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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

KEITH A. BROWN,                             )       No.  65879-4-I
                                            )
              Appellant and                 )       DIVISION ONE
              Cross Respondent,             )
                                            )
                 v.                         )       UNPUBLISHED OPINION
                                            )
CHRYSALIS SCHOOL, INC., a                   )
Washington corporation,                     )
                                            )
              Respondent and                )
              Cross Appellant.              )       FILED:  May 14, 2012

       Schindler, J.  --  Keith A. Brown filed a lawsuit against Chrysalis School Inc. for

defamation, intentional and negligent infliction of emotional distress, and tortious 

interference with his relationship with his daughter allegedly caused by statements

school staff made to the court-appointed parenting evaluator in a parenting plan 

modification proceeding.  Brown appeals summary judgment dismissal of the lawsuit.  

Chrysalis School cross appeals denial of summary judgment on the grounds that the 

doctrine of witness immunity for statements made in a court proceeding precludes civil

liability. We affirm dismissal of the lawsuit.

                                            FACTS

       Keith A. Brown and Rebecca Garth married in 1986 and have two children, A.B. 

No.  65879-4-I/2

and C.B. The couple divorced in November 1998, and entered into a parenting plan 

that provided for joint custody and joint decision-making.  Brown and Garth often 

disagreed about the terms of the parenting plan, resulting in mediation and litigation.

       In March 2005, Garth filed a petition for modification of the parenting plan to limit 

Brown's residential time and eliminate joint decision-making authority. The court 

appointed Dr. Marsha Hedrick as a parenting evaluator to conduct an independent 

investigation and make recommendations regarding the parenting plan.  Dr. Hedrick is 

a clinical psychologist specializing in forensic psychology.  Dr. Hedrick has been 

evaluating parents for over 20 years and has performed nearly 500 evaluations.  The 

order appointing Dr. Hedrick sets forth her duties as the parenting evaluator.  The order 

states, in pertinent part:

       3.2    DUTIES OF THE PARENTING EVALUATOR/GUARDIAN AD 
              LITEM.

              The parenting evaluator/guardian ad litem shall investigate and 
              report factual information to the court concerning parenting 
              arrangements for the child(ren), and shall represent the child(ren)'s 
              best interests.  The parenting evaluator/guardian ad litem may 
              make recommendations based upon an independent investigation 
              regarding the best interests of the child(ren).  The parenting 
              evaluator/guardian ad litem shall report a child(ren)'s expressed 
              preferences regarding the parenting plan to the court, together with 
              the facts relative to whether any preferences are being expressed 
              voluntarily and the degree of the child(ren)'s understanding.

       The order authorizes Dr. Hedrick to obtain records and information from a 

number of sources.

       3.4    PARENTING EVALUATOR/GUARDIAN AD LITEM ACCESS TO 
              CHILD(REN), RECORDS AND INFORMATION.

              To facilitate reasonable investigation of information pertaining to 
              the best interest of the child(ren), the parenting evaluator/guardian 

                                               2 

No.  65879-4-I/3

              ad litem shall have access to the child(ren) and to all records and 
              information, including authorization to speak with interested 
              persons, from the following sources:  law enforcement agencies; 
              Child Protective Services (or the equivalent out-of-state agency); 
              health care providers; mental health care providers; child care 
              providers; the Department of Social and Health Services (or the 
              equivalent agency in another state); and educational institutions.

       Dr. Hedrick interviewed Brown on at least three separate occasions, and 

interviewed Garth, 15-year-old A.B., and 12-year-old C.B. at least two times. Dr. 

Hedrick also interviewed a number of other individuals, including the therapists for 

Brown, Garth, A.B., and C.B.; a former teacher for both children; and the current school

counselors for each child. 

       On February 23, 2006, Dr. Hedrick issued a 20-page "Parental Access 

Evaluation." The first half of the report describes the interviews with Brown and Garth, 

and describes their marital history and parenting concerns.  The report then describes 

the interviews with a former teacher, the current school counselors, and Garth's spouse 

Ed Garth, followed by a description of the interviews with A.B. and C.B.

       A.B. and C.B.'s former teacher, Robert Whittemore, told Dr. Hedrick that the 

children did not perform as well as expected academically.  

       The tension between the two parents made it difficult. . . . Both children 
       felt very frustrated with going back and forth and there was not a normal 
       flow of information. . . . Neither kid did as well as they could but they were 
       doing the best they could to cope and that's all they could do. . . . Both 
       [parents] looked at information as something to be used, but Rebecca 
       less than Keith. . . . My heart wept for these kids.[1]

       The interview with A.B.'s current school counselor, Shannon Murdoch, and two 

other staff members at Chrysalis School, Wanda Metcalf and Colleen Holder, was 

       1 (Internal quotation marks omitted) (brackets in original).

