Appendix — Aylward v. Bamberg

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UNPUBLISHED ORDER

NOT TO BE CITED PER CIRCUIT RULE 53

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

No. 98-2119

ROBERT W.AYLWARD, - - - _ Plaintiff-Appellant,

VU.

CLAIRE W. BAMBERG, - - ~-_ Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana,

Indianapolis Division

Larry J. McKinney, Judge

ORDER—Argued December 7, 1998

Decided July 6, 1999

BEFORE: Hon. Joun L. Correy, Circuit Judge, Hon. JoEt M.

FLaum, Circuit Judge, Hon. TERENCE T. Evans, Circuit Judge.

On August 14, 1992, Claire Bamberg (“Bamberg”) re-

ported to military authorities at Fort Benning, Georgia

she suspected Robert Aylward’s (“Aylward”) children were

being sexually abused. Almost two years later, Aylward,

an Army Sergeant at Fort Benning, filed a complaint in

federal court against Bamberg claiming the telephone call

amounted to defamation.! On October 24, 1995, Bamberg

filed a motion to seal Certain documents she wanted to

1 On September 29, 1994, Bamberg filed a counterclaim for

abuse of process. As of the date of this appeal, that claim was

still pending in the district court.

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submit in support of her motion for partial Summary judg-

ment. The next day, the district court granted the motion,

and on October 30, 1995, Aylward filed an objection to the

motion to seal. The two parties then filed a barrage of

motions attempting to strike numerous portions of the oth-

ers’ motions. The district court denied each of these and,

on June 28, 1996, granted Bamberg summary judgment on

the defamation claim.

Aylward now appeals, arguing that: I) if Bamberg had

a duty to report the alleged abuse, she should have re-

ported it to the authorities in Indiana, not Fort Benning;

2) the district court abused its discretion by sealing certain

documents from Aylward; and 3) the district court commit-

ted error in granting Bamberg summary judgment because

there existed genuine issues of material fact. We affirm.

Bamberg is a pastoral counselor employed at the Mount

Gilead Counseling Center in Indianapolis, Indiana.’ In

September 1991, Aylward’s former spouse, Julie Wisley

(“Wisley”), sought counseling from Bamberg.’ As a result

of these sessions, Bamberg became convinced that Wisley

had been subjected to various forms of abuse during the

course of her marriage to Aylward.

In February 1992, Bamberg also began to provide coun-

seling for Aylward’s and Wisley’s children: Rachel, who

was age 9 at the time; Benjamin, who was also 9; Faythe,

who was 7; and Sara, who was 2. After five months of

counseling, Bamberg prepared a Case Summary detailing

her findings regarding the children.

With regard to Rachel, the report noted that a medical

exam at the Wishard Hospital‘ revealed an irregular shape

2 Bamberg holds herself out to be a psychotherapist, even

though she is not certified with any state in that capacity.

3 At all times relevant to this appeal, Aylward and Wisley

were in the middle of a “bitter” divorce.

4 The record is silent as to when the exams at Wishard were

conducted.

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to the hymen and apparent scar tissue both vaginally and

rectally. When Bamberg combined this information with

her own observations, she concluded that it was “highly

probable” that Rachel had been a victim of sexual abuse.

With regard to Benjamin, the Wishard report also noted

rectal scarring. There were also other indicators of abuse,

including Benjamin being unusually thin, angry, abusive

in a way different from sibling rivalry, and vocal about not

wanting to spend time with his father. Bamberg concluded

that it was also likely that Benjamin was being abused.

Faythe was slender, withdrawn, “clingy,” and agitated.

Additionally, she presented the most prevalent clinical

symptoms of abuse of any of the four children. The exam-

ining physician at Wishard, although stating that the find-

ings should not be used in isolation, concluded that sexual

abuse was probable. The Wishard report noted oozing, thick-

ened, attenuated hymenal tissue; labial separation; and an

anal tear and fissure. Understandably, Bamberg was con-

cerned for Faythe’s well-being.

With regard to Sara, Bamberg initially believed her to

be a well adjusted two-year-old. Bamberg’s impression

changed, however, after Sara’s first week-long visit with

her father. Bamberg’s report noted that Wisley had in-

formed her that Sara would scratch and dig at herself

following a visit to her father’s residence. While Bamberg

recognized that there were innocent explanations for Sara’s

behavior, she believed, given her assessment of the overall

family situation, that the more likely explanation was

abuse.

Over the next 10 weeks, Bamberg noted a steady de-

generation in the children’s behavior. After speaking with

Marilyn Hartman (“Hartman”), who represented Wisley in

her divorce and custody proceedings, about her concerns

regarding possible abuse, Bamberg was informed (by

Hartman) that she had a legal obligation to report her

suspicions to the proper authorities at Fort Benning. She

did so, telephoning Sergeant Frederick Robinson of the

United States Army.

