Thomas v. Sumner ( 2015 )

IN THE SUPREME COURT, STATE OF WYOMING
2015 WY 7
OCTOBER TERM, A.D. 2014
January 9, 2015
CHAD M. THOMAS,
Appellant
(Plaintiff),
v.
S-14-0110
JULIE M. SUMNER and NICOLE
ROSENBERGER,
Appellees
(Defendants).
Appeal from the District Court of Natrona County
The Honorable W. Thomas Sullins, Judge
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.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
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,
1
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.
2
[¶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.
3
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
1
Although the Air Force declined to pursue any administrative or disciplinary action against Capt.
Thomas, it did note “some of the evidence provided in the [investigation] suggest[s] . . . it would be
beneficial to review some of your parenting practices.”
4
specific accusations that I could discern.” Second, the district court stated that truth is an
absolute defense to defamation under Wyoming law. The district court explained:
[B]oth Defendants in this case, to the extent that there is any
report, any slander attributed to them, made statements only
of what [GT] told them. . . .
And if you take a look at the deposition testimony and
the exhibits, it was unrefuted that Plaintiff was watching [GT]
shower, that Plaintiff was washing and helping [GT] clean
himself, including private parts, and further, and what was
most persuasive to me, is that [GT’s] deposition testimony
indicates that he was digitally penetrated in the anus during
one of the showering events at least.
On this point, the district court concluded, “if that’s the defamatory statement or
statements attributed to them, then that was a truthful statement of what GT had, by
deposition testimony, communicated to them.” Third, with respect to Ms. Rosenberger,
the district court found that her actions fell within the reporting requirements of
Wyoming’s Child Protective Services Act, Wyo. Stat. Ann. § 14-3-205(a) (LexisNexis
2013), and consequently she was entitled to the “broad” immunity protections of Wyo.
Stat. Ann. § 14-3-209 (LexisNexis 2013). The district court concluded:
“Applying [§ 14-3-209] to this case, it appears to me
that the reporting of both Defendants was presumed to be
made in good faith. . . . I simply cannot agree with the
contentions on behalf of Plaintiff that [the report was] made
in bad faith. There just is not evidence of bad faith that
would defeat the good faith presumption in this case.
[¶16] Capt. Thomas timely filed his Notice of Appeal.
STANDARD OF REVIEW
[¶17] Summary judgment is governed by W.R.C.P. 56(c):
The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.
5
“We review a district court’s order on summary judgment de novo, using the same
materials and following the same standards as the district court.” Herrera v. Phillipps,
2014 WY 118, ¶ 8, 334 P.3d 1225, 1228 (Wyo. 2014); see also Baker v. Speaks, 2014
WY 117, ¶ 9, 334 P.3d 1215, 1219 (Wyo. 2014). We examine the record “‘from the
vantage point most favorable to the party opposing the motion, and we give that party the
benefit of all favorable inferences which may fairly be drawn from the record.’” Id.,
2014 WY 117, ¶ 9, 334 P.3d at 1219 (quoting Hasvold v. Park Cnty. Sch. Dist. No. 6,
2002 WY 65, ¶ 11, 45 P.3d 635, 637-38 (Wyo. 2002)).
[¶18] The summary judgment movant bears the initial burden of establishing a prima
facie case for summary judgment by showing that no genuine issue of material fact exists
and that judgment should be granted as a matter of law. Baker, 2014 WY 117, ¶ 10, 334
P.3d at 1219. “A material fact is one that establishes or refutes an essential element of a
cause of action or a defense asserted by a party.” McLaughlin v. Michelin Tire Corp.,
778 P.2d 59, 63 (Wyo. 1989). If this initial burden is met, “the opposing party must
present specific facts to demonstrate a genuine issue of material fact exists.” Alloway v.
RT Capital, Inc., 2008 WY 123, ¶ 8, 193 P.3d 713, 715 (Wyo. 2008) (citing Hatton v.