                                               3 

No.  65879-4-I/4

conducted by phone.  At the beginning of the interview, Murdoch told Dr. Hedrick that

Brown sent an e-mail rescinding his permission for the school staff to talk to Dr. 
Hedrick.2 The report states that Dr. Hedrick reassured Murdoch, Metcalf, and Holder 

that "there was a court order allowing access to school personnel and mental health 

professionals."  

       Metcalf told Dr. Hedrick that Brown "calls all the time and emails constantly.  

He's concerned that Rebecca is making disparaging comments about him. . . . [H]e 

makes it sound like he wants to talk about [A.B.] but he really wants to find out exactly 
what his ex-wife has been saying."3

       When Dr. Hedrick asked Murdoch about A.B., Murdoch said that A.B. was "doing 

very well. . . . She's turning in homework on time, she's participating more. It's a big 
improvement."4  Dr. Hedrick then asked Murdoch whether A.B. had said anything about 

the situation with her parents.  In response, Murdoch told Dr. Hedrick about an 

occasion when Brown dropped off a book for A.B. at the front desk and school staff told 
Murdoch that A.B. was "not excited, she was ambivalent about it."5 Murdoch also 

described talking to A.B. before the meeting that had been scheduled at Brown's 

request to discuss A.B.'s college plans.  Murdoch said that at the end of the meeting, 

A.B. "pushed in her chair and asked if she needed to be involved in the meeting [with 

       2 The e-mail from Brown states:
              I am rescinding permission for you to communicate with the court psycholigist 
       [sic] until this issue is resolved.  I assumed incorrectly that Chryslais [sic] recognized that 
       [A.B.] has two parents with equal decision making authority.  If you are Rebecca's 
       contact person and not mine, as Wanda claims, then it is detrimental to me for you to 
       provide any input to the court appointed psychologist.
       3 (Internal quotation marks omitted) (ellipses in original).

       4 (Internal quotation marks omitted) (ellipses in original).

       5 (Internal quotation marks omitted.)

                                               4 

No.  65879-4-I/5

her parents.]  'I'd really rather not be there.  I haven't seen my dad in a while and I don't 

want to be there. . . . Do you have to have it on a day I'm here?' "6  

       A.B. and C.B. each described Brown as controlling and angry, and told Dr. 

Hedrick that they no longer communicated with Brown.  A.B. said that she wanted 
"minimal contact but not no contact"7 with Brown. C.B. described a number of 

altercations with Brown and said he did not want to have contact with his father.  

       Brown acknowledged that A.B. and C.B. refused to have contact with him.  

Brown admitted to Dr. Hedrick that he had made poor parenting decisions, but he

blamed Garth for the deterioration in his relationship with A.B. and C.B.  

       In the discussion section of the report, Dr. Hedrick rejected Brown's view that 

Garth was responsible for the breakdown in his relationship with the children.  To the 

contrary, Dr. Hedrick concluded that "a consistent picture did emerge that suggested 

these children are primarily reacting to their father's behavior in deciding not to spend 

time with him."  

              Keith appears to have a long history of acting-out in angry, poorly 
       controlled ways.  He acknowledges some of the information, but is apt to 
       be falsely denying substantial amounts. He acknowledges sending a 
       letter to a former friend and neighbor that is replete with vindictive
       information and accusations and was sufficiently alarming that law 
       enforcement was notified.  He admits to a physical altercation with his
       mother, but the children credibly describe other instances in which he and 
       his mother were engaged in threatening, angry behavior.  He 
       acknowledges one instance of hitting Rebecca but Rebecca gives 
       compelling descriptions of many other instances of intimidating and 
       threatening behavior. He states that Rebecca hit him in the incident in 
       her garage but Ed Garth convincingly describes Keith's angry, 
       uncontrolled behavior, as well as an additional incident in the courthouse. 
       Keith acknowledges three instances of physically grabbing or hitting
       [C.B].  However, he rationalizes his behavior as being necessitated by 

       6 (Internal quotation marks omitted.)
       7 (Internal quotation marks omitted.)

