IN THE TENTH COURT OF APPEALS
No. 10-23-00126-CV
PATRICIA S. QUINN, LCSW (INCORRECTLY SUED AS PATRICIA S. QUINN, LMSW), Appellant v.
MATTHEW D. MELTON, Appellee
From the 40th District Court Ellis County, Texas Trial Court No. 108482
OPINION
Patricia Quinn, LCSW filed this interlocutory appeal to challenge an order that
denied her motion to dismiss for the failure to file an expert report in what she contends
is a health care liability claim pursuant to the Texas Medical Liability Act (TMLA). See
TEX. CIV. PRAC. & REMEDIES CODE Ch. 74. Matthew Melton filed this case against Quinn
seeking damages for statements made in a child custody evaluation report prepared by Quinn. The report had been prepared for use in Melton's earlier marriage dissolution
and child custody case (hereinafter "divorce"). See, generally, TEX. FAM. CODE Ch. 107,
Subch. D.
Quinn filed a motion to dismiss Melton's case against her because Melton did not
file an expert report that Quinn contends is required by Section 75.351(a) of the Civil
Practice and Remedies Code. After a hearing, the trial court denied Quinn's motion.
Quinn filed this interlocutory appeal, complaining in three issues: (1) that the trial court
erred by finding that Melton's claims are not health care liability claims; (2) that the trial
court erred by finding that Melton was not required to file an expert report; and (3) that
the trial court abused its discretion by denying her motion to dismiss. Because we find
no reversible error, we affirm the order of the trial court.
BACKGROUND
Quinn was a Licensed Master Social Worker (LMSW) at the time she conducted
the child custody evaluation. 1 Pursuant to an agreement by the parties in Melton's
divorce, Quinn was appointed and ordered by the trial court to conduct a child custody
evaluation pursuant to the standards set forth in Subchapter D of Chapter 107 of the
Family Code.
The Family Code defines a child custody evaluation as:
[A]n evaluative process ordered by a court in a contested case through
1Quinn is now a Licensed Clinical Social Worker (LCSW). For purposes of this appeal, the distinction is not relevant. Quinn v. Melton Page 2 which information, opinions, recommendations, and answers to specific questions asked by the court may be: (A) made regarding: (i) conservatorship of a child, including the terms and conditions of conservatorship; (ii) possession of or access to a child, including the terms and conditions of possession or access; or (iii) any other issue affecting the best interest of a child; and (B) made to the court, the parties to the suit, the parties’ attorneys, and any other person appointed under this chapter by the court in the suit.
TEX. FAM. CODE §107.101(a).
It is important to note at the outset that the Family Code also provides that a
person who participates in a child custody evaluation is not a "patient" as defined by
Section 611.001(1) of the Health and Safety Code. See TEX. FAM. CODE §107.112(h).
As part of the process of conducting the child custody evaluation, the evaluator is
required to conduct interviews, observe the child or children, obtain information from
various sources relating to the child, the parents, and other family members in the home,
and to conduct psychometric testing, if necessary, if the evaluator is licensed and trained
to perform the testing. See TEX. FAM. CODE §§107.109,107.110. The evaluator's actions
"must be in conformance with the professional standard of care applicable to the
evaluator’s licensure and any administrative rules, ethical standards, or guidelines
adopted by the licensing authority that licenses the evaluator." 2 TEX. FAM. CODE
2 The statutory authority for licensed social workers is set forth in Chapter 505 of the Texas Occupations Code. See TEX. OCC. CODE Ch. 505. The Texas Behavioral Health Executive Council is the state agency authorized by state law to administer and enforce Chapter 505 of the Occupations Code. See TEX. OCC. CODE Ch. 507. Quinn v. Melton Page 3 §107.108(a).
The evaluator is then required to "prepare a report containing the evaluator’s
findings, opinions, recommendations, and answers to specific questions asked by the
court relating to the evaluation." TEX. FAM. CODE §107.113(a). A child custody evaluator
is the only person who can properly give "an expert opinion or recommendation relating
to the conservatorship of or possession of or access to a child" in a custody proceeding.
See TEX. FAM. CODE §104.008(a).
