DEBORAH B. BARNES, CHIEF JUDGE:
¶1 Having previously granted summary judgment in favor of Defendant
Transitions, Inc. (Transitions), the trial court granted summary judgment in
favor of Defendant/Appellee M. Sue Grantham (Grantham) in its order filed in
July 2013. Plaintiff/Appellant Edward Lee Kremeier (Kremeier) appeals the trial
court's Order denying his "Motion to Reconsider" the July 2013 order. Kremeier
does not challenge the granting of summary judgment in favor of Transitions, but
challenges only the granting of summary judgment in favor of Grantham - his
former counselor. Briefly stated, Grantham called the Oklahoma Department of
Human Services (DHS) to report that Kremeier, her patient at the time, posed a
threat of sexual abuse to Kremeier's youngest daughter. Kremeier argues genuine
disputes of material fact exist as to whether, among other things, Grantham's
report to DHS was made in bad faith. Based on our review, we affirm.
BACKGROUND
¶2 Although the summary judgment motion, response, and reply, together with
the motion to reconsider, response, and reply, have been provided in the record
on appeal, no pleadings have been provided on appeal. As to the content of the
petition, in the trial court's July 2013 order, it states that Kremeier asserted
the following theories of recovery against Grantham: "[b]ad-faith reporting of
child abuse to DHS," and "[b]reach of confidentiality, conflict of interest, and
failing to assist in the delivery of counseling records."1
¶3 In May 2013, Grantham filed her motion for summary judgment, arguing that
regardless of the theories asserted against her by Kremeier relating to her
telephonic report to DHS, she is immune from liability pursuant to 10A O.S. 2011
§ 1-2-104, which provides, among other things, that "[a]ny person who, in good
faith and exercising due care, reports suspected child abuse . . . shall have
immunity from any liability, civil or criminal . . . ."
¶4 The undisputed facts set forth in Grantham's motion and admitted in
Kremeier's response are as follows:
· Kremeier, an adult in his 50s, sought mental health treatment through
Transitions in February 2010 for "anger, [and] recovery from verbal and
sexual abuse" suffered as a child.
· Kremeier requested Grantham as his counselor and Grantham accepted
Kremeier as her patient.
· Kremeier's intake session with Transitions occurred in February 2010,
and Kremeier signed a "Consent for Use and Disclosure" form with Transitions
that states, "under state law," Grantham is ethically obligated to report
suspicions of child abuse "and has no obligation to confirm the truthfulness
of the report."
· Kremeier was separated from his wife (Wife) when he began therapy
sessions with Grantham, but prior to Kremeier filing for divorce later in
2010, "Wife moved back in with [Kremeier] and they attempted
reconciliation."
· During the reconciliation attempt, Kremeier requested that Grantham
begin counseling his youngest daughter, and he participated in at least one
joint-counseling session with Wife.
· In May 2010, after Kremeier filed for divorce from Wife and Wife moved
out of the marital residence with their youngest daughter, Grantham
contacted DHS and made the telephonic report at issue.
· DHS conducted an independent investigation of Grantham's report,
interviewed more than a dozen witnesses, and determined that neglect and
threat of harm to Kremeier's youngest daughter was "substantiated." DHS
recommended court intervention, and DHS also substantiated a threat of harm
to Kremeier's son.
· The Assessment of Child Safety related to the DHS investigation
indicated that child sexual abuse was suspected and circumstances suggested
that sexual abuse was an "immediate concern" with regard to Kremeier's
children, including his youngest daughter, and that based on the safety
assessment, there was a determination that the children were in an
environment with safety threats.
· Kremeier appealed DHS's findings and in September 2010, DHS upheld its
finding of substantiation as to the threat of harm Kremeier posed to his
youngest daughter. DHS reversed its finding as to Kremeier's son, who was
about sixteen years old at the time.
· DHS sent a letter to Kremeier in January 2011 again upholding its
findings.
· Kremeier was ordered to have supervised visitation with his youngest
daughter by the judge in the divorce case.
· Ultimately, however, by agreement of Kremeier and Wife, Kremeier was
awarded unsupervised visitation. (We note that, according to Kremeier, the
DHS findings were ultimately opposed by a court-appointed Guardian Ad
Litem.)
· Kremeier's alleged injuries and the damages he seeks in this action are
the result of Grantham's report to DHS and would not have occurred "but for"
her report.
