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McGrew v. State, Dept. of Health & Social Services, DFYS (02/04/2005) sp-5866
McGrew v. State, Dept. of Health & Social Services, DFYS (02/04/2005) sp-5866
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JOHNNY McGREW and MARY )
McGREW, ) Supreme Court No. S-10699
)
Appellants, ) Superior Court No. 3AN-01-9334
CI
)
v. ) O P I N I O N
)
STATE OF ALASKA, DEPART- ) [No. 5866 - February 4, 2005]
MENT OF HEALTH AND SOCIAL )
SERVICES, DIVISION OF FAMILY )
AND YOUTH SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: James Alan Wendt, Law Offices
of James Alan Wendt, Anchorage, for
Appellants. Gail T. Voigtlander, Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Appellee.
Before: Eastaugh, Fabe, and Carpeneti,
Justices. [Bryner, Chief Justice, and
Matthews, Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
Grandparents of an orphaned child sued the State of
Alaska, claiming that it prevented them from adequately
litigating their interests in child-in-need-of-aid (CINA) and
adoption proceedings relating to their grandchild. We consider
here whether it was error to grant the states Alaska Civil Rule
12(b)(6) motion to dismiss their claims of negligence,
intentional infliction of emotional distress (IIED), and
violation of constitutional rights. We affirm the dismissal of
their negligence claim, because the state owed them no actionable
duty. We also affirm the dismissal of their constitutional
claim, because they had alternative litigation remedies
available. But because their complaint adequately pleaded an
IIED claim, we reverse the Rule 12(b)(6) dismissal of that claim
and remand.
II. FACTS AND PROCEEDINGS
The Alaska Division of Family and Youth Services (DFYS)
took emergency custody of Johnny and Mary McGrews infant
granddaughter, Lucy M.,1 after the sudden deaths of the infants
parents and twin sibling in July 1999. According to the McGrews,
Lucys father shot and killed Lucys mother, and then shot and
killed himself. Lucys twin sister died when Lucys mother fell on
the infant and smothered her. DFYS filed a petition for an
adjudication that Lucy was a child in need of aid under AS
47.10.011. The superior court granted DFYSs petition and placed
Lucy with Elsa C., who had been a friend of Lucys mother and a
babysitter for Lucy and her twin sister. In September 1999 the
McGrews filed a motion to intervene in the CINA proceedings. In
November 1999 Elsa and her husband, Dillon C., also moved to
intervene in the CINA proceedings. The superior court granted
both intervention motions. After conducting a hearing in
February 2000, the superior court released Lucy from DFYSs
custody and continued Lucys pre-adoptive placement with the C.
family.
In August 2001 Johnny and Mary McGrew filed a tort
complaint against the Alaska Department of Health and Social
Services, Division of Family and Youth Services. We refer to the
defendants as the state or DFYS. The complaint alleged that Mary
McGrew had notified DFYS that she was a licensed foster care
provider and that she and her husband, and other family members,
were willing to take custody of Lucy. The complaint alleged that
DFYS refused to provide the McGrews with any information about
their granddaughters placement, and that any information DFYS
provided was false and misleading.
The complaint alleged that even though DFYS had been
advised that the McGrews were interested in obtaining custody of
Lucy, DFYS appeared ex parte at Lucys CINA hearing and failed to
inform the court of the McGrews interest in caring for their
granddaughter. The complaint also alleged that DFYS failed to
notify the court that one of the adults with whom Lucy had been
placed, Dillon C., had a criminal history. The complaint alleged
that in placing Lucy, DFYS failed to abide by applicable
statutes, rules, and its own policies and procedures.
The McGrews complaint asserted three claims. Count I
asserted a negligence claim for DFYSs alleged failure to abide by
its own policies in placing Lucy. Count II asserted a Bivens
action2 for alleged failures to abide by the Alaska Constitution,
applicable Alaska Statutes, the Alaska Administrative Code, and
DFYSs internal policies. Count III asserted an IIED claim. The
complaint sought compensatory damages, pre- and post-judgment
interest, costs, and attorneys fees.
