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 which information, opinions, recommendations, and answers to specific questions asked by the court may be: made regarding: conservatorship of a child, including the terms and conditions of conservatorship; possession of or access to a child, including the terms and conditions of possession or access; or any other issue affecting the best interest of a child; and 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 §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 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. 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: [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’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]
