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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept. of Health & Social Services v. Mullins (6/27/2014) sp-6919

State, Dept. of Health & Social Services v. Mullins (6/27/2014) sp-6919

        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, email    


STATE OF ALASKA,                                )

DEPARTMENT OF HEALTH AND                        )

SOCIAL SERVICES,                                )
       Supreme Court No. S-14981  


                        Appellant,              )

       Superior Court No. 3KN-10-00532 CI  

        v.                                      )  

                                                )        O P I N I O N  


LYNN MULLINS, JACK                              )       No. 6919 - June 27, 2014  


DOMINICK, ANGELA MICHELLE                       )  

McCOY aka ANGELA                                )  

MICHELLE MULLINS aka                            )  

ANGELA MICHELLE FULTON,                         )  

and BARBARA DOMINICK                            )  

(DECEASED),                                     )  


                        Appellees.              )  


                Appeal from the Superior Court of the State of Alaska, Third  

                Judicial District, Kenai, Carl Bauman, Judge.  

                Appearances:    Ruth  Botstein,  Assistant  Attorney  General,  

                Anchorage, Janell M. Hafner, Assistant Attorney General,  

                and  Michael  C.  Geraghty,  Attorney  General,  Juneau,  for  

                Appellant.    Michael  C.  Kramer,  Kramer  and  Associates,  

                Fairbanks, for Appellees Alecia and Shayna Mullins.  

                Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                Bolger, Justices.  

                BOLGER, Justice.  

----------------------- Page 2-----------------------


                   Two sisters reported that they were abused by their grandparents while they  

were entrusted to the legal custody of the Office of Children's Services (OCS).  The  

sisters sued OCS, and a jury awarded them substantial damages, concluding that OCS  

was  responsible  for  95%  of  their  damages  and  that  their  grandparents  were  not  


responsible for any of their damages.  On appeal, OCS argues that this verdict should be  


set  aside.    Because  the  evidence  supporting  the  jury's  allocation  of  fault  was  so  


insubstantial  as  to  make  the  verdict  plainly  unreasonable,  we  conclude  that  OCS  is  


entitled to a new trial.  


          A.       Facts  

                   Alecia Mullins was born in 1990, and Shayna Mullins was born in 1992.  

Throughout their childhood, their mother, Angela McCoy, abused drugs and alcohol  and  


was involved in a violent and abusive relationship with her then-husband, Chris McCoy.  


                   In September 1998, after receiving a report that Alecia and Shayna were at  




risk of immediate physical harm from Chris McCoy, OCS  took emergency custody of 

the  children.    They  were  then  placed  with  their  grandparents,  Jack  and  Barbara  

Dominick.  Jack  and  Barbara  were  licensed  as  the  Mullinses'  foster  parents  from  

September  1998,  until  January  2001,  when  they  became  Alecia  and  Shayna's  legal  


                   While Alecia and Shayna were living with their grandparents, they were  


seeing a counselor to help them cope with the abuse they had experienced when they  


were younger.  The counselor, Linda Jacobsen, noted that Alecia was experiencing night  



                   During a portion of the time relevant to this appeal, OCS was called the  


Division  of  Family  and  Youth  Services.    We  refer  to  the  agency  as  OCS  to  avoid  


                                                             -2-                                                          6919  

----------------------- Page 3-----------------------

terrors, and that night terrors could be a sign of sexual abuse.  But Jacobsen testified at  


trial that she never suspected that anyone was abusing Alecia or Shayna while she was  

counseling them.  She wrote a letter reporting her observations to Alecia and Shayna's  

guardian ad litem and an OCS employee.  


                   In March 2001, Alecia and Shayna revealed that their grandfather had been  


sexually abusing them for some time.  Alecia testified that the abuse lasted between three  

and a half and four years.  

                   Jack left the home immediately after the abuse was disclosed.  He pleaded  


no contest to three counts of sexual abuse of a minor shortly thereafter.  Although Jack  


never returned to his home, there was testimony that Barbara met with him in a parking  

lot while Alecia and Shayna were present and frequently spoke with him on the phone  

in the evenings.  


