No. 87-107
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
JOYCE GROSS,
Plaintiff and Appellant,
-vs-
BARBARA MYERS,
Defendant and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Reedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Don Vernay argued, Big Fork, Montana
For Respondent :
Warden, Christiansen, Johnson & Berg; Thomas R.
Bostock argued, Kalispell, Montana
Submitted: O c t o b e r 6, 1987
Decided: D e c e m b e r 30, 1987
Filed:
fh!,
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from an order of the Eleventh Judicial
District, Flathead County, granting the defendant's motion
for summary judgment in a civil action alleging professional
negligence, invasion of privacy, violation of a statutory
duty of confidentiality, and intentional infliction of emo-
tional distress, all arising from defendant's reporting of
alleged child abuse. We affirm.
The issues are:
1. Did the District Court err in concluding that the
defendant, a clinical social worker running a therapy group,
was subject to the reporting mandate of S 41-3-201 ( I ) , MCA
(1985), under the circumstances of this case?
2. Did the District Court err in granting defendant's
motion for summary judgment on the issue of her statutory
immunity from civil liability?
In January 1986, the defendant, Ms. Myers, began a
therapy group for non-offending members of families that had
experienced some form of child sexual abuse. Ms. Myers is a
licensed clinical social worker with an independent practice
in Kalispell, Montana.
The plaintiff, Mrs. Gross, enrolled in the therapy
group. Both parties agree that Mrs. Gross was adequately
assured of strict confidentiality concerning matters raised
during the group sessions. During one of these sessions,
Mrs. Gross told the group about some incidents of sexual
abuse which occurred between her husband and her daughters
approximately 16 years earlier. When Mrs. Gross had origi-
nally learned of these incidents, she and her husband went
for counseling to a mental health clinic, but state authori-
ties were not notified.
After the third group session in 1986, Ms. Myers told
Mrs. Gross that she was required by Montana law to report the
incidents to state authorities. The parties agreed that Mrs.
Gross was given an opportunity to make the report herself but
chose not to do so. At the time of this conversation, all of
the Gross' children were over nineteen years of age, and none
of them were living with Mr. and Mrs. Gross.
Ms. Myers made the report by telephone to Mary Schulze
of the Department of Human Services. Due to the remoteness
of the incident, Mary Schulze made no further report or
investigation of the matter.
Mrs. Gross brought this action in district court to
recover damages allegedly caused by the report of child abuse
made by Ms. Myers. Ms. Myers filed an answer, and during
discovery, took Mrs. Gross' deposition. The parties also
exchanged interrogatories. Ms. Myers then moved for summary
judgment which was granted. From this order Mrs. Gross
appeals.
I
Did the District Court err in concluding that the defen-
dant, a clinical social worker running a therapy group, was
subject to the reporting mandate of S 41-3-201(1), MCA
(1985), under the circumstances of this case?
Sections 41-3-201(1) and ( 2 ) , MCA (1985), provide as
follows:
When the professionals and officials listed in
-
subsection (2) know - -
or have reasonable cause to
suspect that a child known to them in their profes-
sional or official capacity is an abused or ne-
glected child, they shall report the matter
promptly to the department of social and rehabili-
tation services or its local affiliate ...
(Emphasis added.)
(2) Professionals and officials required to report
are :
(a) physician, resident, intern, or member of a
hospital's staff engaged in the admission, examina-
tion, care, or treatment of persons;
(b) a nurse, osteopath, chiropractor, podiatrist,
medical examiner, coroner, dentist, optometrist, or
any other health or mental health professional;
(c) Christian Science practitoner and religious
healers ;
(d) school teachers, other school officials, and
employees who work during regular school hours;
(e) a social worker, operator or employee of any
registered or licensed day care or substitute care
facility, or any other operator or employee of a
child care facility;
(f) foster care, residential, or institutional
worker; or
(g) a peace officer or other law enforcement
official.
This part of the MCA is primarily civil in nature al-
though criminal charges may be brought by a county attorney
if the investigation reveals criminal violations. In sub-
stance the statutes provide a definite procedure following a
child abuse report by any of the professionals listed. An
investigation is to be made by the Department of Social and.
Rehabilitation Services (SRS), the county attorney, or a
peace officer with access given to medical records and also
to the child in question. If an investigation indicates that
the child may have been abused, provisions are set forth
under which SRS shall request and provide protective services
for the child. In addition the SRS is required to advise the
county attorney of the investigation. Within 60 days, a
social worker is to report in writing to the SRS. At that
point in time a child may be removed by the SRS, peace offi-
cer, or county attorney if immediate or apparent danger is
present. The county attorney, attorney general, or peace
officer may file a petition alleging abuse, neglect and
dependency which is a civil action, and the procedure
thereafter is set forth under the statutes. None of the
civil proceedings are a bar to criminal prosecution.