¶5 In the argument section of Kremeier's response to Grantham's motion for
summary judgment, he asserts that although Grantham is presumed to have acted in
good faith under § 1-2-104, "that presumption can be overcome if there is
evidence of bad faith." Kremeier asserts a discrepancy exists between the
contents of Grantham's telephonic report to DHS as contained in the DHS referral
information report, and what Grantham subsequently testified she reported to
DHS. In particular, Kremeier has presented evidence that, according to the DHS
referral information report, Grantham reported that Kremeier disclosed to her
(in their counseling sessions) that he sexually abused his oldest
daughter when she was younger. Grantham subsequently testified, however,
that Kremeier disclosed to her that he had sexually molested a young child, but
that he did not specify the child's identity. Kremeier asserts this discrepancy
constitutes evidence of bad faith on the part of Grantham because it shows she
gave false information to DHS. He also asserts that the subsequent investigation
undertaken by DHS "may have never taken place if [Grantham] had told DHS the
truth at the time of her initial report."
¶6 Kremeier also asserts that Grantham called DHS to report the threat of
sexual abuse only upon learning that Kremeier might obtain unsupervised custody
of or visitation with his youngest daughter. He asserts, "[Grantham's] primary
reason is that she feared that . . . [Wife] would not be able to prevent
[Kremeier] from having unsupervised custody of their [youngest daughter]."
Kremeier asserts this constitutes evidence of bad faith because the report was
made merely "for the purpose of aiding in a child-custody dispute . . . ."
Kremeier asserts, in addition, that the report was not made promptly, and when
it was made, "Grantham divulged to DHS far more information than she should
have," and that this constitutes additional evidence of bad faith. Kremeier also
attached an affidavit of an "expert witness," Dr. Richard Kishur, "whose clear
opinion is that [Grantham] acted in bad faith."
¶7 Kremeier also argues that the immunity provided in § 1-2-104 applies only
to those who report "suspected child abuse," not to those "who believe[] they
can 'predict' that child abuse may occur at some point
'potentially' . . . ."2 Finally, he argues § 1-2-104 requires that one must
exercise due care, in addition to not acting in bad faith, when making a report
of suspected child abuse in order for the immunity to apply.
¶8 In its July 2013 order, the trial court granted summary judgment in favor
of Grantham. The trial court found
that the claims of breach of confidentiality, conflict of interest and
failing to assist in the delivery of counseling records have been confessed
(or at least abandoned) by [Kremeier], since his response to Grantham's
Motion for Summary Judgment did not address said claims. Thus, Grantham
should be granted summary judgment on said claims.
¶9 The trial court further found,
it is undisputed that Grantham did not possess and/or act with guilty or
culpable knowledge with respect to her report to DHS. . . . [T]he Court
finds that, at best, Grantham acted negligently and/or with bad judgment.
Thus, the immunity shield provided by § 1-2-104 bars [Kremeier's] claims
against Grantham.
¶10 The trial court further stated, among other things, that it had
"disregarded, as inadmissible," the conclusion in Dr. Kishur's affidavit that,
"in [Dr. Kishur's] opinion, Grantham 'acted in bad faith, via some unknown
motivation . . . .'"
¶11 On August 1, 2013, within ten days of the July 2013 order, Kremeier filed
a "Motion to Reconsider."3 Kremeier again asserts in this motion that disputes
of material fact exist as to whether Grantham "exercise[d] due care or act[ed]
in good faith when she reported [Kremeier] to DHS for suspected child abuse."4 Kremeier states
it is his "unwavering position . . . that Grantham's report was made in bad
faith in an attempt to help [Kremeier's] then-wife in their looming custody
dispute and that is why Grantham's report was clumsy and contained too much
information and a lot of false information." He further states that,
Certainly no good-faith report of alleged child abuse would: (a) contain
false information; (b) lack a factual foundation; (c) be based entirely on
speculation; (d) be made a month after learning of the behavior which creates a
suspicion; and (e) be made in order to assist a different individual client in
an upcoming child custody dispute.5
Kremeier also again argues that the immunity does not apply when the reported
abuse is threatened or potential rather than abuse that has already occurred or
is ongoing.
¶12 In its Order filed in September 2013, the trial court denied Kremeier's
motion to reconsider. From the Order denying his motion to reconsider, Kremeier
appeals.