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After confirming that Sergeant Robinson was the proper

person to report abuse to, Bamberg informed him that she

was aware of a situation involving four children whom she

believed were the victims of abuse.® She then identified

Aylward and Wisley as the parents of the four children. At

no time did she state that it was Aylward who was abus-

ing the children.

In Aylward’s federal suit, he claimed that the telephone

call Bamberg made to the military police constituted defa-

mation. Barnberg replied that Indiana law required her to

make the report and provided her with a cloak of immu-

nity. Given the obviously sensitive nature of the proceed-

ings and concerned about her potential liability for ille-

gally revealing information obtained during the course of

her counseling sessions with Wisley and the children,

Bamberg filed for permission to submit her motion for sum-

mary judgment and brief in support under seal. The dis-

trict court granted the motion to seal the documents but

allowed Aylward’s counsel to view them.® Aylward objected,

claiming that it was “unfair” and that the seal prevented

him from meaningfully participating in the prosecution and

defense of his case.

The district court disagreed with Aylward and denied

his objection to the sealed documents. After carefully re-

viewing the materials set forth in Bamberg’s motion for

summary judgement and Aylward’s response, the court

granted summary judgment to Bamberg on the defamation ‘

claim. Aylward appeals.

5 There is some dispute as to whether Bamberg identified

herself as a member of the organization known as the Alliance

for the Rights of Children. Robinson’s notes of the telephone call

indicate that Bamberg did so— a point which Bamberg denies.

The resolution of this factual dispute is not, however, necessary

to resolve this appeal.

6 Aylward was prevented from viewing the documents and

Aylward’s counsel was prevented from discussing them with his

client.

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On appeal, Aylward argues that: 1) if Bamberg had a

duty to report the alleged abuse, she was required to re-

port it to the authorities in Indiana, not Fort Benning; 2)

the district court abused its discretion by sealing certain

evidence from Aylward; and 3) the district court errone-

ously granted Bamberg summary judgment because there

existed genuine issues of material fact.

In order to protect children, Indiana, like other states,

has adopted measures seeking to uncover instances of child

abuse.’ The compelling interest of the state reflects char-

acteristics special to abused children: they are often un-

aware of their own abuse or injury; they may be unable to

report abuse because of their age or fear of retaliation;

frequently the effects of abuse may be difficult for third

parties to detect; abused children can and often do carry

physical and emotional scars for a lifetime; and of course

the state bears a special responsibility to protect children

who have limited abilities to choose their own course of

action. See generally Mary M. Huryley, Duties in Conflict:

Must Psychotherapists Report Child Abuse Inflicted by Cli-

ents and Confided in Therapy?. 22 San Diego L. Rev. 645

7 Some examples from other states include: Ariz. Rev. Stat. §

13-3620 (1998); Ark. Code Ann. § 12-12-504 (Michie 1998); Cal.

Penal Code §§ 11166, 11172 (West 1998); Conn. Gen. Stat. Ann §

17a-101 (West 1998); Fla. Stat. Ann. §§ 415.502 to 415.514 (West

1998); Ga. Code Ann. § 19-7-5 (1998); Idaho Code § 16-1619( 1998);

325 Ill. Comp. Stat. Ann. 5/4 (West 1998); Iowa Code Ann. §§

232.68 to 232.77 (West 1998); Ky. Rev. Stat. Ann. §§ 620.030,

620.040, 620.050 (Banks-Baldwin 1998); La. Rev. Stat. Ann §

14:403 (West 1998); Mass. Gen. Laws Ann. ch. 119, § 51A (West

1998); Mich. Comp. Laws Ann. § 722.633 et seg. (West 1998);

Minn. Stat. Ann. § 626.556 (West 1998); Mo. Ann. Stat. § 210.115

(West 1998); N.J. Stat. Ann. § 9:6-8.8 et seq. (West 1998); Okl.

Stat. Ann. tit. 10, § 7103 (West 1998); Tenn. Code Ann. § 37-1-

401 et seq. (1998); Wash Rev. Code Ann. § 26.44.030 (West 1998);

W. Va. Code § 49-6A-1 et seq. (1998); Wis. Stat. Ann § 48 981

(West 1998).

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(1985); Frederica K. Lombard, et al., Identifying the Abused

Child: A Study of Reporting Practices of Teachers, 63 U.

Det. Mercy L. Rev. 657 (1 986); Mary Harter Mitchell,

Must Clergy Tell? Child Abuse Reporting Requirements Ver-

sus the Clergy Privilege and Free Exercise of Religion, 71

Minn. L. Rev. 723 (1987).

In Indiana, “an individual who has reason to believe ;

that a child is a victim of child abuse or neglect shall make

a report.” Ind. Code § 31-33-5-1 (1998) (emphasis added).

This duty to report is absolute and applies to all persons.

See Devore v. State 658 N.E.2d 657, 658 (Ind. Ct. App.

