Filed 5/13/15 Spring v. Board. of Psychology CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


MICHAEL SPRING,
         Plaintiff and Respondent,
                                                                     A140897
v.
BOARD OF PSYCHOLOGY,                                                 (Marin County
                                                                     Super. Ct. No. CIV 1304070)
         Defendant and Appellant.


         Dr. Michael Spring (petitioner) brought this petition for writ of administrative
mandamus (Code Civ. Proc., § 1094.5) to appeal a decision by the Board of Psychology
(Board) disciplining him for gross negligence and functioning outside his field of
competence (Bus. & Prof. Code, § 2960, subds. (j), (p)) based on two declarations he
submitted in a family court action. The Board appeals the trial court’s order granting the
writ and directing the Board to set aside its decision. We affirm.
                                                  BACKGROUND
         Administrative Hearing
         The evidence at the administrative hearing was as follows. Petitioner had
provided marriage counseling to the family court parties (referred to herein as Mother
and Father) for several years, for a total of 50 sessions.1 Mother and Father ultimately

1
  Petitioner’s case notes from his sessions with Mother and Father were introduced as an
exhibit at the administrative hearing. The parties dispute the admissibility of a
transcribed version of these notes. We do not rely on this transcription and therefore
need not decide its admissibility.


                                                             1
decided to divorce. After a mediator recommended that Father have 35 percent custody
of the couple’s only child (Child), Father contacted petitioner. Petitioner wrote two
declarations that Father’s counsel filed in the family court proceeding.
       The first declaration was filed June 3, 2011. It stated, in its entirety: “[Mother]
and [Father] have been in couple’s therapy for a few years, and I have observed each of
them many times as they interacted with their son [Child] in the waiting area of my
office. [¶] Each of them has demonstrated great love and caring for [Child] and each of
them has been very involved in his life and growth and development. I consider them to
be excellent and involved parents. [¶] [Child], for his part, needs both of them to continue
to be involved in his life, especially as he moves deeper into adolescence. This is
especially important for him as a special needs child. Any attempt to block one parent or
the other from frequent contact with [Child] would, in my opinion, be destructive to all
parties. [¶] My recommendation is that [Child’s] parents be given 50-50 custody in which
they can work out their arrangements together.”
       The second declaration was filed June 16, 2011. It stated, “I, MICHAEL
SPRING, am a licensed clinical psychologist practicing in San Rafael, CA. My license #
is: PSY3498. I have been practicing psychotherapy and marriage counseling for over
fifty years, and have been seeing [Mother and Father] on and off since January, 2006.
Over the past five years, I have had extensive opportunity to evaluate [their] relationship
with each other, as well as with their son, [Child]. [¶] I have learned that the mediator
who evaluated [Mother and Father’s] custody has recommended that [Mother] be
designated as the primary caretaker, with a custody timeshare of 36% to [Father],
amounting to 2 or 3 days per week. I have also learned that the mediation lasted
approximately 90 minutes and, based on a discussion with [Father] as well as a review of
the report, that much of the focus of the mediation session was on the parties’ relationship
with each other (and prior incidents of discord between them), rather than on their
relationship with their son. I believe that the breakdown of [Mother and Father’s]
marriage created a high degree of accusations and defensiveness between them, and that
as a result, the mediation may not have focused as much on the parties’ relationship with


                                              2
their son as it should have. I am therefore submitting this declaration to express my
professional disagreement with the mediator’s recommendation that [Child] not be
granted equal time with his father. [¶] Throughout his life, [Child] has spent significant
time with his father everyday. The mediator’s recommended schedule would result in
[Child] missing out on much of the activities and time spent with his father that he has
become accustomed to over many years. [Father] has been involved in hands-on
activities with [Child] in an ongoing and consistent basis. While it is true that [Mother]
has also been very involved in [Child’s] life and has advocated for him fervently, I
believe that [Child] needs the close relationship with his father to continue as he moves
deeper into adolescence if he is to mature properly. Therefore, I urge the court to grant
[Child] equal time with his father.”
       Mother filed a complaint with the Board stating petitioner acted “as a witness” in
the family court proceedings even though he had not seen Child professionally.
       Petitioner submitted to the Board a written response to Mother’s complaint,
stating, “[a]s is the case with marriage counseling, [Mother and Father’s] son was often
brought up. Parenting was discussed and I advised. . . . The son, an only child, is a
special needs child. Both parents were very involved in his day to day care, his needs,
and his learning. . . . They both cared about their son deeply. As divorce became the
couple’s decision, I worked with them towards setting up a healthy situation for each of
them and for their son. Children of divorce suffer great losses, and it was a focus of our
work around the divorce.” Petitioner further wrote that he observed Child in the waiting
room and witnessed his interactions with Father. “My recommendation of 50/50 custody
was based on these experiences, as well as the data which came up in my office
indicating caring, love, concern, and involvement from both parents for their son.
Additionally, was my knowledge that an adolescent needs both parents to interact with in
the course of his individuating, and developing.”




