Opinion
No. 53664-8-I
Filed: March 14, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 95-2-04575-8. Judgment or order under review. Date filed: 12/18/2003. Judge signing: Hon. Mary E. Roberts.
Counsel for Appellant/Cross-Respondent, Scott Allen Marks, Poole Associates PC, 600 University St Ste 2420, Seattle, WA 98101-1129.
Jeffrey Gene Poole, Poole Associates PC, 600 University St Ste 2420, Seattle, WA 98101-1129.
Counsel for Respondent/Cross-Appellant, Pamela Marie Andrews, Johnson Christie Andrews Skinner PS, 200 W Thomas Ste 500, Seattle, WA 98119.
Stephen Gift Skinner, Johnson Christie Andrews Skinner PS, 200 W Thomas Ste 500, Seattle, WA 98119.
A therapist providing treatment to a child patient owes no duty of care towards a non-patient parent in a tort action for malicious interference with the parent-child relationship unless the alleged actions arose apart from the therapist's treatment of the child patient. Because David Tyner has failed to allege any actions by Inda Drake that occurred outside her role as the Tyner children's therapist, Drake did not owe David a duty of care and summary judgment was properly entered in Drake's favor.
FACTS
On Monday, January 11, 1993, Debra Tyner arrived home with her 6-year-old daughter and 4-year-old son. Seeing her husband's car in front of the house, Debra said, `Oh good, Dad's home already.' According to Debra, her son said, `Good,' but then after a pause continued, `But sometimes he's mean to me.' When she asked him what he meant, he complained that sometimes his dad pulled his penis too hard and poked him in the bottom with his finger. In the discussion that followed, Debra's daughter said her father knew he should not touch her because when he did, she would call for her mother. These remarks caused Debra to become concerned that her husband, David Tyner, had been sexually abusing both children. When David learned of Debra's concern, he denied any misconduct. Summoned by their parents, the children denied that their father had touched their private parts. That evening, Debra and David met with their former marriage counselor. With his encouragement, the next day, January 12, Debra reported her concerns to the Harborview Sexual Assault Center. Harborview informed Child Protective Services (CPS), and caseworker Bill Mix received the case.
Mix interviewed the children at their school. The children denied that their father had touched them, said it was not something their mother should talk about, and put their hands over their ears and refused to talk further. Mix felt the children were `overly scared to talk,' and was convinced they had said at least some of the things their mother had reported. Mix next interviewed David Tyner. David denied any inappropriate touching.
The following day, January 13, Debra took the children to their pediatrician for an examination. The examination found no physical evidence of abuse, but the pediatrician was concerned due to the history related by Debra. In talking with the pediatrician, the daughter confirmed that her brother had made the reported comment about his penis being pulled too hard.
Within the next two days, Debra hired a lawyer and prepared a petition for an order of protection. The lawyer telephoned caseworker Mix on January 15 and asked him to write a letter to be used in support of the petition. Mix provided a declaration dated January 15, summarizing what the two parents and two children had told him, and stating his intention to file a dependency petition. He said that pending the completion of his investigation, his recommendation to the court would be that David move to another residence, and that the children for the time being have no contact with their father. The superior court so ordered that same day in response to Debra's ex parte petition, and David moved out. On January 26, Mix filed a dependency petition. On January 29, the juvenile court held a shelter care hearing. Present at the shelter care hearing were Debra and David Tyner, their respective attorneys, Bill Mix, and an assistant attorney general. After the hearing, the court placed the children with Debra under the supervision of the State. The court made a finding that releasing the children to David `would present a serious threat of substantial harm' to the children. The court also ordered that Debra was not to talk with the children about the allegations. David was to undergo a sexual deviancy evaluation and have no contact with his children. A sexual assault evaluation of the children was to proceed promptly at the Harborview Sexual Assault Center.
See RCW 26.50.030.
See RCW 26.44.063.
See chapter 13.34 RCW.
The purpose of a shelter care hearing is to decide whether a child who is alleged to be dependent should be placed in the State's custody. At the hearing, the State makes a recommendation to the court as to the need for shelter care. Former RCW 13.34.060(7) (1990). The court must release a child to parental custody unless it makes a finding of reasonable cause not to do so. Former RCW 13.34.060(8) (1990).
