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Karen L. v. Alaska Div. of Family and Youth Services (2/6/98), 953 P 2d 871
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
KAREN L., )
) Supreme Court No. S-7528
Appellant, )
) Superior Court Nos.
v. ) 3AN-94-8317 CI and
) 3AN-94-9620 CI
STATE OF ALASKA, DEPARTMENT )
OF HEALTH AND SOCIAL SERVICES,)
DIVISION OF FAMILY AND YOUTH ) O P I N I O N
SERVICES, DEBORAH WING, FAYE )
MOORE, PATRICIA CHAMBERS ) [No. 4943 - February 6, 1998]
MITCHELL, RITA HUTCHENS, AND )
RAY JOHNSON OF DIVISION OF )
FAMILY AND YOUTH SERVICES, )
THE OFFICE OF PUBLIC ADVOCACY,)
BARBARA MALCHICK AND SHIRLEY )
PERRY OF THE OFFICE OF PUBLIC )
ADVOCACY, LANGDON PSYCHIATRIC )
CORP., GREG McCARTHY, M.D., )
and MICHAEL ROSE, Ph.D., )
)
Appellees. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: Karen L., pro se, Anchorage.
Raymond M. Funk, Assistant Attorney General, Fairbanks, and Bruce
M. Botelho, Attorney General, Juneau, for Appellees State of
Alaska, Department of Health and Social Services, Division of
Family and Youth Services, Deborah Wing, Faye Moore, Patricia
Chambers Mitchell, Rita Hutchens and Ray Johnson of Division of
Family and Youth Services, the Office of Public Advocacy, Barbara
Malchick and Shirley Perry of the Office of Public Advocacy. R.
Collin Middleton and Gregory A. Johnson, Middleton & Timme,
Anchorage, for Appellee Greg McCarthy, M.D. David D. Floerchinger
and Harland H. McElhany, DeLisio Moran Geraghty & Zobel, Anchorage,
for Appellee Michael Rose, Ph.D.
Before: Matthews, Eastaugh, and Bryner,
Justices. [Compton, Chief Justice, and Fabe, Justice, not
participating.]
EASTAUGH, Justice.
I. INTRODUCTION
Karen L. sued mental health consultants and State
agencies and employees, claiming their involvement in Child in Need
of Aid (CINA) proceedings involving her son caused her to suffer
emotional distress. The superior court granted summary judgment to
the defendants, holding that the State defendants owed Karen no
duty of care and that quasi-judicial immunity protected the mental
health consultants. Because we agree, we affirm.
II. FACTS AND PROCEEDINGS
The Division of Family and Youth Services (DFYS) took
emergency custody of C.L., Karen's eleven-year-old son, after he
ran away from home in August 1992 and reported his mother for
abuse. [Fn. 1] The superior court found that there was probable
cause to believe that C.L. was a CINA and committed him to DFYS's
temporary custody.
During the temporary custody hearing, C.L. testified that
he wished to be placed with his eighteen-year-old sister, K.L.
Karen adamantly opposed the placement, alleging that K.L. used
drugs and was engaged in an incestuous relationship with C.L.
Karen agreed to temporary placement in the Daniels' foster home.
DFYS placed C.L. at the Daniels' foster home, but he
promptly ran away and told DFYS he would stay only with K.L. After
completing a home study, DFYS gave K.L. a three-month provisional
foster care license and placed C.L. with K.L. Karen continued to
object to placing her son in K.L.'s home. She asserted, among
other things, that there were unsuitable or dangerous persons in
K.L.'s home. The CINA court found that it was in C.L.'s best
interest to continue living with K.L. C.L. remained in K.L.'s
custody.
C.L. was experiencing problems at school in early 1993
and K.L. was having trouble handling him. C.L. returned to his
mother's home in March 1993 with DFYS's permission. DFYS and Karen
agreed in May that legal and physical custody of C.L. would be
returned to Karen. The CINA court approved the agreement in July
1993 and dismissed the CINA case in October.