Energy Elec. Co., 2006 WY 151, ¶ 9, 148 P.3d 8, 12 (Wyo. 2006)). We have explained:
The evidence opposing a prima facie case on a motion
for summary judgment must be competent and admissible,
lest the rule permitting summary judgments be entirely
eviscerated by plaintiffs proceeding to trial on the basis of
mere conjecture or wishful speculation. Speculation,
conjecture, the suggestion of a possibility, guesses, or even
probability are insufficient to establish an issue of material
fact.
Jones v. Schabron, 2005 WY 65, ¶ 11, 113 P.3d 34, 38 (Wyo. 2005) (internal quotation
marks and citations omitted).
DISCUSSION
Wyoming’s Child Protective Services Act
[¶19] Wyoming has a strong public policy of protecting children from abuse or neglect,
which the legislature has expressed in the Child Protective Services Act.
The purpose of W.S. 14-3-201 through 14-3-216 is to
delineate the responsibilities of the state agency, other
governmental agencies or officials, professionals and citizens
to intervene on behalf of a child suspected of being abused or
neglected, to protect the best interest of the child, to further
6
offer protective services when necessary in order to prevent
any harm to the child or any other children living in the home,
to protect children from abuse or neglect which jeopardize
their health or welfare, to stabilize the home environment, to
preserve family life whenever possible and to provide
permanency for the child in appropriate circumstances. The
child’s health, safety and welfare shall be of paramount
concern in implementing and enforcing this article.
Wyo. Stat. Ann. § 14-3-201 (LexisNexis 2013) (emphasis added); see also Wyo. Stat.
Ann. §§ 14-3-401 to -440 (LexisNexis 2013) (Child Protection Act).
[¶20] Our principal case applying the Child Protective Services Act, Elmore v. Van
Horn, 844 P.2d 1078 (Wyo. 1992), reflects the legislature’s strong policy of protecting
children from abuse or neglect. In Elmore, after returning from visiting his father, MJ
allegedly complained of pain in his buttocks area. Id. at 1080. His mother took him to a
physician, who discovered redness in his anus area and concluded it could have a number
of causes, from problems with bowel movements to abuse. Id. The physician
recommended that MJ’s mother take him to psychotherapy because he was exhibiting
“bizarre” behavior. Id.
[¶21] Several months later, the mother took MJ to Gailene Van Horn, a licensed
professional counselor. Elmore, 844 P.2d at 1080. The mother informed Ms. Van Horn
that she was concerned about potential sexual abuse. Id. Ms. Van Horn conducted
approximately seven sessions with MJ, at which point she began to have concerns that
abuse was occurring. Id. After speaking to the Department of Family Services (DFS)
about the process for reporting child abuse, Ms. Van Horn recommended that the mother
report the potential abuse to DFS. Id. Ms. Van Horn did not make the report herself. Id.
[¶22] Later, an attorney representing the mother in a custody dispute brought an
affidavit to Ms. Van Horn’s office which stated, “[MJ] has revealed information to me
which supports the conclusion that sexual abuse has been occurring to him during visits
to his father in Gillette, Wyoming.” Elmore, 844 P.2d at 1080. Ms. Van Horn signed the
affidavit, which was used at a show cause hearing to deny the father visitation. Id. at
1080-81. Eventually, in the ongoing custody dispute, the trial court concluded,
“[Ms.] Van Horn lied to the Court under oath either in her affidavit of July 18, 1988, or
today . . . . Because of that and because there is no independent corroboration of her
testimony, the Court finds it to be entirely without merit and disregards it entirely.” Id. at
1081. Ms. Van Horn admitted that she did not read the affidavit as closely as she should
have. Id. The father won custody and then sued Ms. Van Horn. Id. The case was
dismissed on summary judgment because Ms. Van Horn qualified for immunity under the
Child Protective Services Act.
7
[¶23] On appeal, this Court treated Ms. Van Horn as a reporter under Wyo. Stat. Ann.