The state moved under Alaska Civil Rule 12(b)(6) to
dismiss the entire action, arguing that the complaint failed to
state legally cognizable claims.
The McGrews opposed the motion to dismiss, arguing that
DFYS owed them an actionable duty and that no alternate remedies
were available for purposes of the Bivens action. They asked for
leave to amend their complaint under Alaska Civil Rule 15(a) if
the court found the states arguments persuasive.
The McGrews also moved in the superior court to
supplement the record. The order denying their motion to
supplement stated that the issue of duty raised by the motion [to
dismiss] is a legal issue, not a fact based inquiry . . . . As
there is no need to consider factual issues, there is no need to
allow [supplementation] of the record.
After hearing oral argument, the superior court granted
the states motion to dismiss the IIED and negligence claims,
ruling that the state only owed a duty to the child in need of
aid, and did not owe a duty to the childs relatives, such as
parents and grandparents. The court also declined to allow a
Bivens remedy in this case.
The McGrews moved for reconsideration under Alaska
Civil Rule 77(k). The superior court denied this motion and
entered final judgment for the state. The McGrews appeal the
dismissal of their complaint and the denial of their motion to
supplement the record.
The McGrews were also parties to another appeal
challenging the superior courts dismissal of their adoption
petition and the award of custody of Lucy to Elsa and Dillon C.3
In In re Adoption of L.E.K.M., decided after the superior court
dismissed the tort claims in the present case, we affirmed the
superior courts placement of Lucy with the C. family.4
III. DISCUSSION
A. Standard of Review
Alaska Civil Rule 12(b)(6) allows the dismissal of a
complaint for failure to state a claim upon which relief can be
granted. We review the superior courts Rule 12(b)(6) dismissal
of the McGrews complaint de novo,5 deeming all facts in the
complaint true and provable.6 To survive a motion to dismiss, a
complaint need only allege a set of facts consistent with and
appropriate to some enforceable cause of action.7 A complaint
should not be dismissed for failure to state a claim unless it
appears beyond a doubt that the plaintiff can prove no set of
facts in support of the claims that would entitle the plaintiff
to relief.8
B. The Negligence Claim
The McGrews argue that because they were parties in the
CINA proceeding, DFYS owed them a duty of care once it made the
decision to seek and obtain temporary emergency custody of Lucy.
They therefore argue that it was error to dismiss their
negligence claim.
In deciding whether a defendant owes a plaintiff a duty
of reasonable care, we first determine whether a duty is imposed
by statute, regulation, contract, undertaking, the parties
preexisting relationship, or existing case law.9 If these
sources do not resolve the issue, we apply the multi-factor
approach discussed in D.S.W. v. Fairbanks North Star Borough
School District10 to determine whether an actionable duty of care
exists.11
The McGrews argue that an actionable duty is imposed by
AS 47.14.240, which specifies the responsibilities of the local
review boards which review DFYSs placement decisions. It
requires a review board to allow the childs relatives to
participate.12 But another statute, AS 47.10.960, states that
[n]othing in this title creates a duty or standard of care for
services to children and their families being served under AS
47.10. Lucy was a child being served under AS 47.10. Section
.960 therefore precludes the McGrews from contending in a tort
suit that AS 47.14.240 can be the basis of an actionable duty.
The McGrews also assert that other statutes are sources
of an actionable duty: AS 47.10.142(a), (e), and (h);13 AS
47.10.020(a);14 AS 47.10.080(l) and (l)(2)(B);15 and AS 47.05.060.16
Any claim based on these statutes is likewise barred by AS
47.10.960.