1995); Daymude v. State 540 N.E.2d 1263, 1265 (Ind. Ct.

App. 1989). Accordingly, Bamberg, a resident of the state

of Indiana, had an affirmative duty to report her suspi-

cions to the proper authorities if she had a “reason to

believe” that the children were being abused.

Reason to believe is defined as “evidence that, if pre-

sented to individuals of similar background and training,

would cause the individuals to believe that a child was

abused or neglected.” Ind. Code § 31-9-2-101(1998). More-

over, Indiana law provides immunity to individuals who

report child abuse or neglect. According to the Indiana

Code:

Except as provided in section 2 [IC § 31-33-6-2) of this

chapter, a person, other than a person accused of child

abuse or neglect, who:

(1) makes or causes to be made a report of a child who h

may be a victim of child abuse or neglect; ef

(2) is a health care provider and detains a child for /

purposes of causing photographs, x-rays, or a physical

medical examination to be made under IC 31-33-10;

(3) makes any other report of a child who may be a

victim of child abuse and neglect; or

(4) participates in any judicial proceeding or other pro-

ceeding:

(A) resulting from a report that a child may be a vic-

tim of child abuse or neglect; or

(B) relating to the subject matter of the report;

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is immune from any civil or criminal liability that

might otherwise be imposed because of such actions.

Id. at § 31-33-6-1 (emphasis added). The exception in the

statute provides that “[i)mmunity does not attach for a

person who has acted maliciously or in bad faith.” Id. at §

31-33-6-2. However, “[a] person making a report that a

child may be a victim of child abuse or neglect or assisting

in any requirement of this article is presumed to have

acted in good faith.” Id. at § 3 1-33-6-3 (emphasis added).

Thus, according to these statutes, Bamberg was required

to report her suspicions to the proper authorities if she

had “reason to believe” the children were suffering from

abuse, and she is immune from civil liability for her action

unless she acted “maliciously or in bad faith.”

Aylward’s first contention on appeal is that Bamberg

acted in bad faith because she reported the suspected abuse

to the authorities at Fort Benning instead of the authori-

ties in Monroe County, Indiana. It is, of course, “axiomatic

that an issue not first presented to the district court may

not be raised before the appellate court as a ground for

reversal.” Huntzinger v. Hastings Mut. Ins. Co., 143 F.3d

302, 307 (7th Cir. 1998) (internal quotes omitted). Because

Aylward failed to present this claim to the district court, it

is waived. See id.

In the district court, Bamberg argued that the sensi-

tive nature of the proceedings as well as her desire to

ensure that she protected herself from liability for improp-

erly divulging information obtained during the course of

her counseling Wisley justified sealing her motion for sum-

mary judgment.* Aylward responded, as he does in this

8 Although we understand the sensitive nature of these pro-

ceedings, Bamberg’s concern with liability may have been mis-

placed. Her lack of any official certification as a psychotherapist

makes this court suspicious of any claim to the psychotherapist-

patient relationship as enumerated in Jaffee v. Redmond, 518

U.S. 1, 9-11 (1996). And although Bamberg is a member of the

clergy, the record does not support the conclusion that Wisley

approached her with the necessary penitence for the clergy-peni-

tent privilege to apply. See United States v. Dube, 820 F.2d 886,

889 (7th Cir. 1987). The resolution of this issue, however, is not

necessary for the disposition of this appeal.

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court, that even though his counsel was permitted to view

the documents, his prohibition from seeing them or dis-

cussing them with counsel was “unfair” and prevented him

from meaningfully contributing to the prosecution and de-

fense of his case.? The district court’s decision to seal

Bamberg’s motion for summary judgment and accompany-

ing brief in support is reviewed for an abuse of discretion.

See Cusack v. Bank United of Texas FSB 159 F.3d 1040,

1042 (7th Cir. 1998).

A decision to seal the record will occasionally be neces-

sary to promote the interests of justice. See Grove Fresh

Distrib., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th

Cir. 1994) (seal only appropriate where necessary to pre-

serve higher values); In re Continental Ill. Sec. Litig., 732

F.2d 1302, 1314 (7th Cir. 1984) (seal appropriate only in

an exceptional circumstance). Within this vein, courts have

long recognized the need to protect the physical and psy-

chological well-being of child abuse victims in judicial pro-

ceedings, and a variety of measures have been used to

ameliorate the harsh consequences associated with child

abuse cases. See e.g. Maryland v. Craig, 497 U.S. 836, 843

(1990) (child testified over one-way closed circuit television

outside the presence of the parties); United States v. Car-

rier, 9 F.3d 867, 869 (10th Cir. 1993) (child testified over

two-way closed circuit television in the presence of the

attorneys); United States v. Garcia, 7 F.3d 885, 887 (9th

Cir. 1993) (child testified over two-way closed circuit tele-

vision outside the presence of the defendant); Thomas v.

