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Ryder v. Mitchell9/16/2002
intiff sought to transfer the children to a new therapist. In response to this decision, on February 26, 1997, the defendant wrote the plaintiff a letter expressing her opinion that it was not in the boy's best interest to transfer to a new therapist. She stated that the boy was in the midst of addressing critical issues regarding the divorce, including his feelings of loss and abandonment.
She asserted that the interruption in the psychotherapeutic process was detrimental to the five-year-old's psychological, emotional, cognitive, and social functioning. She further expressed concern that the child might perceive that his therapist was also abandoning him.
The letter next addressed the plaintiff's concerns that Mr. Mitchell was "a threat to the children and that parental visitation should be terminated, or at best, supervised parenting time be put in place." Ryder reconfirmed her prior assurances that Mitchell did not present a danger to the children. She expressed her opinion that there was no reason to terminate or modify the court-ordered parenting time or Mitchell's relationship with the children.
In addition, Ryder discussed the issue of parental alienation, which she asserted she had previously raised with the plaintiff. She stated that the plaintiff had continually made assertions, lacking any factual support, that Mitchell was abusing the children. She wrote that the plaintiff had been adamant that Mitchell's parenting time be terminated and had continually pressured the defendant to file child abuse charges against Mitchell. The defendant opined in the letter that since she would not file the allegations, or recommend modified parenting time, the plaintiff withdrew the child from treatment. She stated:
Repeatedly, you have been told there are no indicators of child abuse that warrant the actions you want taken. Instead, you have been repeatedly told that there are clear indicators of parental alienation. You have not wanted to address the parental alienation issue, but stay focused on your objectives of terminating Mr. Mitchell's parenting time with his children. It is very important for you to look at your own parental alienation. This will only serve to hurt your children.
The defendant concluded her letter by expressing hope that the plaintiff would reconsider the decision to discontinue therapy.
The defendant sent a copy of the letter to Mitchell and to the children's new therapist. Shortly thereafter, Mitchell filed a motion for a change of custody, seeking to move the custody of the children from the plaintiff to himself. The plaintiff responded with a motion to limit Mitchell's parenting time. The court denied both motions and custody and parenting time remained unchanged.
The plaintiff then initiated this action, in which she sued Ryder and Simmons for breach of fiduciary duty and negligence, seeking damages for having to respond to Mitchell's motion for a change of custody. In its Order dated February 10, 1998 the trial court granted Ryder's motion to dismiss the breach of fiduciary duty claim in which the plaintiff was asserting a breach of a duty owed to the children. The trial court found that only the children were Ryder's patients, and that the record evidenced no support for the plaintiff's allegation that she, too, was a patient. The trial court specifically held that any causes of action arising from an alleged breach of duty owed to the children would have to be brought by the plaintiff on behalf of the children and not on her own behalf.
However, citing Montoya v. Bebensee, 761 P.2d 285, 289 (Colo. App. 1988), the court held that the defendant did owe a duty of care to the plaintiff i
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