Karen filed suit in the superior court in 1994 against
the State defendants. [Fn. 2] Although she alleged a variety of
claims, [Fn. 3] in essence she claimed that the State defendants
acted negligently or wrongfully in the CINA case, and caused
psychological and emotional injury to her and C.L. [Fn. 4] Karen
filed a separate lawsuit against Dr. Greg McCarthy, Langdon
Psychiatric Corporation (Dr. McCarthy's employer), and Dr. Michael
Rose, alleging negligence, medical malpractice, and breach of
fiduciary duty in their evaluations of Karen, C.L., and K.L. [Fn.
5] The two actions were consolidated.
The superior court, Judge Peter A. Michalski presiding,
granted summary judgment to all defendants and dismissed Karen's
claims. Karen appeals.
III. DISCUSSION
A. Standard of Review
We review a grant of summary judgment de novo. Nielson
v. Benton, 903 P.2d 1049, 1052 (Alaska 1995). We "will uphold a
summary judgment only if the record presents no genuine issues of
material fact and 'the moving party was entitled to judgment on the
law applicable to the established facts.'" Newton v. Magill, 872
P.2d 1213, 1215 (Alaska 1994) (citation omitted); Alaska R. Civ. P.
56(c). "The proffered evidence is to be viewed in the light most
favorable to the party opposing the motion." Husky Oil N.P.R.
Operations, Inc. v. Sea Airmotive, Inc., 724 P.2d 531, 533 (Alaska
1986) (citation omitted). The non-moving party is entitled to have
all reasonable inferences of fact drawn in its favor. Newton, 872
P.2d at 1215 (citation omitted).
B. Did the Superior Court Err in Granting Summary Judgment
to the State Defendants?
1. Did the social worker defendants owe Karen a duty
of care?
The superior court ruled that the State defendants were
immune from suit. After Karen moved for reconsideration, the court
also concluded, applying the so-called D.S.W. duty factors, that
the State defendants owed Karen no duty of care, and granted
complete summary judgment to the State defendants. [Fn. 6] Karen
argues that the superior court erred in analyzing those factors.
Karen's claims did not allege that the State defendants
caused her to suffer physical injury or abuse. They alleged
instead that she had suffered psychological and emotional injury or
emotional distress because (1) she and C.L. were subjected to risk
of harm from abuse; (2) C.L. was given inadequate treatment; (3)
she lost filial consortium with her son; or (4) she suffered a loss
of employment. [Fn. 7] She now argues that her emotional distress
was inflicted both intentionally and negligently.
Underlying Karen's various negligence claims against the
"social worker defendants"(the State, DHSS, DFYS, and their
officers and employees, but not OPA and the individual GALs) is the
notion that the State and its employees owed her, as mother of
C.L., an actionable duty of care to protect her from emotional
distress as a result of C.L.'s CINA proceedings. Karen asserts on
appeal that DFYS breached duties it owed her personally when it
negligently investigated K.L.'s suitability as a foster parent for
C.L., negligently placed C.L. with K.L., negligently licensed K.L.
as a temporary foster parent for C.L., and negligently failed to
monitor the placement. She claims that the social worker
defendants negligently allowed C.L. to be exposed to dangerous and
abusive adults living in or visiting K.L.'s homes.
The narrow question is whether the State defendants owed
Karen a duty of care to protect her from emotional distress with
respect to the CINA proceeding. [Fn. 8] This requires us to
determine "whether the defendant owed the plaintiff a duty of care
under the circumstances." Hawks v. State, Dep't of Pub. Safety,
908 P.2d 1013, 1016 (Alaska 1995); Stephens v. State, Dep't of
Revenue, 746 P.2d 908, 910 (Alaska 1987); see also Chizmar v.
Mackie, 896 P.2d 196, 203 (Alaska 1995) (stating that "a
plaintiff's right to recover emotional damages caused by mere
negligence should be limited to those cases where the defendant
owes the plaintiff a preexisting duty").
Because common law is the only potential source of any
actionable duty owed by the social worker defendants to Karen, [Fn.
9] we look to the D.S.W. factors to resolve the duty issue.