                                             3
       In an interview by Board investigators, petitioner stated he worked as a school
psychologist early in his career and had specialized in marriage counseling since 1978.2
He explained the basis for his custody recommendation in the family court proceedings
was his “clinical . . . knowledge of [Mother and Father] as a couple.” He knew from his
sessions with Mother and Father that Father ran, played music, and “horsed around” with
Child, and was involved with him “on a pretty steady basis.” Mother and Father
continued to see petitioner after they decided to divorce and discussed their desires
regarding Child and the divorce. Petitioner had never conducted a session with Child, but
only had observed Child in the waiting room where he witnessed Child’s interactions,
primarily with Father.
       In the Board interview, petitioner stated he would “[a]bsolutely not” feel
comfortable making a declaration regarding Child’s “mental status.” He stated his
declaration was submitted “with the idea that if they could have 50/50 custody and
eventually not live together and perhaps they could work together and have an amicable
. . . negotiation to work with their son. . . . [Y]ou’re probably familiar with Judy
Wallenstein’s longitudinal studies that show that parents that can . . . work together make
all the difference in the world to the outcome of their child.”3
       Dr. John Shields, a psychologist specializing in forensic psychology, testified as
an expert for the Board. He described his training and experience in child custody
evaluations, including his appointment as a family court child custody evaluator in about
five or six cases, and his current practice as a forensic evaluator “conducting evaluations
or offering consultation to courts and attorneys.” He testified to his familiarity “with
standards of care that apply not only to psychologists but also with guidelines that are
related to forensic practices, such as a child custody evaluation, which was the issue in
this case.”
2
 A transcript of the videotaped interview was submitted as an exhibit in the
administrative hearing.
3
 Petitioner was apparently referring to Wallerstein, et al., The Unexpected Legacy of
Divorce: A 25 Year Landmark Study (2000).


                                              4
         Shields described the training and experience required to serve as a court-
appointed custody evaluator as set forth in California Rules of Court, rule 5.225.4 He
testified that a formal custody evaluation pursuant to rule 5.220 would include interviews
with and observations of the child or children at issue. When asked whether anyone other
than a child custody evaluator would make custody recommendations to the courts,
Shields replied that a psychologist appointed by the court or a mediator might make
custody recommendations, “[b]ut a practicing psychologist who’s maybe seeing one or
both of the parents doesn’t -- it would not be expected they would make a custody
recommendation to a court.” Shields later elaborated that a “psychologist might be
seeing one of the parents or the child. They might come in to the court and offer
information to the court about the current status and progress of that individual as they
have come to know it in their professional capacity. What they wouldn’t typically do is
make a recommendation, to the court on custody.”
         Shields identified the American Psychological Association’s Ethical Principles of
Psychologists and Code of Conduct (APA Code of Conduct) as the standard of care for
psychologists. He testified that section 9.01(b) of this code (hereafter, section 9.01(b))
states, “Psychologists provide opinions of psychological characteristics of individuals
only after they have conducted an examination of the individuals adequate to support
their statements or conclusions.”5 Shields testified petitioner’s declarations gave “an
opinion about the psychological characteristics of an individual. . . . [H]e addresses some
of the psychological characteristics of [Child].” Shields later elaborated that petitioner’s

4
    All undesignated rule citations are to the California Rules of Court.
5
  Shields also referred to APA guidelines for child custody evaluations in family law
proceedings and for the practice of forensic psychology. In a letter to the Board written
during its investigation, Shields quoted passages from these guidelines. The custody
evaluation guidelines provide that a custody evaluation requires “an assessment of the
psychological functioning and developmental needs of each child” and “an evaluation of
the interaction between each adult and child.” The forensic guidelines echo section
9.01(b) in stating no evidence of “psychological characteristics” should be provided
absent an opportunity to examine the individual in question.


