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Nathan v. Department of Human Services

Court of Appeals of Oregon

November 1, 2017

Hitto NATHAN, individually and as guardian ad litem for R. N., a minor child; and Hanny Nathan, Plaintiffs-Appellants,
v.
DEPARTMENT OF HUMAN SERVICES; Jodie Hoberg; Todd Hirano; Linda Canizales; Holli Arnold Cissna; and Brent Klabo, Defendants-Respondents.

          Argued and submitted February 9, 2016

         Lane County Circuit Court 161319641 Charles D. Carlson, Judge.

          Katie H. Haraguchi argued the cause for appellants. On the briefs were Cody Hoesly and Larkins Vacura LLP.

          Susan Yorke, Assistant Attorney General, argued the cause for respondents. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary:

         An employee of the Department of Human Services (DHS) removed four-year-old R from plaintiffs' care and placed her in protective custody. Plaintiffs, who are R's grandparents and had adopted her shortly after birth under the common-law practices and customs of the Marshall Islands, were not named as parties to the subsequent juvenile dependency proceedings until eight months after R's removal. Based on R's removal and the subsequent dependency proceedings, plaintiffs brought federal section 1983 claims and state tort claims against DHS and several DHS employees. Plaintiffs moved for partial summary judgment on their section 1983 claims for "wrongful removal" and "judicial [288 Or. 555] deception." Defendants cross-moved for summary judgment on all of plaintiffs' claims, asserting that plaintiffs' federal claims were barred by absolute and qual-ifed immunity and that plaintiffs' state law claims, to varying degrees, either failed as a matter of law or were barred by discretionary immunity under the Oregon Tort Claims Act (OTCA). The trial court granted summary judgment to defendants. Plaintiffs appeal. Held: The trial court correctly granted summary judgment to defendants on plaintiffs' section 1983 claim for the "wrongful removal" of R because defendants were protected by qualified immunity. However, the trial court erred by granting summary judgment on plaintiffs' remaining section 1983 claims. As for the state tort claims, plaintiffs failed to carry their burden to demonstrate that the trial court erred in granting summary judgment on their claims for intentional infliction of emotional distress, invasion of privacy, and wrongful use of a civil proceeding. However, defendants' actions were not entitled to discretionary immunity under the OTCA for plaintiffs' negligence and negligence per se claims.

         Judgment granting summary judgment to defendants affirmed in part, reversed in part, and remanded; otherwise affirmed.

         [288 Or. 556] ORTEGA, P. J.

         After an employee of the Department of Human Services (DHS) removed four-year-old R from the care of plaintiffs Hanny and Hitto Nathan, [1] they brought federal and state claims against DHS and several DHS employees who were involved in R's removal and the resulting dependency proceedings.[2] Plaintiffs alleged that they were entitled to civil damages under 42 USC section 1983 because defendants deprived them of various constitutional rights. Further, they alleged that defendants committed several torts under Oregon law.

         Plaintiffs moved for partial summary judgment on two of their section 1983 claims. Defendants cross-moved for summary judgment, asserting that plaintiffs' federal claims were barred by absolute and qualified immunity and that plaintiffs' state law claims, to varying degrees, either failed as a matter of law or were barred by discretionary immunity. The trial court denied plaintiffs' partial summary judgment motion, granted summary judgment to defendants, and entered a judgment dismissing plaintiffs' claims. On appeal, plaintiffs assign error to both the denial of their motion and the grant of summary judgment to defendants. Ultimately, as to the court's denial of plaintiffs' partial summary judgment motion, we affirm; as to the court's grant of summary judgment to defendants, we affirm in part, reverse in part, and remand.

         On appeal from cross-motions for summary judgment, when error is assigned to the granting of one and the denial of the other, both rulings are reviewable. Bergeron v. Aero Sales. Inc., 205 Or.App. 257, 261, 134 P.3d 964, rev den, 341 Or. 548 (2006). The record on summary judgment "consists of documents submitted in support of and in opposition to both motions." Citibank South Dakota v. Santoro, 210 Or.App. 344, 347, 150 P.3d 429 (2006), rev den, 342 Or. 473 (2007). [288 Or. 557] We review each of the cross-motions to determine whether there are any disputed issues of material fact and whether either party was entitled to judgment as a matter of law. Oregon Southwest. LLC v. Kvaternik, 214 Or.App. 404, 413, 164 P.3d 1226 (2007), rev den, 344 Or. 390 (2008). "We review the record for each motion in the light most favorable to the party opposing that motion." Ellis v. Ferrellgas. L. P., 211 Or.App. 648, 653, 156 P.3d 136 (2007). Here, because the majority of our analysis involves whether the court appropriately granted summary judgment to defendants, we state the relevant facts in the light most favorable to plaintiffs-i.e., the parties opposing that motion.

