Thomas v. Sumner

• Citation: 2015 WY 7,341 P.3d 390
• Decision Date: 09 January 2015
• Docket Number: No. S–14–0110.,S–14–0110.
• Parties: Chad M. THOMAS, Appellant (Plaintiff), v. Julie M. SUMNER and Nicole Rosenberger, Appellees (Defendants).
• Court: United States State Supreme Court of Wyoming

341 P.3d 390

2015 WY 7

Chad M. THOMAS, Appellant (Plaintiff)

v.Julie M. SUMNER and Nicole Rosenberger, Appellees (Defendants).

No. S–14–0110.

Supreme Court of Wyoming.

Jan. 9, 2015.

Representing Appellant: Thomas S. Sutherland, Advanced Advocacy Attorney(s) At Law, Casper, Wyoming.

Representing Appellees: Richard H. Peek, Casper, Wyoming, for Appellee Julie M. Sumner. Billie LM Addleman and Khale J. Lenhart, Hirst Applegate, LLP, Cheyenne, Wyoming, for Appellee Nicole Rosenberger. Argument by Messrs. Peek and Lenhart.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

Opinion

FOX, Justice.

[¶ 1] Capt. Chad Thomas filed a defamation per se claim against his son's mother, Julie Sumner, and counselor, Nicole Rosenberger, alleging that they made defamatory statements in relation to a report and ensuing investigation of suspected child abuse. The district court granted both the mother and counselor summary judgment. Capt. Thomas appeals, alleging the counselor did not act in good faith under the child abuse reporting statute and thus is not entitled to immunity from civil liability. He also alleges that the mother acted in bad faith in the course of the abuse investigation and therefore should not receive immunity, and that there are genuine issues of material fact that the mother's statements to parties outside the investigation constitute defamation per se. We affirm.

ISSUES

[¶ 2] We restate the controlling issues as follows:

1. Did Ms. Rosenberger have reasonable suspicion of child abuse, entitling her to immunity under the Child Protective Services Act?

2. Is Ms. Sumner entitled to immunity under the Child Protective Services Act for her participation in the child abuse investigation?

3. Did Capt. Thomas present a genuine issue of material fact that Ms. Sumner made false statements to parties outside the scope of the child abuse investigation?

FACTS

[¶ 3] Capt. Chad Thomas and Julie Sumner are the biological parents of GT, born in 2002. Capt. Thomas serves in the United States Air Force (USAF) and is stationed in Valdosta, Georgia; Ms. Sumner resides in Casper, Wyoming. GT resides in Casper with Ms. Sumner, but spends part of his summers and some holidays in Georgia with Capt. Thomas pursuant to a visitation agreement between the parents.

[¶ 4] During the Christmas 2010 visit with his father, GT communicated via telephone to his mother that Capt. Thomas was watching him take showers and washing him during his showers, including his genitals and buttocks. When GT returned home from the Christmas visit, Ms. Sumner had GT speak with his counselor, Leslie Murtagh, about Capt. Thomas's conduct. In May of 2011, Ms. Murtagh sent an e-mail to Capt. Thomas expressing her concern over his “supervision in monitoring [GT's] hygiene.” Capt. Thomas never responded to the e-mail.

[¶ 5] At Ms. Sumner's deposition, when she was asked why neither she nor Ms. Murtagh ever reported to the appropriate authorities regarding Capt. Thomas's conduct, she explained that while they both found the conduct inappropriate, it had only happened a couple times, and at that point it just seemed “kind of questionable, kind of weird, kind of iffy.... That's why [Ms. Murtagh] asked [Capt. Thomas] maybe at summertime could we not do the showering stuff.”

[¶ 6] During the summer 2011 visitation, when GT was nine years old, Capt. Thomas continued to watch GT shower and to wash his entire body, including his genitals and buttocks. Ms. Sumner received multiple phone calls from GT about Capt. Thomas's conduct. Capt. Thomas testified at his deposition that Ms. Sumner confronted him about the conduct.

A. I told her that he didn't know how to take a shower. She asked me to not force him to take a shower everyday [sic]. She asked me not to use a washcloth and to not have him take a shower everyday [sic]. I told her that was not going to happen, that he would take a shower everyday [sic]. We argued about that. You know, when he's at your house, I guess you're going to have him dirty or, you know, whatever. When he's at my house, this is what we're going to do and, you know, that was that. She told me, well, I'm going to do something about it. And I guess this is what she did about it.

Q. And by this you mean—

A. Filing—having something filed saying that I molested him.

[¶ 7] In August of 2011, after GT returned from the summer visit, Ms. Sumner arranged for him to see licensed social worker Nicole Rosenberger. On August 17, 2011, at his first counseling session with Ms. Rosenberger, GT told her about Capt. Thomas using a washcloth to wash him, including his genitals and buttocks, and also watching him shower. The next day, Ms. Rosenberger reported GT's statements to the Valdosta, Georgia, Police Department, who then referred her to the USAF. Ms. Rosenberger testified, “To my knowledge, [GT] had made similar statements regarding bathing of his genitals to his mother and to the previous counselor prior to me.”