§ 14-3-205, and concluded that her actions entitled her to immunity under § 14-3-209.
Elmore, 844 P.2d at 1083. We held:
W.S. 14-3-209 provides immunity, though negligence may be
involved in reporting, for the report may still be made in good
faith. The material facts found in affidavits and evidence
presented when considered in a light most favorable to
appellants establish at most negligence which is insufficient
to overcome the statutory presumption . . . of good faith.
Id.
[¶24] Later, in May v. Southeast Wyoming Mental Health Center, 866 P.2d 732 (Wyo.
1993), we confronted a similar fact pattern: parents were separated and their three-year-
old daughter exhibited signs of discomfort in her genital area following visits with the
father. Id. at 734. The mother took the child to a therapist, and the child, limited by the
experience and vocabulary of a three-year-old, described what the therapist interpreted as
sexual abuse. Id. The therapist reported the abuse, visitation was suspended, and an
investigation ensued. Id. Eventually charges were filed against the father for sexual
abuse, but later the child recanted her statements, and the charges were dropped. Id. at
735. The father responded with a civil suit against the mother, the therapist, the
Department of Family Services, and several other professionals involved in the abuse
investigation. The district court dismissed the claim against several parties, and the
remaining parties were granted summary judgment. Id. at 736. On appeal this Court
affirmed summary judgment for all appellees, relying on the good-faith immunity
provided in § 14-3-209, and explaining:
The reason for this blanket immunity is to protect children by
encouraging reporting of suspected abuse so it can be
investigated without the reporter fearing reprisal if the
suspicions are later determined to be unfounded.
May, 866 P.2d at 738.
[¶25] The reporting and immunity statutes in Wyoming’s Child Protective Services Act
may have the potential of depriving those wrongfully accused of child abuse or neglect of
a remedy. However, the legislature has clearly expressed its determination that
protection of vulnerable children outweighs that concern.2 In Elmore, we acknowledged
this tension between the rights of children and adults:
2
The reporting statute is not without some limitations. Wyo. Stat. Ann. § 14-3-205(d) does make it a
misdemeanor for “[a]ny person” to “knowingly and intentionally” make “a false report of child abuse or
8
[W]e are obligated to honor the determination of the
Legislature that protection of one innocent segment of society
warrants occasional injury to another. The mute and
powerless victims of child abuse have long suffered at the
hands of their tormenters. Society’s protective voice, the
Legislature has found, has been silenced by the fear of
retaliation. The protection of the young victims, the
Legislature has determined, requires that uncompensated
injury occasionally result to an adult.
Elmore, 844 P.2d at 1084 (quoting Thomas v. Chadwick, 274 Cal. Rptr. 128, 138 (Cal. Ct.
App. 1990)); see also City of Laramie v. Hysong, 808 P.2d 199, 204 (Wyo. 2001),
(follow-up on child abuse report was sufficient exigent circumstance to justify
warrantless entry), abrogated on other grounds by Georgia v. Randolph, 547, U.S. 103,
126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006).
[¶26] In light of the “paramount concern” for child protection underlying the Child
Protective Services Act, “the Wyoming legislature has adopted a statutory scheme which
requires reporting and protects those who report child abuse.” Elmore, 844 P.2d at 1082;
see also Wyo. Stat. Ann. § 14-3-201. Reports of child abuse are to be made as follows:
Any person who knows or has reasonable cause to believe or
suspect that a child has been abused or neglected or who
observes any child being subjected to conditions or
circumstances that would reasonably result in abuse or
neglect, shall immediately report it to the child protective
agency or local law enforcement agency or cause a report to
be made.
Wyo. Stat. Ann. § 14-3-205(a).
[¶27] On its face, the language of § 14-3-205(a) indicates that the reporting requirement
is applicable to “any” person—the provision does not distinguish between professionals,
social service providers, parents, or other members of the public. Section 14-3-205(a)
also plainly states that reporting “shall” be made “immediately,” if one “knows or has
reasonable cause to believe or suspect that a child has been abused or neglected.”