STANDARD OF REVIEW
¶13 The standard of review to be applied in this case is as follows:
Summary relief issues stand before us for de novo review. All
facts and inferences must be viewed in the light most favorable to the
non-movant. Appellate tribunals bear the same affirmative duty as is borne
by [trial] courts to test for legal sufficiency all evidentiary material
received in summary process in support of the relief sought by the movant.
Only if the court should conclude there is no material fact (or inference)
in dispute and the law favors the movant's claim or liability-defeating
defense is the moving party entitled to summary relief in its favor. A trial
court's denial of a motion for new trial is reviewed for abuse of
discretion. Where, as here, our assessment of the trial court's exercise of
discretion in denying defendants a new trial rests on the propriety of the
underlying grant of summary judgment, the abuse-of-discretion question is
settled by our de novo review of the summary adjudication's
correctness. Judicial discretion is abused when a trial court errs with
respect to a pure, unmixed question of law.
Reeds v. Walker, 2006 OK
43, ¶ 9, 157 P.3d 100
(footnotes omitted). In addition, "interpretation of statutory law presents a
question of law and statutes are construed to determine legislative intent in
light of the general policy and purpose that underlie them." Troxell v. Okla.
Dep't of Human Servs., 2013 OK
100, ¶ 4, 318 P.3d 206
(citation omitted).
ANALYSIS
I. The only theory of recovery at issue is the bad
faith/negligent reporting theory asserted against Grantham.
¶14 Kremeier has waived all theories of recovery in this action except the
theory asserted against Grantham that Grantham's report to DHS was made
negligently and in bad faith. Grantham does not contest the order granting
summary judgment in favor of Transitions. Furthermore, the trial court found
that in Kremeier's response to the motion for summary judgment, he did not
respond to Grantham's arguments regarding the additional theories asserted
against her of breach of confidentiality, conflict of interest, and failure to
assist in the delivery of counseling records. In his motion to reconsider,
Kremeier did not contest the trial court's finding that he abandoned
these theories. Because we treat Kremeier's motion to reconsider as the
functional equivalent of a new trial motion, he cannot rely on errors which were
not fairly embraced in the specific grounds stated in that motion.6 Finally, we
note that Kremeier did not set forth any issue pertaining to his abandonment of
these additional theories in the "Issues to be Raised on Appeal" section of the
petition in error, and, in his "Summary of the Case," he represents that the
only issue "is that [Grantham] negligently and in bad faith made an untrue
report to [DHS] about [Kremeier]." Consequently, the only theory of recovery at
issue is the bad faith/negligent reporting theory asserted against Grantham.
II. Does the immunity provision apply where the reported
child abuse is threatened rather than ongoing?
¶15 Kremeier argues that because the child abuse reported to DHS by Grantham
was threatened and potential rather than ongoing, that the statutory privilege
set forth in 10A O.S. 2011 § 1-2-104 does not apply in this case. He argues, in
essence, that even assuming Grantham reported in good faith that sexual abuse
was threatened, because the report was not made on the basis of direct knowledge
of abuse that had already occurred to the youngest daughter, the statutory
privilege does not apply.
¶16 Section 1-2-104 provides, in pertinent part, that immunity from liability
applies to "[a]ny person who . . . reports suspected child abuse . . . ." In
Myers v. Lashley, 2002 OK
14, 44 P.3d 553, the Court
stated as follows:
Oklahoma's child abuse reporting laws express the State's strong public
interest in protecting children from abuse by the policy of mandatory
reporting of actual and suspected child
abuse or neglect to appropriate authorities and agencies. The statutory
scheme imposes upon all health care professionals
(teachers as well as all other persons) an obligation to report in good
faith all suspected instances of child abuse to [DHS]. No privilege or
contract will relieve any person from the legally mandated reporting
requirement.