In Karen L. v. State, Department of Health & Social
Services, Division of Family & Youth Services, we considered
whether a mother could assert tort claims arising from CINA
proceedings addressing placement of a child in DFYS custody.17
The superior court there granted summary judgment to the state,
DFYS, state social workers, and the childs guardians ad litem,
dismissing all of the mothers claims, including her negligence
claims.18 We held that the state and the social workers did not
owe the mother an actionable duty of care.19 The mother therefore
could not maintain negligence claims against the state or its
agencies and employees.
We recognize here, as we did in Karen L., that it is to
be expected that any litigation, and certainly a CINA proceeding
in which the child is taken from its [relatives] . . . will cause
the [relatives] some distress. That does not mean that the
distress should be actionable.20 Karen L. establishes that DFYS
does not owe a parent an actionable duty of reasonable care in a
CINA proceeding.21 Karen L. therefore precludes the grandparents
negligence claim in this case.
The McGrews attempt to distinguish Karen L. on the
theory there was no claim in that case that the state had bad
motives. They assert that DFYS here engaged in intentional
deceit and affirmatively misled them by making false statements
about its placement plan for the child. That distinction is
potentially pertinent only to the McGrews claims alleging
intentional misconduct. As to the McGrews negligence claim,
Karen L. controls.
The McGrews also argue that their case is
distinguishable from Karen L. because DFYS failed to comply with
the statutory requirements of AS 47.14.240, denying them their
right to be meaningfully heard in a timely fashion. They
therefore argue that Karen L. does not apply to them because the
court there held that there was no statute that imposed an
actionable tort duty.
But as we saw above, AS 47.10.960 establishes that DFYS
owes the McGrews no actionable duty arising out of any provision
in Title 47. Therefore, Karen L. cannot be distinguished on a
theory the McGrews were owed a statutory duty not addressed in
Karen L.
C. The Bivens-type Claim
A Bivens claim is the cause of action sometimes
permitted in federal courts for a governmental violation of the
plaintiffs constitutional rights.22 We have never decided whether
a Bivens-like remedy is available for violations of the Alaska
Constitution.23 In Brown v. Ely we noted that federal courts have
not permitted the Bivens remedy if alternative remedies are
available.24 The McGrews opportunities to participate as
intervenors in the CINA proceeding and to oppose the adoption
decree gave them adequate alternative avenues to challenge the
litigation conduct of the governmental agency, DFYS. The alleged
misconduct occurred during existing judicial proceedings, during
which the McGrews had opportunities to seek prompt judicial
relief that might have avoided or remedied any harm they
allegedly suffered. The availability of judicial remedies in the
very proceedings in which the misconduct allegedly took place
distinguishes the McGrews case from federal cases in which grave
governmental misconduct has immediate consequences that cannot be
readily avoided or corrected in existing judicial proceedings.25
We see no reason why the McGrews should have an additional means
of challenging, through a tort suit, the alleged
unconstitutionality of that conduct.
Furthermore, the McGrews Bivens claims inherently
allege misconduct by persons acting for the government. At least
in context of this case, the theoretical availability of an IIED
claim would be an alternative remedy that obviates any need for a
Bivens claim. We therefore do not need to approve a Bivens
remedy here.
D. The Intentional Infliction of Emotional Distress Claim
The McGrews contend that Karen L. does not require
dismissal of their claim that DFYS engaged in intentional
misconduct. They argue that their allegations of intentional
wrongdoing and deceit distinguish Karen L.26 The state simply
responds that Karen L. bars the McGrews claims for negligence and
emotional distress.
To plead a claim for IIED, a plaintiff must allege
these necessary elements: (1) the conduct is extreme and
outrageous, (2) the conduct is intentional or reckless, (3) the
conduct causes emotional distress, and (4) the distress is
severe.27 The McGrews complaint alleged that DFYSs conduct was
extreme, outrageous and atrocious; that its conduct was
intentional and/or reckless; that its conduct caused emotional
distress to the McGrews; and that their distress was severe and
that they suffered personal injury, personal humiliation, mental
anguish, pain and suffering. Their complaint therefore
adequately pleaded all necessary elements of an IIED claim.
