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                                 Appellate Court                          Date: 2016.03.15
                                                                          13:50:27 -05'00'




                   Heisterkamp v. Pacheco, 2016 IL App (2d) 150229



Appellate Court      DARIN HEISTERKAMP, Plaintiff-Appellant, v. FRANCES J.
Caption              PACHECO and THE FAMILY STRESS CLINIC, LTD.,
                     Defendants-Appellees.



District & No.       Second District
                     Docket No. 2-15-0229



Filed                January 28, 2016
Rehearing denied     February 24, 2016


Decision Under       Appeal from the Circuit Court of Lake County, No. 14-L-302; the
Review               Hon. Jorge L. Ortiz, Judge, presiding.



Judgment             Affirmed.



Counsel on           David W. Lewarchik, of Lewarchik Law PLLC, of Chicago, for
Appeal               appellant.

                     William J. Rogers and Catherine Basque Weiler, both of Swanson,
                     Martin & Bell, LLP, of Chicago, for appellees.



Panel                JUSTICE BURKE delivered the judgment of the court, with opinion.
                     Justices McLaren and Spence concurred in the judgment and opinion.
                                              OPINION

¶1       Plaintiff, Darin Heisterkamp, appeals from an order of the circuit court of Lake County
     granting the motion of defendants, Frances J. Pacheco and The Family Stress Clinic, Ltd., to
     dismiss plaintiff’s complaint seeking recovery for psychological malpractice. The alleged
     malpractice arose from services Pacheco performed, as a court-appointed expert, in
     proceedings for the dissolution of plaintiff’s marriage. The trial court ruled that defendants
     enjoyed absolute immunity from suit. We affirm.
¶2       In his complaint, plaintiff alleged that “Family Stress Clinic, Ltd, is either owned or
     operated by Defendant Frances Pacheco and employs Frances Pacheco.” According to the
     complaint, prior to April 30, 2012, defendants were retained to perform psychological testing
     on plaintiff. Pacheco diagnosed plaintiff with obsessive-compulsive personality disorder
     (OCPD). Plaintiff alleged that there are eight diagnostic criteria for OCPD and that an
     individual’s symptoms must meet at least four of the criteria. Plaintiff further alleged that
     “[o]nly [o]ne test sign consistent with [OCPD] among an extensive range of scales and
     summary scores was obtained from the five tests conducted as part of Dr. Pacheco’s
     examination and no behavioral observations were made indicative of this [d]iagnosis.”
     According to the complaint, Pacheco’s diagnosis deviated from the standard of care in clinical
     psychology and, as a direct and proximate result, plaintiff lost custody of his children.
¶3       Defendants filed a combined motion to dismiss pursuant to sections 2-615 and 2-619 of the
     Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2014)). As exhibits to the
     motion, defendants submitted, inter alia, (1) a “Family Division Evaluator Report” submitted
     in the dissolution of marriage proceedings by Donna Crunkilton-Steigel requesting that the
     parties submit to psychological testing and (2) a written order from the dissolution of marriage
     proceedings appointing Pacheco “to conduct psychological testing for both parties in this
     matter.” Defendants sought dismissal pursuant to section 2-619 on the ground that the court
     appointment conferred absolute immunity.
¶4       Section 2-619 provides that an action may be dismissed, on the motion of the defendant,
     based on various enumerated defenses (735 ILCS 5/2-619(a)(1)-(8) (West 2014)) or “other
     affirmative matter avoiding the legal effect of or defeating the claim” (735 ILCS 5/2-619(a)(9)
     (West 2014)). As our supreme court has noted, “[a]n appeal from a section 2-619 dismissal is
     similar to an appeal following a grant of summary judgment, and both are subject to de novo
     review.” Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 254 (2004). The
     question on appeal is “whether the existence of a genuine issue of material fact should have
     precluded the dismissal or, absent such an issue of fact, whether the dismissal is proper as a
     matter of law.” Id. Here, there is no dispute as to the material facts bearing on defendants’
     immunity. The question, then, is whether defendants are immune as a matter of law.
¶5       In Cooney v. Rossiter, 583 F.3d 967, 970 (7th Cir. 2009), the Seventh Circuit stated as
     follows:
             “[C]ourt-appointed experts *** are absolutely immune from liability for damages
             when they act at the court’s direction. [Citations.] They are arms of the court, much like
             special masters, and deserve protection from harassment by disappointed litigants, just
             as judges do. Experts asked by the court to advise on what disposition will serve the
             best interests of a child in a custody proceeding need absolute immunity in order to be