                                                5
declarations opined that Child “has psychological characteristics such that he needs more
time with his father or needs a close relationship with his father.” Shields testified, “the
important issue here is that recommendations to a court related to child custody, the
methodology by which one does that is spelled out in great detail. And we heard about
that earlier. And it’s spelled out in the Rules of Court. [¶] So simply to . . . base a
recommendation regarding custody on only the mediation report without ever
interviewing in this case, the child or the adolescent, is inappropriate.”
        Shields opined that petitioner’s declarations constituted an extreme departure from
the standard of care because “a reasonable psychologist would not make a custody
recommendation to a court without conducting the proper evaluation. And certainly
would not be giving opinions about the psychological characteristics of individuals, some
of whom they have never interviewed or evaluated.” Shields further opined that
petitioner practiced outside his particular field of competence because “child custody
evaluation and recommendation to the court related to custody evaluation is within the
province of forensic psychology,” which petitioner had no experience in.
        Board Decision
        The Board set forth the evidence elicited at the administrative hearing and quoted
from section 9.01(b), as well as the APA custody evaluation and forensic guidelines
identified by Shields. The Board found “[i]t was established by clear and convincing
evidence that [petitioner] was grossly negligent in providing an opinion to the family
court concerning the custody of Child, in that it was an extreme departure from the
standard of care of licensed psychologists. [Petitioner’s] actions were outside his area of
competence, in that he is not a forensic psychologist and has had no special training in
forensic psychology or in conducting child custody evaluations.” The Board revoked
petitioner’s psychologist’s license, stayed the revocation, and placed the license on
probation for five years with a number of conditions.
        Superior Court Proceedings
        Petitioner sought a writ of administrative mandamus. The trial court granted the
writ.


                                               6
       The trial court concluded certain findings were not supported by the evidence,
specifically, that “Petitioner’s custody recommendations were in effect ‘child custody
evaluations’; these recommendations constituted ‘an extreme departure from the standard
of care of licensed psychologists’; and Petitioner’s ‘actions were outside his area of
competence.’ ” The trial court found, “Petitioner’s custody recommendations were not
intended to be, nor would any Family Law judge in this court mistake them for, the
extensive and detailed ‘custody evaluations’ of the psychological characteristics of the
child, pursuant to [rule 5.220 et seq]. [¶] A full ‘child custody evaluation’ is a
‘comprehensive examination of the health, safety, welfare, and best interest of the child.’
([Rule 5.220(c)(3), (4)].) [¶] Based on the evidence in the administrative record, the court
finds that Petitioner’s recommendations were not the equivalent of a ‘child custody
evaluation’, but were brief letters to Father’s attorney for submission to the Family Law
Judge which described the therapeutic context in which Petitioner counseled the couple
for many years, and the limited observation of the couple’s interaction with their son. [¶]
The court also finds these letters were meant to provide a supplement to the actual ‘child
custody evaluation’ submitted by the mediator. [¶] The court also finds that Petitioner’s
views were intended to provide additional insight about the couple’s family dynamic,
which information was unavailable from any other source. [¶] The touchstone of a child
custody order is to make a ruling that is in the ‘best interest of the child.’ (Fam. Code
§ 3011; rule 5.220(b).) To do that effectively, courts often receive these sorts of
comments and input from treating professionals. [¶] The court finds that the evidence
establishes that Petitioner did not make a ‘child custody evaluation’, and his conduct
should not have been judged against the standard of care applicable to Forensic
Psychologists who prepare and submit child custody evaluations. [¶] The [Board’s]
findings relied heavily on the Board’s expert Dr. Shield’s opinion that Petitioner’s
recommendations were in effect, child custody evaluations, and that he did so outside of
his area of competence. As discussed above, the weight of the evidence does not support
these findings.”