Foreseeability of the harm. The foreseeability of the
harm suffered by the plaintiff is often regarded as the most
important D.S.W. factor. R.E. v. State, 878 P.2d 1341, 1346
(Alaska 1994); Division of Corrections v. Neakok, 721 P.2d 1121,
1125 (Alaska 1986). We must therefore decide whether it was
foreseeable that Karen would suffer actionable emotional distress
because of the CINA proceeding.
In another context we have required "'reasonable
foreseeability that the plaintiff-witness would suffer emotional
harm.'" Beck v. State, Dep't of Transp. & Pub. Facilities, 837
P.2d 105, 109 (Alaska 1992) (quoting Tommy's Elbow Room, Inc. v.
Kavorkian, 727 P.2d 1038, 1043 (Alaska 1986)). In Beck we
considered whether it was error to grant summary judgment
dismissing a parent's negligent infliction of emotional distress
(NIED) claim after she saw her seriously injured daughter enter the
hospital on a gurney following an accident. We noted that the
facts were "intermediate"between two prior cases, Mattingly v.
Sheldon Jackson College, 743 P.2d 356 (Alaska 1987), and Tommy's
Elbow Room, Inc. v. Kavorkian, 727 P.2d 1038 (Alaska 1986). In
distinguishing those two cases in Beck, we noted that the father in
Kavorkian was permitted to assert an NIED claim after rushing to
the scene of his daughter's fatal automobile accident and watching
rescuers remove her from the wreckage. See Kavorkian, 727 P.2d at
1040-43. In comparison, we observed that the Mattingly plaintiff
was in Ketchikan when he learned of an accident that had occurred
in Sitka. We found it significant that the plaintiff was a
considerable distance from the accident scene, that the shock of
observing the injured victims did not follow closely on the heels
of the accident, and that he had time to "steel himself"during the
150-mile flight to Sitka. Mattingly, 743 P.2d at 365-66. In Beck,
the mother experienced shock as the result of a sudden sensory
observation of her daughter's traumatic injuries during the
"continuous flow of events in the immediate aftermath of the
accident." It could not be said she had time to "steel herself."
Beck, 837 P.2d at 110-11. We consequently held that it was error
to dismiss Beck's NIED claim. In so ruling, we recognized that
[O]ne who is thrust, either voluntarily or
involuntarily, into such dramatic events and who makes a sudden
sensory observation of the traumatic injuries of a close relative
in the immediate aftermath of the event which produced them is no
less entitled to assert a claim for his or her emotional injuries
than one who actually witnessed the event. By contrast, one who
learns of the injury or death of a loved one, or who observes the
pain and suffering or the injuries only after a considerable period
of time has elapsed since the accident, suffers a harm which, while
foreseeable, policy and reason dictate the law should not regard as
compensable.
Id. at 110-11.
That observation is equally pertinent here. That a
parent may foreseeably suffer some distress as a result of concerns
about the placement and treatment of her child is not alone
sufficient to establish the existence of a duty. The
foreseeability we require is not present just because it is
foreseeable that most parents will suffer some distress whenever
their children's well-being is at risk. We require "'that the
shock result more or less contemporaneously with the plaintiff's
learning of the nature of the victim's injury.'"Id. at 109
(quoting Mattingly, 743 P.2d at 365-66).
Certainly the extent of trauma suffered by the child
bears on the foreseeability of the harm suffered by the plaintiff.
We note that C.L. did not suffer serious physical injury or death,
as did the plaintiffs' children in Hawks and Beck. At worst, C.L.
was allegedly exposed to unsafe or abusive living conditions and
did not receive treatment. He was not alleged to have suffered the
sort of sudden and grave trauma that would generate acute shock,
nor did Karen allege that she suffered a revelatory contemporaneous
observation of C.L. in an injured condition. We think that it is
not reasonably foreseeable that the conduct of the social workers
and the consequences to C.L. would cause Karen to suffer the sort
of actionable emotional harm that foreseeably results when a parent
observes a gravely injured child soon after an accident.