                   After Jack's abusive behavior was disclosed, Barbara became angry and  

violent.    Alecia  testified  that  Barbara  slapped  her  in  the  face  after  Alecia  told  her  


something that Barbara "didn't like."  Barbara also hit Alecia and Shayna with wooden  


spoons.  OCS investigated these incidents but found that they did not constitute physical  


abuse.  Some witnesses testified that Barbara's behavior reflected the fact that she was  

struggling to believe and accept that Jack had abused her grandchildren.  

                   In June 2002, at her request, Barbara's guardianship was terminated and  


Alecia and Shayna were returned to their mother.  However, this placement was short- 


lived; the family's home life quickly deteriorated, and the children were removed from  

their mother again in September 2003 when Angela was arrested for assaulting Chris.  

                   Alecia and Shayna were then placed in foster care.  There was testimony  

that the foster parents were abusive as well.  


                   In January 2004, Alecia was placed with a friend's family.  And in the same  


year, Shayna was placed with a different foster family. In 2006, Shayna was placed with  

                                                             -3-                                                       6919

----------------------- Page 4-----------------------


her biological father in Minnesota, and Alecia was permanently placed with two relatives  

in  Washington.    Both  children  were  released  from  OCS  custody  following  these  


           B.        Proceedings  


                     Alecia and Shayna filed a complaint against OCS and Jack Dominick in the  


Kenai Superior Court.  They alleged that OCS had a duty to protect them from harm and  


that OCS negligently breached that duty.  As to Jack, they alleged that he committed  

assault and battery against them and negligently harmed them.2  OCS filed an answer and  

a third-party complaint against Angela McCoy and Barbara Dominick.3  


                     During trial, the Mullinses developed several theories under which the jury  


could hold OCS liable.  They argued, among other things, that OCS negligently failed  


to investigate Linda Jacobsen's 1999 report that Alecia was suffering from night terrors;  


that OCS failed to provide Alecia and Shayna with adequate mental health services while  


they were in OCS custody; that OCS negligently investigated reports that Barbara was  


physically abusing Alecia; and that OCS negligently failed to remove Alecia and Shayna  

from Barbara's custody after Barbara became abusive.   


                     Before trial, OCS moved for partial summary judgment on the ground that  

several  of  the  Mullinses'  claims  were  based  on  conduct  protected  by  discretionary  


function  immunity.                Although  the  superior  court  agreed  that  OCS  "is  entitled  to  

immunity for discretionary functions on planning and policy matters," it concluded that  


"[a]pplication of the immunity provided by law will involve a claim-by-claim analysis  

based on the evidence presented" and that "the plaintiffs have asserted and presented  

           2         Before trial, the Mullinses sought to dismiss their complaint against Jack,         

explaining  that  "we've  basically  decided  that  we  don't  need   to   sue  Jack  directly  

anymore."  But the court did not allow the dismissal.  

           3         Barbara passed away in 2006, before this litigation began.  

                                                                  -4-                                                                6919  

----------------------- Page 5-----------------------

sufficient potential evidence to withstand dismissal at this time."  Therefore, the court  

denied the agency's motion but permitted OCS to "renew its request for immunity as to  


particular claims at the close of plaintiffs' case in chief."  

                   Accordingly, OCS moved for a directed verdict based on discretionary  

function immunity at the close of the Mullinses' case in chief.  The court denied that  


motion as well, concluding that the scope of OCS's liability would be addressed in the  


jury instructions.  The court instructed the jury:  

                             In deciding whether OCS exercised reasonable care  

                   you may not find that OCS should have adopted different or  

                   better policies and procedures, or that it should have done  


                    something more than required by its policies and procedures.  


                             . . . .  

                             As a matter of law, you may not find OCS liable for  

                   placing Alecia and Shayna Mullins in foster care . . . .  As a  


                    state agency, OCS is immune from liability for discretionary  


                    functions such as these.  