IIED claims require the trial court to make a threshold
determination whether the severity of the emotional distress and
the conduct of the offending party warrant a claim.28 We review
this threshold determination for abuse of discretion,29 but there
was no threshold determination in this case about whether the
states alleged conduct was sufficiently outrageous or whether the
McGrews alleged emotional distress was sufficiently severe for an
IIED claim. Instead, the Rule 12(b)(6) dismissal of the IIED
claim seems to have been based on a conclusion that Karen L.s
discussion of duty also controls IIED claims against DFYS. We
review that conclusion de novo because it presents an issue of
law.30
In Karen L. we considered the narrow question whether
the state defendants owed Karen a duty of care to protect her
from emotional distress with respect to the CINA proceeding.31 We
have usually discussed the element of duty of care in context of
negligence claims, not intentional tort claims. For example, in
Chizmar v. Mackie, we stated that a plaintiffs right to recover
emotional damages caused by mere negligence should be limited to
those cases where the defendant owes the plaintiff a preexisting
duty.32 We noted in Hawks v. State, Department of Public Safety
that the first step in determining whether a negligence action
can be maintained is determining whether the defendant owed the
plaintiff a duty of care.33 Our discussion in Karen L. of a duty
of care and the D.S.W. factors pertained only to Karen L.s
negligence claims against the state and its agencies and
employees.34 That discussion does not control the McGrews IIED
claims here.
We discussed separately in Karen L. the mothers IIED
claims against the state defendants. The superior court had
dismissed the mothers IIED claims on summary judgment.35 We
affirmed, holding that 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.36 But the McGrews
IIED claim was dismissed on the pleadings, not summary judgment,
and as we noted above, the McGrews complaint sufficiently pleaded
an IIED claim. The superior court here consequently never had to
decide whether their case met the thresholds for an IIED claim.
Moreover, we discussed duty in Karen L. and D.S.W. in
context of claims in which the existence of an actionable duty of
care was legally and factually problematic. The legal
determination whether there is an actionable duty of care has
little if any conceptual relevance to an IIED claim. The concept
of a duty of care is usually identified with negligence claims,37
and has no obvious bearing on a claim of intentional and
outrageous conduct; the intentionality of the outrageous conduct
needed for an IIED claim presupposes at least some intended
relationship between the actor and the person harmed. The D.S.W.
factors are typically applied to determine whether there is an
actionable duty of care when there is no existing or intended
relationship between the actor and the person harmed.38
We conclude that the D.S.W. multi-factor duty analysis
we applied in Karen L. does not apply to intentional tort claims.
Karen L.s duty discussion therefore does not preclude
the McGrews IIED claim. Because that claim was dismissed on the
pleadings under Rule 12(b)(6), there was no opportunity to
consider whether plaintiffs evidence could surmount the
thresholds for the severity of any emotional distress and the
outrageousness of the actors conduct.39 We therefore cannot
affirm the dismissal of this claim on a possible alternative
theory that the McGrews did not or cannot overcome the threshold
for an IIED claim. We consequently reverse the dismissal of
their IIED claim.
E. Other Issues
The parties briefs do not discuss whether our decision
in the adoption case, L.E.K.M., has any effect on the McGrews
tort claims.40 We leave it to the parties to raise on remand any
question about what effect L.E.K.M. may have on the IIED claim,
particularly with respect to the issues of liability, causation,
and damages.
Our rulings on the negligence and IIED claims and the
Bivens-type remedy make it unnecessary to consider the McGrews
argument that the superior court erred when it denied their
motion to supplement the record. Their negligence claim and
Bivens action are precluded as a matter of law and were therefore
properly dismissed on the pleadings. No factual disputes,
however genuine, would be material to those claims. And because
we reverse the dismissal of the IIED claim, the McGrews are free
on remand to offer evidence relevant to that claim.