                                              7
       The trial court additionally found the Board’s decision “does not contain any
Findings Of Fact indicating that Petitioner’s custody recommendations also provided an
opinion on the ‘psychological characteristics’ of the child. Nowhere in the Decision does
the [Board] identify the portion(s) of the recommendations that seek to describe the
child’s ‘psychological condition.’ ” The court noted that, while such a conclusion
generally requires remand to the agency to make adequate findings, remand was not
required here because the writ was granted on the independent basis described above.
                                       DISCUSSION
       “When an administrative decision substantially affects a fundamental vested right,
such as the revocation of a professional license or the right to practice one’s profession,
the independent judgment standard of review applies. [Citations.] The superior court
examines the administrative record for errors of law and exercises its independent
judgment upon the evidence ‘in a limited trial de novo.’ [Citations.] The superior court
resolves evidentiary conflicts, assesses the witnesses’ credibility, and arrives at its own
independent findings of fact.” (Rand v. Board of Psychology (2012) 206 Cal.App.4th
565, 574 (Rand).)
       “On appeal, we do not exercise our independent judgment. We review the trial
court’s findings under the substantial evidence test and determine whether substantial
evidence supports the trial court’s conclusions. [Citations.] We must resolve all conflicts
in the evidence, and indulge all reasonable inferences, in favor of the superior court’s
judgment. [Citations.] However, we are not bound by any legal interpretations made by
the administrative agency or the trial court; rather, we make an independent review of
any questions of law.” (Rand, supra, 206 Cal.App.4th at pp. 574–575.)
I. Child Custody Evaluations
       The Board challenges the trial court’s finding that petitioner’s declarations were
not child custody evaluations and petitioner therefore should not be judged by the
standard of care applicable to psychologists who prepare and submit child custody
evaluations.



                                              8
       A. Extra-Record Evidence
       The Board objects to the trial court’s statements that no “Family Law judge in this
court [would] mistake [petitioner’s declarations] for, the extensive and detailed ‘custody
evaluations’ ” of rule 5.220, and that “courts often receive these sorts of comments and
input from treating professionals.” The Board argues this constituted improper reliance
on extra-record evidence; improper judicial notice of the court’s own experience and
opinions, taken without sufficient notice; and improper augmentation of the
administrative record. The Board also argues the issue of how a family court judge
would perceive petitioner’s declarations is not relevant.
       We need not decide if there was error because any error was harmless.6 Rule
5.220(e) sets forth a lengthy list of elements that must be included in custody evaluations,
for example, an explanation of the evaluation’s purpose, scope, cost, and payment
responsibility, and a summary of the data gathering procedures and time spent.
Petitioner’s recommendations plainly do not comply or attempt to comply with this list.
Moreover, child custody evaluators are appointed by the court (rule 5.220(c)(1));
petitioner was not appointed here. At oral argument, counsel for the Board conceded
petitioner’s declarations were not custody evaluations. Any error by the trial court in
relying on its own experience in identifying child custody evaluations was harmless.
(Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 191,
fn. 20 (Thornbrough) [finding error in trial court’s reliance on evidence in administrative
mandamus proceeding harmless]; Evid. Code, § 353.)
       We also find no prejudice in connection with the trial court’s finding that the
standard of care applicable to psychologists conducting custody evaluations did not apply
to petitioner’s declarations. Indeed, this finding logically follows from the prior finding
that petitioner’s declarations were not child custody evaluations. We note Shields
testified that custody evaluators were not the only parties to make custody


6
 Because of this conclusion, we also need not decide whether the Board forfeited this
argument.


                                             9
recommendations to a court, indicating that the standard of care for custody evaluations
does not apply every time a custody recommendation is made. Again, any error by the
trial court in relying on its own experience was harmless. (Thornbrough, supra, 223
Cal.App.4th at p. 191, fn. 20.)
       B. Shields’ Testimony
       The Board next argues the trial court could not reject Shields’ uncontradicted
expert testimony regarding the standard of care.
       “ ‘[A]s a general rule, “[p]rovided the trier of fact does not act arbitrarily, he may
reject in toto the testimony of a witness, even though the witness is uncontradicted.
[Citations.]” [Citation.] This rule is applied equally to expert witnesses.’ ” (Howard v.
Owens Corning (1999) 72 Cal.App.4th 621, 632 (Howard).) The Board cites authority
holding, however, that “when the matter in issue is within the knowledge of experts only
and not within common knowledge, expert evidence is conclusive and cannot be
disregarded.” (Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 313.)
This “exceptional principle requiring a fact finder to accept uncontradicted expert
testimony as conclusive applies only in professional negligence cases where the standard
of care must be established by expert testimony.” (Howard, supra, at p. 632.) We will
assume without deciding that the principle extends to professional discipline cases
involving allegations of negligence.
       Under these cases, the trial court was bound by Shields’ testimony describing the
substance of the standard of care for psychologists submitting custody evaluations.
However, the Board cites no authority providing the trial court was bound to find that this
standard of care applied to a psychologist who did not submit a custody evaluation.
Accordingly, because the trial court concluded petitioner’s declarations were not custody
evaluations, it was not precluded from finding that the standard of care governing custody
evaluations did not apply.
II. Psychological Characteristics
       The Board next argues that, even if petitioner’s declarations were not custody
evaluations, section 9.01(b) sets forth a general standard of care applicable to all


