Gross v. Myers

748 P.2d 459, 229 Mont. 509, 44 State Rptr. 2176, 73 A.L.R. 4th 771, 1987 Mont. LEXIS 1095
CourtMontana Supreme Court
DecidedDecember 30, 1987
Docket87-107
StatusPublished
Cited by8 cases

This text of 748 P.2d 459 (Gross v. Myers) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gross v. Myers, 748 P.2d 459, 229 Mont. 509, 44 State Rptr. 2176, 73 A.L.R. 4th 771, 1987 Mont. LEXIS 1095 (Mo. 1987).

Opinions

MR. JUSTICE 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 emotional 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 Section 41-3-201(1), 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 par[511]*511ties 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 originally learned of these incidents, she and her husband went for counseling to a mental health clinic, but state authorities 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 defendant, a clinical social worker running a therapy group, was subject to the reporting mandate of Section 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 professional or official capacity is an abused or neglected child, they shall report the matter promptly to the department of social and rehabilitation services or its local affiliate . . . (Emphasis added.)
“(2) Professionals and officials required to report are:
[512]*512“(a) physician, resident, intern, or member of a hospital’s staff engaged in the admission, examination, 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 practitioner 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 although criminal charges may be brought by a county attorney if the investigation reveals criminal violations. In substance 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 officer, 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 Section 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 [513]*513by 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 reasonable 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 training 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.”

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Gross v. Myers
748 P.2d 459 (Montana Supreme Court, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
748 P.2d 459, 229 Mont. 509, 44 State Rptr. 2176, 73 A.L.R. 4th 771, 1987 Mont. LEXIS 1095, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gross-v-myers-mont-1987.