         I. FACTS

         R was born in 2007 in the Marshall Islands. Plaintiffs are R's paternal grandparents and, shortly after R's birth, they adopted her and became her legal guardians under the common-law practices and customs of the Marshall Islands. Neither the common law nor the customs of the Marshall Islands include the "concept" of the termination of parental rights and no legal documentation is required in the Marshall Islands to establish plaintiffs' role as guardians or adoptive parents.

         Plaintiffs travelled with R to Oregon in 2010 for a wedding and ended up extending their stay and living with their son Darren in his apartment in Eugene. Late on October 16, 2011, Darren and Hanny had about a 10-minute argument in the apartment. Darren was intoxicated and upset, and he retrieved his handgun and threatened to commit suicide. He then left the apartment without his gun. Hanny hid the handgun in a toy box in a bedroom. The next morning, while Hitto and R slept in another room, Hanny accidently discharged the gun while retrieving it from the toy box. The bullet traveled through the bedroom floor into the apartment below. Nobody was injured, but the downstairs neighbor contacted the Eugene Police Department to report the gunshot and the argument from the previous night.

         When the police arrived shortly thereafter, their conversation with plaintiffs was hampered because plaintiffs spoke limited English. According to the police report, [288 Or. 558] plaintiffs initially denied knowledge of the gun. However, the police located it in Hanny's handbag. They also observed that Hitto was "carrying what looked like a beer mug" when they first approached him, although the report is silent as to whether the mug contained alcohol. Darren returned to the apartment and explained to the officers the circumstances of the argument from the night before. The officers confiscated the gun, contacted DHS, and cited plaintiffs for reckless endangerment, criminal mischief, and tampering with physical evidence.[3]

         Defendant Hoberg, a DHS case worker, received the call about the disturbance at Darren's apartment. After the officers relayed information to her about what they had observed, she responded to the apartment and spent "a few hours" questioning plaintiffs about the incident. Hitto communicated to Hoberg that plaintiffs were R's adoptive parents and guardians and had raised her since birth. Hoberg separated R from plaintiffs and asked her where her "parents" were. She indicated that they were "inside." Hoberg "clarified the difference" between grandparents and parents to R and she "didn't appear to understand." Hoberg asked R additional questions about her family, but when she received no further details, she ended the "interview." Hoberg attempted to contact plaintiffs' other son, Hanto, to help with the language barrier and help her "understand the circumstances" better. Those attempts failed. At that point, Hoberg decided to take R into protective custody and place her in shelter care, given what Hoberg deemed the "severity of the circumstances, " including R "possibly being subjected to her uncle holding a handgun and making suicidal threats, as well as a firearm being discharged in the child's bedroom" and because Hoberg did not know the "whereabouts" of R's biological parents, and "it is unknown whether or not the grandparents have any type of legal custody" of R.

         After deciding to take R into protective custody, Hoberg attempted to explain that decision to plaintiffs, but she was uncertain whether they understood. She contacted Hanto's wife, Adelle, to explain the situation and to ask the [288 Or. 559] family to attend a "family meeting" after the shelter hearing to gain some clarity as to R's circumstances.

         Two days later, the juvenile court held a shelter hearing, see ORS 419B.185 (requiring evidentiary hearing after child taken into protective custody), at which DHS filed a protective custody report. That report identified R's biological parents as the persons with legal custody of R. It also noted that their whereabouts were unknown, but that it appeared that they resided in the Marshall Islands. DHS also filed a dependency petition asking the court to take jurisdiction of R. DHS named R's biological parents in the petition but did not name plaintiffs as parties to the dependency proceeding-i.e., plaintiffs were not identified as parties on any of DHS's dependency pleadings and did not receive service of summons. Although Hoberg notified plaintiffs about the shelter hearing, they were not allowed to participate, and were not granted any of the rights that parties have in dependency proceedings. See ORS 419B.875(2) (specifiying some of the rights that parties have in juvenile dependency proceedings).[4]

         The dependency petition included a statement that "[n]o person, not party to this proceeding, has physical custody of the child, or claims custody or visitation rights." Defendant Klabo, a DHS social worker, signed the petition based on information provided by Hoberg. At the close of the shelter hearing, the court ordered R into the custody of DHS and set a jurisdictional and dispositional hearing for early December 2011. DHS placed R in foster care.