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                able to fulfill their obligations ‘without the worry of intimidation and harassment from
                dissatisfied parents.’ [Citation.]”
       Applying that reasoning, the Cooney court held that a child’s representative appointed
       pursuant to section 506(a)(3) of the Illinois Marriage and Dissolution of Marriage Act (Act)
       (750 ILCS 5/506(a)(3) (West 2014)), “who although bound to consult the child is not bound by
       the child’s wishes but rather by the child’s best interests, and is thus a neutral, much like a
       court-appointed expert witness,” is therefore entitled to immunity. Cooney, 583 F.3d at 970.
¶6         Although this court is not bound by opinions of the lower federal courts (Werderman v.
       Liberty Ventures, LLC, 368 Ill. App. 3d 78, 84 (2006)), the First District followed Cooney in
       Vlastelica v. Brend, 2011 IL App (1st) 102587, ¶¶ 22-23. This court recently followed Cooney
       and Vlastelica in Davidson v. Gurewitz, 2015 IL App (2d) 150171, ¶ 12.
¶7         Section 604 of the Act (750 ILCS 5/604 (West 2014)) provides, in pertinent part:
                “(a) The court may interview the child in chambers to ascertain the child’s wishes as to
                his custodian and as to visitation. Counsel shall be present at the interview unless
                otherwise agreed upon by the parties. The court shall cause a court reporter to be
                present who shall make a complete record of the interview instantaneously to be part of
                the record in the case.
                    (b) The court may seek the advice of professional personnel, whether or not
                employed by the court on a regular basis. The advice given shall be in writing and made
                available by the court to counsel. Counsel may examine, as a witness, any professional
                personnel consulted by the court, designated as a court’s witness.”
¶8         Plaintiff argues that “[i]n the present matter, Crunkilton-Stiegel was the court-appointed
       advisor pursuant to [section 604(b)], with the duties, delineated under this provision, to advise
       the court of the child’s wishes as to custody and visitation.” Plaintiff maintains that
       “Crunkilton-Stiegel exceeded these duties by seeking and being granted approval to force
       [plaintiff] to undergo psychological testing, though the administration of such testing was not
       designed to ascertain a ‘child’s wishes.’ ” Citing Jones v. Brennan, 465 F.3d 304, 308 (7th Cir.
       2006), plaintiff contends that “judicial immunity will not cloak a court appointee when said
       appointee steps outside his or her agency.” The scope of Crunkilton-Stiegel’s duties is entirely
       irrelevant to this appeal. She is not a party to this lawsuit, so it makes no difference whether
       judicial immunity extends to her conduct.
¶9         Plaintiff more broadly argues that section 604(b) does not “permit” psychological tests to
       be administered to parents in a child custody proceeding. The argument is dubious at best.
       Although plaintiff appears to assume that the professional’s advice must relate to the subject
       matter of the section 604(a) interview–i.e., the child’s wishes as to custody and
       visitation–plaintiff cites no authority that the scope of the professional’s advice must be limited
       in this manner.
¶ 10       If the language of section 604(b) is given the most rigidly literal reading possible, one
       might also argue that conducting psychological testing is beyond the scope of providing
       “advice.” However, “[a] literal interpretation is not controlling where the spirit and intent of
       the General Assembly in enacting a statute are clearly expressed, its objects and purposes are
       clearly set forth, and a literal interpretation of a particular clause would defeat the obvious
       intent [citation]; *** or where a literal interpretation would lead to an absurd result [citation].”
       Grever v. Board of Trustees of the Illinois Municipal Retirement Fund, 353 Ill. App. 3d 263,


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       266-67 (2004). It is clear that section 604(b) permits the trial court to seek the advice of a
       mental health professional. See Johnston v. Weil, 241 Ill. 2d 169, 176-78 (2011). The advice
       would be of little use if the court could not authorize a mental health professional to engage in
       appropriate testing to develop informed opinions bearing on the custody question.
¶ 11       Ultimately, however, we need not decide whether psychological testing is within the scope
       of section 604(b). It bears repeating that “[e]xperts asked by the court to advise on what
       disposition will serve the best interests of a child in a custody proceeding need absolute
       immunity in order to be able to fulfill their obligations ‘without the worry of intimidation and
       harassment from dissatisfied parents.’ [Citation.]” Cooney, 583 F.3d at 970. When a court
       enters an order appointing a mental health professional to provide certain services, he or she is
       entitled to rely on that order, without fear that it will be challenged in a collateral proceeding in
       which the professional may be held liable for damages. Here defendants acted at the direction
       of the court in the dissolution proceedings and are entitled to absolute immunity regardless of
       whether the direction given was proper under section 604(b).
¶ 12       For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

¶ 13       Affirmed.




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