Ms. Myers, as a licensed social worker and mental health
professional, is included in the list of professionals under
§ 41-3-201(2), MCA, and is subject to the mandatory reporting
requirements if she had reasonable cause to suspect that a
child known to her in her professional capacity was abused or
neglected. Section 41-3-102 (2), MCA, contains the following
definition of "abused or neglected child":
An "abused or neglected child" means a child whose
normal physical or mental health or welfare is
harmed or threatened with harm by the acts or
omissions of his parent or other person responsible
for his welfare.
Mrs. Gross argues that the statutory mandate to report
exists only when the professional suspects current child
abuse. In one sense she is correct. Section 41-3-102(6),
MCA, defines threatened harm as "imminent risk of harm". Ms.
Myers' cause for suspicion must be based upon a perceived
present real harm or a perceived present imminent risk of
harm. This perception need not always be based entirely upon
current, culpable acts of those responsible for the child.
The primary purpose of the statute is the protection of the
child. If Ms. Myers, in her professional opinion had reason-
able cause to suspect that a child presently is threatened
with harm, she must report, whether her suspicion is based
upon past acts, present acts, or both.
The question is whether Ms. Myers' suspicion was a
reasonable one. In her affidavit in support of summary
judgment she stated her concerns:
My primary purpose in making the report was a
concern for Joyce Gross's grandchildren. My train-
i n a and experience leads me to the opinion that
child sexual abuse is a chronic behavior which,
without therapeutic intervention, is subject to
repetition, even after long lapses of time.
Reasonable cause as anticipated by S 41-3-201(1), MCA,
clearly must be a subjective standard. While 5 41-3-201,
MCA, contains the reporting requirement for a professional
such as Ms. Myers, it is essential that such professionals
also be aware of their potential liability under S 41-3-207,
MCA, in the event of a failure to report. Section 41-3-207,
MCA, provides for both civil and criminal liability on the
part of a professional who fails to report known or suspect-
ed child abuse. In the present case, Ms. Myers, as a profes-
sional, was required to exercise her own reasonable judgment
within the circumstances presented. The purpose of the
statutory requirement for the report of child abuse is to
allow qualified persons in SRS, the county attorney, or peace
officers to make the necessary investigation. The statutes
do not require that the named professionals investigate to
determine whether or not child abuse in fact has occurred.
Ms. Myers submitted the affidavit of another therapist which
supported her own professional opinion that sexual abuse
toward children is chronic behavior which may reoccur even
after a substantial lapse of time. Mrs. Gross submitted no
evidence that Ms. Myers' suspicions were not reasonable. Me
conclude that the facts establish that the defendant had
reasonable cause to suspect that a child may have been the
subject of abuse or neglect. We hold the District Court did
not commit error under these circumstances when it concluded
that Ms. Myers was subject to the reporting mandate of
§ 41-3-201 (I), MCA (1985).
Did the District Court err in granting defendant's
motion for summary judgment on the issue of her statutory
immunity from civil liability?
The District Court granted summary judgment under
§ 41-3-203, MCA, which provides immunity from liability.
That statute reads:
Anyone investigating or reporting any incident of
child abuse or neglect . . . is immune from any
liability, civil or criminal, that might otherwise
be incurred or imposed, unless the person acted in
bad faith or with malicious purpose.
Unless Ms. Myers acted in bad faith or with malicious pur-
pose, she is immune from civil liability and summary judgment
would be proper. Mrs. Gross in her deposition admitted that
Ms. Myers did not intend to harm or embarrass her. She
concedes that the defendant had no malice toward her. As a
result we need consider only the issue of bad faith.
The standard to be applied for summary judgment is
described in Mayer Bros. v. Daniel Richard Jewelers, Inc.
(Mont. 1986), 726 P.2d 815, 43 St.Rep. 1821. The initial
burden is on the moving party to show that the evidence
raises no genuine issues of material fact. Then, if the
moving party is successful, the burden shifts to the party
opposing summary judgment to establish that the record con-
tains issues of material fact. Mayer, 726 P.2d at 816.
Ms. Myers, as noted earlier, submitted an affidavit in
support of her motion for summary judgment. In this affida-
vit she stated that her purposes for reporting were her
concern for the grandchildren of Mrs. Gross and her desire to
protect those children. She also said that she had no intent
to harm or embarrass Mrs. Gross or the family.
Mrs. Gross filed no affidavit alleging facts which might
support her allegation of bad faith. She contends that the
record raises a number of issues of fact regarding bad faith.