Id. ¶ 11 (footnotes omitted).7
¶17 We disagree that a report may only be based on direct knowledge that the
child in question has been the victim of sexual abuse, or is the victim of
ongoing sexual abuse, by the perpetrator in order for the statutory immunity to
apply. All that the statute requires is knowledge upon which a report of
"suspected child abuse" can be made in good faith. Because all that is required
is knowledge sufficient to support a good faith report of suspected abuse -
which may, of course, be based on circumstantial factors indicating that sexual
abuse is reasonably likely and potential - we reject Kremeier's strict
interpretation of the statute.8 Such an interpretation would have a chilling effect
on the reporting of child abuse, and would be clearly inconsistent with the
strong public interest, articulated by the Myers Court and by the
Legislature,9
in protecting children from abuse. Such an interpretation would
constitute an absurd reading of the statute meant to protect children, not the
potential abusers of children. We conclude the applicability of § 1-2-104 is not
defeated in this case merely because the report was made on the basis of
circumstantial indicators, including Kremeier's ongoing recovery from sexual
abuse he suffered as a child, and his admission of sexual abuse of a young
child, rather than on the basis of direct knowledge of past or ongoing abuse by
Kremeier of the youngest daughter.
III. Must one exercise due care, in addition to not acting in
bad faith, when
making a report of suspected child abuse in order for
the immunity to apply?
¶18 Kremeier argues that because § 1-2-104 provides that the immunity applies
to those making a report of child abuse "in good faith and exercising due care,"
that the immunity only applies when the report is both made in good faith
and without negligence. Taken literally and out of the larger statutory
context, Kremeier's interpretation is logical. However, the Myers Court
has already answered this question by determining that the statutory privilege
in question applies as a shield against all theories of recovery for damages
resulting from the report, including negligence, unless evidence can be
presented showing that the report was made in bad faith. The Myers Court
stated that, unless the plaintiff can present evidence of "bad-faith reporting
of abuse," the immunity bars "any effort by those who seek to recover for harm
occasioned by or through the act of reporting." Id. ¶ 13 (emphasis
omitted). See also Rite Aid Corp. v. Hagley, 824 A.2d 107, 117 (Md. 2003)
("[N]egligence and lack of good faith are not equivalent," and "if good faith
immunity can be overcome by establishing negligence, then good faith immunity is
a meaningless concept as one would have to be free from negligence, and thus not
liable in any event, to also avail one's self of the doctrine of good faith
immunity.") (citation omitted). We reject Kremeier's argument, and follow the
interpretation set forth in Myers. Consequently, the sole issue presented
is whether the evidentiary materials demonstrate a nonactionable theory of "bad
faith reporting" because Grantham's conduct falls within "the range of her
qualified statutory privilege for good-faith reporting of child abuse[.]"
Myers, ¶ 1 (footnote omitted).
IV. Do genuine disputes of material fact exist as to whether
Grantham's report was made in bad faith?
¶19 Title 10A O.S. 2011 § 1-2-104(B) provides that "the good faith of any
person in making a report . . . shall be presumed." In Myers, a case that
was also decided at the summary judgment stage, the Court stated that once the
statutory privilege at issue has been invoked, "the onus shift[s]" to the
plaintiff "to overcome its effect" by "tendering acceptable evidentiary
materials which would show the [reporter's] conduct in contest was outside the
range of her statutory protection . . . ." Myers, ¶ 20 (emphasis omitted)
(footnotes omitted). "[P]robative materials" showing some "intentional
wrongdoing" must be present in the record to overcome the statutory immunity.
Id. ¶ 22. The Myers Court explained that evidence even of gross
negligence, characterized as reckless indifference to the consequences, "falls
short of an intentional wrong's equivalent." Id. (footnote omitted). The
Court stated,
While gross negligence may support a punitive damages assessment, it is
insufficient . . . to provide a predicate for an inference of bad faith.
Even if [plaintiffs] were relying on gross negligence . . . [on the part
of the reporter of the child abuse] . . . they could not escalate their
claim against her to a willful tort from which bad faith could be
inferred.
Id. ¶¶ 22-23 (footnotes omitted). Rather, the Myers Court
stated that "[t]he element of scienter - that of guilty knowledge - is an
indispensable ingredient in the pattern of proof required to show lack of good
faith." The Court noted that bad faith, "or mala fides . . . consists in
guilty knowledge, or willful ignorance, showing a
vicious or evil mind[.]" Id. ¶ 20 n.46 (citations omitted).