         After the hearing, a "family meeting" was held that included Hoberg, plaintiffs, Darren, Adelle, and Hanto. Hoberg explained DHS's concerns and learned that R's biological parents resided in the Marshall Islands and had not been involved in R's life except for occasional communications. At the meeting, plaintiffs gave Hoberg an "Affidavit of Identity" signed by R's biological mother that, in part, [288 Or. 560] indicated that plaintiffs had adopted R under the common-law practices and customs of the Marshall Islands. They also gave Hoberg an "Affidavit of Guardianship, " also signed by R's biological mother, that stated that plaintiffs had "full legal guardianship duties and functions" until January 18, 2012. Defendants were "confused" by the documents and they did not amend the petition to name plaintiffs as R's guardians or parents.

         At the jurisdictional and dispositional hearing in December 2011, R's biological father participated by telephone from the Marshall Islands and admitted to an allegation that he was unavailable to protect R or meet R's needs. R's biological mother did not participate. The court took jurisdiction based on father's admission.

         Early in April 2012, plaintiffs gave DHS a declaration from the Marshallese Ambassador to the United States that confirmed the validity of plaintiffs' claims of adoption and guardianship. DHS filed an amended dependency petition, signed by defendant Cissna, that named plaintiffs as parties to the proceeding (as R's guardians), and added new jurisdictional allegations. Specifically, the petition stated that plaintiffs failed "to protect the child from Threat of Harm Physical Abuse and Mental Injury in that the child has been present during incidents of domestic violence, some involving firearms." It also included an allegation that Hitto's "use of alcohol interferes with his ability to safely care for the child. If left untreated, the guardian's substance abuse presents a threat of harm to the child." Those new allegations were based on Hoberg's initial report that stated that Hitto "was already consuming alcohol" when police arrived the morning of the initial incident and not on any further investigation by defendants.

         The juvenile court held a hearing on April 26, 2012. At the close of that hearing, the court ordered R to remain in foster care and set an evidentiary hearing for June 20, 2012. On the morning of June 20, however, DHS moved to terminate the wardship and dismiss jurisdiction and the dependency petitions because "DHS and all parties *** have agreed that a return of the child to [plaintiffs] is in the child's best interests and [plaintiffs] have agreed to opening [288 Or. 561] a voluntary case with DHS." The court granted the motion, and R was reunited with plaintiffs, more than eight months after being removed from their care.

         Based on the removal of R and the subsequent dependency proceedings, plaintiffs brought an action asserting several claims for civil damages under section 1983 and several claims based on Oregon tort law. Under section 1983, plaintiffs alleged that they were entitled to civil damages because defendants violated their constitutional rights by (1) removing R from their care without a warrant in the absence of an exigency that would have justified a warrantless removal (the "wrongful removal claim")[5]; (2) depriving plaintiffs of their due process rights to participate in the dependency proceedings by failing to serve them with the dependency petition and summons, failing to schedule and conduct hearings and reviews as required by Oregon's dependency code, failing to provide timely notice to the Marshallese Consulate that R was in DHS custody, and failing to provide necessary interpreter services during the initial removal of R and the subsequent dependency proceedings (the "due process claim")[6]; and (3) making deliberately or recklessly false statements in the dependency petition and the amended dependency petition that were material to the court's decision to continue R's placement in protective custody (the "judicial deception claim").[7] Plaintiffs also alleged state tort claims for invasion of privacy (intrusion upon seclusion), invasion of privacy (false light), negligence, negligence per se, intentional infliction of emotional distress (IIED), and wrongful use of a civil proceeding.[8]

         Plaintiffs moved for partial summary judgment on their wrongful removal and judicial deception claims. They asserted that the record lacked any evidence that would allow a reasonable factfinder to conclude that R was in imminent threat of serious bodily injury when she [288 Or. 562] was removed from plaintiffs' care. Alternatively, plaintiffs asserted that, even if there was a question of fact on that point, Hoberg's actions exceeded the scope of action that was necessary to protect R from any threat. Accordingly, plaintiffs claimed that they were entitled to summary judgment on their wrongful removal claim. As for their judicial deception claim, plaintiffs asserted that there was no dispute of fact that a statement made by Klabo in the dependency petition and statements made by Cissna in the amended petition were deliberately or recklessly false and material. Thus, in plaintiffs' view, their claim for judicial deception was established as a matter of law.