Notably, the plain language of § 14-3-205(a) does not require that the reporting party
know that a child has been abused, or even reasonably believe that the child was abused;
neglect, or who encourages or coerces another person to make a false report . . . .” Capt. Thomas does not
rely on this provision.
9
instead, a report can be made based on a minimum threshold of reasonable suspicion.
Taking into account the purpose of the Child Protective Services Act, and § 14-3-205(a)’s
imperative language urging reporting, 3 it is clear the legislature intended § 14-3-205(a) to
encourage reporting in the absence of complete certainty and without fear of sanction,
even for reports that are ultimately unsubstantiated. See May, 866 P.2d at 738.
[¶28] That intent is reinforced by the qualified immunity from criminal or civil action
the Act provides to reporters:
Any person, official, institution or agency participating
in good faith in any act required or permitted by W.S. 14-3-
201 through 14-3-215 is immune from any civil or criminal
liability that might otherwise result by reason of the action.
For the purpose of any civil or criminal proceeding, the good
faith of any person, official or institution participating in any
act permitted or required by W.S. 14-3-201 through 14-3-215
shall be presumed.
Wyo. Stat. Ann. § 14-3-209. The language of the immunity statute is unambiguous—it
applies to “[a]ny person . . . participating in good faith in any act required or permitted”
under the Child Protective Services Act. May, 866 P.2d at 738. To further encourage
reporting without fear of civil or criminal reprisal, § 14-3-209 “provides a [statutory]
presumption that the report was made in good faith absent any contrary allegation or
showing from appellants.” Elmore, 844 P.2d at 1083. The burden is on the party
attempting to rebut the presumption to come forward with admissible evidence sufficient
to show bad faith, and showing negligence is not sufficient to overcome the good-faith
presumption. Id. If the burdened party fails to rebut the good-faith presumption, the
statutory presumption remains intact, and the defendant is entitled to judgment as a
matter of law. See Howe v. Andereck, 882 So. 2d 240, 245 (Miss. Ct. App. 2004) (citing
Lehman v. Stephens, 499 N.E.2d 103, 112 (Ill. App. Ct. 1986)) (Mississippi’s immunity
statute also presumes good faith in reporting).
3
In spite of § 14-3-205(a)’s mandatory-type language, it is a permissive reporting statute because “[a]ll
persons who report . . . do not face a criminal penalty if they fail to report child abuse.” Elmore, 844 P.2d
at 1083.
10
I. Did Ms. Rosenberger have reasonable suspicion of child abuse, entitling her to
immunity under the Child Protective Services Act?
[¶29] In order to qualify for reporter immunity under the Child Protective Services Act,
two basic requirements must be met: “First, the report must be made pursuant to W.S. 14-
3-205, which requires that a person immediately report abuse if they ‘kno[w] or ha[ve]
reasonable cause to believe or suspect’ that abuse has or is occurring, and second, that the
reporter be acting in good faith.” Elmore, 844 P.2d at 1083 (citing Wyo. Stat. Ann. § 14-
3-209). The minimum threshold for reporting child abuse or neglect under Wyo. Stat.
Ann. § 14-3-205(a) is “reasonable cause to . . . suspect” abuse. With this threshold for
reporting in mind, our task is to consider whether Capt. Thomas presented a genuine
issue of material fact that Ms. Rosenberger did not act with reasonable suspicion in
making her report.
[¶30] In her memorandum in support of motion for summary judgment, Ms.
