. of being "beyond the crudest person I know, " "unstable, " "a ticking time bomb, " and of having a "fatal attraction" to Denham.[39] Furthermore, Denham claimed she was going to call A.I.'s principal and a crisis hotline.[40] In December of 2015, Denham sent A.I. a Facebook message with a song she wrote for A.I., but accusing A.I. of wanting to see her "hang" and purposely "throwing her under the bus."[41] Denham's on-again-off-again relationship with A.I. left A.I. ashamed, fearful, embarrassed, deceived, threatened, and "gone."[42]

         In December 2015, the State filed a formal Complaint with the Board against Denham alleging multiple violations of the Ethics Code.[43] A Hearing Officer conducted a hearing on the State's Complaint on June 8, 2016 and August 8, 2016.[44]The Hearing Officer determined that Denham violated Ethics Code directives 5, 6, 19-21, 44, 54, 61, 66 and 76, [45] which pursuant to Board Regulation 2.5, constitutes a violation of 24 Del. C. § 3009(a)(5).[46] In particular, the Hearing Officer found that Denham engaged in a harmful dual relationship with her client, did almost nothing to resolve the "harmful multiple relationship" she created, and then "threatened to use personal and confidential information gained through therapy.. .to blackmail A.I. in order to save herself."[47] The Hearing Officer also found that Denham "exploited [A.I.] through scare tactics" during the DPR investigation;[48] did not document the use of social media with A.I.; had no policies regarding social media; did not consider the ethical implications of using social media to communicate with A.I.;[49]and did not accurately maintain A.I.'s treatment records.[50] The Hearing Officer further concluded that the record [was] replete with evidence of [Denham] misusing her professional influence to meet her own needs at A.I.'s expense and welfare.

         As a result of the violations, the Hearing Officer recommended suspending Denham's license for three years with the suspension stayed after six months for three years' probation conditioned on Denham: (1) entering the Delaware Professionals' Health Monitoring Program; (2) obtaining an LPCMH to act as her supervisor; (3) creating and adhering to a professional development plan; (4) completing continuing education credits in ethics, the use of social media, and boundaries; and (5) paying a $1, 000.00 fine.[51]

         The parties were given twenty days from the date of the Hearing Officer's proposed order to submit written exceptions, comments, and arguments concerning the conclusions of law and recommended penalty.[52] Denham did not submit anything.[53] The State, however, submitted written exceptions and attended the Board's meeting to argue for more significant discipline than the Hearing Officer's recommendation.[54] In particular, the State argued that Denham exploited, manipulated, and used a vulnerable client, attempted to place blame for her own misconduct on that client, and lied to DPR investigators during the course of the investigation.[55]

         After deliberating, the Board voted to affirm the Hearing Officer's recommended conclusions of law, but amended the recommended discipline.[56]Based upon Denham's pattern of unethical behavior, failure to submit required reports, and overwhelming egregious conduct the Board determined the recommended discipline was too light and unanimously voted to revoke Denham's license.[57]

         III. THE PARTIES CONTENTIONS

         Denham contends that she was not afforded due process because she was denied a meaningful hearing.[58] In particular, Denham argues that the Hearing Officer committed legal error when she (1) declined to rule on Denham's objection to the State's proffer of Dawn Schatz as an expert;[59] (2) permitted Schatz to offer expert opinion testimony, [60] (3) considered Denham's past discipline as an aggravating factor;[61] and (4) failed to afford Denham proper deference as a pro se litigant.[62]

         In response, the Board argues that Denham had the opportunity to be heard and to present testimony during the hearing and therefore was afforded due process.[63] In particular, the Board argues that Schatz was properly allowed to give limited testimony as a mixed fact/expert witness regarding the basis for her professional complaint;[64] Denham was afforded significant deference as a pro se litigant;[65] the Board properly considered Denham's prior discipline as an aggravating factor;[66] the Board did not require expert testimony to find violations of the ethics code directives;[67] and there is substantial evidence to support the Board's finding that Denham violated the ethics code directives.[68]

         IV. STANDARD OF REVIEW

         The Administrative Procedures Act ("APA") vests this Court with jurisdiction over appeals from a final order of the Board.[69] The Board's final order must be affirmed so long as it is supported by substantial evidence and free from legal error.[70]Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.[71] While a preponderance of evidence is not necessary, substantial evidence means "more than a mere scintilla."[72] The Court takes due account of the Board's specialized competence and the purpose of the law under which the Board acted, [73] and does not weigh the evidence, determine credibility or draw its own factual findings or conclusions.[74]

         Questions of law are reviewed de novo.[75] If the Board's findings and conclusions are sufficiently "supported by the record and are the product of an orderly and logical deductive process, " its decision will be affirmed.[76]

         V. DISCUSSION

         A. The Board's Decision is Supported by Substantial Evidence Because a Reasonable Mind Might Accept That Denham Violated the Ethics Code Directives.