Moreover, it is to be expected that any litigation, and
certainly a CINA proceeding in which the child is taken from its
parent following allegations of abuse, will cause the parent some
distress. That does not mean that the distress should be
actionable. The simple foreseeability that a parent will suffer
distress proves too much. It is foreseeable that the parent of a
child severely injured in an automobile accident may come upon the
scene of the accident and observe the child's traumatic injuries in
the immediate aftermath of the accident. It is not nearly so
foreseeable that a parent who is a participant in judicial
proceedings in which the parent's suitability is at issue will be
unable to "steel herself"over concerns for her child and the
course of the proceedings. Given that a parent in such a situation
has a right to counsel, Alaska Child in Need of Aid Rule 12, it is
also foreseeable that the parent will have a fair opportunity to
participate in the CINA proceedings and urge return of the child or
placement with another custodian, thus avoiding or minimizing the
parent's distress. It is not self-evident that the sort of harm
which a parent may suffer during a CINA proceeding is one the law
regards as compensable. Cf. Beck, 837 P.2d at 109-11.
Other factors. The other D.S.W. factors weigh against
imposing a duty here. A recent case involving emotional distress
claims against the State is illustrative. In Hawks v. State,
Department of Public Safety, 908 P.2d 1013 (Alaska 1995), Hawks
alleged that the State negligently delayed identification of the
remains of her daughter. Hawks sued for intentional and negligent
infliction of emotional distress. Id. at 1015. The superior court
granted summary judgment to the State. Id. In affirming, we noted
that even though two D.S.W. factors, foreseeability of harm and
degree of certainty the plaintiff suffered injury, weighed in favor
of imposing a duty, the remaining factors militated against holding
the State liable. Id. at 1016. We noted that Hawks's injury was
most closely connected to the depraved conduct of the man who
murdered Hawks's daughter, and that there was little moral blame to
attach to the investigating authorities' possible failure to
correlate every known characteristic of every known missing person
with every John Doe or Jane Doe decedent. Id. at 1016-17. We also
noted that the consequences of imposing liability would be
considerable and would invariably lead to the diversion of
resources from other projects and investigations. Id. at 1017. We
consequently affirmed dismissal of the NIED claim. [Fn. 10]
These criteria militate against imposing a duty of care
on the social worker defendants. It is not obvious that any
distress suffered by Karen was caused by the conduct of the social
workers, nor is it at all certain what injury Karen actually
suffered. An emotional distress claim is necessarily amorphous, in
both its origins and its effects. C.L. ran away from Karen's home
as a result of her conduct. See supra note 1. It was that conduct
that led to the commencement of the CINA proceeding. When C.L. ran
from the original foster home placement and expressed a preference
for placement with K.L., he was placed in K.L.'s home. The CINA
court issued the custody order and later declined to find an abuse
of discretion in the placement on review. Attempting to determine
the sources of Karen's distress would be difficult; attributing any
part to the social workers' conduct would be problematic.
It also appears that no moral blame attaches to the
conduct of the social workers in following state policy regarding
foster care placement with a relative, notwithstanding Karen's
objections. A social worker and the GAL both investigated Karen's
placement complaints and found them to be unsubstantiated. The
State later obtained a psychological evaluation of the foster
mother, as well as the parties, and found no basis to remove C.L.
The D.S.W. factors concerning the policy of prevention of
future harm, the extent of the burden on the defendant, and the
consequences to the community of imposing liability can easily be
considered together. We agree with the superior court's
observation that
allowing aggrieved parents to sue the State
for actions or inactions during the course of a CINA investigation
or proceeding would greatly burden society's already scarce social
worker resources. Social workers should be helping children in
need of aid. They should not be spending their time in burdensome
collateral litigation.
The superior court also concluded that imposing liability
"would have a chilling effect on the actions of social workers."
The court noted that the best interests of the child should guide
social workers, and they "should not have their decision making
colored by the specter of collateral litigation." We agree.
It does not appear that the policy of preventing future
harm would be advanced by imposing a duty here, because it is not
obvious that Karen's distress would have been avoided by anything
less than immediate dismissal of the CINA proceeding and return of
C.L. Moreover, CINA proceedings already incorporate substantial
protections for parents and children. Karen had the assistance of
capable and vigorous advocacy, and C.L. had a GAL.