Rosenberger asserted the following relevant facts: (1) at her first counseling session with
GT, he told her about Capt. Thomas touching his genitals and buttocks, and watching him
shower; (2) she was concerned with Capt. Thomas’s conduct and suspected abuse may
have occurred; (3) after that first session, she reported her suspicions to the Valdosta,
Georgia, Police Department and the USAF; (4) she did not report “digital penetration” to
law enforcement; (5) and she did not conduct any further investigation into the suspected
abuse prior to making her report. She claimed these facts were sufficient for her to report
under § 14-3-205(a) and absent a showing of bad faith, qualified her for immunity under
§ 14-3-209.
[¶31] In order to determine whether Ms. Rosenberger had the requisite reasonable
suspicion to make her report, we must interpret “reasonable cause to . . . suspect” under §
14-3-205(a). We therefore resort to our well-established rules for interpreting statutory
language.
We endeavor to interpret statutes in accordance with the
legislature’s intent. We begin by making an inquiry
respecting the ordinary and obvious meaning of the words
employed according to their arrangement and connection.
We construe the statue as a whole, giving effect to every
word, clause, and sentence, and we construe all parts of the
statute in pari materia. When a statute is sufficiently clear
and unambiguous, we give effect to the plain and ordinary
meaning of the words and do not resort to the rules of
statutory construction. . . .
...
11
Whether a statute is ambiguous is a question of law. A
statute is unambiguous if reasonable persons are able to agree
as to its meaning with consistency and predictability, while a
statute is ambiguous if it is vague or uncertain and subject to
varying interpretations.
MF v. State, 2013 WY 104, ¶ 8, 308 P.3d 854, 857 (Wyo. 2013) (quoting Rock v.
Lankford, 2013 WY 61, ¶ 19, 301 P.3d 1075, 1080-81 (Wyo. 2013)).
[¶32] First, we look to the language at issue, “reasonable” and “suspect.” These words
are not defined in the Child Protective Services Act. “In the absence of a statutory
definition, this Court infers that the legislature intended no special meaning for the word
but, instead, intended that it be given its ordinary meaning―its common dictionary
definition.” Craft v. State, 2012 WY 166, ¶ 14, 291 P.3d 306, 310 (Wyo. 2012) (citing
Ewing v. State, 2007 WY 78, ¶¶ 10, 13, 157 P.3d 943, 946 (Wyo. 2007)).
[¶33] The common meaning of “reasonable” is “being or remaining within the bounds of
reason : not extreme : not excessive : rational.” Webster’s Third New International
Dictionary 1892 (2002). Black’s Law Dictionary 1265 (6th ed. 1990) defines
“reasonable” as “[f]air, proper, just, moderate, suitable under the circumstances.”
[¶34] The common meaning of “suspect” is “to imagine to be guilty without proof:
surmise.” The Merriam-Webster Dictionary 721 (2004). Black’s Law Dictionary 1446
(6th ed. 1990) defines “suspect” as “[t]o have a slight or even vague idea
concerning―not necessarily involving knowledge or belief or likelihood.”
[¶35] Wisconsin has considered the meaning of “reasonable suspicion” in the context of
its child abuse reporting statute, and concluded that the term is unambiguous and not
subject to misunderstanding. State v. Hurd, 400 N.W.2d 42, 45 (Wis. Ct. App. 1986).
[U]se of the phrase “reasonable cause to suspect” fairly
notifies a person of ordinary intelligence that if there is a
reasonable basis to suspect that child abuse has occurred, that
person must make a report to the appropriate agency.
Whether a person possesses a reasonable suspicion that child
abuse has occurred is not subject to misunderstanding. This
requirement examines the totality of the facts and
circumstances actually known to, and as viewed from the
standpoint of, that person. Thus, the test becomes whether a
prudent person would have had reasonable cause to suspect
child abuse if presented with the same totality of
circumstances as that acquired and viewed by the defendant.
12
Id. at 45 (internal citations omitted).
[¶36] Capt. Thomas argues that it was unreasonable for Ms. Rosenberger to make her
report after one session with GT, especially when she was aware that GT made similar
reports about Capt. Thomas’s washing conduct to his previous counselor, Ms. Murtagh.
