### 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
T EX
. C IV
. P RAC
. & R EMEDIES C ODE Ch. 74. Matthew Melton filed this case against Quinn seeking damages for statements made in a child custody evaluation report prepared byQuinn v. Melton Page 2 Quinn . The report had been prepared for us e in Melton's earlier marriage dissolution and child custody case (hereinafter "divorce"). See , generally, T EX
. F AM
. C ODE 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 r equired 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 clai ms 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 er ror, we affirm the order of the trial court.
B ACKGROUND Quinn was a Licensed Master Social Worker (LMSW) at the time she conducted the child custody evaluation. 1 P ursuant 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 de fines 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 o f 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.
T EX
. F AM
. C ODE §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 T EX
. F AM
. C ODE §107.112(h). As pa rt 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 T EX
. F AM
. C ODE §§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 T EX
. F AM
. C ODE

2 The statutory authority for licensed social workers is set forth in Chapter 505 of the Tex a s Occupations Code. See T EX
. O CC
. C ODE 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 T EX
. O CC
. C ODE Ch. 507.Quinn v. Melton Page 4 §107.108(a).
The evaluator is then required to "prepare a report containing the e valuator’s findings, opinions, recommendations, and answers to specific questions asked by the court relating to the evaluation." T EX
. F AM
. C ODE §107.113(a). A child custody evaluator is the only person who can properly give "an expert opinion or recomme ndation relating to the conservatorship of or possession of or access to a child" in a custody proceeding.
See T EX
. F AM
. C ODE §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 dut y, 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 fi ndings in the child custody evaluation report in his ex

- wife's favor because Quinn and his ex

- wife were friends , and that the report i ncluded 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. I n the same order as the denial of Quinn's motion to dismiss, the proceeding against the counselor was dismissed purs uant to a motion for summary judgment asserting that the statute of limitations had passed and assert ing judicial immunity. That proceeding was not otherwise part of this proceeding. However, t he pleadings from the proceeding against the counselor were f iled with this Court in a supplemental clerk's record. However, the trial court expressly did not takeQuinn v. Melton Page 5 th is statement was false and that Quinn's fail ure 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, 202 2. 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 , t he trial court signed an order that
included a finding that there was nothing in the record to show that Quinn provided
health care. T he 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 p art 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 rel ated 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.
T EX
. C IV
. P RAC
. & R EMEDIES C ODE §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 servic es 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 fin dings 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 nee d 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.
T EX
. C IV
. P RAC
. & R EMEDIES C ODE §74.001( a)(10).
A PPLICATION 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 pr ovision 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.
T EX
. F AM
. C ODE §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 T EX
. C IV
. P RAC
. & R EMEDIES C ODE §74.001( a)(10). Moreover, t he F amily
C ode expressly provides that a p erson who participates in a child custody evaluation is not a "patient" as defined in the Health and Safety Code. T EX
. F AM
. C ODE §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 overruleQuinn v. Melton Page 8 Quinn's first issue. 4
C ONCLUSION 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 o f 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 T EX
. R. A PP
. P . 45. Because we do not find this appeal to be frivolous, Melton's request is deni ed.