Gunter, 962 F.2d 1477, 1480 (10th Cir. 1992) (child video- -

taped at treatment center in the presence of her therapist

and an investigator selected by the defendant); Spigarolo

9 We reiterate that Aylward’s counsel was provided full ac-

cess to the documents and, in fact, filed a detailed response to

the summary judgment motion.

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v. Meachum. 934 F.2d 19, 21 (2d Cir. 1991) (child video-

taped in the presence of the attorneys and judge); Arcaris

v. Superior Court, 774 P.2d 837, 839 (Ariz. Ct. App. 1989)

(mother allowed to be present during child’s deposition);

Otteson v. District Court, 443 N.W.2d 726, 727 (Iowa Ct.

App. 1989) (defendant separated from child by one-way

mirror). We are of the opinion that these cases strike an

appropriate balance between the need to provide a sup-

portive environment for the child witness and the

defendant’s right to a fair trial. In light of the extraordi-

nary measures courts are willing to go to protect a child’s

interest in criminal cases, where the stakes are much

higher, we refuse to hold that the district court abused his

discretion by sealing Bamberg’s motion for summary judg-

ment in a civil case.

Aylward challenges the grant of summary judgment to

Bamberg on his defamation claim. He argues that the ex-

istence of certain disputed, material facts as to whether

Bamberg acted maliciously or in bad faith precluded the

grant of summary judgement. “We review the trial court’s

grant of summary judgment de novo, reviewing the record

in the light most favorable to the non-moving party.

Aberman v. Abouchar & Sons. Inc., 160 F.3d 1148, 1150

(7th Cir. 1998) (citing Thomas v. Ramos, 130 F.3d 754, 759

(7th Cir. 1997)) (emphasis in original). The grant of

“[slummary judgment is appropriate only ‘if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the mov-

ing party is entitled to a judgment as a matter of law.” ”

Huntzinger, 143 F.3d at 306-07 (quoting Fed. R. Civ.

P.56(c)). After reviewing the record, we are of the opinion

that Aylward failed to meet his burden of rebutting

Indiana’s presumption of good faith when Bamberg reported

her suspicions that the children may be the victims of

abuse to the authorities at Fort Benning. In fact, from our

review of the record, we are convinced that Bamberg had

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good reason to believe that the children had recently been

subjected to abuse. '°

For example, therapy sessions with Wisley led Bamberg

to opine that Wisley was subjected to mental, emotional,

physical, as well as sexual abuse during her marriage.

While this information does not relate directly to the con-

dition of the children, it does suggest an atmosphere con-

ducive to abuse.

More importantly, Bamberg began counseling the four

children in early 1992. In a report dated June 2, 1992,

Bamberg documented her findings regarding the children,

relying on her own observations and medical reports pre-

pared at the Wishard Hospital. As previously stated, these

reports noted that each of the three oldest children exhib-

ited genital and/or rectal abnormalities."'

A variety of clinical indicators also suggested a high

probability of abuse. Though other possible explanations

for some of these indicators existed, answers obtained from

Wisely convinced Bamberg that explanations other than

abuse were unlikely. Additionally, Bamberg assessed the

children’s behavior and attitudes through the Sex Abuse

Legitimacy Schedule, a test applied to differentiate between

legitimate and illegitimate claims of abuse. According to

Bamberg, the test results for all four children strongly

suggested abuse.

‘0 We are aware that the record contains information which

supperts the proposition that the children were not actually

abused. Most of this information, however, was unavailable to

Bamberg and Indiana requires that Bamberg inform the au-

thorities as soon as she has “reason to believe,” not when she is

absolutely certain, child abuse is occurring.

'! Regarding Rachel and Faythe, the reports indicated that

the physical findings would support allegations of sexual abuse

but, in isolation, did not prove such abuse occurred. Regarding

Benjamin, the reports indicated that the physical findings would

neither support nor negate concerns of sexual abuse.

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There was also other information which supported

Bamberg’s conclusion that the children were being abused.

For example, Wisley gave Bamberg verbal updates about

the children, a well as notes and journal entries chroni-

cling the children’s behavior. Wisley also produced audio

tapes of the children’s conversations with her and with

each other. Bamberg reviewed all these materials before

reporting the suspected abuse. Additionally, Bamberg re-

viewed a Monroe County (Indiana) Circuit Court Juvenile

Division caseworker’s reports, dated September 26, 1990,

and a letter from the Charter Counseling Center, dated

January 21, 1991, which contained further evidence strongly

suggesting abuse.

On July 1, 1992, Bamberg prepared another report con-

cerning the children’s condition, stating that they appeared

to be suffering from “increased difficulties.” The report noted

particular degeneration of Faythe, Rachel, and Sara, as

well as an increase in Benjamin’s anger; all of which

Bamberg found to be clinically significant.

In mid-August, Bamberg spoke with Hartman, Wisley’s

divorce attorney, and indicated to Hartman that she had

observed a recent deterioration in the children’s behavior.