         Defendants responded to plaintiffs' summary judgment motion by asserting that their actions were justified by ORS 419B.150, which authorizes DHS to take a child into protective custody when a "child's condition or surroundings reasonably appear to be such as to jeopardize the child's welfare." DHS also asserted that, at the very least, there were disputed issues of material fact as to whether R was wrongfully removed and whether defendants' statements in the dependency petitions were misrepresentations.

         Defendants cross-moved for summary judgment. First, they argued that the individual defendants, as public officials, were entitled to qualified immunity on plaintiffs' wrongful removal and due process claims because defendants' actions did not violate a "clearly established" constitutional right. Second, they maintained that Klabo and Cissna were entitled to absolute immunity on the judicial deception claim because filing a dependency petition is akin to initiating a prosecution, and, under Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), prosecutors have absolute immunity from a civil suit under section 1983 for initiating a prosecution and presenting the state's case. Third, defendants maintained that they were entitled to discretionary immunity under the Oregon Tort Claims Act (OTCA), ORS 30.265(6)((c), for plaintiffs' state tort claims of negligence and negligence per se because the actions that provide the basis for those claims represented an exercise of their discretion-i.e., making policy choices among alternatives with the authority to make such choices. Fourth, defendants asserted that they were absolutely [288 Or. 563] immune from the invasion of privacy claims because those claims were based on statements made in the dependency petitions, which qualify as "initiating a proceeding." Finally, defendants asserted that plaintiffs' remaining state tort claims failed as a matter of law. With respect to the IIED claim, defendants asserted that plaintiffs could not establish that defendants violated the duty that was claimed by plaintiffs-specifically, the duty not to wrongfully remove R. In defendants' view, because R was justifiably removed under ORS 419B.150, the IIED claim failed. As for plaintiffs' wrongful use of civil proceedings, defendants asserted that, as a matter of law, plaintiffs could not establish two elements necessary to prove such a claim. Specifically, defendants maintained that plaintiffs could not establish that the proceeding was terminated in their favor, and they could not show that defendants initiated the proceeding with malice.

         Without explanation, the trial court denied plaintiffs' partial summary judgment motion and granted summary judgment to defendants. Subsequently, the court entered a judgment dismissing plaintiffs' claims.

         II. ANALYSIS

         On appeal, the parties generally reprise their arguments from below. We begin by addressing plaintiffs' federal claims before moving on to their state tort claims.

         A. Wrongful Removal Claim

         The doctrine of qualified immunity is a function of federal law and grants government officials immunity from civil liability if their "'conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The doctrine balances two important interests-"the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Id. Because qualified immunity is an immunity from suit, as opposed to a defense to liability, "it is effectively lost if a case is [288 Or. 564] erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

         As the United States Supreme Court has explained, the doctrine gives public officials "breathing room to make reasonable but mistaken judgments about open legal questions." Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). That is, it protects a public official's reasonable mistaken judgment whether it is a "mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Pearson, 555 U.S. at 231. Whether qualified immunity can be invoked turns on the "objective legal reasonableness" of the official's acts. Id. at 244. Qualified immunity is lost only when the unlawfulness of an official's conduct is apparent in light of pre-existing law. Id. Therefore, the Court has stated that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 US 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). So, "if a reasonable officer might not have known for certain that the conduct was unlawful-then the officer is immune from liability." Ziglar v. Abbasi, ___ US ___, ___, 137 S.Ct. 1843, 1867, 198 L.Ed.2d 290 (2017).

         As the Court explained in Pearson, qualified immunity claims are resolved by a two-pronged inquiry: (1) Do the facts as alleged or shown make out a violation of a constitutional right? (2) Was the right at issue "clearly established" at the time of the defendant's alleged misconduct? 555 U.S. at 232. Courts have discretion to decide which of the two prongs of the qualified immunity analysis to address first. Id. at 236. Whether qualified immunity is established is a matter of law for the court to decide, but, if the availability of the defense depends on facts that are in dispute, the jury must determine those facts. DeNucci v. Henningsen, 248 Or.App. 59, 71, 273 P.3d 148 (2012). In other words, summary judgment is improper if, resolving all disputes of fact in the summary judgment record in favor of the plaintiffs, the facts adduced show that the official's conduct violated a constitutional right, and that right was "clearly established" at the time of the violation. See Kirkpatrick v. County of Washoe, 843 F.3d 784, 788 (9th Cir 2016) (explaining two-prong analysis at summary judgment stage of proceedings).

         [288 Or. 565] We begin with the first prong: Viewing the summary judgment record in the light most favorable to plaintiffs, does the evidence adduced show that there is a question of fact ...


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