Quinn prepared the evaluation report which was filed in Melton's divorce
proceeding on January 19, 2019.
On June 1, 2022, Melton, acting pro se, initiated this case by filing a petition against
Quinn asserting claims for what he labeled as negligence, gross negligence, abuse of
official capacity, official oppression, dereliction of duty, conspiracy, and intentional
infliction of emotional distress as well as multiple violations of the Penal Code. The
alleged basis for his claims is that Quinn made findings in the child custody evaluation
report in his ex-wife's favor because Quinn and his ex-wife were friends, and that the
report included false statements that Quinn had received from the children's counselor
regarding a SWAT team surrounding his house at some point.3 Melton contended that
3 Melton also filed a separate lawsuit against the counselor who provided the complained-of statements relating to the SWAT team to Quinn. In the same order as the denial of Quinn's motion to dismiss, the proceeding against the counselor was dismissed pursuant to a motion for summary judgment asserting that the statute of limitations had passed and asserting judicial immunity. That proceeding was not otherwise part of this proceeding. However, the pleadings from the proceeding against the counselor were filed with this Court in a supplemental clerk's record. However, the trial court expressly did not take Quinn v. Melton Page 4 this statement was false and that Quinn's failure to properly investigate and evaluate the
statement caused him harm because he settled his custody claims in the divorce case
based on the child custody evaluation report and his reputation was damaged.
Quinn's answer was filed in this case on July 11, 2022. A motion to dismiss was
filed on December 28, 2022, with Quinn alleging that Melton's claims were health care
liability claims and that Melton failed to file an expert report under the TMLA within 120
days of her answer.
After the hearing on Quinn's motion to dismiss, the trial court signed an order that
included a finding that there was nothing in the record to show that Quinn provided
health care. The trial court denied Quinn's motion to dismiss.
Applicable Law and Standard of Review
We generally review a trial court's order on a motion to dismiss pursuant to section
74.351(b) of the TMLA under an abuse-of-discretion standard. See Rosemond v. Al-Lahiq,
331 S.W.3d 764, 766 (Tex. 2011); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
S.W.3d 873, 875 (Tex. 2001). However, whether a claim asserts a health care liability claim
is a question of law which we review de novo. Lake Jackson Med. Spa v. Gaytan, 640 S.W.3d
830, 836 (Tex. 2022). In doing so, we consider the underlying nature of the claim rather
than its label. Baylor Scott & White, Hillcrest Med. Ctr. v.
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IN THE TENTH COURT OF APPEALS
No. 10-23-00126-CV
PATRICIA S. QUINN, LCSW (INCORRECTLY SUED AS PATRICIA S. QUINN, LMSW), Appellant v.
MATTHEW D. MELTON, Appellee
From the 40th District Court Ellis County, Texas Trial Court No. 108482
OPINION
Patricia Quinn, LCSW filed this interlocutory appeal to challenge an order that
denied her motion to dismiss for the failure to file an expert report in what she contends
is a health care liability claim pursuant to the Texas Medical Liability Act (TMLA). See
TEX. CIV. PRAC. & REMEDIES CODE Ch. 74. Matthew Melton filed this case against Quinn
seeking damages for statements made in a child custody evaluation report prepared by Quinn. The report had been prepared for use in Melton's earlier marriage dissolution
and child custody case (hereinafter "divorce"). See, generally, TEX. FAM. CODE Ch. 107,
Subch. D.
Quinn filed a motion to dismiss Melton's case against her because Melton did not
file an expert report that Quinn contends is required by Section 75.351(a) of the Civil
Practice and Remedies Code. After a hearing, the trial court denied Quinn's motion.
Quinn filed this interlocutory appeal, complaining in three issues: (1) that the trial court
erred by finding that Melton's claims are not health care liability claims; (2) that the trial
court erred by finding that Melton was not required to file an expert report; and (3) that
the trial court abused its discretion by denying her motion to dismiss. Because we find
no reversible error, we affirm the order of the trial court.