                                               5 

No.  65879-4-I/6

       [C.B.]'s behavior, even while stating that he "did something that in 
       retrospect was not the best way to handle it."  The incident in the Raintree 
       Café is particularly significant in that it was observed by strangers who 
       were so concerned with Keith's behavior, they called 911. Only 
       considering the incidents that Keith acknowledges, there is a clear pattern 
       of angry, unpredictable behavior that is, however apt to be merely the tip 
       of the iceberg.
              The other evidence that strongly suggests alienation is not likely to 
       be the source of the children's refusal to see their father is the behavior of 
       the children and their relationship with their mother.  During this 
       evaluation, the children's anger about their father's behavior centered on 
       incidents that involved only themselves and Keith, not their mother.

       As an example of Brown's "pattern of interaction," Dr. Hedrick pointed to his 

"recent interactions" with the Chrysalis School personnel.

              Staff at Chrysalis School, in talking about recent interactions with 
       Keith, provided a microcosm of Keith's pattern of interaction with those 
       around him. He projects onto Rebecca his own anger and 
       manipulativeness, believes she is making disparaging statements about 
       him, interacts with the school as though this is the case, and ends up 
       alienating them with his own behavior and attempts to control their view of 
       him.  This is Keith's self-defeating pattern and it is unlikely to change in 
       the near future.

       Dr. Hedrick addresses the harm to the children caused by the conflict created by 

Brown as follows:

              The other compelling evidence in this case is the extent to which 
       these children are being harmed by the ongoing conflict. . . . [T]he data 
       strongly suggests that the two parents are not equally responsible.  
       Rebecca has certainly erred at times and involved the children in the 
       conflict in unfortunate ways.  However, given the unrelenting nature of 
       Keith's attempts to involve himself with her and engender conflict around 
       every decision, it is somewhat surprising that she has not erred more 
       often.
              Virtually every important arena of [A.B.] and [C.B.]'s development 
       has been impacted by their father's need to create conflict and control 
       their lives.  Their academic performance, emotional development, peer 
       relationships, and participation in extracurricular activities have all been 
       impacted.  In addition, the financial hemorrhaging created by Keith's 
       litigiousness is further destabilizing the security of their home life and 
       their future.  During this evaluation Keith verbalized an awareness that his 

                                               6 

No.  65879-4-I/7

       pattern of litigating had been problematic and stated an intent to avoid 
       litigation in the future.  However, he then filed a contempt motion against 
       Rebecca for failing to force [C.B.] to spend time alone with him and for 
       taking [A.B.] to see a therapist without his permission.  This therapy had 
       been court ordered and documentation was provided by Rebecca that 
       indicated Keith had previously agreed to Dr. Antony as [A.B.]'s therapist 
       in an email communication.

       Dr. Hedrick recommended the court eliminate Brown's residential time with the 

children and enter a restraining order "preventing Keith from having contact of any kind 

with these children or their mother and stepfather or any professionals involved with 

them."

              In light of the above considerations, it is recommended that the 
       court take a firm position that protects these children from the current 
       level of stress and turmoil that they are experiencing.  Although most 
       circumstances, even highly conflicted cases, warrant strenuous efforts to
       preserve children's contact with both parents, this does not seem possible 
       or desirable in this case. These children need respite.  It is therefore 
       recommended that there be minimal contact between Keith and either 
       child for the time being.  It is specifically recommended that this not be a 
       matter of choice for either child because to leave the decision up [to]
       them, would be to leave open the possibility that Keith will pressure them 
       about a decision.  The recommendation is that Keith and the children 
       have lunch together on one Saturday a month for an hour and a half.  The 
       schedule should be set rigidly, i.e. the third Saturday. . . .
              In addition to there being no residential time for the children with
       their father, it is also recommended that there be a restraining order
       preventing Keith from having contact of any kind with these children or
       their mother and stepfather or any professionals involved with them other 
       than as outlined above. Each month, the GAL [(guardian ad litem)]
       should contact Rebecca and the children's school counselors by phone 
       for a brief update on how the children are doing and any substantive 
       changes with regard to their health, school situation, or extra-curricular 
       activities.  The GAL could then send a brief letter to Keith updating him 
       with regard to the children's situation.

       Dr. Hedrick also strongly recommended that the court give sole decision-making 

authority to Garth.  

              In concert with the above recommendations, it is strongly 

                                               7 

No.  65879-4-I/8

       recommended that Rebecca have sole decision-making.  These children's 
       lives are hamstrung by the ongoing difficulties around decision-making 
       and Rebecca has consistently acted with good judgment and in their best 
       interests.

       The parenting plan modification trial lasted nearly three weeks.  A number of

witnesses testified at trial, including Brown, Garth, Ed Garth, GAL Paula Pridgeon, and 

Dr. Hedrick.  The testimony of the witnesses is set forth in In re Marriage of Garth &

Brown, 142 Wn. App. 1007, 2007 WL 4296603, and will not be repeated here. Brown 

did not subpoena Murdoch or other Chrysalis School staff to testify.

