IN THE

TENTH COURT OF APPEALS

No. 10-23-00126-CV

PATRICIA S. QUINN, LCSW (INCORRECTLY SUED AS PATRICIA S. 

QUINN, LMSW), 

Appellant

 v. 

MATTHEW D. MELTON, 

 Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 108482

OPINION

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 v. Melton Page 2

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 

1 Quinn is now a Licensed Clinical Social Worker (LCSW). For purposes of this appeal, the distinction is 

not relevant.
Quinn v. Melton Page 3

which information, opinions, recommendations, and answers to specific 

questions asked by the court may be:

(A) made regarding:

(i) conservatorship of a child, including the terms and conditions of 

conservatorship;

(ii) possession of or access to a child, including the terms and 

conditions of possession or access; or

(iii) any other issue affecting the best interest of a child; and

(B) 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

2 The statutory authority for licensed social workers is set forth in Chapter 505 of the Texas Occupations 

Code. See TEX. OCC. CODE Ch. 505. The Texas Behavioral Health Executive Council is the state agency 

authorized by state law to administer and enforce Chapter 505 of the Occupations Code. See TEX. OCC.

CODE Ch. 507.
Quinn v. Melton Page 4

§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 

3 Melton also filed a separate lawsuit against the counselor who provided the complained-of statements

relating to the SWAT team to Quinn. In the same order as the denial of Quinn's motion to dismiss, the 

proceeding against the counselor was dismissed pursuant to a motion for summary judgment asserting 

that the statute of limitations had passed and asserting judicial immunity. That proceeding was not 

otherwise part of this proceeding. However, the pleadings from the proceeding against the counselor were 

filed with this Court in a supplemental clerk's record. However, the trial court expressly did not take 
Quinn v. Melton Page 5

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. 

judicial notice of that proceeding or the filings in that proceeding in making its ruling in this proceeding

and Quinn has not complained in this appeal that the trial court erred for failing to take judicial notice of 

those findings. Therefore, this Court will not consider those filings in this appeal.
Quinn v. Melton Page 6

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: 
Quinn v. Melton Page 7

[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 v. Melton Page 8

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]

4 Because of our disposition of this part of Quinn's first issue, we need not address the other part of her first 

issue which is whether Quinn, as a licensed social worker, is a health care provider, or issues two and three 

because those issues require this Court to sustain her first issue.

5 In his appellate brief, Melton requests that we find Quinn's appeal to be frivolous and to award him

damages pursuant to Rule of Appellate Procedure 45. See TEX. R. APP. P. 45. Because we do not find this 

appeal to be frivolous, Melton's request is denied.