Hartman, in turn, informed Bamberg that if she believed

any abuse was present she (Bamberg) had a legal duty to

report the information to the proper authorities. It was

only after this that Bamberg called the military police at

Fort Benning and reported her suspicions to Sergeant

Robinson. Based upon all this information, Bamberg had

more than a sufficient reason to believe the four children

were victims of child abuse.

As stated previously, Indiana law provides civil immu-

nity for an individual who reports her suspicions of child

abuse or neglect unless the person “acted maliciously or in

bad faith.” Ind. Code § 31-33-6-2. Moreover, the statute

specifically provides that good faith is to be presumed. See

id, at § 31-33-6-3; see also Kinder v. Doe, 540 N.E.2d 111,

115 (Ind. Ct. App. 1989) (“In balancing the policies [of

encouraging reports of suspected abuse versus discourag-

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ing reports made maliciously or in bad faith] the (Indiana]

legislature has tipped the balance in favor of encouraging

reports by providing that reporters will be presumed to

have acted in good faith.”). Therefore, we, like the district

court did, begin with the presumption that Bamberg acted

in good faith when she reported her suspicions of child

abuse to the military police at Fort Benning.

The only portion of the record which could be used to

support Aylward’s assertion that Bamberg acted in bad

faith comes in the form of his own affidavit, which states:

18. He [Aylward) believes that the report of

sexual abuse by [Bamberg] to the military authorities

at Ft. Benning . . . was done with actual malice, ill-

will, and in bad faith because it was done in concert

with others around this time, such as the Alliance for

the Rights of Children, Kitty Kruse, Leorna Rosen,

Mitchelle Etlin, and others to damage his reputation

with the military and to circumvent the decision of

the Monroe Circuit Court with the intent to take cus-

tody of his children from him, she had no personal

knowledge of the allegations she made against him,

the children made no such allegations to her during

her last telephone therapy session, and that she was

acted [sic] as agent on behalf of her client, [Wisley],

whose malice, ill-will, and bad faith were acted out

through [Bamberg], whose recommendations had been

rejected by the Monroe Circuit Court.

Unfortunately for Aylward, the facts described in his affi-

davit fail to make the necessary showing that Bamberg

acted from any improper motive. Aylward never attaches

any legal significance to his claims that Bamberg acted in

concert with others nor did he substantiate his allegation

that these individuals acted to circumvent the Monroe Cir-

cuit Court’s decision regarding custody or to damage his

reputation. The challenge regarding Bamberg’s lack of per-

sonal knowledge also fails to imply any impropriety. Indi-

ana law does not require personal knowledge and his affi-

davit does not dispute the numerous other sources Bamberg

considered before reaching her conclusions. Similarly,

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Aylward’s claim that Bamberg acted as Wisley’s agent is

mere speculation.

Paragraph 18 contains nothing more than conclusory

language and such language does not preclude summary

judgement. See Jackson v. E.J. Branch Corp., No. 97-3940,

1999 WL 274546, at *11 (7th Cir. May 5, 1999) (“These

assertions without factual support are simply not enough

to overcome [Aylward’s] burden. Even though it is true,

because this case comes before us on a summary judgment

motion, that we will construe the facts and draw infer-

ences in the manner most favorable to the nonmoving party,

it is equally axiomatic that a plaintiffs conclusory state-

ments do not create an issue of fact.”).

Indiana law mandated that Bamberg report her suspi-

cions to the proper authorities. It also directs that we pre-

sume she acted in good faith in making the report. Be-

cause Aylward never adequately rebutted this presumption,

the decision of the district court is

AFFIRMED.

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UNITED STATES DISTRICT COURT |

SOUTHERN DISTRICT OF INDIANA |

INDIANAPOLIS DIVISION |

Cause No. IP 94-0705 M/S |

ROBERT W. AYLWARD, - - - - ~- Plaintiff,

v.

CLAIRE W. BAMBERG, - - - - ~- _ Defendant.

ORDER ON DEFENDANT’S MOTION FOR |

PARTIAL SUMMARY JUDGMENT |

In the present dispute, Plaintiff Robert W. Aylward

(“Aylward”) has raised a defamation claim against Defen-

dant, Claire W. Bamberg (“Bamberg”). Essentially, Ay!ward

has alleged that Bamberg committed slander under Indi-

ana law when she reported to the military police in Fort

Benning, Georgia, that Aylward’s children may have been )

abused. Bamberg has responded that Indiana law not only |

required her to make this report but also shields her with ,

immunity for having done so. Consequently, Bamberg has

filed a Motion for Partial summary Judgment on Aylward’s

defamation claim. for reasons sets forth fully below, this

Court now GRANTS this Motion for Summary Judgment.