       At the conclusion of the trial, the court rejected Brown's testimony as not 

credible.  The court found that Brown engaged in "a pattern of physical and emotional 

abuse of the children." The court's findings are set forth in the "Order Re: 

Modification/Adjustment of Custody/Decree/Parenting Plan/Residential Schedule."  In 

the order, the court cites a number of examples in support of the finding of physical 

abuse of the children, including the following:

              There is the incident pertaining to [A.B.] in the bathroom where she 
       received a number of scratches on her arm.
              There is the incident, for example, of throwing [C.B.] to the ground 
       while trying to take away the tape recorder.
              There is the incident of grabbing [C.B.]'s arm and twisting it while 
       visiting his paternal grandparent.
              There is the incident in the car where Mr. Brown hit [C.B.] while Mr. 
       Brown was driving.
              Then there is the incident in the Rainforest Restaurant.  There was 
       screaming and Mr. Brown hit [C.B.] in the face.  There was a call to 9-1-1 
       from a neutral civilian witness. His own witness, Ms. Boileau supports 
       this finding as well in that she testified that Mr. Brown told her that he, 
       indeed, hit [C.B.] in the face.
              The court will also note the time where the mother and [C.B.] went 
       to a fish store and returned home; while in Ms. Garth's garage Mr. Brown 
       was yelling, grabbed [C.B.] to remove him from the car.  This incident is a 
       representation of Mr. Brown demonstrating unreasonable anger.  Mr. 
       Brown's need to have [C.B.] in his possession immediately was

                                               8 

No.  65879-4-I/9

       unreasonable and unacceptable. It was not reasonable given the 
       circumstances.  The Court further finds that the impact from this incident 
       on [C.B.] was harmful.

       The court also cites to a number of examples in support of the finding that Brown 

engaged in a pattern of emotional abuse of the children, including:

       The Court finds that there has been a pattern of setting the kids up, 
       creating false expectations only to withhold permission at the very last 
       minute causing sadness, frustration, embarrassment and uncertainty 
       surrounding decisions that were very important to both [A.B.] as well as 
       [C.B].  As a result, both of these kids were -- and continue to mistrust 
       those closest to them as well as their surroundings.
              . . . .
              This Court finds that Mr. Brown's behavior is manipulative and 
       angry, he is moody and the kids never know whether Mr. Brown may go 
       off; and when he does, they don't know why.  He can be threatening and 
       he minimizes his responsibility for how the children will see him.  The 
       Court finds that the father's involvement or conduct may have an adverse 
       effect on the children's best interests.
              . .  . Mr. Brown's unpredictable behavior has interfered with [C.B.] 
       and [A.B.]'s ability to trust others.  Mr. Brown's behavior is oftentimes 
       disproportionate to any given situation.  Both [A.B] and [C.B.]'s
       development has been impacted by their father's need to control and to 
       create conflict; this can be seen in their academic performance, their 
       emotional development, as well as their relationship with others, it has 
       also interfered with their engagement of other activities or the lack 
       thereof.

       In addition, the court found that Brown engaged in a pattern of abusive use of 

litigation and conflict that was detrimental to the children.

       [T]he Court finds that the ongoing litigation over the years, mainly brought 
       by Mr. Brown, has impacted the chance of having a stable home life, 
       knowing what to expect from day to day. . . .
              . . . .
              Mr. Brown's relationship with the children and Ms. Garth has 
       negatively impacted the children and are fraught with severe conflict. 
       This Court only has to look to Exhibit 20; to the number of orders reflected 
       in the court file.  There are over 50 motions and over 20 different judges 
       and/or court commissioners that have been involved in this case.  There
       are 17 court files in this case over the years.  
              This court recognizes that a number of these motions have 

                                               9 

No.  65879-4-I/10

       occurred following filing of the modification petition, but such motions are 
       a reflection of an ongoing pattern of abusive use of conflict that was 
       established years ago. This Court finds that Mr. Brown is responsible for 
       the ongoing conflict within the court system.  This ongoing activity has
       certainly interfered with his parenting functions.
              There is a pattern that comes across.  Mr. Brown is deceitful and 
       manipulative.  He deliberately misleads the kids where he allows the 
       children to believe one thing, creating expectations, and then changing 
       his position at the last minute, resulting in confusion and great 
       disappointment and oftentimes causing embarrassment.  This pattern of 
       behavior precludes stability, consistency and healthy nurturing for the 
       children; it creates confusion and is disastrous for these kids.