The causal connection between the social worker
defendants' conduct and Karen's alleged injury is remote. See
D.S.W., 628 P.2d at 555. The removal of C.L. from Karen's custody
into State custody was the result of a court order, based on a
finding of probable cause that Karen had abused C.L. Karen never
challenged this order. Although DFYS investigated and licensed K.L.
as a temporary foster parent, the final placement decision was the
product of an adversarial CINA proceeding in which the superior
court had an opportunity to hear the views of all interested
persons and agencies. Thus, at the September 2, 1992, CINA hearing
conducted by Master Lucinda J. McBurney, Karen agreed that C.L.
could be placed in a foster home so long as it was not K.L.'s home,
and C.L. insisted that he wanted to stay at his sister's. The
master found that "at this point the relative [K.L.] placement is
not in his best interests . . . ." C.L. then ran away from the
Daniels' foster home. C.L. was thereafter placed with his sister,
K.L. The custody decision was reviewed at an October 5 hearing at
which Karen was represented by counsel. DFYS acknowledged the
mother's objections to the placement, but stated that "the sister's
home was . . . an appropriate place for him." DFYS and the GAL
indicated that it was also probably the only place where he would
stay and not run away. Magistrate William D. Hitchcock stated an
intention to enter an order finding that it was in C.L.'s best
interests to continue the custody order and the placement with K.L.
Karen later moved for placement review, as she was
entitled to do under CINA Rule 10(d)(2). The main issue then
presented by Karen and her counsel in the CINA proceeding was
whether C.L. should be placed at Charter North Hospital for a
seventy-two-hour evaluation, as Karen requested. Karen also
asserted that the continued placement with K.L. was undesirable,
and that DFYS had not fulfilled its duty of engaging in permanency
planning for reunification. After a two-day hearing, Magistrate
Hitchcock denied Karen's request for a court-ordered inpatient
mental health evaluation of C.L. and implicitly approved of C.L.'s
continuing placement with K.L. The CINA proceeding was the proper
forum for addressing complaints about foster care placement and
treatment. The CINA court's approval of the temporary placement
decision further attenuates any connection between the social
worker defendants' conduct and the injury.
The loss of consortium claim is governed by the D.S.W.
factors discussed above.
Karen's alleged loss of employment cannot be the basis
for an emotional distress claim (assuming that is what Karen's
complaint attempted to plead). Considered independently, the loss
of employment claim is also foreclosed by the D.S.W. factors. Such
a harm is not foreseeable, and any causal connection is too remote.
The superior court did not err in dismissing Karen's
claims against the social worker defendants for want of a duty of
care.
2. Did the GALs owe Karen a duty of care?
Karen argues that the court-appointed GALs (OPA and
individual GALs Malchick and Perry) owed duties to C.L., such as a
duty to zealously represent C.L.'s interests as his legal counsel.
See AS 25.24.310(c) (concerning appointment of a GAL and limiting
GAL's authority to matters related to representation of child's
best interests). She does not, however, establish that the GALs
owed any duty to her. Nor does she demonstrate how a breach of any
duty the GALs owed C.L. could give her any cause of action against
the GALs. CINA Rule 11(a) states that the GAL represents the
child's best interests, and CINA Rule 11(c) states that the GAL is
a party. By implication, the duties a GAL owes the child do not
extend to other parties, especially to parties whose interests may
be adverse to those of the child. C.L. implicated Karen in abuse,
resulting in commencement of the CINA proceedings, and expressed a
preference for placement with K.L., contrary to Karen's own wishes.
As the State notes, a GAL owes no duty of care to a parent who is
an adverse party in the CINA litigation.
We conclude that the court did not err in granting
summary judgment to OPA and the individual GALs. We consequently
need not reach any issue of sovereign and official immunity.
C. Did the Superior Court Err in Granting Summary Judgment
to the Doctors?
In its preadjudication order issued after the October
custody review hearing, the CINA court adopted DFYS's case plan.
The case plan called for mental health evaluations of C.L., Karen,
and K.L. The order stated that the case plan was in C.L.'s best
interests, and recognized that it would evolve, noting that "full
development of such a plan must await outcome of assessments."
Pursuant to the order, DFYS arranged for Drs. Rose and
McCarthy to evaluate the family members. The CINA court relied
heavily on these evaluations during the December hearing, when it
found that an inpatient psychiatric evaluation of C.L. was
unnecessary.