                             However,  you  may  hold  OCS  liable  for  failing  to  

                    comply with its own policies designed to protect the children  


                   under  OCS  care  or  for  negligently  carrying  out  its  duties  

                   towards Alecia and Shayna Mullins.  

                             . . . .  

                             You   may   not   find   that   OCS   failed   to   exercise  


                   reasonable care toward Alecia Mullins and Shayna Mullins  

                    in  making  decisions  regarding  the  allocation  of  money,  

                    employees and other resources.  OCS cannot be held liable  


                    for its resource allocation decisions.  You may only consider  

                   whether  OCS  employees  who  had  responsibilities  toward  

                   Alecia  Mullins  and  Shayna  Mullins  exercised  reasonable  


OCS did not object to these instructions.  

                    The jury returned a verdict stating that OCS was negligent with respect to  


both Alecia and Shayna and that the agency's negligence was a substantial factor in  


causing  harm  to  both  women.    And  although  the  jury  was  instructed  that  "Jack  

                                                             -5-                                                      6919

----------------------- Page 6-----------------------

Dominick, by virtue of his no contest plea, cannot deny" that he abused both Alecia and     

 Shayna, it found that Jack's conduct did not cause harm to either Alecia or Shayna.  

                    The jury awarded Alecia $350,000 in future economic damages, $500,000  


in past non-economic damages, and $150,000 in future non-economic damages to Alecia  

and $400,000 in future economic damages, $500,000 in past non-economic damages, and  


$150,000 in future non-economic damages to Shayna.  It allocated 95% of the fault for  

these damages to OCS, 5% to Angela McCoy, and none to either Barbara or Jack.  


                    OCS moved for judgment notwithstanding the verdict or, in the alternative,  


a new trial, arguing that the jury's verdict was "contrary to the weight of the evidence,  

internally inconsistent, and plainly motivated by passion and prejudice."  In particular,  


the  agency  argued  that  "the  jury's  allocation  of  zero  fault  to  Jack  Dominick  is  not  

supported by the evidence."  The superior court denied the motion.  

                    OCS appeals.  


          A.	        The  Evidence  Supporting  The  Jury's  Allocation  Of  Fault  Was  So  

                    Insubstantial That The Verdict Was Plainly Unreasonable.  


                    OCS argues that it was error to deny its motion for a new trial because the  


jury's allocation of 95% of the fault for the Mullinses' harm to OCS and 0% to Barbara  

and  Jack  Dominick  was  "irrational  and  against  the  weight  of  the  evidence."    The  


Mullinses respond that the allocation was proper for two reasons:  first, because the  


Mullinses "made it clear that they were only pursuing negligence claims against OCS for  


its action and inactions following  disclosure" of Jack's sexual abuse;  and second, that 

OCS can reasonably be held solely liable for the acts of other tortfeasors when OCS  

negligently fails to protect children from those tortfeasors.  

          4         Emphasis added.  

                                                                -6-	                                                           6919  

----------------------- Page 7-----------------------

                     The denial of a motion for a new trial is reviewed for abuse of discretion.5  

We will reverse the superior court's decision to deny such a motion only "if the evidence              

supporting the verdict was so completely lacking or slight and unconvincing as to make     

the verdict plainly unreasonable and unjust."6  

                    Alaska Statute 09.17.080(a) provides:  

                     In  all  actions  involving  fault  of  more  than  one  person,  

                     including  third-party  defendants  and  persons  who  have  

                     settled or otherwise been released, the court, unless otherwise  


                     agreed by all parties, shall instruct the jury to answer special  


                     interrogatories or, if  there is no jury, shall make findings,  


                     indicating . . .  

                               . . . .  

                     (2)	      the percentage of the total fault that is allocated to each  

                               claimant, defendant, third-party defendant, person who  

                               has  been  released  from  liability,  or  other  person  

                               responsible for the damages . . . .  

