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Ryder v. Mitchell9/16/2002
eseeability and likelihood of injury as weighed against the social utility of the defendant's conduct, the magnitude of the burden of guarding against the harm, and the consequences of placing the burden of a duty on the defendant.
First addressing the risk involved, we agree that there is a risk of injury to a parent when a therapist expresses concern about poor parenting of one kind or another. The risks could include diminished parenting time, or in the extreme case, perhaps a change in custody. Those risks are real and potentially very damaging to the parent. By this opinion, we do not intend to minimize the effect on a parent of reduced access to or time with his or her child. However, in the case of misdiagnosis, the damage would also potentially be visited upon the child and in that situation, the law already provides protection. Specifically, the child/patient has the right to seek redress for misdiagnosis of parental alienation or poor parenting for any injuries caused to him or her and the therapist has a resultant incentive to diagnose and treat carefully and competently.
Furthermore, the risks to the parent of a misdiagnosis of parental alienation do not rise to the level of criminal repercussions or even termination of parental rights, such as those associated with an accusation of sexual abuse. A false allegation against a parent of child sexual abuse can cause substantial injury . See, e.g., Montoya v. Bebensee, 761 P.2d 285, 288 (Colo. App. 1988); Althaus v. Cohen, 756 A.2d 1166, 1170 (Pa. 2000) (noting that being "falsely accused of sexual abuse is undoubtedly a substantial harm, a harm which is readily foreseeable"); Heather J. Rhoades, Zamstein v. Marvasti: Is A Duty Owed To Alleged Child Sexual Abusers?, 30 Conn. L. Rev. 1411, 1412 (1998) (recognizing that "the climate surrounding child sexual abuse is such that `allegations alone are quickly raised to the status of evidence signifying abuse.'"(quoting Thomas M. Horner & Melvin J. Guyer, Prediction, Prevention, and Clinical Expertise in Child Custody Cases in Which Allegations of Child Sexual Abuse Have Been Made: II. Prevalence Rates of Child Sexual Abuse and the Precision of "Tests" Constructed to Diagnosis It, 25 Fam.L.Q. 381, 387 (1991)). But see Cynthia Grant Bowman & Elizabeth Mertz, A Dangerous Direction: Legal Intervention in Sexual Abuse Survivor Therapy, 109 Harv. L. Rev. 549, 579 (1996) (noting that in refusing to impose a duty of care to a third party in child abuse circumstances, courts have recognized "society's interest in eradicating the sexual abuse of children and in encouraging the mental health profession to examine and diagnose cases involving such abuse"). Accordingly, we distinguish cases in which a therapist makes allegations of sexual abuse by a parent from cases in which the therapist misdiagnoses improper parenting skills or even parental alienation.
The risks of injury associated with a misdiagnosis of parental alienation are foreseeable, but perhaps not likely to occur. One therapist's opinion is but one of many factors a court might examine in determining custody and parenting time arrangements. ยง 14-10-124(1.5), 5 C.R.S. (2002). As exemplified by the facts of this case, the custody and parenting time orders might be unaffected by that particular therapist's opinion. Again, in contrast to sexual abuse allegations, the likelihood of actual injury resulting is relatively minimal.
That harm must be weighed against the possible utility of encouraging therapists to treat children experiencing adjustment problems associated with a divorce and communicate their findings to the involved parents. We conclude that the balance weighs in favor of disclosure. Therapists need the
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