¶20 Kremeier has presented evidence from which it may be reasonably inferred
that Grantham reported to DHS that Kremeier told Grantham he had sexually abused
a young child in the past and that this child was his eldest daughter when she
was younger. Grantham admits that Kremeier did not tell her the name of this
past victim, and, according to her testimony, she believes a miscommunication
must have occurred over the phone with the DHS employee regarding the extent of
her knowledge as to the identity of the past victim. For example, Grantham has
testified, "I told them that [Kremeier] did not disclose specifically who. I
didn't write that report."10 Assuming, however, that Grantham reported to DHS
not only that there was a past victim, but that the past victim was Kremeier's
eldest daughter, this latter information was based on mere speculation or
inference because, according to Grantham's own subsequent testimony, Kremeier
actually told Grantham he molested a young child, but did not tell Grantham it
was his eldest daughter or otherwise directly reveal to Grantham the identity of
the child. Kremeier argues that the dispute regarding the giving of this "false
information" to DHS by Grantham creates a genuine dispute of material fact as to
whether Grantham's report to DHS was made in bad faith.
¶21 Although this dispute of fact is no doubt a crucial one in Kremeier's
eyes (as the father of the eldest daughter), we disagree that it constitutes
evidence showing Grantham's conduct to be outside the range of her statutory
protection. Even if a report contains false information, this deficiency, by
itself, does not support a finding of intentional wrongdoing or constitute
evidence of a vicious or evil mind necessary for mala fides. Good faith
reports of "suspected child abuse" may not always be made by those with perfect
knowledge of the pertinent circumstances.11 Indeed, some reports made in good
faith will be "screened out" or found to be "unsubstantiated" by DHS. § 1-2-101.
However, the statutory privilege applies even to reports that are ultimately
rejected or found to be unsubstantiated, so long as such reports are not made in
bad faith.
¶22 Here, it is undisputed that Grantham's report was ultimately
substantiated by DHS and that the DHS investigation found child sexual
abuse was an "immediate concern" with regard to Kremeier's youngest daughter. We
reject Kremeier's argument that the inaccuracy at issue constitutes evidence
that the entire report was made in bad faith. A good faith report may contain
some "clumsy"12 speculations or inferences, especially a report
that is otherwise substantiated, as here, after a thorough investigation by the
authorities. We conclude that the false information discussed above, even if it
was the result of negligent or grossly negligent speculation on the part of
Grantham, does not provide support for a finding of bad faith necessary to
overcome the statutory immunity.13
¶23 Kremeier attempts to bolster his bad faith argument by asserting that
Grantham made the report only upon learning that Kremeier was seeking an award
of unsupervised visitation with, or custody of, his youngest daughter.14 The
inference that Kremeier wishes this Court to endorse as reasonable is that
Grantham was, therefore, merely seeking to assist Wife in the child custody
dispute rather than seeking to protect the youngest daughter from abuse. In
other words, Kremeier asserts that because Grantham reported the threat of
sexual abuse only upon learning Kremeier might soon have unsupervised contact
with the potential victim, this constitutes evidence of bad faith. This argument
is self-defeating and provides support for good faith rather than bad faith. We
conclude that the timing of the report fails to support a finding of intentional
wrongdoing or of a vicious mind necessary to pierce the statutory immunity at
issue.
¶24 Finally, Kremeier argues that the opinion set forth in the affidavit of
Dr. Richard Kishur that Grantham acted "in bad faith" renders summary judgment
improper. Because the concept of bad faith is a legal one, Dr. Kishur's
conclusion that Grantham acted in bad faith is not entitled to any weight, nor
are Dr. Kishur's opinions that "licensed clinicians . . . have a higher
obligation to make thoughtful, objective, truthful reports in good faith"; that
"[s]uch reports must be free of subjective speculation and/or well intended but
injurious innuendo"; and that Grantham acted in bad faith because she "did not
have any first hand knowledge of child abuse[.]" We disregard these legal
conclusions. Although Dr. Kishur's affidavit may support a finding of negligence
or even gross negligence, we conclude it fails to provide support for a finding
of bad faith. Because no genuine disputes of material fact exist and Kremeier
has failed to overcome the qualified statutory privilege in this case, we affirm
the denial of Kremeier's "Motion to Reconsider."
CONCLUSION
¶25 Based on our review, we conclude that no genuine disputes of material
fact exist and the trial court has not abused its discretion in denying
Kremeier's "Motion to Reconsider" the July 2013 order granting summary judgment
in favor of Grantham. Consequently, we affirm.
WISEMAN, P.J., and GOODMAN, J., concur.