The superior court granted the doctors' motion for
summary judgment, concluding that they were entitled to absolute
quasi-judicial immunity because their evaluations were integral to
the judicial process.
Karen argues that the superior court misapplied the
doctrine of quasi-judicial immunity to shield the doctors. She
contends that the doctrine only applies to services specifically
ordered by the court.
The doctors correctly argue that our decision in Lythgoe
v. Guinn, 884 P.2d 1085 (Alaska 1994), is controlling. We there
held that a court-appointed psychologist was entitled to quasi-
judicial immunity for claims arising out of her services as an
independent custody investigator. Id. at 1088-89.
Although the psychologist in Lythgoe was court-appointed,
it is irrelevant that Drs. McCarthy and Rose were initially
selected by DFYS and subsequently approved by the court. We have
recognized that it is not "'how the psychologist was first chosen
but whether his activity is an integral part of the judicial
process so that to deny immunity would disserve the broader public
interest that non-judicial officers act without fear of
liability.'" Lythgoe, 884 P.2d at 1088 (quoting Lavit v. Superior
Court, 839 P.2d 1141, 1144 (Ariz. App. 1992) (holding that
psychologist initially chosen by the parties without court
involvement was entitled to judicial immunity)). [Fn. 11]
The superior court did not err in granting summary
judgment to the doctors.
D. Did the Superior Court Abuse Its Discretion in Granting
the GALs' and the Social Workers' Motions to Stay Discovery and in
Denying Karen's Motion to Compel?
Karen argues that the trial court erred in rendering
three discovery rulings: (1) granting the GALs' motion to stay
discovery pending resolution of their motion for summary judgment;
(2) granting the individual social workers' motion to stay
discovery pending resolution of their motion for summary judgment;
and (3) denying Karen's motion to compel production. She contends
that the stay "unjustly crippled [her] ability to oppose summary
judgment."[Fn. 12]
The State correctly argues that "[t]he purpose of
official immunity is to shield government officials from the
distractions of litigation arising from the performance of their
official duties." Official immunity shelters government officials
not just from liability, but from suit, including pre-trial
discovery. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); see also
Martin v. D.C. Metro. Police Dep't, 812 F.2d 1425, 1430 (D.C. Cir.
1987) ("Discovery is itself one of the burdens from which
defendants are sheltered by the immunity doctrine.") overruled on
other grounds, Crawford-El v. Britton, 93 F.3d 813 (D.C. Cir.
1996). The superior court did not abuse its discretion in granting
the motions to stay discovery as to the individual State
defendants.
Karen's motion to compel sought production of (1) job
descriptions for individual State employees; (2) personnel files
for those employees; (3) the State Department of Law's
investigatory files for C.L.'s CINA case; (4) certain Anchorage
Police Department records; (5) Department of Law information about
prior suits or claims against any of the State defendants; and (6)
all DFYS manuals relating to CINA proceedings and foster care
licensing. Karen has not demonstrated that, to the extent
particular categories of documents might have been properly
discoverable, the court abused its discretion in denying relief to
Karen on the discovery issues, given the potentially dispositive
legal issues looming in the case. Further, Karen has not
demonstrated how any error on these issues potentially prejudiced
her ability to oppose the defendants' summary judgment motions.
E. Was the State Defendants' Peremptory Challenge Timely?
Karen contends that the State's peremptory challenge of
Judge John Reese was untimely, because it was filed more than five
days after the State was served with the summons showing that the
case was assigned to him.
The summons was served on the State on September 16. On
October 5 the State defendants filed their entry of appearance,
answer, and peremptory challenge. The court accepted the
peremptory challenge and reassigned the case to another judge on
October 11. Karen's timeliness objections were denied.
Alaska Civil Rule 42(c)(3) provides in part:
Where a party has been served or enters an
action after the case has been assigned to a specific judge, a
notice of a change of judge shall also be timely if filed by the
party before the commencement of trial and within five days after
a party appears or files a pleading in the action.