On February 10, Debra filed a petition for dissolution of marriage. Beginning on February 16, an evaluator at the Sexual Assault Center began working with the Tyner children.
On March 2, the juvenile court held a second shelter care hearing, and issued another order continuing its placement of the children with Debra. The protection order against David was rescinded, but contact between David and the children was prohibited unless agreed to by the children's therapist, David's therapist, and the State. All evaluations were to be completed, including psychological evaluations of the parents.
Former RCW 13.34.060(10) (1990) provides: `No child may be detained for longer than thirty days without an order, signed by the judge, authorizing continued shelter care.'
David's sexual deviancy evaluation was completed on April 2. His evaluator reported that he had no reason to suspect David abused his children, and no reason to recommend against visitation or that visitation be supervised. The Sexual Assault Center evaluation of the children was completed on April 23. The evaluator, after conducting five interview sessions with each child as well as interviews with the parents, described the children as anxious and guarded. She was unable to say with certainty whether or not David had sexually abused his children but had concerns about the children's well being because of what she described as the family's poorly defined sexual boundaries and the parents' history of conflicts around sexuality. She recommended that the children not be questioned further about the alleged abuse, that contact between David and the children continue to be supervised, and that further therapy focus on conflicts within the family rather than sexual abuse.
On April 27, the juvenile court continued until June 28 the dependency fact-finding that had been scheduled for May 3. David Tyner opposed the continuance, but the court found it necessary because the children's evaluator would be out of the country until the end of May, and the parents had not completed their psychological evaluations.
David began to have supervised visitations with the children one hour each week. Meanwhile, CPS caseworker Toni Sebastian referred Debra to therapist Inda Drake. Both Debra and David met with Drake, and agreed to allow her to provide therapy to the children. On June 23, each parent entered into a `voluntary services contract,' agreeing that the children would continue in therapy with Drake, and Drake would decide whether David's visitation should be restricted or liberalized.
On June 28, the juvenile court dismissed the dependency actions on the State's motion. The order recited that the family court had granted Debra temporary custody of the children, both Debra and David had cooperated with court ordered services and agreed to a future course of conduct, and all parties agreed the juvenile court structure was unnecessary and dismissal was in the best interests of the children. CPS had no further involvement with the Tyner family.
David became dissatisfied with Drake's performance as a therapist. He complained that she had failed to inform him of progress with the children, and that she was questioning the children about the allegations of sexual abuse notwithstanding the recommendations against continued exploration of that topic. He tried unsuccessfully to have the children switched to a different therapist.
The Tyners' divorce became final in October 1993. After further litigation about the parenting plan, the court eventually granted joint custody to Debra and David, and lifted all restrictions on David's contact with the children.
On February 22, 1995, David sued CPS, Drake, the former marriage counselor, and the pediatrician on a variety of theories. Before trial, the complaint was pared down to an action against CPS for negligent investigation. On this claim, the jury awarded $201,500 to David.
The State appealed from the judgment entered on the verdict. David cross-appealed the court's summary judgment order dismissing his suit against Drake. On the appeal, this court reversed the judgment in favor of David, affirmed the trial court's order dismissing David's malpractice claim against Drake, and reversed the order dismissing all other claims asserted by David against Drake. In reversing the order, the court of appeals stated only that the superior court was wrong in dismissing David's claim on grounds that Drake was protected by absolute immunity. It did not address whether his claims against Drake would survive a broader summary judgment challenge. The Supreme Court then granted review and reversed the court of appeals and reinstated the jury verdict. David's claims against Drake were not addressed by the Supreme Court.
Tyner v. State, Dep't of Soc. and Health Servs., Child Protective Servs., 92 Wn. App. 504, 963 P.2d 215 (1998).
Tyner, 92 Wn. App. at 522 (`To the extent that David's theories of liability against Inda Drake arise from her conduct in providing therapy to the Tyner children pursuant to a written services contract, absolute immunity does not protect her.').
