Avitia v. Crisis Preparation & Recovery Inc., No. 1 CA-CV 21-0083 (App. Div. I, November 8 2022) (J. Bailey) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2022/1%20CA-CV%2021-0083%20Avitia.pdf
ABSENT FACTS A MINOR IS CURRENTLY OR IN THE PAST A VICTIM OF INJURY, ABUSE OR NEGLECT THERE IS NO STATUTORY/PUBLIC POLICY CREATING A DUTY TO REPORT SUSPECTED ABUSE TO AUTHORITIES/NO COMMON LAW DUTY EXISTS BASED SOLEY UPON THE ARGUMENT THAT DECEDENTS WERE FORSEEABLE VICTIMS
Plaintiff sued Crisis Preparation and Recovery Inc. [Crisis Prep] (among others) for failing to alert the authorities that the mother of his children was a danger to the children. Mother had long suffered mental illness and was being screened by Crisis Prep to determine if she was a candidate for involuntary treatment. While different counselors evaluating her had differing opinions as to whether or not she was “seriously mental ill” and thus qualified for the treatment and though the mother's mother stated she was “terrified” to allow her daughter to be alone with her twins, the mother was not placed into involuntary mental treatment. Suspected abuse or neglect of the twins was not reported to the authorities. Mother ultimately drowned her twins in the bathtub responding to voices in her head.
The trial court granted Crisis Prep's motion for summary judgment and the Arizona Court of Appeals affirmed.
A.R.S. § 13-3620 requires behavioral health professionals to report child abuse and neglect when they “reasonably believe that a minor is or has been the victim” of abuse or neglect. Here there were no facts presented to Crisis Prep that the twins had been subjected to abuse or neglect before she actually drowned the children. The plaintiff himself stated that “before the twins death he saw no signs of abuse or neglect and believed the twins were well cared for and safe.” Hence the statute did not create public policy duty here requiring Crisis Prep to report suspected abuse or neglect.
Because plaintiffs' basis for claiming a duty existed was based upon the argument that it was foreseeable mother would harm the children, there can likewise be no common law duty to report here. Foreseeability is not a factor in determining the existence of a tort duty.