BACKGROUND
Quinn was a Licensed Master Social Worker (LMSW) at the time she conducted
the child custody evaluation. 1 Pursuant to an agreement by the parties in Melton's
divorce, Quinn was appointed and ordered by the trial court to conduct a child custody
evaluation pursuant to the standards set forth in Subchapter D of Chapter 107 of the
Family Code.
The Family Code defines a child custody evaluation as:
[A]n evaluative process ordered by a court in a contested case through
1Quinn is now a Licensed Clinical Social Worker (LCSW). For purposes of this appeal, the distinction is not relevant. Quinn v. Melton Page 2 which information, opinions, recommendations, and answers to specific questions asked by the court may be: (A) made regarding: (i) conservatorship of a child, including the terms and conditions of conservatorship; (ii) possession of or access to a child, including the terms and conditions of possession or access; or (iii) any other issue affecting the best interest of a child; and (B) made to the court, the parties to the suit, the parties’ attorneys, and any other person appointed under this chapter by the court in the suit.
TEX. FAM. CODE §107.101(a).
It is important to note at the outset that the Family Code also provides that a
person who participates in a child custody evaluation is not a "patient" as defined by
Section 611.001(1) of the Health and Safety Code. See TEX. FAM. CODE §107.112(h).
As part of the process of conducting the child custody evaluation, the evaluator is
required to conduct interviews, observe the child or children, obtain information from
various sources relating to the child, the parents, and other family members in the home,
and to conduct psychometric testing, if necessary, if the evaluator is licensed and trained
to perform the testing. See TEX. FAM. CODE §§107.109,107.110. The evaluator's actions
"must be in conformance with the professional standard of care applicable to the
evaluator’s licensure and any administrative rules, ethical standards, or guidelines
adopted by the licensing authority that licenses the evaluator." 2 TEX. FAM. CODE
2 The statutory authority for licensed social workers is set forth in Chapter 505 of the Texas Occupations Code. See TEX. OCC. CODE Ch. 505. The Texas Behavioral Health Executive Council is the state agency authorized by state law to administer and enforce Chapter 505 of the Occupations Code. See TEX. OCC. CODE Ch. 507. Quinn v. Melton Page 3 §107.108(a).
The evaluator is then required to "prepare a report containing the evaluator’s
findings, opinions, recommendations, and answers to specific questions asked by the
court relating to the evaluation." TEX. FAM. CODE §107.113(a). A child custody evaluator
is the only person who can properly give "an expert opinion or recommendation relating
to the conservatorship of or possession of or access to a child" in a custody proceeding.
See TEX. FAM. CODE §104.008(a).
Quinn prepared the evaluation report which was filed in Melton's divorce
proceeding on January 19, 2019.
On June 1, 2022, Melton, acting pro se, initiated this case by filing a petition against
Quinn asserting claims for what he labeled as negligence, gross negligence, abuse of
official capacity, official oppression, dereliction of duty, conspiracy, and intentional
infliction of emotional distress as well as multiple violations of the Penal Code. The
alleged basis for his claims is that Quinn made findings in the child custody evaluation
report in his ex-wife's favor because Quinn and his ex-wife were friends, and that the
report included false statements that Quinn had received from the children's counselor
regarding a SWAT team surrounding his house at some point.3 Melton contended that
3 Melton also filed a separate lawsuit against the counselor who provided the complained-of statements relating to the SWAT team to Quinn. In the same order as the denial of Quinn's motion to dismiss, the proceeding against the counselor was dismissed pursuant to a motion for summary judgment asserting that the statute of limitations had passed and asserting judicial immunity. That proceeding was not otherwise part of this proceeding. However, the pleadings from the proceeding against the counselor were filed with this Court in a supplemental clerk's record. However, the trial court expressly did not take Quinn v. Melton Page 4 this statement was false and that Quinn's failure to properly investigate and evaluate the
statement caused him harm because he settled his custody claims in the divorce case
based on the child custody evaluation report and his reputation was damaged.
Quinn's answer was filed in this case on July 11, 2022. A motion to dismiss was
filed on December 28, 2022, with Quinn alleging that Melton's claims were health care
liability claims and that Melton failed to file an expert report under the TMLA within 120
days of her answer.