       Based on the findings set forth in the order, the court concluded there was a 

substantial impairment of the emotional ties between Brown and his children.

       The record is very clear.  As a result of years of conflict, uncontrolled 
       anger, manipulation, and extreme litigation, [C.B.] and [A.B.] have 
       completely shut down as it relates to their father; at this time they do not 
       want to see [him] or have visitation.  This is a direct result of ongoing and 
       almost daily emotional abuse brought on by the father.  This is not the 
       result of alienation caused by the mother.  The Court further finds that the 
       father has engaged in the abusive use of conflict which created the 
       danger of serious damage to these kids' psychological development.

       The court also concluded that Brown's interactions with therapists and school 

professionals were harmful to the children.  

              Mr. Brown's inability to work with others has been harmful to the 
       children; this would include his inability to work with school professionals 
       and therapists as well.  Several examples -- and I will simply give the 
       names -- would include Meredith Sergeant, Lorraine Manderschied, 
       Robert Whitmore [sic] with the PACE program; Paige Taylor who is 
       [C.B.]'s counselor at Leota, and then Shannon Murdock [sic] and Ms. 
       Metcalf as well; and those are just a few.

       The court limited Brown's time with the children to one-and-a-half hours on the 

third Saturday of each month at a local restaurant, and entered a restraining order.  

The court gave Garth sole decision-making authority, and ordered no dispute 

                                              10 

No.  65879-4-I/11

resolution.  

              Decision-making.  Mother will have sole decision-making.  The 
       Court finds that Mr. Brown is responsible for the majority of conflict that 
       has surrounded every decision that has been made; . . . and it includes 
       decisions about [the children's] education, as seen in the Eastside 
       incident.  The Court finds that Mr. Brown is unable to participate without 
       engaging in conflict.  The Court finds that this ruling is in the best 
       interests of the children.  As to dispute resolution.  The Court finds that 
       the past use of dispute resolution has not limited conflict but rather has 
       encouraged conflict.  Mr. Brown has submitted over 20 issues to be dealt 
       with at one time.  Mr. Brown has mediated issues that he has agreed to as
       a result of other court proceedings.  Dispute resolution has only served as 
       one more means for Mr. Brown and his need to control others.

       In the final parenting plan order, the court states that the limitations on Brown's 

contact with the children is justified under former RCW 26.09.191(1) and (2) (1993) 

based on "A pattern of Physical and Emotional abuse of a child." The court also states

that former RCW 26.09.191(3) gives the court the discretion to preclude or limit 

residential time and decision-making because Brown's "involvement or conduct may 

have additional adverse effects on the child(ren)'s best interests." The order states, in 

pertinent part:

              A long-term emotional or physical impairment which interferes with 
       the performance of parenting functions as defined in RCW 26.09.004.
              The absence or substantial impairment of emotional ties between 
       the parent and child.
              The abusive use of conflict by the parent which creates the danger 
       of serious damage to the child's psychological development and interferes 
       with the performance of parenting functions.

       Brown appealed the final parenting plan order.  Because Brown did not 

challenge any of the trial court's findings on appeal, those findings were treated as 

verities on appeal.  Garth & Brown, 2007 WL 4296603, at *1. In an unpublished 

opinion, we affirmed the decision of the trial court and the final parenting plan order.  

                                              11 

No.  65879-4-I/12

       On February 27, 2009, Brown filed a lawsuit against Chrysalis School for 

defamation, intentional and negligent infliction of emotional distress, and tortious 

interference.  Brown claimed that he recently discovered "the statements that Ms. 

Murdoch attributed" to A.B. were false, and alleged the false statements resulted in 

"damages to his reputation [and] caused Plaintiff to lose custody and decision-making 

authority related to his daughter and created a damaged relationship between Plaintiff 

and his daughter."  Chrysalis School filed an answer admitting that Murdoch, Metcalf, 

and Holder participated in an interview with the court-appointed parenting evaluator 

and asserted that Brown failed to set forth a claim upon which relief may be granted.

        Chrysalis School filed a motion for summary judgment dismissal of the lawsuit 

on the grounds that Murdoch and the school were immune from liability for the 

statements made by Murdoch to the court-appointed parenting evaluator in the

parenting plan modification proceedings.  The trial court denied the motion.