The standards for summary judgment have been fre-

quently recited by this Court and are no doubt familiar to

the parties. According to Rule 56(c) of the Federal Rules of

Civil Procedure, summary judgment “shall be rendered

forthwith if the pleadings, depositions, answers to inter-

rogatories, and admissions on file, together with the affi-

davits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

a judgment as a matter of law.” When this standard has

been met, summary judgment is mandatory. Celotex Corp.

v. Catrett, 477 U.S. 317, 322-23 (1986); Shields Enters.,

ee

15a

Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir.

1992). The mere existence of a factual dispute, by itself, is

aot sufficient to bar summary judgment. Rather, the dis-

puted facts must be outcome determinative. Anderson v.

Liberty Lobby. Inc., 477 U.S. 242, 248 (1986); Schroeder v.

Barth, 969 F.2d 421, 423 (7th Cir. 1992). Only factual dis-

putes that might affect the outcome of the suit in light of

the substantive law will preclude summary judgment.

Anderson, 477 U.S. at 248. Moreover, “ ‘self-serving affida-

vits without factual support in the record will not defeat a

motion for summary judgment.’ ” Darnell v. Target Stores,

16 F.3d 174, 177 (7th Cir. 1994) (quoting Slowiak v. Land

O'Lakes. Inc., 987 F.2d 1293, 1295 (7th Cir. 1993)).

In the present case, the parties do not dispute certain

principal facts. Bamberg is a pastoral counselor and psy-

chotherapist employed at Mount Gilead Counseling Cen-

ter. Claire Bamberg Aff. (“Bamberg Aff.”), | 2. In Septem-

ber, 1991, Bamberg first met Julie Wisley (“Wisley”), who

was Aylward’s former spouse, and Bamberg and Wisley

entered into a counseling relationship. Bamberg Aff., ] 3.

Beginning in February, 1992, Bamberg also provided coun-

seling for the four children of Aylward and Wisley: Rachel,

Benjamin, Faythe, and Sara. Barnberg Aff., 7 10, Att. A.

This gave Bamberg the opportunity to talk with and to

observe the children. Based upon her observations, discus-

sions with the children and their mother, and certain clini-

cal reports, Bamberg concluded that it was highly prob-

able the children had been abused by someone. Bamberg

Aff., 9] 11-15, 16-17. Accordingly, on August 15, 1992,

Bamberg telephoned the military police at Fort Benning,

Georgia—where Aylward was stationed at the time—to re-

port her suspicion of child abuse. Bamberg Aff., {9 19-21.

Aylward now contends that this telephone call to the

military police constituted defamation; Bamberg counters

that Indiana law required her to make the report and pro-

vides her with a cloak of immunity. Section 31-6-11-3 of

the Indiana Code unambiguously states that “any indi-

vidual who has reason to believe that a child is a victim of

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child abuse or neglect shall make a report as required by

this chapter.” (emphasis added). See also Devorev. State,

658 N.E.2d 657, 658 (Ind. Ct. App. 1995) (emphasizing

that everyone has a duty to report suspected child abuse);

Daymude v. State, 540 N.E.2d 1263, 1265 (Ind. Ct. App.

1989) (noting that duty to report applies even when infor-

mation received through the course of confidential commu-

nications). This chapter defines “reason to believe” to mean

“evidence that, if presented to individuals of similar back-

ground and training, would cause those individuals to be-

lieve that a child was abused or neglected.” Ind. Code § 31-

6-11-2.1. Moreover, under certain circumstances, Indiana

law does provide immunity to individuals who report child

abuse or neglect. According to § 31-6-11-7,

[a] person, other than a person accused of child abuse

or neglect, who . . . makes or causes to be made a

report of a child who may be a victim of child abuse or

neglect . . . is immune from any civil or criminal li-

ability that might otherwise be imposed because of

such actions. However, immunity does not attach for

any person who has acted maliciously or in bad faith.

A person making a report that a child may be a victim

of child abuse or neglect or assisting in any require-

ment of this chapter is presumed to have acted in

good faith.

According to these statutes, Indiana law required Bamberg

to make a report if she had “reason to believe” the children

were suffering from abuse. Moreover, she is immune from

civil liability for her action unless she acted “maliciously or

in bad faith.”

The evidence presently before this Court indicates that

Bamberg had reason to believe the children may be suffer-

ing from abuse. For example, through therapy sessions

with Wisley, Bamberg learned of several abusive incidents

during Wisley’s relationship with Aylward. Bamberg Aff.,

{{ 6-9. Based upon descriptions of these incidents, Bamberg

believes Wisley was subjected to mental, emotional, physi-

cal, and sexual abuse during her marriage to Aylward.

Bamberg Aff., { 9. While this information does not relate

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directly to the condition of the children, it does suggest an

atmosphere conducive to abuse.

More importantly, Bamberg began counseling sessions

with the four Aylward children in early 1992. Bamberg

Aff., | 10, Att. A. In a report dated June 2, 1992, Bamberg

documented her findings regarding the four children.