Specifically, Mrs. Gross stated in her deposition that she
believed she was being used in a "campaign" by the defendant
against child abuse. No facts are set forth to indicate the
nature of such a campaign. The statute contemplates action
against child abuse on the part of all professionals. Mere
conclusory or speculative statements are not sufficient to
raise an issue of material fact. See Mayer, 726 P.2d at 816.
Additionally, Mrs. Gross states that issues exist re-
garding whether Ms. Myers came from an abusive family situa-
tion herself and whether she has made other "questionable
reports" in the past. These issues were evidently the sub-
ject of interrogatories to Ms. Myers, some of which the court
eventually ruled must be answered and then inspected - in
camera by the District Court prior to ruling upon summary
- -
judgment. Mrs. Gross complains that she had no opportunity
to see these answers to interrogatories. We have viewed
these interrogatories and conclude that they raise no issues
of material fact with regard to bad faith.
As observed by the District Court, Ms. Myers' affidavit
of good faith remains uncontroverted. Mrs. Gross argues that
her pleadings have raised a genuine issue for trial as to bad
faith. On the contrary, the rule in Montana was stated in
B.M. By Berger v. State (Mont. 1985), 698 P.2d 399, 4 2
St.Rep. 272:
[The party opposing summary judgment] may not rest
upon the mere allegations of her pleadings but has
an affirmative duty to respond by affidavits or
reference to sworn testimony with specific facts
that show there is a genuine issue for trial.
B.M. 698 P.2d at 401. Mrs. Gross has failed to meet this
burden and summary judgment was proper. As a result, Ms.
Myers is immune from civil liability for reporting in this
instance. We affirm.
We concur:
Justices /
Mr. Justice John C. Sheehy, dissenting:
I dissent to the over-broad and unwarranted
interpretation of the reporting mandate of 5 41-3-201 (1),
MCA, (1985) as applied to this case.
Section 41-3-201 (I), provides:
When the professionals and officials listed in
subsection ( 2 ) know or have reasonable cause to
suspect that a child known to them in their
professional or official capacity - - abused or
is an
neglected child, they shall report the matter
promptly to the department of social and
rehabilitation services or its local
affiliate . . .. (Emphasis added.)
Where, under the statute, is the child that was known to
Barbara Myers in this case to be an abused or neglected child
which required her report? There is none. There is no
abused child here under 18 years of age.
The "child" must be a person under 18 years of age.
Section 41-3-102 (1), MCA.
An "abused ... child" means a child whose normal,
physical, or mental health or welfare is harmed or
with harm -
threatened - - bv the acts or omissions of
his parent or other person - - responsible for
who is
his welfare. (Emphasis supplied.)
Section 41-3-102 (2).
The alleged abuser must be either the parent of any
abused child under the statute, or he must be responsible for
the child's welfare. This alleged abuser does not fit the
statute.
Where is the "abused child" in this case? Barbara Myers
had no knowledge that the alleged abuser was the parent of
any child who was so harmed and threatened as described to
constitute an abused child, and certainly knew of no child
for whom the alleged abuser was responsible - - child's
for the
welfare.
Where is the harm or threatened harm to the child's
health and welfare in this case? The statute states that it
means the harm that occurs whenever the parent or other
person responsible for the child's welfare "commits or allows
to be committed a sexual assault against the child or expose
the child or allows the child to be exploited for sexual
purposes or commits or allows to be committed the act of
sexually abusing the children." .
Section 41-3-102 (3) ( b )
In this case therefore, there is absolutely nothing
within S 41-3-201, MCA, which required a report by Barbara
Myers so damaging to the husband of Joyce Gross. There was
no "child known' to Barbara Myers; there was no "abused
child"; there was no "harm to a child's health or welfare"
threatened or present against a child based on sexual assault
or one exploited for sexual purposes or otherwise sexually
abused, and there was no child for whose welfare the alleged
abuser was responsible. We have only a professional
busybody.
The "threatened harm" required under the statute must be
an "inminent risk of harm." Section 41-3-102 (6) . The
majority opinion has transformed "imminent1' into barely
possible; perhaps; maybe; well, it could happen.
We are statutorily directed in the construction of
statutes that our office is "simply to ascertain and declare
what is in terms or in substance contained therein, not to
insert what has been omitted or to omit what has been
inserted." Section 1-2-101, NCA.
As to the second portion of the majority opinion,
whether Barbara Myers acted maliciously so as to avoid
immunity is a question of fact for a trier of fact and not
for the District Court or this Court simply on affidavits.
The content of the affidavits is disputed, and summary
judgment was improper. However, in my view, the immunity
statute does not apply, because in this case Barbara Myers
was not acting within S 41-3-201 (I), MCA, when she violated
the confidence reposed in her by Joyce Gross.
n
I concur in the above dissent.