RACHEL M. WELDON, LPC, Petitioner,
BOARD OF LICENSED PROFESSIONAL COUNSELORS AND THERAPISTS, Respondent
Argued and Submitted: January 3, 2013.
2009026. Board of Licensed Professional Counselors and Therapists.
Michael B. Mendelson argued the cause and filed the brief for petitioner.
Denise G. Fjordbeck, Attorney-in-Charge, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[266 Or.App. 53] ARMSTRONG, P. J.
Petitioner seeks judicial review of a final order of the Board of Licensed Professional Counselors and Therapists (the board) suspending her professional counseling license for two years and imposing other sanctions in connection with her counseling of a 10-year-old child (child). Petitioner contends that the board erred in rejecting a proposed order by an administrative law judge (ALJ)--which had concluded that petitioner's license should not be suspended and that she should not be subject to any discipline--because the board (1) modified historical findings of fact made by the ALJ without determining that there was clear and convincing evidence that the findings were wrong, as required by ORS 183.650(3); (2) violated ORS 183.650(3) by deleting certain findings of fact made the by ALJ; (3) failed to comply with ORS 183.650(2) when it modified the form of the ALJ's proposed order in a substantial way; and (4) made credibility findings " without complying with either ORS 183.650(2) or
ORS 183.650(3)."  As explained below, we reject all of petitioner's assignments of error, with one exception: We agree with petitioner that the board erred in deleting one of the ALJ's findings of fact--finding of fact number 37--and we reverse and remand for the board to reconsider the violations that were based on the board's modification of that finding and to reassess the sanctions that the board imposed.
We describe the factual background of the case based, except as otherwise noted, on historical facts that are undisputed--that is, on facts that were found both by the ALJ and the board. We discuss some additional facts in connection with our analyses of petitioner's assignments of error; however, a complete recitation of the allegations against petitioner and of the evidence presented at the contested case hearing is unnecessary to our resolution of the case and would be of little benefit to the bench, the bar, or the public.
Petitioner has been licensed by the board as a licensed professional counselor (LPC) since 2006. She has a master's degree in counseling psychology and has " worked in [266 Or.App. 54] the counseling field since 1999." At the time of the events at issue, she was affiliated with Mosaic Counseling Associates (Mosaic), a counseling service that provides facilities and clerical and support services for seven to eight counselors and therapists who operate their own individual practices. Mosaic is owned by Cleary, a licensed clinical social worker, and Donaldson, an LPC.
In early summer 2008, child's parents arranged to have child--then 10 years old--receive counseling with petitioner because they believed child was having social difficulties with other students at her school. Mother brought child to counseling sessions with petitioner and waited outside petitioner's office during the sessions. At the third session, child began to reveal instances in which child's 11-year-old brother (sibling), in the words of the ALJ and the board, had " physically abused" and " verbally berated" her. Because child told petitioner that her parents did not believe her when she told them what sibling was doing, petitioner suggested that child keep a journal so that petitioner could better explain to parents what was happening. At the fourth session, child brought her journal, in which she had written comments such as, " [sibling] kicks me," " [he] slaps me in the face," " [he] makes fun of me," " [he] hurts me, and when I tell mom and dad, they ignore me." She also reported that " [sibling] pushes me away," " excludes me," and " [t]ells me to [s]hut up." At the fifth session, child reported further instances of abuse; after that session and in front of child, petitioner made an appointment with mother for her to bring father and child for a meeting on August 8. She did not tell mother the purpose of the meeting.
Parents and child missed the August 8 appointment, and it was rescheduled for August 21. Father, mother, child, and sibling appeared for that appointment; it was the first time that petitioner had seen father or sibling. Petitioner explained to parents her legal obligation to report abuse to state authorities. Petitioner testified, and the ALJ found, that petitioner also explained that she " hoped as parents they could take steps to stop the abuse before it reached [266 Or.App. 55] the level that would require mandatory reporting by her." The board, on the other hand, found, based on mother's and father's testimony, that petitioner told parents at the meeting that, " if they continued counseling with [her,] she would not report the abuse." Petitioner became teary-eyed during the meeting.
Child had two more counseling sessions with petitioner after that, on August 25 and September 15, during which child acted happy and did not report any instances of abuse by sibling. On September 29, father telephoned petitioner and cancelled the appointment scheduled for that day, telling petitioner that he believed the family meeting on August 21 had " gone badly." Petitioner asked father if he planned to continue child's
counseling; father said that he would talk with mother about it.