Because no trial had commenced and the challenge was
filed on the same day the State defendants entered an appearance,
the presiding judge properly rejected Karen's argument that the
State's peremptory challenge was untimely. [Fn. 13]
IV. CONCLUSION
We AFFIRM.
FOOTNOTES
Footnote 1:
C.L. told police that his mother had handcuffed him to a bed
for two weeks, forced him to ingest numerous pills, and given him
forced enemas six days a week since he was nine. A DFYS
investigation tended to corroborate the facts as reported by C.L.
Footnote 2:
Karen sued the State, the Department of Health and Social
Services (DHSS), DFYS, DFYS social workers Deborah Wing, Faye
Moore, Patricia Chambers Mitchell, Rita Hutchens, and Ray Johnson,
the Office of Public Advocacy (OPA), and guardians ad litem Barbara
Malchick and Shirley Perry (GALs). We will refer to all these
defendants as "the State defendants"except where context requires
specificity.
Footnote 3:
Eight of the eighteen claims Karen asserted against the State
defendants sought relief for Karen herself. Some of those claims
(Second, Eighth, Tenth, Seventeenth) asserted that the State
defendants had breached duties imposed by statute, regulation, or
agency procedure. Some (Fourth, Thirteenth, Fifteenth) asserted
that the foster care placement with K.L. was inappropriate and was
not adequately supervised. Some (Second, Seventeenth) asserted
that the State defendants failed to investigate the K.L. home
adequately and should have realized that it was very unsuitable.
Some (Tenth, Seventeenth) asserted that the State defendants
breached the DFYS service plan founded on a September 2, 1992,
"contractual agreement"under which Karen temporarily relinquished
custody of C.L. to DFYS with the alleged expectation that C.L.
would be placed in only a "proper"foster home and not K.L.'s home.
One (Third) asserted that DFYS failed to give pertinent information
to the doctors evaluating C.L. and K.L. Some (Thirteenth,
Fifteenth) asserted that the State defendants should have realized
the doctors' evaluations were based on incomplete information. One
(Eighth) asserted that defendants failed to properly investigate
the original complaint that Karen had abused C.L. even after C.L.
and K.L. admitted that they had fabricated their original
complaint. Some (Tenth, Seventeenth) asserted that statutory and
common law duties arose out of contractual or fiduciary
relationships.
Footnote 4:
The superior court dismissed the claims Karen asserted on
C.L.'s behalf. The superior court concluded that a minor child
cannot bring suit through a parent who, as here, is not represented
by an attorney. See, e.g., Osei-Afriyie v. Medical College of Pa.,
937 F.2d 876, 882-83 (3d Cir. 1991); Cheung v. Youth Orchestra
Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990). Although
Karen appealed the dismissal of C.L.'s claims, she only mentions
the issue in her brief and has not substantively briefed it. We
therefore deem the issue waived. Petersen v. Mutual Life Ins. Co.,
803 P.2d 406, 411 (Alaska 1990). Although Karen is pro se on
appeal, her appellate briefs are well crafted.
Footnote 5:
We refer to Michael Rose, Ph.D., Greg McCarthy, M.D., and the
Langdon Psychiatric Corp., collectively as "the mental health
consultants"or "the doctors."
Footnote 6:
See D.S.W. v. Fairbanks N. Star Borough Sch. Dist., 628 P.2d
554, 555 (Alaska 1981), where we adopted a multi-factor approach to
determine whether, as a matter of public policy, an actionable duty
of care existed. These factors include:
"[t]he foreseeability of harm to the
plaintiff, the degree of certainty that the plaintiff suffered
injury, the closeness of the connection between the defendant's
conduct and the injury suffered, the moral blame attached to the
defendant's conduct, the policy of preventing future harm, the
extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting
liability for breach, and the availability, cost and prevalence of
insurance for the risk involved."
Id. at 555 (quoting Peter W. v. San Francisco Unified Sch. Dist.,
131 Cal. Rptr. 854, 859-60 (Cal. App. 1976)). In Estate of Day v.
Willis, 897 P.2d 78, 81 (Alaska 1995), we stated that "Whether a
legal duty exists, when not governed by statute, is a public policy
question involving specified considerations that this court
enumerated in D.S.W. . . . ."