Tyner v. State, Dep't of Soc. and Health Servs., Child Protective Servs., 141 Wn.2d 68, 1 P.3d 1148 (2000).
In September 2003, David moved pursuant to KCLR 40 to have his claims against Drake set for trial. Drake opposed the motion. The court granted the motion and set the matter for trial before Judge Mary Roberts. David then submitted a request for an accelerated trial schedule (90 to 120 days) which Drake opposed. On October 3, 2003, the court set the case for a trial to start in eleven months.
Six weeks later, Drake filed a summary judgment motion to dismiss the remaining claims. Ten days later, David filed a stipulation saying he would no longer be pursuing several of his original claims against Drake. The only claims that remained were his consumer protection claim, tortious interference with parental rights, and alienation of affection.
Then, on December 2, 2003, the day David's response to Drake's motion to dismiss was due, David moved to amend his complaint. In addition to three surviving claims against Drake, David sought to add breach of contract, negligent misrepresentation, and negligent infliction of emotional distress. On December 12, 2003, the court denied David's motion to amend and six days later granted Drake's motion for summary judgment as to the original claims. David appeals both of these orders and Drake cross-appeals the order setting the matter for trial.
ANALYSIS Motion to Amend
CR 15 (a) allows a party to amend its complaint before an answer has been filed, `[o]therwise, a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.' `The disposition of motions to amend the pleadings is discretionary with the trial court, and its refusal to permit such an amendment will not be overturned except for manifest abuse of discretion.'
Lincoln v. Transamerica Inv. Corp., 89 Wn.2d 571, 577, 573 P.2d 1316 (1978) (citing Weihs v. Watson, 32 Wn.2d 625, 203 P.2d 350 (1949)).
David faults the trial court for failing to explain the basis for its denial of his motion to amend. However, CR 15 does not require the court to state the reasons justifying its decision. In Forman v. Davis, the United States Supreme Court held that:
Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962).
In the absence of any apparent or declared reason such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. the leave sought should, as the rules require, be `freely given.' Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.
Foman, 371 U.S. at 182 (emphasis added).
Thus, it is not an abuse of discretion for a court to deny a motion to amend if the reasons for denying the motion are readily apparent.
The reasons for denying David's motion to amend are readily apparent. First of all, his request to amend was unduly delayed. David's claims against Drake had first been alleged in February 22, 1995, nearly ten years ago, and his claims against Drake had been remanded to the superior court from the court of appeals in 1998. The Supreme Court decision was entered in July 2000. This case has had a long life and David has had ample opportunity to amend his complaint to add new claims. To wait to request the court to add three new claims on the very day his response was due on Drake's summary judgment motion was tantamount to an ambush. The superior court did not abuse its discretion in denying the motion.
Furthermore, it is readily apparent that David failed to carry his burden of showing that justice required the amendments. David's stated reasons for requesting the amendment were:
[T]o focus the complaint solely on the claims against Drake, since all of the other parties have either been dismissed and have had a judgment taken against them following trial . . . to state and assert facts and claims as related to . . . Drake for purposes of both clarification and judicial economy.
David presented his motion as a simple housekeeping measure. If it were a simple housekeeping measure it is difficult to see how justice would require the amendment. Since David failed to show why the additional causes of action were required by justice, the superior court did not abuse its discretion in denying his motion to amend the complaint. Tortious Interference with Parental Rights and Alienation of Affection
While the Washington Supreme Court has yet to recognize the tort of alienation of affection of a child, the court of appeals has recognized a tort for malicious interference with the parent-child relationship. Building upon the decision in Strode v. Gleason, the court of appeals recognized the following elements of the tort:
See Babcock v. State, 112 Wn.2d 83, 107, 768 P.2d 481 (1989) (`This court has not yet had occasion to recognize a cause of action for the alienation of a child's affection. . . .').
See Waller v. State, 64 Wn. App. 318, 824 P.2d 1225 (1992).
9 Wn. App. 13, 20, 510 P.2d 250 (1973) (`We hold that a parent has a cause of action for compensatory damages against a third party who maliciously alienates the affections of a minor child.').