Bamberg Aff., 7 10, Att. A. In reaching her conclusions,

Bamberg relied upon her own observations as well as medi-

cal reports prepared at Wishard Hospital. Bamberg Aff.,

10, Att. A. While the specific details of these medical re-

ports shall not be repeated here, it is highly significant

that the reports state that each of the children exhibited

genital and/or rectal abnormalities. Bamberg Aff., {4 11-

14, Atts. A, D. Regarding Rachel and Faythe, the Wishard

reports indicate that the physical findings would support

allegations of sexual abuse but, in isolation, did not prove

such abuse occurred. Bamberg Aff., Att. D. Regarding Ben-

jamin and Sara, the reports indicate that the physical find-

ings would neither support nor negate concerns of sexual

abuse. Bamberg Aff., Att. D.

Bamberg also noted that various clinical indicators in-

dicated a high probability of abuse. Bamberg Aff., {4 11-

14, Att. A. Although Bamberg also explored other possible

explanations for some of these abnormalities, answers ob-

tained from Wisley made explanations other than abuse

unlikely. Bamberg Aff., 4 11. In addition, Bamberg as-

sessed the children’s behavior and attitudes through the

Sex Abuse Legitimacy Schedule, a test applied to differen-

tiate between legitimate and illegitimate claims of abuse.

Bamberg Aff., 9 15, Atts. A, B. According to Bamberg’s

report, the test results for all four children strongly sug-

gested sexual abuse. Bamberg Aff., J 15, Atts. A, B.

Other information known by Bamberg at that time also

supported her conclusion that the children may have been

abused. Bamberg Aff., Att. D. For example, Wisley gave

Bamberg verbal updates about the children—as well as

notes and journal entries chronicling the children’s behav-

ior and audio tapes of children’s conversations with her

18a

and with each other. Bamberg Aff., 4 23. Bamberg also

reviewed a caseworker’s report dated September 26, 1990,

which contained further evidence strongly suggesting abuse.

Bamberg Aff., Att. D.

In late July of 1992, Bamberg prepared another report

to the court concerning the children’s condition. Bamberg

Aff., @ 16, Att. C. This report, dated July 31, 1992, noted

that the children appeared to suffer from increasing diffi-

culties. Bamberg Aff., Att. C. In July and August, Bamberg

noted particular degeneration of Faythe, Rachel, and Sara—

as well as an increase in Benjamin’s anger. Bamberg Aff.,

{| 17. Bamberg found these changes clinically significant.

Bamberg Aff., ¥ 17.

On August 14, Bamberg spoke on the telephone with

Marilyn Hartman, who represented Wisley in the ongoing

divorce and custody proceedings between Wisley and

Aylward. Bamberg Aff., { 18. When Bamberg indicated to

Hartman that she had observed a recent degeneration in

the children’s behavior, Hartman responded that Bamberg

had a legal obligation to report that information to the

proper authorities at Fort Benning in Georgia. Bamberg

Aff., 7 18. The following day, Bamberg telephoned the mili-

tary police at Fort Benning—whom she believed to be the

proper agency to receive this report of suspicion of child

abuse—and spoke to Sergeant Frederick Robinson (“Ser-

geant Robinson”) of the United States Army. Bamberg Aff.,

{{ 19-20. After Sergeant Robinson indicated he was the

proper person to take a report of suspicion of abuse,

Bamberg informed him that she had become aware of facts

that led her to suspect that Aylward and Wisley’s children

may be suffering from abuse and that she believed the

children should be examined. Bamberg Aff., 4 20, 21.

Sergeant Robinson stated that he would take care of this

examination. Bamberg Aff., 4] 21.

When taken together, this evidence seems to present a

strong likelihood that the Benjamin, Rachel, Faythe, and

Sara may have been subjected to abuse or neglect. In fact,

Bamberg had more than her own observations to support

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19a

her suspicion. She reviewed medical reports indicating cer-

tain physical abnormalities. She noted that various clini-

cal indicators and tests suggested abuse. In addition, she

believed that various forms of abuse may have been present

during Wisley’s marriage to Aylward. Based upon all this

information, it appears plain that Bamberg had reason to

believe the four children were victims of child abuse. Con-

sequently, Indiana law placed an affirmative duty upon

Bamberg to report her suspicions to the proper legal au-

thorities.

As stated previously, Indiana law provides civil immu-

nity for an individual who reports her suspicion of child

abuse or neglect unless the person “acted maliciously or in

bad faith.” Ind. Code § 31-6-11-7. Moreover, the statute

specifically provides that “[a] person making a report that

a child may be a victim of child abuse or neglect or assist-

ing in any requirement of this chapter is presumed to have

acted in good faith.” Jd.; see also Burrell v. Meads, 540

N.E.2d 111, 115 (Ind. Ct. App. 1989) (“In balancing the

policies [of encouraging reports of suspected abuse versus

discouraging reports made maliciously or in bad faith] the

legislature has tipped the balance in favor of encouraging

reports by providing that reporters will be presumed to

have acted in good faith.”). Therefore, this Court must pre-

sume that Bamberg acted in good faith when she reported

her suspicions to the military police.