                                             10
psychologists. The Board contends (1) the Board decision made sufficient findings
regarding psychological characteristics, and (2) these findings were supported by the
weight of the evidence. We agree with the first contention but reject the second.
       The trial court found the Board decision failed to “identify the portion(s) of the
recommendations that seek to describe the child’s ‘psychological condition.’ ” In
rendering adjudicatory decisions, administrative agencies “ ‘must set forth findings to
bridge the analytic gap between the raw evidence and ultimate decision or order.’ ”
(Environmental Protection Information Center v. California Dept. of Forestry & Fire
Protection (2008) 44 Cal.4th 459, 516.) However, “[t]he findings do not need to be
extensive or detailed. ‘ “[W]here reference to the administrative record informs the
parties and reviewing courts of the theory upon which an agency has arrived at its
ultimate finding and decision it has long been recognized that the decision should be
upheld if the agency ‘in truth found those facts which as a matter of law are essential to
sustain its . . . [decision].’ ” ’ (Ibid.) The Board decision quoted section 9.01(b) and
petitioner’s declarations, noted the declarations “contain recommendations to the family
court concerning the custody of Child,” and found “[i]t was established by clear and
convincing evidence that [petitioner] was grossly negligent in providing an opinion to the
family court concerning the custody of Child, in that it was an extreme departure from the
standard of care of licensed psychologists.” These findings are sufficient for us to bridge
the analytic gap: the Board decision found that the custody recommendation constituted
or impliedly contained an opinion about Child’s psychological characteristics.7
       However, we conclude this finding was against the weight of the evidence.
Although Shields testified petitioner’s declarations contained opinions about the
psychological characteristics of Child, Shields conceded there was no definition of
psychological characteristics “that is unique to psychologists.” “Characteristic” is
defined as “a distinguishing trait, quality, or property.” (Merriam-Webster’s 11th

7
  Petitioner does not argue on appeal the Board decision was not supported by adequate
findings; instead, he argues the Board decision’s findings regarding psychological
characteristics were not supported by the weight of the evidence.


                                             11
Collegiate Dict. (2004) p. 207; see also American Heritage Dict. (4th ed. 2000) p. 312
[“A feature that helps to identify, tell apart, or describe recognizably; a distinguishing
mark or trait.”].)8
       Two judicial opinions provide guidance on the scope of “psychological
characteristics” as set forth in section 9.01(b). In Rand, a psychologist testified in a child
custody proceeding that the child, whom he had not interviewed, “suffered from parental
alienation syndrome.” (Rand, supra, 206 Cal.App.4th at pp. 572, 589.) The Court of
Appeal had little difficulty concluding this constituted “an opinion of the psychological
characteristics of the child” in violation of section 9.01(b). (Id. at p. 589.) Rand
contrasted the facts of that case to those of In re Kelly (2009) 158 N.H. 484 [969 A.2d
443]. (Rand, supra, at p. 589.) In In re Kelly, a psychologist provided therapy services
to the father in a custody dispute.9 (In re Kelly, at p. 485.) The psychologist then
submitted a report to the court, recommending the court “[i]ncrease [the father’s]
visitation with daughter, both [father and daughter] would grow from the interaction.”
(Id. at p. 486.) The New Hampshire Board of Mental Health Practices concluded the
psychologist violated section 9.01(b). (In re Kelly, at p. 488.) The New Hampshire
Supreme Court held “that the Board erred in its interpretation and application of the APA
Code of Conduct to the circumstances of this case.” (Id. at p. 491.) The court stated that
section 9.01(b) “applies only if Dr. Kelly provided an opinion of a psychological
characteristic of an individual other than [the father]. . . . Assuming, without deciding,
that the Board could reasonably have found that the recommendation to ‘[i]ncrease
visitation with daughter,’ and the statement that ‘both would grow from the interaction,’
did in fact provide an opinion as to the daughter, the Board’s ruling failed to address how

8
 Because petitioner’s declarations were not custody evaluations, we disagree with the
Board’s contention that the APA custody evaluation guidelines should inform the
definition of “psychological characteristics” in this case.
9
  The services were rendered in connection with a court order that the father complete a
psychological evaluation and present evidence that he had addressed anger and parenting
issues. (In re Kelly, supra, 158 N.H. at p. 485.)


