Robertson v. Tn Bd. of Soc. Worker Certifi.

• Decision Date: 27 June 2007
• Docket Number: No. M2004-00647-SC-R11-CV.,M2004-00647-SC-R11-CV.
• Citation: 227 S.W.3d 7
• Parties: Yvonne N. ROBERTSON v. TENNESSEE BOARD OF SOCIAL WORKER CERTIFICATION AND LICENSURE et al.
• Court: Tennessee Supreme Court

227 S.W.3d 7

Yvonne N. ROBERTSON v. TENNESSEE BOARD OF SOCIAL WORKER CERTIFICATION AND LICENSURE et al.

No. M2004-00647-SC-R11-CV.

Supreme Court of Tennessee, at Nashville.

February 1, 2007 Session.

June 27, 2007.

Michael E. Terry and Stephanie H. Gore, Nashville, Tennessee, for the appellant, Yvonne N. Robertson.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; and Sara E. Sedgwick, Assistant Attorney General, for the appellees, Tennessee Board of Social Worker Certification and Licensure and Tennessee Department of Health.

OPINION

CORNELIA A. CLARK, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and JANICE M. HOLDER and GARY R. WADE, JJ., joined.

We accepted this appeal to determine the effect of a Tennessee administrative agency's consideration of irrelevant or immaterial evidence on the agency's choice of a remedy in a contested case hearing. While we hold that an agency's consideration of irrelevant or immaterial evidence in a contested case hearing is erroneous, a party's failure to object to the evidence waives any argument of error on appeal. In this case, we do not disturb the Tennessee Board of Social Worker Certification and Licensure's order to revoke clinical social worker Yvonne N. Robertson's license because it is warranted in law and justified in fact. The judgment of the Court of Appeals is affirmed. We remand this case to the Tennessee Board of Social Worker Certification and Licensure for further action consistent with this opinion.

FACTS & PROCEDURAL HISTORY

Appellant Yvonne N. Robertson had a difficult childhood and young adulthood. From the age of twelve until the age of thirty, she suffered from alcohol and drug abuse. In the early 1980s, Robertson cashed payroll checks that did not belong to her in order to support her drug habit. In 1982, she was convicted of three felony counts of forgery and thereafter spent more than a year in prison. In 1989, at the age of thirty, Robertson began to rebuild her life by attending Alcoholics Anonymous meetings and working through her difficulties with substance abuse. She also returned to school, ultimately earning a master's degree in social work.

In 1994, appellee Tennessee Board of Social Worker Certification and Licensure ("Board") licensed Robertson as a certified master social worker. In 1996, seeking to advance her career, Robertson applied to become a licensed clinical social worker. Initially, the Board denied her application and her right to take the licensure examination because of her 1982 forgery convictions. Robertson appealed the Board's denial of her application for licensure and prevailed. She took and passed the examination, receiving her license as a clinical social worker in 1997.

In September 1997, Robertson secured employment as a therapist with the Great Starts program of Child and Family, a Knoxville nonprofit community agency. Great Starts operated three shelters and a residential facility to treat women struggling with substance abuse and mental illnesses. As part of its residential treatment program, Great Starts offered its clients individual therapy, group therapy, behavioral modification classes, and access to independent support groups such as Alcoholics Anonymous and Narcotics Anonymous.

Early in 1998, Great Starts assigned a residential client, D.W.,¹ to Robertson for individual therapy. Among other things, D.W. suffered from alcohol abuse. Initially, D.W. resided at Great Starts only for a short time before leaving on her own accord. D.W. returned to residential treatment at Great Starts in December 1998. During D.W.'s second round of treatment at Great Starts, which lasted until August 1999, Robertson led the group therapy sessions in which D.W. participated but was not responsible for her individual therapy. In addition, from June 1999 until August 1999, D.W. served as a "pseudo staff person" at Great Starts, doing odd jobs for Great Starts in exchange for Great Starts allowing her to occupy a residential apartment rent-free. D.W.'s mother passed away in July 1999. In August 1999, D.W. moved out of Great Starts and into her deceased mother's home, although Great Starts continued to provide her with outpatient care.