The McGrews assert that the state is not immune from
suit under the Alaska Tort Claims Act, AS 09.50.250. The state
does not address the issue of statutory immunity. As to the
negligence claim and the Bivens-remedy claim, no discussion of
immunity is needed here. And because the parties have altogether
failed to explain what effect AS 09.50.250, particularly
subsection .250(3), might have on the IIED claim, we decline to
consider whether the state is immune from the IIED claim pleaded
here.41
IV. CONCLUSION
We AFFIRM the dismissal of the McGrews negligence and
constitutional violation claims. We REVERSE the dismissal of
their IIED claim and REMAND for further proceedings.
_______________________________
1 Pseudonyms have been used for all persons other than
the appellants.
2 Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
3 See In re Adoption of L.E.K.M., 70 P.3d 1097 (Alaska
2003). That case concerned the private adoption of Lucy after
the CINA proceedings ended. Id. at 1100.
4 Id. at 1099.
5 Valdez Fisheries Dev. Assn, Inc. v. Alyeska Pipeline
Serv. Co., 45 P.3d 657, 664 (Alaska 2002).
6 Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 253
(Alaska 2000).
7 Id. (internal quotation marks omitted).
8 Angnabooguk v. State, 26 P.3d 447, 451 (Alaska 2001).
9 In Karen L. v. State, Department of Health & Social
Services, Division of Family & Youth Services we stated:
[T]ypical theoretical sources of actionable duties are statutes,
regulations, certain contracts, express undertakings, or
fiduciary relationships. . . . If one of those duty sources
applied, it would not be necessary to consider the D.S.W. [v.
Fairbanks North Star Borough School District] factors. 953 P.2d
871, 875 n.9 (Alaska 1998) (internal citations omitted). See
also Wongittilin v. State, 36 P.3d 678, 681 (Alaska 2001); 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); Estate of Day v. Willis, 897 P.2d 78, 81 n.7 (Alaska
1995) (holding internal administrative and training manual did
not impose duty of care toward fleeing suspects).
10 D.S.W. v. Fairbanks N. Star Borough Sch. Dist., 628
P.2d 554, 555 (Alaska 1981).
11 Wongittilin, 36 P.3d at 681. The D.S.W. factors
include foreseeability of harm; degree of certainty plaintiff
suffered injury; closeness of connection between defendants
conduct and injury; moral blame attached to defendants conduct;
policy of preventing future harm; extent of burden to defendant
and availability; cost and prevalence of insurance for the risk
involved. D.S.W., 628 P.2d at 555.
12 AS 47.14.240(d)(2).
13 AS 47.10.142(a) allows the Department of Health and
Social Services to take emergency custody of a child in certain
circumstances. Subsection .142(e) provides that when a temporary
custody hearing is held, a court shall then determine whether
probable cause exists for believing the child to be a child in
need of aid. Subsection .142(h) provides that [w]ithin 12 months
after a child is committed to the department under this section,
the court shall review the placement plan and actual placement of
the child under AS 47.10.080(l).
14 AS 47.10.020(a) provides in pertinent part:
Whenever circumstances subject a child to the
jurisdiction of the court under AS 47.10.005
- 47.10.142, the court shall appoint a
competent person or agency to make a
preliminary inquiry and report for the
information of the court to determine whether
the best interests of the child require that
further action be taken. If, under this
subsection, the court appoints a person or
agency to make a preliminary inquiry and to
report to it, then, upon the receipt of the
report, the court may . . . (3) authorize the
person or agency having knowledge of the
facts of the case to file with the court a
petition setting out the facts.
15 AS 47.10.080(l) provides in pertinent part:
Within 12 months after the date a child
enters foster care as calculated under AS
47.10.088(f), the court shall hold a
permanency hearing. The hearing and permanent
plan developed in the hearing are governed by
the following provisions . . . (2) when
establishing the permanent plan for the
child, the court shall make appropriate
written findings, including findings related
to whether . . . (B) the child should be
placed for adoption or legal guardianship and
whether a petition for termination of
parental rights should be filed by the
department . . . .