"In determining the percentages of fault, the trier of fact shall consider both the nature  


of the conduct of each person at fault, and the extent of the causal relation between the  


conduct and the damages claimed."7  

                     Contrary to their representations on appeal, the Mullinses' arguments at  

trial were not limited to OCS's actions following the disclosure of Jack's sexual abuse  

on  March  7,  2001.    In  particular,  the  Mullinses  argued  that  a  1999  psychological  


assessment of Alecia, which suggested that Alecia's night terrors were symptomatic of  


sexual abuse, gave OCS notice that Alecia was suffering from sexual abuse at that time.  

          5         Babinec v. Yabuki, 799 P.2d 1325, 1327 (Alaska 1990) (internal quotation  

marks omitted).  

          6         Kingery v. Barrett , 249 P.3d 275, 283 (Alaska 2011).  

          7         AS 09.17.080(b).  

                                                                -7-	                                                         6919

----------------------- Page 8-----------------------


And during closing argument, the Mullinses asked for $500,000 each in non-economic  


damages to compensate them for the year and a half of "preventable sexual abuse" that  


occurred between the time that OCS was allegedly notified that Alecia was being abused  

and the time that Alecia and Shayna reported the abuse in 2001.  


                    The Mullinses also argue that it was proper for the jury to allocate 95% of  

the fault to OCS because OCS's negligence enabled Barbara and Jack to commit torts  


against the Mullinses.  But courts in other jurisdictions have held that it is irrational to  

assign the majority of fault to a negligent tortfeasor when both negligent and intentional  

tortfeasors are responsible for harm suffered by a plaintiff.  


                     For example, in Pamela B. v. Hayden , in which a rape victim sued the  

owner and the manager of the apartment building in which the rape occurred, a jury  



allocated 95% of the fault to the owner and manager and only 4% to the rapist. 

California Court of Appeal held that this allocation of fault was irrational:  


                    How can the man who grabbed Pamela from behind, held a  


                    knife to her throat, threatened to kill her, forced her to strip,  


                    raped her, forced her to orally copulate him, raped her again,  

                    stuffed her into the trunk of a car and left her there (as he  

                    escaped in her boyfriend's car) be only four percent at fault  


                    for her injuries?  To ask the question compels the answer. He  




                    The California Court of Appeal overturned a similar allocation of fault in  


Scott v. County of Los Angeles.                   Although the Scott court acknowledged that some fault  

          8         31 Cal. Rptr. 2d 147, 149-50 (App. 1994),                         review granted, 880 P.2d 112  

(Cal. 1994), review dismissed, 889 P.2d 539 (Cal. 1995).  

          9         Id. at 160.  

          10        32 Cal. Rptr. 2d 643 (App. 1994).  

                                                               -8-                                                         6919

----------------------- Page 9-----------------------


might  be  attributed  to  a  children's  services  agency  that  failed  to  investigate  several  

reports of harm to a child, the court concluded that  


                     the evidence cannot be stretched to support an apportionment  

                     of 99 per cent of the fault to the negligent defendants and  


                     only 1 per cent to the person who filled a tub with scalding  


                     water, lifted [the child] into it and held her there until her  


                     flesh  was  burned  to  the  bone.    No  reasonable  jury  could  

                     conclude  [the  abuser's]  fault  was  as  trifling  as  the  jury's  


                     allocation would suggest.  

                     In this case, the jury was instructed that Jack committed at least one act of  


sexual abuse against both Shayna and Alecia, and there was exhaustive testimony at trial  


about the abuse committed by both Jack and Barbara. Given this evidence, it was simply  


irrational to conclude that Jack and Barbara were zero percent responsible for the results  


of the intentional (and even criminal) acts that they committed.                                          Because the jury's  


verdict was plainly unreasonable, it was an abuse of discretion to deny OCS's motion for  

a new trial.13  


                     We therefore remand for a new trial.                          Because the special verdict form  


instructed the jury to award damages caused only by the conduct of the persons it found  

were liable to the Mullinses, and the jury concluded that neither Jack nor Barbara caused  

           11        Id. at 655-56.  

           12        Cf. Grant v. Stoyer, 10 P.3d 594, 597 (Alaska 2000) ("[E]vidence that the   

accident  did  not  cause  some  injury  to  Grant  was  so  completely  lacking,  slight,  and  

unconvincing as to make the verdict plainly unreasonable and unjust.").  