       Following discovery, Chrysalis School filed a second motion for summary 
judgment dismissal on the grounds that Brown could not establish causation.8  In 

opposition, Brown argued that the statements made by Murdoch were significant to the 

recommendations made by Dr. Hedrick and the decision of the trial court.  In support, 

Brown submitted a declaration from himself and from A.B. A.B. said that she never told 

Murdoch that she "did not want to be present when my parents met at Chrysalis to 

discuss my college plans," and never told Murdoch she did not want to see or have 

contact with her father or expressed "any displeasure" with the book her father left.    

       8 Chrysalis also argued that Brown could not show the statements were about him, rather than 
about his daughter, and the statements were not actionable as a matter of law.
                                              12 

No.  65879-4-I/13

       The court granted the motion for summary judgment "for lack of evidence of 

causation or other essential elements of plaintiff's causes of action," and dismissed the 

lawsuit against Chrysalis School.

                                          ANALYSIS

       Brown contends the court erred in dismissing his lawsuit against Chrysalis 

School on summary judgment.  Chrysalis School contends the court erred in denying its 

motion for summary judgment dismissal based on witness immunity.  

       We review summary judgment de novo.  Hartley v. State, 103 Wn.2d 768, 774, 

698 P.2d 77 (1985).  Summary judgment is appropriate when there is no genuine issue 

of material fact and the moving party is entitled to summary judgment as a matter of 

law.  CR 56(c).  

       A defendant can move for summary judgment by showing that there is an 

absence of evidence to support the plaintiff's case.  Young v. Key Pharm., Inc., 112 

Wn.2d 216, 225, 770 P.2d 182 (1989).  If the defendant shows an absence of evidence 

to establish the plaintiff's case, the burden then shifts to the plaintiff to set forth specific 

facts showing a genuine issue of material fact for trial.  Young, 112 Wn.2d at 225.  

       While we construe all evidence and reasonable inferences in the light most 

favorable to the nonmoving party, if the plaintiff " 'fails to make a showing sufficient to 

establish the existence of an element essential to that party's case, and on which that 

party will bear the burden of proof at trial,' " summary judgment is proper.  Jones v. 

Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002); Young, 112 Wn.2d at 225 

(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 

                                              13 

No.  65879-4-I/14

(1986)).

Defamation

       Brown claims that the statements made by Murdoch and the staff at Chrysalis 

School were defamatory and a substantial factor in the trial court's decision to modify

the parenting plan.

       For purposes of avoiding summary judgment dismissal of a defamation claim, 

the plaintiff must allege facts that would raise a genuine issue of material fact for the 

jury as to each element: (1) falsity, (2) an unprivileged communication, (3) fault, and 

(4) that the communication proximately caused damages.  Mark v. Seattle Times, 96 
Wn.2d 473, 486, 635 P.2d 1081 (1981).9 A plaintiff must establish each element with 

convincing clarity. 

       [T]he function of the trial court in ruling on a defense motion for summary 
       judgment in a defamation action is to determine if the plaintiff's proffered 
       evidence is of a sufficient quantum to establish a prima facie case with 
       convincing clarity.  Unless the plaintiff has done so, the motion must be 
       granted.
Mark, 96 Wn.2d at 48610 (quoting Sims v. KIRO, Inc., 20 Wn. App. 229, 237, 580 P.2d 

642 (1978)).

       Proximate cause has two elements:  cause in fact and legal causation.  Hartley, 

103 Wn.2d at 777.  Cause in fact refers to the "but for" consequences of an act and is a 

cause which in a direct sequence, unbroken by any new independent cause, produces 

the injury complained of and without which such injury would not have happened.  Kim 

       9 A defamation claim must be based on a statement that is provably false.  Schmalenberg v. 
Tacoma News, Inc., 87 Wn. App. 579, 590, 943 P.2d 350 (1997).  We assume the statements were false 
for the purposes of this analysis. 
       10 (Internal quotation marks omitted) (brackets in original).

                                              14 

No.  65879-4-I/15

v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 203, 15 P.3d 1283 (2001). While the 

question of cause in fact is generally left to the jury, when reasonable minds could 

reach but one conclusion, questions of fact may be determined as a matter of law.  Kim, 

143 Wn.2d at 203.

       Brown concedes that he cannot show that "but for" the statements made by 

Murdoch and the other Chrysalis School staff members to Dr. Hedrick, the trial court 
would have ruled differently in the parenting plan modification proceeding.11  We agree

that Brown cannot establish that the court would have reached a different conclusion in

the parenting modification proceeding but for the statements Murdoch and the other 

Chrysalis School staff members made to Dr. Hedrick as part of the court-ordered 

evaluation.  See also Childs v. Allen, 125 Wn. App. 50, 56, 105 P.3d 411 (2004) (no 

evidence that but for drug and alcohol evaluation, court would have reached different 

decision in dependency action). 

