Tolu v. Reid, ED109721

CourtCourt of Appeal of Missouri (US)
Writing for the CourtCynthia L. Martin, Judge.
Decision Date28 December 2021
PartiesEVITA TOLU, Appellant, v. JAMES REID, PH.D., JAMES REID, PH.D., LLC, JENNIFER WEBBE VAN LUVEN, FITZGIBBONS PSYCHOLOGICAL ASSOCIATES, AND ELAINE PUDLOWSKI, Respondents.
Docket NumberED109721

EVITA TOLU, Appellant,
v.

JAMES REID, PH.D., JAMES REID, PH.D., LLC, JENNIFER WEBBE VAN LUVEN, FITZGIBBONS PSYCHOLOGICAL ASSOCIATES, AND ELAINE PUDLOWSKI, Respondents.

No. ED109721

Court of Appeals of Missouri, Eastern District, Special Division

December 28, 2021


Appeal from the Circuit Court of the City of St. Louis Hon. Steven R. Ohmer

Before: Cynthia L. Martin, Presiding Judge, Gary W. Lynch, Judge and W. Douglas Thomson, Judge

OPINION

Cynthia L. Martin, Judge.

Evita Tolu appeals the entry of a judgment granting motions to dismiss all claims she asserted against defendants James Reid Ph.D., James Reid, Ph.D., LLC, Jennifer Webbe Van Luven, Fitzgibbons Psychological Associates, Inc. d/b/a West County Psychological Associates, and Elaine Pudlowski. Finding no error, we affirm.

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Factual and Procedural Background[1]

Evita Tolu ("Tolu") and Robert Stientjes ("Stientjes") married on April 3, 2002. Two children were born of the marriage. Child A was born in 2002 and Child T was born in 2004 (periodically referred to as "Children"). Tolu filed for dissolution of the marriage in July 2016 in the Circuit Court of St. Louis County, Case No. 16SL-DR04088. The dissolution was granted on October 4, 2016, pursuant to an agreement between the parties. The parties were awarded joint legal and physical custody of Child A and Child T, then ages 14 and 13, respectively.

Tolu filed a child custody modification proceeding in August 2017 in the Circuit Court of St. Louis County, Case No. 16SL-DR04088-01.[2] On August 30, 2017, the court in the child custody modification proceeding, (hereinafter referred to as the "family court"), appointed Elaine Pudlowski ("Pudlowski") to serve as guardian ad litem for Child A and Child T pursuant to a written order that described in express detail the guardian ad litem's court ordered duties and functions.

Tolu alleges that on October 3, 2017, Stientjes filed a motion asking the family court to require Tolu to submit to a psychological evaluation. Tolu alleges that she subsequently asked the family court to require Stientjes, Child A, and Child T to submit to psychological evaluations. Tolu alleges that on October 26, 2017, Pudlowski asked the family court to

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appoint James Reid Ph.D. ("Dr. Reid") as an independent psychological expert to evaluate the mental health of all of the parties.

On October 26, 2017, the family court entered a Psychological Evaluation Order appointing Dr. Reid, a Missouri licensed psychologist, to evaluate the psychological status of Tolu, Stientjes, Child A, and Child T. The Psychological Evaluation Order stated that it was entered "[p]ursuant to Missouri Supreme Court Rule 60.01," but did not refer to, or purport to grant, any parties' motion seeking to require another party to submit to a mental examination. The Psychological Evaluation Order provided that the purpose of Dr. Reid's evaluations was "to assess any allegations or issues regarding [the] current mental health [of Tolu, Stientjes and the Children] and the parenting ability of each parent specific to this case bearing on the best interests of the children." The Psychological Evaluation Order provided that Dr. Reid was being appointed as "a forensic psychological expert, not a mediator, [sic] parenting coordinator psychotherapist," and that "[n]o psychotherapist-patient relationship is created by this appointment," as those ordered to be evaluated "are not patients of [Dr. Reid] and do not acquire the rights of patients by their participation in the evaluation." The Psychological Evaluation Order directed that should Dr. Reid's report "not address all relevant issues before the [family court]," then "this Court retains jurisdiction to order further evaluation to provide such additional information as the [family court] may deem appropriate." The Psychological Evaluation Order required Dr. Reid to give Tolu and Stientjes "a written explanation of the evaluation process and ... a written explanation of [his] fee policies." The Psychological Evaluation Order was signed by Tolu, Tolu's attorney, Stientjes, Stientjes's attorney, and Pudlowski.