He also contends that Ms. Rosenberger acted unreasonably by failing to recognize that
Ms. Sumner was using Ms. Rosenberger’s counseling services as a pretext for an ongoing
custody dispute. He claims Ms. Rosenberger should have asked GT whether his washing
disclosures were coerced in order to modify custody and visitation. Capt. Thomas also
makes vague claims that Ms. Rosenberger confused her role as a therapist, instead acting
as a forensic interviewer in her first counseling session with GT. 4
[¶37] All of these contentions are essentially allegations that Ms. Rosenberger was
negligent. This Court has previously found that negligence is insufficient to overcome
the statutory presumption of good faith under § 14-3-209. Elmore, 844 P.2d at 1083.
Capt. Thomas’s insistence that Ms. Rosenberger had a duty to investigate further prior to
reporting not only disregards the statutory requirement to “immediately report” suspected
abuse, but would contravene the purpose of the act, to encourage reporting without fear
of reprisal. See May, 866 P.2d at 738.
[¶38] The uncontroverted facts demonstrate that Ms. Rosenberger made her report with
at least reasonable suspicion. GT told Ms. Rosenberger that his father watched him
shower, and that he touched GT’s genitals and buttocks while assisting him with his
showers. GT’s statements were enough to arouse suspicion in Ms. Rosenberger, and she
reported the information immediately. Her response to GT’s disclosures was within the
bounds of reason; the information was sufficient for her to suspect abuse had occurred;
and she acted immediately on that information, which is required by the reporting statute.
Capt. Thomas identified no genuine issue of material fact that Ms. Rosenberger lacked
the requisite reasonable suspicion to make her report.
[¶39] When a person has “reasonable cause to . . . suspect that a child has been abused
or neglected” under § 14-3-205(a), then that person acts in good faith within the meaning
of § 14-3-209. See Marks v. Tenbrunsel, 910 So. 2d 1255, 1261 (Ala. 2005) (concluding
that under Alabama’s permissive reporting statute, when a reporter makes a report based
on reasonable cause to suspect abuse, they are acting in good faith); O’Heron v. Blaney,
583 S.E.2d 834, 836 (Ga. 2003) (addressing Georgia’s mandatory reporting statute,
“Once reasonable cause has been established under this standard, a reporter . . . is, by
definition, operating in good faith.”). Because we conclude that Ms. Rosenberger acted
4
Capt. Thomas presents an article on forensic interviewing, but does not provide sufficient foundation
connecting the article to Ms. Rosenberger’s actions as a licensed social worker. She was not acting as a
forensic interviewer in relation to GT.
13
upon a reasonable suspicion, and Capt. Thomas failed to rebut the presumption of good
faith with his negligence allegations,5 we conclude that Ms. Rosenberger is immune from
civil or criminal liability. Her motion for summary judgment was appropriately granted
as a matter of law.
II. Is Ms. Sumner entitled to immunity under the Child Protective Services Act for
her participation in the child abuse investigation?
[¶40] As noted above, see supra ¶ 28, § 14-3-209 provides civil and criminal immunity
to “[a]ny person, official, institution or agency participating in good faith in any act
required or permitted” under the Child Protective Services Act. The broad scope of this
immunity is not limited to reporters, but includes other parties who participate in “any act
required or permitted” under the Child Protective Services Act, including ensuing
investigations. Wyo. Stat. Ann. § 14-3-209; see also May, 866 P.2d at 738 (providing
blanket immunity to the reporter as well as those involved in the investigation).
Accordingly, Ms. Sumner is immune for any statements she made while cooperating with
the investigation unless Capt. Thomas is able to overcome the presumption of good faith
by demonstrating a genuine issue of material fact exists that Ms. Sumner acted in bad
faith, which we defined in Elmore, 844 P.2d at 1083, as acting with a malicious motive or
making deliberately false accusations.