                     See Pugliese v. Perdue, 988 P.2d 577, 581 (Alaska 1999) ("We will reverse  


a decision denying a new trial if the evidence supporting the verdict was so completely  


lacking or slight and unconvincing as to make the verdict plainly unreasonable and  

unjust." (internal quotation marks omitted)).  

                                                                  -9-                                                           6919

----------------------- Page 10-----------------------

harm to the Mullinses, it did not award damages based on Jack's and Barbara's conduct.                 

Therefore, the new trial must revisit damages as well as allocation of fault.  

            B.	         The Superior Court Should Examine The Mullinses' Allegations Of                                                                

                        Negligence   To   Determine   If   OCS's   Actions   Are   Protected   By  

                        Discretionary Function Immunity.  

                        OCS also argues in its appeal that the trial court erred by permitting the jury  

to find it was liable for negligently performing various discretionary acts.  It argues that  


such acts cannot be a basis for liability under Alaska law.  The Mullinses respond that  


OCS failed to object to the jury instructions and the instructions on immunity do not  


constitute plain error.  

                        Because we reverse on the ground that the jury's allocation of fault was  

irrational, we do not need to decide whether the superior court's approach to discretionary  


function immunity was plainly erroneous.  However, we take this opportunity to clarify  

the  proper  procedure  for  ensuring  that  the  jury  does  not  hold  the  state  liable  for  its  

discretionary acts.  

                        Alaska Statute 09.50.250 provides that a person may bring an action in tort  


against the State of Alaska in any state court with jurisdiction over that claim.  However,  


                        an action may not be brought if the claim . . . is based upon  


                        the  exercise  or  performance  or  the  failure  to  exercise  or  


                        perform a discretionary function or duty on the part of a state  


                        agency  or  an  employee  of  the  state,  whether  or  not  the  


                        discretion involved is abused . . . .  

            14          AS 09.50.250.  

                                                                          -10-	                                                                        6919  

----------------------- Page 11-----------------------


Two varieties of agency action are not covered by discretionary function immunity:  those  


involving   no   discretion   and   those   involving   "only   discretion   free   from   policy  




                    The first category includes actions that are required by agency regulations  


or policy. For example, in State, Department of Corrections v. Cowles, we held that,  


because Department of Corrections policy requires a parole officer to initiate a parole  

revocation proceeding in response to a "serious violation,"16 an officer's response to a  



serious  parole  violation  involves  no  discretion  and,  therefore,  is  not  immune.                                      But  


because Department policy requires no particular response to a minor parole violation,  


an officer's response to such a violation is immune.                              


                    The second category includes actions that do not require the consideration  

of broad social, economic, and political policy factors. For example, once the state has  



made   the   policy   decision   to   maintain   a   highway   for  winter  travel,   its   actions  

implementing that decision - such as determining how many workers or how much  



equipment should be used to maintain the highway - are not immune.                                           Such decisions  

          15        R.E. v. State , 878 P.2d 1341, 1349 (Alaska 1994).  

          16        Under the policy at issue in  Cowles, a "serious   violation" included "all  

felony behavior" as well as some serious misdemeanors. 151 P.3d 353,   360 (Alaska  


          17        Id. at 360-61.  

          18        Id. at 361.  

          19        State v. Abbott, 498 P.2d 712, 722 (Alaska 1972).  

                                                              -11-                                                         6919

----------------------- Page 12-----------------------


"simply do not rise to the level of governmental policy decisions calling for judicial  




                    Applying these principles, it appears that the jury instructions given in this  


trial did not adequately implement discretionary function immunity.  In Instruction No.  

28, the superior court wrote:  


                              As a matter of law, you may not find OCS liable for  

                    placing Alecia and Shayna Mullins in foster care . . . . As a  


                    state agency, OCS is immune from liability for discretionary  

                    functions such as these.  