Stated simply, Aylward has not presented evidence suf-

ficient to rebut this presumption. The only evidence even

remotely pertinent to this issue comes in Aylward’s own

affidavit, which provides as follows:

18. He [Aylward] believes that the report of

sexual abuse by Claire W. Bamberg to the military

authorities at Ft. Benning, Georgia on August 15, 1992,

was done with actual malice, ill-will, and in bad faith

because it was done in concert with others around

this time, such as the Alliance for the Rights of Chil-

dren, Kitty Kruse, Leorna Rosen, Mitchelle Etlin, and

others to damage his reputation with the military and

to circumvent the decision of the Monroe Circuit Court

20a

with the intent to take custody of his children from

him, she had no personal knowledge of the allegations

she made against him, the children made no such

allegations to her during her last telephone therapy

session, and that she was acted as agent on behalf of

her client, Julie Wisley, whose malice, ill-will, and

bad faith were acted out through Claire W. Bamberg,

whose recommendations had been rejected by the Mon-

roe Circuit Court.

Robert Aylward Aff., 4] 18. The facts described by Aylward

fail to suggest that Bamberg acted from any improper mo-

tive. Aylward has not ascribed any legal significance to his

assertion that Bamberg acted in concert with others nor

has he substantiated his allegation that these individuals

acted to circumvent the Monroe Circuit Court’s decision

regarding custody or to damage his reputation. The chal-

lenge to Bamberg’s personal knowledge does not imply any

impropriety-especially given the broad range of sources

Bamberg considered in reaching her conclusions. The sug-

gestion that Bamberg acted to implement Wisley’s private

agenda appears to be nothing more than speculation with-

out any factual support. This paragraph contains nothing

more than conclusory allegations of malice, ill-will, and

bad faith; such conclusory language in an affidavit does

not preclude summary judgment.

Indiana law directs that this Court must presume

Bamberg acted in good faith when she reported her suspi-

cions to the military police in Georgia. Nothing in the

present record has rebutted this presumption. Accordingly,

Bamberg is entitled to statutory immunity for her action,

and summary judgment on Aylward’s defamation claim

must be GRANTED in her favor.

IT ISSO ORDERED this 28th day of June, 1996.

/s/_ Larry J. McKinney

Larry J. McKinney, Judge

United States District Court

Southern District of Indiana

2la

Distribution To:

Alphonso Manns

Manns & Manns

Post Office Box 1914

Bloomington, IN 47402-1914

Andrew P. Wirick

Hume Smith Geddes Green & Simmons

54 Monument Circle, Suite 400

Indianapolis, IN 46204

22a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

Cause No. IP94-705-C-M/F

ROBERT W. AYLWARD, - - - -_ ~- _ Plaintiff,

v.

CLAIRE W. BAMBERG, - - - -_ -_ Defendant.

ORDER

Comes now the Court upon the Motion of Defendant

and Counter-Plaintiff, Claire W. Bamberg, to seal her Sub-

mission of Evidentiary Materials in Support of Motion for

Summary Judgment and Memorandum in Support of Mo-

tion for Summary Judgment.

The Court, being duly advised, hereby finds that said

motion is well taken and should be GRANTED. The Court

thereby specifically orders that the tendered evidentiary

materials in support of Defendant Bamberg’s Motion for

Summary Judgment and Memorandum in Support of Mo-

tion for Summary Judgment shall be ordered sealed and

directs the Clerk of this Court to seal such documents and

prohibit their dissemination to any third parties. The Court

further orders that while Mr. Manns is hereby authorized

to open the sealed copy of the evidentiary materials in

support of Motion for Summary Judgment and Memoran-

dum in Support of Motion for Summary Judgment that

have been previously tendered to him, he shall not share

same with any other person and shall specifically not share

same with his client, Plaintiff, Robert W. Aylward. Mr.

Manns is ordered to strictly limit his use of these materi-

als to the presentation and/or defense of the claims raised

in this case. Should either party to this case conclude that

such publication into the unsealed record in this case or

ee ee ee ee

23a

third-party dissemination is necessary to preserve their

rights in this lawsuit or to litigate their position, either at

trial or at some point prior to trial, this Court shall con-

sider such modification of this Order only upon written

motion or consent of both parties.

IT IS SO ORDERED.

Dated: October 25, 1995

/s/_ Larry J. McKinney, Judge

United States District Court

Southern District of Indiana

Distribution To:

Andrew P. Wirick

Hume Smith Geddes Green & Simmons

54 Monument Circle, Suite 400

Indianapolis, IN 46204

Alphonso Manns

Attorney at Law

Post Office Box 1914

Bloomington, IN 47402-1914