Montoya By and Through Montoya v. Bebensee

Citation761 P.2d 285
Decision Date18 August 1988
Docket NumberNo. 86CA0823,86CA0823
PartiesAlana MONTOYA and Kyle Montoya, By and Through their parent and next friend, Paul A. MONTOYA, and Paul A. Montoya, Plaintiffs-Appellants, v. Barbara BEBENSEE and Laurence C. Smith, Jr., Defendants-Appellees. . I
CourtCourt of Appeals of Colorado

John S. Retrum, Lakewood, for plaintiffs-appellants.

John A. Wilson, Lakewood, for defendant-appellee Barbara Bebensee.

Jana Purdy, Aurora, for defendant-appellee Laurence C. Smith, Jr.


Plaintiffs, Paul Montoya (father) and his two minor children, appeal the trial court's dismissal of their complaint against Lawrence C. Smith, Jr., a licensed psychologist, and Barbara Bebensee, his unlicensed associate. We affirm in part and reverse in part.

In March 1984, a decree of dissolution was entered, terminating the marriage between father and the children's mother. Custody of the two children was awarded to the mother, but father was granted liberal visitation rights.

The complaint filed with the trial court was based upon the actions undertaken by Bebensee during her counseling with one of the children and with their mother following the entry of the dissolution decree. While these counseling sessions were in progress, Bebensee reported to county officials that father's minor daughter claimed that father had sexually abused her. Bebensee also advised the ex-wife to restrict father's right of visitation with the two children. Later, she testified as an expert witness on the mother's behalf in a dissolution of marriage hearing devoted to a consideration of father's visitation rights.

Father and the minor children sought both compensatory and punitive damages, under several legal theories. They asserted, alternatively, that Bebensee's actions were negligent, were undertaken willfully, wantonly, and in reckless disregard of plaintiffs' rights and feelings, and constituted outrageous conduct that intentionally or negligently inflicted emotional distress upon them. Smith's liability was predicated either upon the doctrine of respondeat superior or upon his affirmative negligence in improperly supervising Bebensee.

Defendants' motion to dismiss alleged, among other things, that, in light of the prerogatives accorded a custodial parent by § 14-10-130, C.R.S. (1987 Repl.Vol. 6B), father, who was not the custodial parent, had no standing to maintain any action on behalf of the minor children, and that Bebensee is immune from liability for making a report of child abuse "in good faith" in accordance with § 19-10-110, C.R.S. (1986 Repl.Vol. 8B).

Father's evidence submitted in opposition to defendants' motion reflected the following:

In June 1984, the mother reported to Jefferson County Department of Social Services (DSS) that father had sexually abused his daughter, age 4, during a visit. A DSS social worker interviewed the child and informed the mother that she was uncertain whether the events described by the child had "really happened." The mother also took the child to the family physician and later reported that this physician, likewise, found no physical evidence of any sexual abuse.

The social worker interviewed father, who strenuously denied any conduct of an abusive or sexual nature. The social worker elected to close the case and advised mother that there was no basis upon which a recommendation to cease or restrict visitation rights with father could be made.

The mother insisted, however, that visitation should cease. She engaged defendant Bebensee for the purpose of rendering an opinion whether father had sexually abused the child and for therapy for the child.

Bebensee initially observed the child twice for short periods. She did not administer any psychological tests to the child. Based upon a method of analysis that she termed "the technique of the non-verbal," i.e., the child's body language, she concluded that father had sexually abused his daughter. Bebensee then advised the mother to limit father's visits with the children to one hour per week. Despite provisions of the court order granting liberal, unsupervised visitation, the mother, relying upon Bebensee's instructions, unilaterally reduced father's visitation rights as suggested.

When father learned of Bebensee's opinion and of her advice to restrict his visitation rights, he telephoned her and requested that she interview him. She refused to do so.

Bebensee reported to the DSS social worker the events related to her by the child. The social worker told Bebensee that the events the child had described to Bebensee were not consistent with the events the child had described to her. Nonetheless, Bebensee filed a report of suspected child abuse with the county.