[¶41] Capt. Thomas contends that “both the Appellees are not being truthful about not
making the digital penetration report . . . . The bottom-line is that somebody is lying
about the contents of the reports made and lying demonstrates bad faith.” The substance
of his argument is that somebody must have made the digital penetration report to the
Valdosta Police Department, and if Ms. Rosenberger did not make those initial digital
penetration allegations, then Ms. Sumner must have. He contends that Ms. Sumner is
lying and acting in bad faith in denying that she is the source of those allegations.
[¶42] Ms. Sumner admitted to speaking with Air Force investigators about Capt.
Thomas’s conduct toward GT, but claimed she always qualified her statements as being
restatements of what GT had reported to her. She admitted that GT disclosed to her the
washing conduct and the digital penetration allegation over the phone while he was
visiting Capt. Thomas. Nevertheless, in her deposition she denied making the initial
digital penetration report, claiming it arose either from Ms. Rosenberger or from USAF
investigators. While Capt. Thomas doubts the veracity of this testimony, at his
deposition he admitted he had no factual basis for his contention that Ms. Sumner made
5
Capt. Thomas makes a number of unsubstantiated allegations of bad faith toward Ms. Rosenberger, such
as “her failure to talk to GT for greater than a few minutes in a single session prior to her report, her
desire to destroy [his] military career,” and cryptic references to her counseling notes. He provides no
evidence beyond accusation, and we therefore decline to consider these arguments. See Jones, 2005 WY
65, ¶ 11, 113 P.3d at 38 (“Speculation, conjecture, the suggestion of a possibility, guesses, or even
probability are insufficient to establish an issue of material fact.”).
14
the digital penetration allegations to any law enforcement agents. “Statements of
unsubstantiated belief do not create a genuine issue of material fact precluding summary
judgment.” Gillett v. White, 2007 WY 44, ¶ 18, 153 P.3d 911, 916 (Wyo. 2007).
[¶43] Capt. Thomas did not provide the records or testimony of the investigators that
may or may not have provided evidence supporting his suspicions. The absence of
evidence coupled with speculation does not create a genuine issue of material fact. See
Jones, 2005 WY 65, ¶ 11, 113 P.3d at 38 (“Speculation, conjecture, the suggestion of a
possibility, guesses, or even probability are insufficient to establish an issue of material
fact.”).
[¶44] At various other places in his brief, Capt. Thomas alleges that Ms. Sumner made a
second report of emotional and/or physical child abuse to USAF authorities, even though
Ms. Sumner denied any knowledge of two separate investigations. Although he argues
strenuously that this second report was malicious, again he provides no evidence other
than conclusory allegations and accusations that Ms. Sumner initiated the second
investigation. Conclusory statements or mere opinions are insufficient to satisfy the
nonmovant’s burden in opposition to summary judgment. Downen v. Sinclair Oil Corp.,
887 P.2d 515, 519 (Wyo. 1994).
[¶45] Capt. Thomas also alleges Ms. Sumner acted maliciously because the abuse
reports were a pretext for visitation modification. It is true that Ms. Sumner attempted to
modify visitation once she discovered Capt. Thomas’s washing conduct, but Capt.
Thomas has provided nothing more than speculation that Ms. Sumner fabricated the
abuse in order to modify visitation.
[¶46] Lastly, Capt. Thomas alludes to a number of other instances which he argues
require a reasonable inference in his favor, and thus create genuine issues of material fact
that Ms. Sumner acted in bad faith.6 Because these allegations are unsupported by facts
or cogent legal argument, we will not address them. See Ortiz v. State, 2014 WY 60,
¶¶ 84-85, 326 P.3d 883, 900 (Wyo. 2014). Capt. Thomas has presented us with no
genuine issue of material fact that Ms. Sumner acted in bad faith in her participation in
the abuse investigation, and she is therefore immune from liability for her statements
made to investigators.