                              However,  you  may  hold  OCS  liable  for  failing  to  

                    comply with its policies designed to protect the children under  

                    OCS care or for negligently carrying out its duties towards  

                    Alecia and Shayna Mullins.  

As OCS notes, this instruction suggests that OCS may be held liable for failing to carry  


out its "duties," discretionary function immunity notwithstanding.  "[D]uties" appears to  


refer to the eleven duties listed in Jury Instruction No. 23.  But at least one of those duties  


involves discretionary functions.  

                    For example, Instruction No. 23 provides that OCS has a duty "to protect  

children in the legal custody or supervision of OCS."  The pre-1999 version of the OCS  


Child Protective Services Manual21 provides:  

          20        Id.  

          21        This version of the Manual was superseded on July 1, 1999, and did not  


govern  OCS's  actions  during  all  the  times  relevant  to  this  appeal.                             We  refer  to  the  


Manual here for demonstrative purposes only.  

                                                             -12-                                                            6919  

----------------------- Page 13-----------------------

                    The child welfare system must  protect children.  All child  

                    welfare protective activities and intervention must be toward  


                    the goal of protecting the child from harm.  In the provision  

                    of   services   the   safety   of   the   child   is   always   the   first  

                    consideration in performing risk assessments, developing case  

                    plans,  and  identifying  services  for  children  and  families.  

                    Safety of the child is paramount in all decisions [a]ffecting  


But this broad, aspirational policy statement cannot be a basis for liability.  It calls for no  


specific action and in no way cabins the discretion of OCS officials in carrying out the  


agency's mission.22                                                                      

                              And decisions about how best to protect the welfare of children, like  

decisions whether to initiate parole revocation proceedings following a minor parole  



violation,  involve  the  balancing  of  social,  economic,  and  political  policy  factors. 


Therefore, to the extent that Instruction No. 28 suggests that OCS may be held liable  


merely  for  failing  to  "protect  children,"  it  misstates  the  law  governing  discretionary  

function immunity.24  

                    In  Cowles,  we  explained  that  "the  allegedly  negligent  decisions  in  a  

particular case must be examined individually to determine if they are" protected by  



discretionary function immunity.                    The trial court should attempt to rule on these issues  

during pre-trial motion practice.  But if specific factual questions necessary to the trial  

          22        Cf. R.E.  v. State, 878 P.2d 1341, 1350 (Alaska 1994).  



                    Cf. Cowles, 151 P.3d at 361 ("[W]hen the parole officer is given a choice,  

the decision whether or not to seek to revoke parole involves the same weighing of  

policy matters that a parole board engages in when it makes the final parole revocation  





                    We express no opinion about whether OCS may be held liable for its failure  

to provide mental health services, its failure to conduct certain investigations, or any  

other act or omission alleged by the Mullinses.  

          25        151 P.3d at 359.  

                                                             -13-                                                       6919

----------------------- Page 14-----------------------


court's legal determinations need to be resolved by the jury, specific jury interrogatories  


should be used.  In short, although the jury may need to decide the factual underpinnings  


of the trial court's conclusions, discretionary immunity decisions must remain with the  


                   We also note that the version of the OCS Child Protective Services Manual  


entered into the record was largely superseded in July 1999.  That version of the Manual  


does not govern OCS's actions after the date it became obsolete.  On remand, when it  

performs its discretionary function analysis, the superior court must look to the version  

of the Child Protective Services Manual that was in effect at the time of each of OCS's  


allegedly negligent actions.26  


                    The   judgment   of   the   superior   court   is   REVERSED   and   this   case  

REMANDED for a new trial.  



                    OCS  also  argues  that  it  was  error  to  deny  its  post-verdict  motion  for  

remittitur, that the Mullinses did not provide sufficient evidence to prove their future  

economic damages, and that the Mullinses' closing argument was improper.  Because  

we reverse on the grounds stated above, we do not reach these other claims.  

                                                            -14-                                                         6919  

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