16 AS 47.05.060 provides in pertinent part:
The purpose of this title as it relates to
children is . . . to preserve and strengthen
the childs family ties unless efforts to
preserve and strengthen the ties are likely
to result in physical or emotional damage to
the child . . . and . . . to secure for the
child adequate custody and care and adequate
planning for permanent placement of the
child.
17 Karen L. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Serv., 953 P.2d 871, 876 (Alaska 1998)
(declining to impose duty of care on state and social workers
because it was not reasonably foreseeable that their conduct
would cause Karen L. actionable emotional harm).
18 Id. at 873.
19 Id. at 876, 878.
20 Id. at 876.
21 Id. at 878.
22 See, e.g., Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388, 389 (1971) (holding that
Fourth Amendment violation by federal agent acting under color of
his authority gave rise to cause of action for damages directly
under U.S. Constitution).
23 Brown v. Ely, 14 P.3d 257, 261 (Alaska 2000) (We have
neither adopted nor rejected the Bivens approach with respect to
state constitutional violations.); King v. Alaska State Hous.
Auth., 633 P.2d 256, 261 (Alaska 1981).
24 Brown v. Ely, 14 P.3d 257, 261 (Alaska 2000); Thoma v.
Hickel, 947 P.2d 816, 824 (Alaska 1997); Dick Fischer Dev. No. 2,
Inc. v. Dept of Admin., 838 P.2d 263, 268 (Alaska 1992) (We are
also hesitant to extend the Bivens decision, and will not allow a
claim for damages except in cases of flagrant constitutional
violations where little or no alternative remedies are
available.).
25 See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 73-74
(2001) (refusing to extend Bivens action to plaintiff whose lack
of alternative tort remedies was due solely to strategic choice).
26 They also argue that their allegations of intentional
wrongdoing and deceit satisfy the D.S.W. factors. But those
factors pertain only to torts involving negligent, not
intentional, acts. See infra.
27 Lincoln v. Interior Regl Hous. Auth., 30 P.3d 582, 589
(Alaska 2001).
28 Id.
29 Id.
30 Wongittilin, 36 P.3d at 681 (stating nature and extent
of duty are questions of law).
31 Karen L., 953 P.2d at 874.
32 Chizmar v. Mackie, 896 P.2d 196, 203 (Alaska 1995).
33 Hawks v. State, Dept of Public Safety, 908 P.2d 1013,
1016 (Alaska 1995).
34 Karen L., 953 P.2d at 874-78.
35 Id. at 873.
36 Id. at 876 n.10.
37 Silvers v. Silvers, 999 P.2d 786, 793 (Alaska 2000)
(stating that [a]s with any negligence case, the plaintiff must
establish (1) a duty of care; (2) breach of the duty; (3)
causation; and (4) harm).
38 The prototypical Alaska case was Transamerica Title
Insurance v. Ramsey, 507 P.2d 492 (Alaska 1973). We there
followed Howarth v. Pfeifer, 443 P.2d 39 (Alaska 1968), in which
we adopted the test applied by the California Supreme Court in
Lucas v. Hamm, 364 P.2d 685, 687 (Cal. 1961). State v.
Sandsness, 72 P.3d 299 (Alaska 2003), is typical of our modern
cases. There was no relevant preexisting relationship between
the state and the decedent, a taxicab driver shot by a state
juvenile releasee. Id. at 300, 305.
39 Lincoln, 30 P.3d at 589.
40 In re Adoption of L.E.K.M., 70 P.3d 1097 (Alaska 2003).
41 AS 09.50.250 provides in part: [A]n action may not be
brought if the claim . . . (3) arises out of . . .
misrepresentation, [or] deceit . . . .