         The Board relied upon the following facts to reach the decision to revoke Denham's license: Denham engaged in a harmful dual relationship with her client; Denham did nothing to address the "harmful multiple relationship" she created; Denham "threatened to use personal and confidential information gained through therapy...to blackmail A.I. in order to save herself;"[77] Denham "exploited [A.I.] through scare tactics" during the DPR investigation;[78] Denham did not document the use of social media with A.I.; Denham had no policies regarding social media; Denham did not consider the ethical implications of using social media to communicate with A.I.;[79] Denham did not accurately maintain A.I.'s treatment records;[80] and [Denham] misused her professional influence to meet her own needs at A.I.'s expense and welfare. Additionally, based upon Denham's pattern of unethical behavior, failure to submit required reports, and overwhelming egregious conduct the Board determined the Hearing Officer's recommended discipline was insufficient and unanimously voted to revoke Denham's license.[81] Based on those facts, the Court finds that there is substantial, if not overwhelming, evidence to conclude that Denham violated the Ethics Code Directives and that license revocation was appropriate.

         B. The Hearing Officer Committed No Legal Error in Reaching Her Decision.

         Denham asserts that the Hearing Officer committed legal error when she (1) permitted Schatz to offer expert opinion testimony;[82] (2) declined to rule on Denham's objection to the State's proffer of Dawn Schatz as an expert;[83] (3) considered Denham's past discipline as an aggravating factor;[84] and (4) failed to afford Denham proper deference as a pro se litigant.[85]

         1. The Board Did Not Require Expert Testimony to Find Violations of the Ethics Code Directives, and, Furthermore, the Hearing Officer Properly Allowed Schatz to Give Testimony as a Mixed Fact/Expert Witness.

         A Board's review of licensing issues may rely on expert testimony, however, not all Board decisions require expert testimony in order to establish the standard of care.[86] A Board may use its institutional experience or administrative expertise to evaluate evidence, [87] including a determination as to whether a licensee's conduct violates its laws.[88] Accordingly, the State was not obligated to present expert testimony to establish Denham's violations of the Ethics Code, nor did the Board's finding of violations of the Ethics Code Directives require expert testimony. Rather, the Board correctly drew upon its institutional expertise, to the extent any expertise was even necessary, to accept the conclusions of law and substantiate the violations.[89] Therefore, the Board did not commit legal error when it found Denham violated the Ethics Code Directives without the use of expert testimony.

         The Court also finds that the Hearing Officer did not commit legal error when she allowed Dawn Schatz to give limited testimony as a mixed fact/expert witness. Pursuant to the APA and 24. Del.C. § 3012(b) administrative hearings are to be conducted informally, and without the use of rules of evidence.[90] Schatz was proffered as a mixed fact/expert witness and offered opinion testimony based on her professional background. Schatz' opinion, however, was limited to her explanation as to why she filed a complaint with DPR; did not address specific violations of the Ethics Code; and played no role in the Hearing Officer's conclusions of law. Therefore, because of the limited nature of Schatz' expert testimony, it was not legal error for the Hearing Officer to allow Schatz to be proffered as a mixed fact/expert witness. The Court also does not find that the Hearing Officer committed legal error when she reserved ruling on Schatz' status as an expert witness. Denham neither cites, nor provides evidence to support this proposition and the Court finds no such evidence.

         2. The Board Did Not Commit Legal Error When It Considered Denham's Past Discipline as an Aggravating Factor.

         The Board may impose a range of sanctions where it finds that a licensee has engaged in a condition or violation that constitutes grounds for discipline.[91] The record must clearly show the basis on which the administrative agency did act in order that its exercise of discretion may be properly reviewed.[92] Denham argues that prior disciplinary action was not addressed in the Complaint or submitted into evidence at the hearing, therefore it was legal error for the Board to consider it. However, there is no requirement that the record be comprised solely of facts referenced in the Complaint or presented at a hearing.[93] Therefore the Board acted properly and did not commit legal error when it considered Denham's prior discipline as an aggravating factor.

         3. Denham Was Afforded Proper Deference as a Pro Se Litigant and Due Process Under the APA and Board's Statutes.

         Courts will give pro se litigants "some degree of latitude in preparing and presenting their cases."[94] However, pro se litigants are not held to a different set of procedural rules than other parties.[95] Denham argues that she was held to a higher standard than routinely applied to pro se litigants, but provides no evidence to support that contention. Rather, the record reflects that she was allowed leeway in her testimony and questions to State's witnesses, [96] the Hearing Officer explained the procedures of the hearing to her, [97] and the Hearing Officer attempted to ensure that her exhibits were presented in full to establish a clear record.[98] Therefore, the Court finds that Denham was afforded proper deference as a. pro se litigant and no legal error occurred.

         Denham's claim that her due process rights were violated because the State did not provide her with its evidence and exhibits before the hearing is also unavailing. The APA does not provide a licensee facing discipline the absolute right to discovery or to depositions.[99] To establish a due process violation, Denham must demonstrate that (1) she was not adequately informed of the charges against her, and (2) the lack of that information prejudiced her ability to defend against the charges.[100] Denham, however, fails to cite to the record or to any authority which would establish a due process violation. Moreover, the record demonstrates that Denham was clearly informed of the nature of the charges against her. The Court finds the Denham was afforded due process under the APA and the relevant Board rule and statues. No legal error occurred.

         VI. CONCLUSION

         The Court finds that the Board's decision was supported by substantial evidence, was the product of an orderly and logical deductive process, and was free from legal error. Therefore, the decision of the Board is hereby AFFIRMED.

         IT IS SO ORDERED.

---------

Notes:

[1] See Final Board Order at 1.


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