       The unchallenged findings of the trial court establish that Brown engaged in a 

pattern of physical and emotional abuse of the children, as well as an abusive use of 

litigation.  The statements of the Chrysalis School staff that were referred to in the 

report were not mentioned during trial or in the findings that support the decision to 

modify the parenting plan.  At trial, Brown admitted that "the relationship is so damaged 

at this point I feel the kids should see me when they want to," and "these two children 

have lost a relationship with their dad, and it may never -- it may never come back."  
Brown, 2007 WL 4296603, at *3.12  

       11 "It is flatly impossible to say what would have happened 'but for' defendant's false statements."

       12 (Internal quotation marks omitted.)

                                              15 

No.  65879-4-I/16

       But for the first time on appeal, Brown argues that we should apply a "substantial 

factor" test to determine whether evidence in the record establishes causation.  We do 

not consider an issue not argued to the trial court for the first time on appeal.  RAP 

9.12; Sourakli v. Kyriakos, Inc., 144 Wn. App. 501, 509, 182 P.3d 985 (2008).  Under 

RAP 9.12, we will consider "only evidence and issues called to the attention of the trial 

court" in an appeal of an order on summary judgment.  In any event, the substantial 

factor causation test applies only where there is more than one cause and an expert 

witness testifies that it is not possible to determine which factor is the cause.  

Mavroudis v. Pittsburg-Corning Corp., 86 Wn. App. 22, 32, 935 P.2d 684 (1997).  Here, 

the unchallenged record establishes Brown's pattern of physical and emotional abuse, 

as well as an abusive use of conflict, was the basis for the trial court's decision.

Other Claims

       Brown also argues that the court erred in dismissing his claims for intentional

and negligent infliction of emotional distress, and tortious interference with a parent 

child relationship.  

       To prevail on a claim of intentional infliction of emotional distress, a plaintiff must 

prove (1) extreme and outrageous conduct, (2) intentional or reckless infliction of 

emotional distress, and (3) severe emotional distress on the part of the plaintiff.  Robel 

v. Roundup Corp., 148 Wn.2d 35, 51, 59 P.3d 611 (2002).  To establish extreme and 

outrageous conduct, the conduct must go " 'beyond all possible bounds of decency, 

and . . . be regarded as atrocious, and utterly intolerable in a civilized community.' "  
Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975)13 (quoting Restatement 

       13 (Italics omitted.)

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No.  65879-4-I/17

(Second) of Torts § 46 cmt. d (1965)).  In ruling on a motion for summary judgment, the 

trial court must make a threshold determination on whether reasonable minds could 

differ on whether the conduct was sufficiently extreme and outrageous to result in 

liability.  Robel, 148 Wn.2d at 51. Here, the trial court did not err in concluding that, as 

a matter of law, none of the statements Murdoch or other Chrysalis School staff 

members made to Dr. Hedrick constitute outrageous conduct.

       Likewise, Brown cannot establish negligent infliction of emotional distress or 

tortious interference with a parent-child relationship.  Negligent infliction of emotional 

distress is a limited, judicially created cause of action that allows a family member to 

recover for "foreseeable" intangible injuries caused by viewing a physically injured 

loved one shortly after a traumatic accident.  Colbert v. Moomba Sports, Inc., 163 

Wn.2d 43, 49, 176 P.3d 497 (2008).  

       The elements of tortious interference with a parent child relationship are (1) the 

existence of a family relationship, (2) a wrongful interference with the relationship by a 

third person, (3) an intention on the part of the third person that such wrongful 

interference results in a loss of affection or family association, (4) a causal connection 

between the third parties' conduct and the loss of affection, and (5) that such conduct 

resulted in damages.  Strode v. Gleason, 9 Wn. App. 13, 17-18, 510 P.2d 250 (1973).  

There is no evidence that the statements made by Murdoch caused the breakdown in 

Brown's relationship with A.B.  The record shows that A.B. was estranged from her 

father long before the statements were made. 

Cross Appeal

                                              17 

No.  65879-4-I/18

       Chrysalis School cross appeals the decision denying summary judgment on 

witness immunity.  Chrysalis School argues that as a matter of law, the statements 

made by Murdoch and the other school staff to Dr. Hedrick are protected by the 

doctrine of witness immunity barring civil liability.  