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Dr. Reid provided Tolu with a written Statement of Understanding ("SOU") dated November 7, 2017, explaining the evaluation process and his fee policies. Tolu signed the SOU on November 10, 2017. The SOU indicated that Dr. Reid's professional services were being provided through a limited liability company known as James D. Reid Ph.D., LLC ("Reid LLC"). Among other things, the SOU acknowledged that Dr. Reid had been appointed by the family court pursuant to the Psychological Evaluation Order, and provided that "unless the order from the court explicitly states otherwise, the [family] court is to be considered the client of Dr. Reid." Tolu also signed an Informed Assent on November 10, 2017, at Dr. Reid's request. The Informed Assent provided that Dr. Reid's role was that of a forensic psychologist; that Dr. Reid was not Tolu's therapist or counselor; that Tolu was not Dr. Reid's patient; that there was no guarantee Dr. Reid's report would support Tolu's legal position; and that there is no psychologist-patient privilege or confidentiality in a forensic psychological evaluation.

Dr. Reid met with Tolu, Stientjes, Child A, and Child T on several occasions. He conducted psychological testing and interviewed persons identified as witnesses by Tolu and Stientjes before issuing his report. Pudlowski filed a motion to limit release of Dr. Reid's report on March 28, 2018. Dr. Reid's report was released to Pudlowski on April 3, 2018 as permitted by the Psychological Evaluation Order. On April 5, 2018, the family court entered an order limiting further release of Dr. Reid's report. The order provided that Dr. Reid could release his report only to Pudlowski; that Pudlowski could release Dr. Reid's report to the attorneys of record; that the attorneys of record could only share the report with their staff and experts retained for the custody litigation but could not further release

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the report; that Tolu and Stientjes could view the report at the office of their attorney of record but were not allowed to receive a copy of the report; and that no one, including Tolu and Stientjes, could discuss the report with, or provide a copy of all or any portion of the report to, the Children.

Tolu objected to Dr. Reid's report in part because it included child custody recommendations. Tolu's motion to strike child custody recommendations contained in Dr. Reid's report was granted by the family court by order dated April 24, 2018.

In that same order, the family court granted Stientjes's motion for reunification counseling for the Children, and ordered Pudlowski to choose a therapist for that purpose. In a later order dated May 25, 2018, the family court directed Pudlowski to "determine whether Family Forward or other counseling agency is available at less cost for the reunification therapy previously ordered by the Court." The family court further ordered that Tolu and Stientjes "shall each pay fifty percent (50%) of said therapy and the therapist shall be given Dr. Reid's report."

Pudlowski chose Jennifer Webbe Van Luven ("Van Luven") to provide the court ordered reunification therapy for the Children. Van Luven is a licensed clinical social worker, and was an assistant director with Fitzgibbons Psychological Associates, Inc. d/b/a West County Psychological Associates ("WCPA").

Van Luven began reunification therapy with Child A, with Stientjes's assistance. On August 23, 2018, at Pudlowski's request, Tolu met with Van Luven and filled out intake forms, signed releases and a fee agreement, and signed a notice of privacy rights, so Van Luven could begin reunification therapy with Child T. Van Luven told Tolu during this

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meeting that she had received, but not yet read, Dr. Reid's report. Tolu told Van Luven not to read Dr. Reid's report. Tolu shared with Van Luven specifics about findings and conclusions in Dr. Reid's report that she contested, and told Van Luven that she had filed several motions to secure all of Dr. Reid's records. Tolu told Van Luven that she had retained her own expert witness who had formed the opinion that Dr. Reid did not meet the standard of care in conducting his evaluations and documenting his findings.

Pudlowski prepared a proposed order identifying Van Luven as the reunification therapist she had selected for Child A and Child T, though that order was not signed by the family court. However, the family court did enter an order addressing authorized therapy on September 17, 2018. The September 17, 2018 order provided that "[Child T] and [Child A] shall continue to work on reestablishing their relationship by continuing to meet with [Van Luven] for joint therapy" (Emphasis added.) The September 17, 2018 order also provided that "[Child A] and [Tolu] shall begin therapy with Andrew M. Churcharillo or Erika Ottolini, to be determined by [Pudlowski]," and that "[Child T] and [Stientjes] shall begin therapy with Andrew M. Churcharillo or Erika Ottolini, to be determined by [Pudlowski]." The order provided that "[t]he goal of the above listed therapy is primarily to focus on reestablishing the relationship between [Child T] and [Child A]; the secondary goal is to reestablish the relationships between the children and the parents."[3] The order provided that "[a]ll parties are to sign releases to allow [Pudlowski] to speak w/ all

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necessary therapists & therapists to speak w/ each other." The order directed Pudlowski to confirm her choice of a family reunification therapist as between Andrew M. Churcharillo ("Churcharillo") or Erika Ottolini ("Ottolini") by September 19, 2018 at 5:00 p.m. Finally, the order provided that the ordered or authorized therapy therein addressed was for the purpose of reunifying the family and improving relationships within the family, and that "it is the...

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