Shortly thereafter, Bebensee referred the child to another psychologist for a second opinion. After interviewing the mother and child together, this professional reported to Bebensee that he entertained serious doubts about the child's allegations. Bebensee, however, characterized this opinion as "irrelevant" and "not helpful."

In July 1984, father instituted a contempt proceeding against the mother for her restriction of his visitation rights. The mother responded by filing a motion for termination or modification of visitation. Pending a hearing on these motions, the court ordered both parties to select another psychologist for the purpose of evaluating the family. This therapist observed the family's interactions, separately and as a group, administered psychological tests, and concluded that there were serious doubts concerning the child's veracity.

A hearing was held in the dissolution court in January 1985. Bebensee appeared as an expert witness on mother's behalf and testified that there was "no doubt" in her mind that father had sexually abused his daughter. The court dismissed the contempt citation, denied mother's motion to terminate visitation, and ultimately fully restored father's visitation rights.

An affidavit from the psychologist previously selected by father and the mother in accordance with the order of the dissolution court asserted that this therapist had "concerns" about Bebensee's actions, because (1) contrary to Bebensee's claim, there is no support in the literature for the assertion that a child's body language can provide an infallible indication as to a child's veracity; (2) in this case, psychological testing of the child disclosed that she so confused fantasy with reality that she could report fantasy as fact and use appropriate body language in doing so; (3) any counselor must always be aware of her own "prejudices" and take steps to assure that they were not influencing her opinion; and (4) Bebensee did not undertake steps to assure that her personal prejudices did not influence her opinion in this case.

In this affidavit, it was also noted that Bebensee did not give any psychological tests to the child and made no investigation of the reports made by the child to other parties so as to determine whether they were consistent or inconsistent with the statements made to her. Finally, this affidavit averred that Bebensee was not "sufficiently careful of the rights" of the father, because she diagnosed him as a child abuser while refusing to speak with him; she disregarded the reports of other professionals; and she advised the mother to limit his visitation rights, even in the face of a court order.

In dismissing plaintiffs' complaint, the trial court apparently treated defendants' motion as one for summary judgment. See C.R.C.P. 12(b). It concluded that father had no standing to sue as parent and next friend for the minor children; that defendants had no duty of due care with respect to father and, therefore, father could not assert a claim based upon negligence; that "diagnosis, treatment, counseling and rendering an expert opinion does not rise to the level of outrageous conduct"; and that Bebensee's actions in reporting a suspected case of child abuse could not constitute negligent or intentional infliction of emotional distress. Thus, it dismissed plaintiffs' complaint in its entirety and, finding that the claims asserted lacked substantial justification under § 13-17-102, C.R.S. (1987 Repl.Vol. 6A), awarded defendants the attorney fees incurred by them in their defense of the action.

I. The Children's Claims

Plaintiffs first contend that the trial court erred in ruling that father, the children's non-custodial parent, lacked capacity to bring suit as a parent and next friend on behalf of the children. We find no error.

Under § 14-10-130(1), C.R.S. (1987 Repl.Vol. 6B), the custodial parent is granted full authority "to determine the child's upbringing," unless after hearing, the court finds that, in the absence of a specific limitation upon the custodian's authority, the child's physical health will be endangered or his emotional development significantly impaired. See generally Rhoades v. Rhoades, 188 Colo. 423, 535 P.2d 1122 (1975); In re Marriage of Lampton, 677 P.2d 352 (Colo.App.1983), aff'd in part, 704 P.2d 847 (Colo.1985). We hold that, included within the purview of this statute, is the question whether to permit a child to initiate litigation.

The mother, the custodial parent, disclosed that she had no knowledge of this action until after Bebensee was served with process. Further, she believed that Bebensee had provided services in a proper and professional manner and she did not want the children to sue Bebensee. The record also shows that father failed to seek the requisite determination by the court pursuant to § 14-10-130, C.R.S. (1987 Repl.Vol. 6B). Thus, father, the non-custodial parent, lacked capacity to act as next friend for the children, and the trial court did not err in dismissing the claims brought by him on their behalf. That dismissal, however, should be without prejudice, so that none of the children's rights are affected by such dismissal.

II. Father's Claims
A. Negligence and Negligent Infliction of...

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