1. An existing family relationship[;]
2. A [malicious] interference with the relationship by a third person[;]
Although the Waller court uses the word `wrongful' when it lists the elements of the tort, the Strode court clearly approved the word `malicious' over the `more ambiguous word wrongful.' Malicious interference is defined as `unjustifiable interference with the relationship between the parent and the child.' See Waller, 64 Wn. App. at 338; see also Strode, 9 Wn. App. at 20.
3. An intention on the part of the third person that such [malicious] interference results in a loss of affection or family association[;]
4. A causal connection between the third [party's] conduct and the loss of affection[;]
5. That such conduct resulted in damages.
See Waller, 64 Wn. App. at 338.
David's case against Drake is problematic in two respects. First, he has failed to show that Drake owed him a duty of care under these facts. And second, the record is devoid any evidence that could prove Drake's alleged malice and intent.
In our prior decision we held that as the children's therapist, Drake owed no duty of care towards David as far as his medical negligence claim was concerned. We stated the policy behind this rule to be that `the focus of concern of medical care practitioners should be upon the patient, without the practitioner having to be concerned about possible effects on third parties.' The same policy concern applies to David's tort claim. Drake owes no duty of care towards David for the tort of malicious interference with the parent-child relationship unless David can show malicious conduct on the part of Drake that arose apart from her role as the Tyner children's therapist.
Tyner, 92 Wn. App. at 522.
Tyner, 92 Wn. App. at 522.
Here, David signed a voluntary consent agreement designating Drake the children's therapist and agreeing that Drake would decide whether David's visitation should be restricted or liberalized. The actions alleged by David relate directly to Drake's decisions to restrict the children's contact with David as well as her reporting of a disclosure by one of the children. While the alleged actions might also implicate the quality of care given to the children, all these actions arose from Drake's role as the children's therapist and thus cannot give rise to a duty of care between Drake and David.
David also has failed to provide any evidence of malice to support an independent cause of action. As evidence, David cites a declaration of his former attorney who had advised him not to accept Drake as the children's therapist because she had been in litigation with another father in a sexual assault case and as a result he was concerned that she might not be fair towards him. This declaration is mere speculation made before any of the events took place and cannot be offered as proof of any subsequent actions or improper motives on Drake's part.
David also offers his answers to several interrogatories and his own self-serving declarations which amplify the allegations contained in the complaint. Speculation and argumentative assertions, without more, will not establish genuine issues of material fact. We have searched the record, and no reasonable jury could conclude from the evidence contained therein that Drake intentionally acted with malice towards David.
Leonard v. Pierce County, 116 Wn. App. 60, 65-66, 65 P.3d 28 (2003) (citing Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986); see also CR 56(e).
Because the record is devoid of evidence establishing the presence of a duty and the element of malice, the superior court did not err in dismissing David's tort claim on summary judgment. Consumer Protection Act, chapter 9.86 RCW
David alleges that Drake `engaged in unfair and deceptive acts in trade or commerce against the public interest with potential for repetition by unlawfully interfering with the plaintiff David Tyner's parental rights against part of their paid professional activities in violation of RCW 19.86.020.' David's allegations center around the `Disclosure of Information' document which David contends is unfair and deceptive because Drake allegedly failed to live up to the terms stated in that document.
David offers no proof of any unfair or deceptive acts committed by Drake other than his own self-serving answers to interrogatories and declarations. There is nothing inherently unfair or deceptive about the `Disclosure of Information' document signed by David. David's real contention is that Drake failed to live up the document's terms as he read them. This is a breach of contract claim, not a consumer protection claim. Setting the Case on the Calendar
Both parties agree that the court's decision to set the matter for trial was a discretionary one. We have examined the record and there is no evidence to indicate that the court abused its discretion in setting the matter for trial.
Wagner v. McDonald, 10 Wn. App. 213, 516 P.2d 1051 (1973).
For the above reasons, we affirm the superior court's Order Granting Plaintiff's Motion to Set Matter for Trial, Order Denying Plaintiff's Motion to Amend Complaint, and Order Granting Defendant Drake's Motion for Summary Judgment.
KENNEDY and BECKER, JJ., Concur.