                                              12
this recommendation constituted an opinion of a psychological characteristic of the
daughter such that an examination of the daughter would be required pursuant to the APA
Code of Conduct.” (Id. at p. 493.)10
       The instant case is distinguishable from Rand, in which a psychologist testified to
a specific, distinguishing psychological condition suffered by an individual—
indisputably a psychological characteristic. Instead, the Board identified only petitioner’s
recommendation that Father have 50 percent custody as grossly negligent conduct. We
decline to find that a bare custody recommendation—which does not set forth a
distinguishing trait regarding the psychology of the minor—constitutes an opinion on the
minor’s psychological characteristics.
       In this appeal, the Board points to other statements in the declarations: Child
needed both parents involved in his life “especially as he moves deeper into
adolescence”; that this was “especially important” for Child “as a special needs child”;
that any attempt to block either parent from frequent contact with Child would “be
destructive to all parties”; and that Child “needs the close relationship with his father to
continue as he moves deeper into adolescence if he is to mature properly.” These are
fairly general statements that are broadly applicable, in contrast to the identification of a
distinguishing psychological condition in Rand. Petitioner explained that these opinions
were based in part on his “knowledge that an adolescent needs both parents to interact
with in the course of his individuating, and developing,” and on studies discussing the
impact of divorce on children. As the Board decision found, petitioner held a “general
belief that equal custody is in a child’s best interest.” Under Kelly and Rand, these
statements are not opinions on the minor’s psychological characteristics.

10
  The Board distinguishes In re Kelly on the ground that the psychologist expressly
limited his opinion and recommendations. However, such a limitation is not relevant to
the definition of “psychological characteristics.” It is only relevant to the question of
whether, if an opinion of such characteristics is being rendered without adequate
examination, the psychologist “ ‘appropriately limit[s] the nature and extent of their
conclusions or recommendations’ ” as required by section 9.01(b). (In re Kelly, supra,
158 N.H. at p. 491 [quoting section 9.01(b)].)


                                              13
III. Field of Competence
       The trial court found petitioner’s declarations were not custody evaluations and,
therefore, he was not practicing as a forensic psychologist and did not practice outside his
field of competence. The Board points to contrary evidence in the record, but our review
is limited to whether the trial court’s decision was supported by substantial evidence.
(Rand, supra, 206 Cal.App.4th at pp. 574–575.) As we have discussed above, the trial
court’s finding that the declarations were not custody evaluations is amply supported by
substantial evidence. The declarations themselves, as well as petitioner’s explanatory
statements, support the trial court’s finding that they “described the therapeutic context in
which Petitioner counseled the couple for many years, and the limited observation of the
couple’s interaction with their son.”11 Such statements are squarely within petitioner’s
expertise as a marital therapist. The trial court’s finding that petitioner did not practice
outside his field of competence is supported by substantial evidence.12
                                       DISPOSITION
       The judgment is affirmed. Petitioner is awarded his costs on appeal.




11
  The Board challenges this characterization of the declarations, arguing the statement in
one of the declarations that petitioner “ha[s] had extensive opportunity to evaluate
[Mother and Father’s] relationship with each other, as well as with their son, [Child]”
implies petitioner professionally evaluated Child. When read in the context of both
declarations—which clearly state petitioner has seen Mother and Father in marital
counseling sessions and has “observed each of them many times as they interacted with
their son [Child] in the waiting area of my office”—we disagree that the statement is
misleading.
12
   This conclusion renders it unnecessary for us to decide petitioner’s contention that the
Board decision “invades the exclusive power of the judiciary to regulate and determine
the admissibility of evidence in family law courts” and “directly conflict[s] with the
statutory rights of litigants.” We also need not decide the parties’ dispute regarding the
Board decision’s assessment of fees against petitioner.


                                              14
                     SIMONS, Acting P.J.




We concur.




NEEDHAM, J.




BRUINIERS, J.




                15