Immediately after the telephone call with father, petitioner conferred with Donaldson about what she should do. She then phoned child's school to see if child had reported any abuse to school authorities; the school counselor with whom petitioner spoke was not aware of any. Petitioner then telephoned the Department of Human Services (DHS) and made a report. DHS treated the investigation as one of physical abuse by sibling against child, and, after interviewing child, sibling, mother, and father that same day, concluded that there was no abuse and labeled the report of abuse as " 'unfounded.'"
Parents subsequently made two written requests for child's file. After the first, petitioner conferred with Cleary and Donaldson, then responded with a letter, explaining that, because the file had resulted in a report to DHS, she did not believe it to be in child's best interest to release the file to parents. It is disputed whether petitioner also conferred with Ecklund, the board's executive director; that issue is discussed in detail in connection with petitioner's second assignment of error. See Or.App. at (slip op at 15-19).
[266 Or.App. 56] In response to parents' second request, petitioner sent them another letter, explaining that " she did not believe it was in [c]hild's best interest to release the file directly to them, but that she would release the file to another counselor or therapist." She explained that " in her opinion she had discretion under Oregon law and HIPAA [(the federal Health Insurance Portability and Accountability Act)] regulations to withhold the file from the parents in the best interest of [c]hild because she had reported the matter to DHS." Parents then conferred with Dr. Sabin, a pediatric physician whose practice focuses on the assessment and treatment of children with mental health issues. Sabin obtained a release from parents and requested and obtained child's file from petitioner.
In December 2009, the board issued to petitioner a " Notice of Intent to Impose Discipline and Right to Request Hearing" based on the above-described conduct. As summarized by the ALJ and the board,
" [t]he Notice accused [petitioner] of violating former ORS 675.745(1)(c) and (d) [(2007)] and the Board's Code of Ethics ( former OAR chapter 833, Division 60 [(12/26/2008)]), by failing to act in accordance with the highest standards [266 Or.App. 57] of professional integrity and competence; by failing to recuse herself from providing services to a child when her objectivity, fairness and effectiveness became impaired; by ignoring her professional responsibility to her client; by failing to take care to do no harm to the child; by continuing her counseling relationship with the child to further her financial interest; by failing to provide the child's parents
with requested counseling records; and by engaging in gross negligence as a result of the same alleged violations. The Notice also sought from [petitioner] recovery of costs associated with the disciplinary proceeding."
A contested case hearing was held before an ALJ from the Office of Administrative Hearings (OAH) on December 22 and 23, 2010. Petitioner, mother, and father testified at the hearing, as did Sabin, Dr. Johnson (a clinical psychologist called by petitioner), petitioner's colleagues, Cleary and Donaldson, and Ecklund, the board's Executive Director.
After the hearing, the ALJ issued a 26-page proposed order, in which it made 50 separately numbered findings of fact and, based on those findings, concluded that petitioner had not violated ORS 675.745(1)(c) or (d) or the ethical rules, as alleged by the board. The ALJ did not make any general witness credibility findings but did find that petitioner had testified credibly as to three specific facts ( see Or.App. at n 15 (slip op at 25 n 15)). The ALJ's proposed order recommended that no disciplinary action be taken against petitioner. The board issued an amended proposed order, petitioner filed exceptions, and the board eventually issued the amended final order that is the subject of this judicial review.
The board's amended final order differs dramatically from the ALJ's proposed order. First, the board " restate[d]" the issues before it because, in its view, " the Proposed Order did not adequately or specifically address each alleged violation by [petitioner]." It then made extensive credibility determinations, setting out approximately nine pages of findings as to the credibility and reliability of petitioner, father and mother, and Sabin. The board noted that " [t]he credibility and reliability of witnesses is pivotal to this case because of the material contradictions between [petitioner's] testimony and the testimony of [m]other and [f]ather."
[266 Or.App. 58] As to petitioner, the board observed that the record " reveals numerous inconsistencies and inherent improbabilities as well as significant bias that raise serious questions about the reliability of her testimony," followed by 20 separately numbered paragraphs, covering four single-spaced pages, describing what it considered to be those inconsistencies and demonstrations of bias. Much of that discussion focused on the fact that petitioner's clinical notes contradicted her hearing testimony that the reason that she had not reported the alleged abuse of child by sibling was because it was not " 'reportable abuse.'" The board observed, for example, that petitioner's notes from the July 15 session indicated that she had explained to child that " ...