O'HERON v. Blaney

Carley, Justice,

dissenting.

I believe that the Court incorrectly analyzes the immunity provided to reporters of child abuse by OCGA § 19-7-5, and then fails to consider evidence which makes summary judgment entirely inappropriate in this case.

1. The majority correctly holds that immunity from liability for reporting child abuse “may attach in two ways, either by showing *875that ‘reasonable cause’ exists or by showing ‘good faith [,]’ ” and that, once reasonable cause is established under an objective analysis, a reporter of child abuse “is, by definition, operating in good faith.” (Maj. op. p. 873.) See Warner v. Mitts, 536 NW2d 564, 566 (Mich. App. 1995) (cited in footnote 13 of the majority opinion). However, a reading of subsections (c) (1) and (f) of OCGA § 19-7-5 together, as the majority purports to do, cannot lead to the conclusion that a purely subjective standard applies to the determination of “good faith” and that the only question relevant to that determination “is whether the reporter honestly believed she had a duty to report.” (Maj. op. p. 873.) If that were true, then the majority’s holding that reasonable cause necessarily implies good faith would clearly be wrong, because it is certainly possible for a reporter of child abuse to have an objectively reasonable cause to make the report and, at the same time, have a subjective, honest belief that abuse has not occurred.

As Warner itself states, “ ‘good faith’ pertains to the existence of a reasonable suspicion. . . .” Warner v. Mitts, supra at 566. In examining statutory provisions which are substantially identical to OCGA § 19-7-5 (c) (1) and (f), a Washington appellate court pointed out that, although “good faith” is not defined, “the reporting statute is framed in terms of reasonableness. The duty to report arises when there is ‘reasonable cause to believe’ that abuse has occurred. [Cit.]” Dunning v. Paccerelli, 818 P2d 34, 38 (Wash. App. 1991). Because “good faith” must necessarily take into account the “reasonable cause” supporting the report, “good faith” cannot be judged by a wholly subjective standard.

When the Court of Appeals referred to the concepts of good faith and reasonable inquiry in other contexts, it was not “superimposing a requirement of reasonableness on the good faith standard.” (Maj. op. p. 874.) The interplay between reasonableness and good faith arises from the statute itself. In construing OCGA § 19-7-5, the Court of Appeals was simply drawing a valid analogy to the duty of reasonable inquiry imposed in another good faith statute. Blaney v. O’Heron, 256 Ga. App. 612, 614-615 (568 SE2d 774) (2002). Under the analogous statute, the simple assertion of a subjective, honest belief cannot establish good faith. Kendrick v. Funderburk, 230 Ga. App. 860, 864 (3) (498 SE2d 147) (1998); Kluge v. Renn, 226 Ga. App. 898, 903 (4) (487 SE2d 391) (1997). Making a similar analogy, the court in Dunning v. Paccerelli, supra at 38, pointed out that, in “actions brought under 42 U.S.C. § 1983, which also measures official conduct by a standard of reasonableness, the courts have refused to employ a totally subjective standard when applying the good faith test for immunity. [Cit.]”

Therefore, I believe that, in order to have immunity under subsection (f) of OCGA § 19-7-5, the reporter of child abuse is required to *876“act with a reasonable good faith intent, judged in light of all the circumstances then present. . . .” Dunning v. Paccerelli, supra at 38. However, the majority, in its zeal to encourage the reporting of suspected child abuse, has instead encouraged groundless reporting by extending the statutory immunity to all those who subjectively claim to honestly believe that child abuse has occurred, even if the basis for such belief is objectively unreasonable.

2. The majority concludes that, as a matter of law, the children’s allegations are sufficient to cause a reasonable person to suspect that child abuse occurred. For this holding, it relies on the testimony of Dr. O’Heron and that of the Fayette County detective that the children made specific allegations of sexual contact by their grandfather. However, the detective was not even present for the interview of one of the children and never stated that she heard any particular statement regarding sexual abuse from either girl. The majority further relies on the letter of an expert to the assistant district attorney stating that the children’s allegations raised a concern about the possibility of abuse. Even assuming that this letter was not inadmissible hearsay, it was rebutted by deposition testimony of a leading child abuse expert that Dr. O’Heron’s interview of such young children could not be relied upon, was dangerous medicine, and was a breach of the standard of care. Although such negligence or bad judgment on the part of Dr. O’Heron may not prove the lack of her good faith under a subjective standard, it clearly is some evidence from which a trier of fact could find that she did not have reasonable cause to believe that the children’s grandfather had abused them.

There is considerable evidence, including the deposition of Appellees’ expert, that the findings in Dr. O’Heron’s examination did not support her conclusion that the condition of one of the children was abnormal, much less that sexual abuse had occurred on a particular weekend nearly a month before. Furthermore, the Court of Appeals accurately held that the evidence which it extensively reviewed “as to O’Heron’s subsequent testimony and prior actions raises material issues of motive, intent, honesty and ‘moral obliquity.’ ” Blaney v. O’Heron, supra at 620. Therefore, there was not only evidence that Dr. O’Heron lacked reasonable cause to believe that the children’s grandfather sexually abused them, but also that, judged in light of all the circumstances at the time, she did not act with a reasonable good faith intent.

Where, as here, the party responding to a motion for summary judgment “produces or points to any specific evidence, even slight, in the record giving rise to a triable issue of material fact, then summary judgment must be denied by the trial court. [Cits.]” Five Star Steel Constr. v. Klockner Namasco Corp., 240 Ga. App. 736, 738 (1) (a) (524 SE2d 783) (1999). Thus, I believe that the trial court errone*877ously granted summary judgment. Accordingly, I dissent to this Court’s reversal of the judgment of the Court of Appeals.

Decided June 30, 2003 Reconsideration denied July 30, 2003. Allen & Weathington, Hunter S. Allen, Jr., Kara A. Hicks, for appellants. Moraitakis, Kushel & Pearson, Albert M. Pearson III, for appellees. Carlock, Copeland, Sender & Stair, Thomas S. Carlock, Daniel J. Huff, Eric J. Frisch, Rogers & Hardin, Robert B. Remar, Garland, Samuel & Loeb, Donald F. Samuel, Jackson & Schiavone, George T. Jackson, Nicholas A. Lotito, amici curiae.

I am authorized to state that Presiding Justice Sears and Justice Benham join in this dissent.