Brittner v Lanzilotta, __Ariz. Adv. Rep. __ No. 1 CA-CV 18-0088 (App. Div. I, March 12, 2019) (J. Campbell)

COURT APPOINTED INTERVENTIONIST THERAPIST IN FAMILY COURT MATTER HAS JUDICIAL IMMUNITY FROM CIVIL CLAIMS

The defendant was a court appointed therapeutic interventionist who was directed by the court to “rehabilitate relationships between [plaintiff] and the minor children, establish ‘rules for [the] exchange of [the] children in order to enhance safety and health in the family, make referrals for therapy as necessary, and facilitate conflict resolution.” Eventually the defendant resigned as the therapeutic interventionist and plaintiff sued her for intentional

infliction of emotional distress, abuse of power, breach of fiduciary duty, and breach of contract. The trial court dismissed the lawsuit pursuant to rule 12(b)(6) of the Arizona Rules of Civil Procedure and the Arizona Court of Appeals affirmed.

Judicial immunity protects nonjudicial officers “performing a function pursuant to a court directive related to the judicial process. . . Whether absolute immunity protects a nonjudicial officer hinges on the ‘nature of the function performed, not on the identity of the actor.'”

Here the defendant was appointed to provide therapeutic services and to give recommendations to the family court regarding rules for exchanging the children between parents “to enhance safety and the health in the family” and to make referrals for therapy, all of which the court relied upon in issuing its final order. The court of appeals found that here the therapeutic services were “incidental to the court's purpose”—to provide the court with recommendations and information. Therapeutic sessions were necessary for the defendant to formulate the recommendations for the court. It is neither “practical nor possible” to separate out the services related to the judicial process from those therapeutic. “The therapist cannot serve two masters—her obligation is ultimately to the court.”