       Witness immunity from civil liability applies to statements made in the course of 

judicial proceedings.  Bruce v. Byrne-Stevens & Assocs. Eng'rs, Inc., 113 Wn.2d 123, 

136, 776 P.2d 666 (1989).  "The purpose of the rule is to preserve the integrity of the 

judicial process by encouraging full and frank testimony. . . . The scope of witness 

immunity is broad."  Bruce, 113 Wn.2d at 126.  Without immunity, witnesses may be 

reluctant to come forward to testify or might distort testimony due to fear of subsequent 

liability.  Deatherage v. Exam'ing Bd. of Psychology, 134 Wn.2d 131, 136-37, 948 P.2d 

828 (1997).

       In Deatherage, our supreme court cites with approval the description of the 

witness immunity doctrine that is set forth in the Restatement (Second) of Torts section 

588 (1977).

       A witness is absolutely privileged to publish defamatory matter concerning 
       another in communications preliminary to a proposed judicial proceeding 
       or as part of a judicial proceeding in which he is testifying, if it has some 
       relation to the proceeding.

Deatherage, 134 Wn.2d at 135 (quoting Restatement (Second) of Torts § 588).

       Case law establishes that guardians, therapists, and attorneys who submit 

reports to family court are absolutely immune.  Bruce, 113 Wn.2d at 127.  Further, 

statements do not need to be made under oath or in a courtroom to be protected by 

absolute immunity.  " 'The privilege or immunity is not limited to what a person may say 

                                              18 

No.  65879-4-I/19

under oath while on the witness stand.  It extends to statements or communications in 

connection with a judicial proceeding.' "  Bruce, 113 Wn.2d at 136 (quoting Middlesex 

Concrete Prods. & Excavating Corp. v. Carteret Indus. Ass'n, 68 N.J. Super. 85, 92 

(1961).  Witness reliability is ensured by his or her oath, the hazard of cross-

examination, and the threat of prosecution for perjury.  Bruce, 113 Wn.2d at 126.  The 

court reasoned that the safeguards of the judicial proceeding were sufficient, even 

when applied to preliminary reports.  Bruce, 113 Wn.2d at 136.  See also Hill v. J.C. 

Penney, Inc., 70 Wn. App. 225, 238-39, 852 P.2d 1111 (1993) (statements that were 

relevant to the proceedings of an administrative agency acting in a quasi-judicial 

capacity were protected by absolute immunity even though the statements were not 

made in a courtroom under oath).

       Here, the statements of the Chrysalis School staff were made to the court-

appointed parenting evaluator under an order entered in a parenting plan modification 

proceeding. The court order appointing Dr. Hedrick expressly authorized her to obtain 

information from Chrysalis School regarding the pending parenting modification action.

       Former RCW 26.09.220 governs appointment of a parenting evaluator and the 

evaluator's report.  Former RCW 26.09.220(1) and (2) state, in pertinent part:

       (1) The court may order an investigation and report concerning parenting 
       arrangements for the child, or may appoint a guardian ad litem pursuant 
       to RCW 26.12.175, or both.  The investigation and report may be made 
       by the guardian ad litem, the staff of the juvenile court, or other 
       professional social service organization experienced in counseling 
       children and families.
              (2) In preparing the report concerning a child, the investigator may 
       consult any person who may have information about the child and the 
       potential parenting or custodian arrangements.    

                                              19 

No.  65879-4-I/20

       The court expressly authorized Dr. Hedrick to access school records and obtain 

information from school personnel for the parenting plan evaluation.  Under Former 

RCW 26.09.220(3), any person, including the Chrysalis School staff, were subject to 

cross-examination. The statute required Dr. Hedrick to provide Brown with the report, 

the information forming the basis of the report, and "the names and addresses of all 

persons whom the investigator has consulted." Former RCW 26.09.220(3).  Former 

RCW 26.09.220(3) states:

       The investigator shall mail the investigator's report to counsel and to any 
       party not represented by counsel at least ten days prior to the hearing 
       unless a shorter time is ordered by the court for good cause shown. The 
       investigator shall make available to counsel and to any party not 
       represented by counsel the investigator's file of underlying data and 
       reports, complete texts of diagnostic reports made to the investigator 
       pursuant to the provisions of subsection (2) of this section, and the names 
       and addresses of all persons whom the investigator has consulted.  Any 
       party to the proceeding may call the investigator and any person whom 
       the investigator has consulted for cross-examination.  A party may not 
       waive the right of cross-examination prior to the hearing. [14]

       Because the statements Murdoch and the Chrysalis School staff made to Dr. 

Hedrick were in connection with the parenting plan modification proceeding and the 

safeguards were sufficient, we hold that they were entitled to absolute witness immunity

from civil liability.

       We affirm.

WE CONCUR:

       14 (Emphasis added.) 

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No.  65879-4-I/21

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