[¶ 8] After Ms. Rosenberger's initial report, allegations surfaced that Capt. Thomas digitally penetrated GT's anus while assisting him showering. The record does not reveal the source of those allegations. Ms. Rosenberger testified that she did not report the allegation and did not know its source. She further testified that Ms. Sumner did not make any such allegations to her.

[¶ 9] While the provenance of the digital penetration allegation is unknown, the record indicates that it appeared some time shortly after Ms. Rosenberger's initial report. In an undated Referral Form to the Children's Advocacy Center of Lowndes County [Georgia], Inc., the Air Force Office of Special Investigations (AFOSI) reported the following:

On 23 Aug 11, ROBERT RAYMOND, Detective, Valdosta Police Department notified AFOSI Detachment 211, Moody AFB, GA of a possible child sexual assault. Capt CHAD M.R. THOMAS (SUBJECT) was accused of indecent liberty with his 9 year old son [GT] (VICTIM) from Casper, WY. SUBJECT washed VICTIM's genitals (which made him uncomfortable) and digitally penetrated VICTIM's anus with his finger, SUBJECT also watched VICTIM bathe on multiple occasions.

[¶ 10] Ms. Sumner admitted that GT told her about the bathing conduct and digital penetration over the telephone while on his summer 2011 visit with Capt. Thomas, and later when the child returned home. However, she denied making the initial digital penetration report and was unsure when, and from whom, she first heard this allegation as part of the formal investigation, claiming it was either from Ms. Rosenberger or from USAF investigators. She testified she only communicated to investigators the exact same information that had been conveyed to her from GT. At his deposition, Capt. Thomas admitted he had no factual basis for his contention that Ms. Sumner made the digital penetration allegation to any law enforcement agents.

[¶ 11] On September 15, 2011, Special Agent Alison Shapleigh from the AFSOI traveled to Casper to conduct a forensic interview of GT. During that interview, GT confirmed that digital penetration occurred. When Ms. Shapleigh asked GT how Capt. Thomas's conduct affected him he responded:

[GT]: Mad because he's touching my private parts.

[Ms. Shapleigh]: Okay, how, did, how else did you feel?

[GT]: I was feeling mad, upset and confused because, well I'm mad because he's washing me, sad because I don't get to wash myself and I'm confused because, I'm confused why Dad's even showing me how to shower. I'm like, why can't you just let me shower my own way?

[¶ 12] At his deposition, Capt. Thomas did not deny washing GT, including his genitals and buttocks, as well as supervising his showers. He claimed GT did not know how to correctly wash himself and needed instruction. He did, however, deny any allegations that he digitally penetrated GT's anus.

A. I gave him a shower. I am being accused of sexually molesting him by putting my finger up his-his rectum and what I'm saying is that I didn't do that. So, I gave him a shower and that's probably the extent of using semantics and going around those words that I'm going to say.

Q. No. I understand that and I am not trying to trip you up with semantics. During the course of your showering, though, when you were using the washcloth, you did make contact with his genitals and buttocks?

A. I contacted every part of his body—

Q. Okay.

A.—when I was giving him a shower.

[¶ 13] Details of the investigation into Capt. Thomas's conduct are not contained in the appellate record; however, the USAF authorities completed their investigation and concluded “[t]he preponderance of evidence does not support further action.”¹

[¶ 14] In July of 2012, Capt. Thomas filed his Verified Defamation Complaint, alleging that Ms. Sumner and Ms. Rosenberger “made intentionally malicious, slanderous, scurrilous and baseless allegations of sexual abuse” to Lowndes County law enforcement and USAF authorities. The complaint alleged that Ms. Sumner and Ms. Rosenberger knew of the falsity of their allegations, that “Defendants have repeated their slanderous statements ... to a plethora of others,” and that Ms. Rosenberger did not adequately investigate the matter before making her August 2011 report to local and USAF authorities in Georgia.

[¶ 15] In November 2013, after extensive discovery, and several pretrial hearings, Ms. Rosenberger and Ms. Sumner filed motions for summary judgment. In January 2014, the district court held a hearing on the motions, took the matter under advisement, and on February 27, 2014, issued its oral ruling granting summary judgment to both Ms. Rosenberger and Ms. Sumner. First, with respect to Ms. Sumner, the district court concluded she did not make any publication necessary for a defamation claim: “she spoke to [Ms.] Rosenberger, but only in the generalities of the report made by [Ms.] Rosenberger. She did not make any allegation to the investigators of the alleged defamatory conduct. She did answer questions to the Georgia authorities but made no specific accusations that I...