After the hearing on Quinn's motion to dismiss, the trial court signed an order that
included a finding that there was nothing in the record to show that Quinn provided
health care. The trial court denied Quinn's motion to dismiss.
Applicable Law and Standard of Review
We generally review a trial court's order on a motion to dismiss pursuant to section
74.351(b) of the TMLA under an abuse-of-discretion standard. See Rosemond v. Al-Lahiq,
331 S.W.3d 764, 766 (Tex. 2011); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
S.W.3d 873, 875 (Tex. 2001). However, whether a claim asserts a health care liability claim
is a question of law which we review de novo. Lake Jackson Med. Spa v. Gaytan, 640 S.W.3d
830, 836 (Tex. 2022). In doing so, we consider the underlying nature of the claim rather
than its label. Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex.
judicial notice of that proceeding or the filings in that proceeding in making its ruling in this proceeding and Quinn has not complained in this appeal that the trial court erred for failing to take judicial notice of those findings. Therefore, this Court will not consider those filings in this appeal. Quinn v. Melton Page 5 2019).
"Health care liability claim" is defined in Section 74.001(13) in relevant part as:
[A] cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.
TEX. CIV. PRAC. & REMEDIES CODE §74.001(a)(13). Thus, a health care liability claim has
three elements: (1) a suit against a physician or health care provider; (2) the claims
asserted are grounded in treatment, lack of treatment, or a departure from accepted
standards of medical care, health care, or safety or professional or administrative services
directly related to health care; and (3) the defendant's act or omission must have
proximately caused the injury to the plaintiff. Lake Jackson Med. Spa v. Gaytan, 640 S.W.3d
830, 840 (Tex. 2022).
Quinn's first issue challenges the trial court's findings as they relate to the first two
elements, specifically that (1) Quinn is not a heath care provider and (2) that Quinn did
not render health care services. We will examine the second part of Quinn's argument
first and because of our conclusion we need not determine if a licensed social worker
conducting a child custody evaluation is a health care provider.
To determine whether Quinn provided "health care," we turn to the language of
the Act. See Rogers v. Bagley, 623 S.W.3d 343, 350 (Tex. 2021).
"Health care" is defined in Chapter 74 as: Quinn v. Melton Page 6 [A]ny act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.
TEX. CIV. PRAC. & REMEDIES CODE §74.001(a)(10).
APPLICATION
Although Melton's claims can be viewed as assertions that Quinn departed from
accepted standards of a licensed social worker, the departures, if any, were not related to
the provision of "health care." That is because a child custody evaluation is not providing
"health care" to any "patient." Instead, it is an investigative report prepared to assist a
trial court in its determination of whatever issues are before it relating to "conservatorship
of or possession of or access to a child," or any other relevant issue relating to a child.
TEX. FAM. CODE §104.008(a). The participation of the parties in the child custody
evaluation does not invoke the provision of any service "for, to, or on behalf of a patient
during the patient’s medical care, treatment, or confinement" as "health care" is defined
in Chapter 74. See TEX. CIV. PRAC. & REMEDIES CODE §74.001(a)(10). Moreover, the Family
Code expressly provides that a person who participates in a child custody evaluation is
not a "patient" as defined in the Health and Safety Code. TEX. FAM. CODE §107.112(h).
Because of this, based on our review of the record properly before the trial court in this
proceeding, we find that Melton's claims are not health care liability claims because they
do not relate to the provision of "health care." Therefore, the trial court did not err in
denying Quinn's motion to dismiss for failing to file an expert report. We overrule
Quinn v. Melton Page 7 Quinn's first issue. 4
CONCLUSION
Having found no reversible error, we affirm the order of the trial court. 5
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed July 25, 2024 [CV06]
4 Because of our disposition of this part of Quinn's first issue, we need not address the other part of her first issue which is whether Quinn, as a licensed social worker, is a health care provider, or issues two and three because those issues require this Court to sustain her first issue. 5 In his appellate brief, Melton requests that we find Quinn's appeal to be frivolous and to award him
damages pursuant to Rule of Appellate Procedure 45. See TEX. R. APP. P. 45. Because we do not find this appeal to be frivolous, Melton's request is denied. Quinn v. Melton Page 8