Despite her role in D.W.'s second round of treatment, Robertson developed a significant personal relationship with D.W. because she wanted to help D.W. "stay sober" in the aftermath of D.W.'s mother's death. From July until October 1999, D.W. attended with Robertson sporting events in which one of Robertson's sons participated; Robertson and D.W. attended two group camping trips together; D.W. spent the night at Robertson's house on at least two occasions; Robertson and D.W. took walks together three or four times a week, sometimes in close proximity to Robertson's residence; the two attended Alcoholics Anonymous meetings together;² and, on September 16, 1999, Robertson allowed D.W. to be present for a personal court appearance in which Robertson sought an order of protection against one of her ex-husbands. All of these activities occurred outside the confines of Great Starts' treatment program.

After having seen D.W. with Robertson in court, Robertson's supervisor confronted Robertson about the ethical implications of her relationship with D.W. For a licensed clinical social worker in Tennessee, it is prohibited, unethical conduct to fail "to make every effort to avoid dual," or simultaneously personal and professional, "relationships with clients and/or relationships which might impair independent professional judgment or increase the risk of client exploitation." Tenn. Comp. R. & Reg. 1365-1-.13(j) (2006);³ see also Tenn. Code Ann. § 63-23-106(a)(7) (1997). During Robertson's conversation with her supervisor about D.W., Robertson admitted to some, but not all, aspects of her personal relationship with D.W. Robertson's supervisor directed her to break off her personal relationship with D.W. On October 6, 1999, Robertson invited D.W. on another of their walks near Robertson's home. During the walk, Robertson told D.W. about her need to end their personal relationship. D.W. became very angry with Robertson. The next day, D.W. telephoned Robertson at her residence and asked to speak with her again in person. Robertson advised D.W. that Great Starts had scheduled a treatment team meeting for the next day in which she could participate.

At the October 8, 1999 treatment team meeting, D.W., Robertson, and other Great Starts staff members were in attendance. At the meeting, Robertson discussed her personal relationship with D.W. and her need to end it. After the meeting, sometime between October 8, and 12, 1999, D.W. threatened to kill Robertson's supervisor, whom she blamed for the termination of her relationship with Robertson. As a result, on October 12, 1999, Great Starts held another treatment team meeting with D.W. present. At this meeting, Great Starts informed D.W. that it could no longer offer her any treatment at its facility but that she could receive continuing outpatient care at another Child and Family treatment center located about five miles away.

D.W. did not respond well to these changes. Although she did receive some therapy after leaving Great Starts, D.W. fell into a depression that lasted several months. She also relapsed into heavy drinking. On two occasions, once soon after leaving Great Starts and a second time a few months later, D.W. requested that Robertson attend a therapy session with her so that D.W. could work through her pain and anguish over their relationship's abrupt end. Robertson did so. Through D.W.'s continuing therapy, D.W.'s therapist and Great Starts became aware of the full extent of Robertson's relationship.

Robertson initially received a written reprimand from her employer for her conduct. Her conduct with D.W. was also reported to the Division of Health Related Boards within appellee Tennessee Department of Health ("Department of Health"), which initiated an investigation. In November 2001, after completing its investigation, the Department of Health served Robertson with a Notice of Charges. The Notice indicated that the Department of Health sought suspension or revocation of her license on a single ground: unethical conduct resulting from her inappropriate dual relationship with D.W. The Notice of Charges also contained, under a heading "Allegations of Fact," a reference to the Board's initial denial of her license based on the 1982 convictions and a copy of the Board's 1997 Order that allowed her to take the licensing examination despite her felony convictions.

On May 6, 2002, the Board conducted a contested case hearing regarding the November 2001 Notice of Charges. Robertson testified, admitting her dual relationship with D.W. and describing the relationship's full scope. She did not dispute that her conduct had harmed D.W. Though the Department of Health's counsel referred several times to the 1997 Order that recited Robertson's 1982 felony convictions, Robertson's counsel did not object. In fact, on direct examination, Robertson's counsel specifically questioned Robertson about the circumstances surrounding the convictions. At the hearing, D.W. also testified about her personal relationship with Robertson and its termination, including her decline back into depression and drinking after the relationship ended. D.W. stated, "[Robertson] felt like a second mom to me.... I felt I lost my best friend. It's taught me not to get too close to people anymore. So I steer away. I don't let my feelings ... show ... anymore." Based on the facts presented, the Board unanimously found that Robertson had committed the charged ethical violation of engaging in a dual relationship with a client. In its discussion prior to reaching this conclusion, the Board made no reference to her felony convictions.

Having determined that Robertson violated its rules, the Board then deliberated on an...