Footnote 7:
Karen also asserted the "Plaintiffs were harmed"by a harmful
delay in delivery of "appropriate"medical and psychological care.
She did not, however, plead that she was personally entitled to
receive any such care. Her complaints do not clearly indicate
whether her alleged loss of employment was itself a separate
injury, or was part of her claim that she suffered emotional and
psychological distress.
Footnote 8:
It is not necessary to consider whether any defendants owed
C.L. an actionable duty because he is not a party to this appeal.
See also supra note 4.
We need not reach the immunity issue unless we first
decide that a defendant owes the plaintiff an actionable duty. We
have stated that "[b]efore we determine whether a statutory
immunity applies to a given case, we will determine whether the
State would be liable to the plaintiff in the absence of the
immunity." Stephens v. State, Dep't of Revenue, 746 P.2d 908, 910
(Alaska 1987) (citation omitted).
Footnote 9:
Other typical theoretical sources of actionable duties are
statutes, regulations, certain contracts, express undertakings, or
fiduciary relationships. Those possible sources do not apply here.
No statute or regulation imposed or implied a duty of care in favor
of Karen; no contract between Karen and these defendants imposed a
duty to refrain from conduct that would foreseeably result in
emotional harm to Karen, see infra, note 13; these defendants
entered into no fiduciary relationship with Karen; and these
defendants did not expressly undertake to protect Karen from
emotional distress. If one of those duty sources applied, it would
not be necessary to consider the D.S.W. factors. See Waskey v.
Municipality of Anchorage, 909 P.2d 342, 343-44 (Alaska 1996)
(finding it "unnecessary to resort to the D.S.W. approach"where we
had decided other cases "more closely related"to the subject duty
dispute).
Footnote 10:
We also affirmed dismissal of the intentional infliction of
emotional distress (IIED) claim because Hawks had made no threshold
showing of the outrageous and extreme conduct essential to an IIED
claim. Hawks v. State, Dep't of Pub. Safety, 908 P.2d 1013, 1016
(Alaska 1995). Karen did not make the necessary threshold showing
on the conduct element for an IIED claim, and the record requires
the conclusion that the conduct of the social worker defendants was
neither outrageous nor extreme. The superior court properly
dismissed Karen's IIED claim.
Footnote 11:
There is no evidence in the record to support Karen's
alternative argument that the doctors were not entitled to quasi-
judicial immunity because they "treated"C.L. The doctors provided
evaluations and recommendations to assist the CINA court in
determining the proper placement and counseling needs of C.L.; they
themselves did not provide therapy.
Likewise, it is not material that Dr. McCarthy's
services, which included an evaluation of K.L., arguably had a
bearing on the decision to issue K.L. a foster home license. His
services were intrinsic to the CINA proceeding, and he is entitled
to quasi-judicial immunity with respect to those services.
Footnote 12:
We review discovery orders under an abuse of discretion
standard. R.E. v. State, 878 P.2d 1341, 1345 (Alaska 1994).
Footnote 13:
Karen also raises a series of constitutional arguments, and
alleges procedural and substantive due process violations. Karen
briefly mentioned, in only the most conclusory fashion,
constitutional violations at several places in her 157-page
superior court opposition to the State defendants' summary judgment
motion. Because Karen did not substantively raise these arguments
below, they are deemed waived. Arnett v. Baskous, 856 P.2d 790,
791 n.1 (Alaska 1993). She has not demonstrated that these issues
involve plain error, or that there is any other excuse for her
failure to raise them adequately in the superior court. Further,
there would appear to be no basis for finding a denial of
procedural due process, given the active involvement of the court
in the CINA proceeding. A parent in a CINA proceeding has a right
to counsel, CINA Rule 12, and Karen was forcefully represented
during the CINA proceeding.
Karen also argues that the State "breached"a written
"contract"-- the case plan -- between herself and the State. She
provides no support for the contention that the case plan is an
enforceable contract. The State counters that "there was never a
written plan that was signed by the parties." In addition, the
State may unilaterally modify its case plan as necessary. Matter
of A.B., 791 P.2d 615, 624 n.14 (Alaska 1990). There is no merit
to Karen's contract claim.