6
For example, he states “Ms. Sumner’s malicious intent/bad faith have been exhibited via a number of
areas, for example, her threats to exact vengeance, her counselor shopping for a counselor willing to make
a child abuse report, her repeated ‘conversations’ with investigators, her tandem use of the civil and
criminal arms of legal system to gain advantage in her custody case, etc.” These unsupported allegations
do not create a genuine issue of material fact.
15
III. 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?
[¶47] Ms. Sumner admitted to mentioning the abuse investigation to her mother, one of
her friends, her aunt, and an indeterminate number of clients at the salon where she
works. She further stated that the only detail she ever disclosed to a non-investigating
party was that Capt. Thomas had watched GT shower and that he was being investigated
for abuse. She contends that any communications she made to any parties were simply
truthful restatements of information that GT disclosed to her.
[¶48] Ms. Sumner’s statements to parties outside the scope of the abuse investigation are
not protected by the Child Protective Services Act’s immunity statute, and therefore we
analyze those communications under Capt. Thomas’s defamation per se claim.
[¶49] In Hoblyn v. Johnson, 2002 WY 152, ¶ 41, 55 P.3d 1219, 1233 (Wyo. 2002), this
court defined defamation per se.
Defamation per se means a statement which is defamatory on
its face and, therefore, actionable without proof of special
damages. The only statements classified as defamatory per se
or damaging on their face, and which therefore do not require
proof of special harm, are those which impute (1) a criminal
offense; (2) a loathsome disease; (3) a matter incompatible
with business, trade, profession, or office; or (4) serious
sexual misconduct.
(Internal citations and quotation marks omitted.) While a defamation per se claim does
not require proof of pecuniary or economic loss, it does require a prima facia showing
that: (1) the defendant made a false and defamatory communication concerning the
plaintiff; and (2) the defendant made an unprivileged publication to a third party; and (3)
at the time of the publication the defendant knew the communication was false, or the
defendant acted in reckless disregard of whether the statement was false; or the defendant
acted negligently in failing to ascertain whether the communication was false.
Restatement (Second) of Torts § 558 (1977); see also Tschirgi v. Lander Wyoming State
Journal, 706 P.2d 1116, 1119-20 (Wyo. 1985) (discussing the requirement that
defamatory communication be false); Lever v. Community First Bancshares, Inc., 989
P.2d 634, 638 (Wyo. 1999) (discussing privilege as related to defamatory
communications); Blake v. Rupe, 651 P.2d 1096, 1107 n.9 (Wyo. 1982) (adopting
Restatement (Second) Torts § 577 definition of publication as “communication
intentionally or by a negligent act to one other than the person defamed”).
[¶50] In Tschirgi, this Court held that communications that are “substantially true” are a
complete defense to a defamation action for libel. We explained, “it is not necessary to
16
prove the literal truth of the accusation in every detail, and that it is sufficient to show
that the imputation is substantially true, or, as it is often put, to justify the gist, the sting,
or the substantial truth of the defamation.” Tschirigi, 706 P.2d at 1120 (internal
quotation marks omitted). Ms. Sumner testified that she did not provide any details of
the investigation to parties not involved in the investigation, but only mentioned to them
that Capt. Thomas was being investigated for abuse and that he had watched GT shower.
Capt. Thomas admits he watched GT shower, he washed him, and he was indeed
investigated for abuse. Other than making unsupported allegations that Ms. Sumner
spread “malicious, slanderous, scurrilous and baseless allegations of sexual abuse,” Capt.
Thomas presents no genuine issue of material fact that Ms. Sumner made false statements
to any third parties. The only evidence in the record is that Ms. Sumner’s
communications were truthful. We can draw no inferences favorable to Capt. Thomas
from these facts, and because truth is an absolute defense to defamation claims, we agree
with the district court that Ms. Sumner is entitled to summary judgment as a matter of
law.
CONCLUSION
[¶51] Capt. Thomas has not demonstrated a genuine issue of material fact exists with
respect to immunity under the reporting statute or to defamation. Affirmed.
17