Hitto NATHAN, individually and as guardian ad litem for R. N., a minor child; and Hanny Nathan, Plaintiffs-Appellants,
DEPARTMENT OF HUMAN SERVICES; Jodie Hoberg; Todd Hirano; Linda Canizales; Holli Arnold Cissna; and Brent Klabo, Defendants-Respondents.
and submitted February 9, 2016
County Circuit Court 161319641 Charles D. Carlson, Judge.
H. Haraguchi argued the cause for appellants. On the briefs
were Cody Hoesly and Larkins Vacura LLP.
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.
Ortega, Presiding Judge, and Lagesen, Judge, and Garrett,
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.
granting summary judgment to defendants affirmed in part,
reversed in part, and remanded; otherwise affirmed.
Or. 556] ORTEGA, P. J.
an employee of the Department of Human Services (DHS) removed
four-year-old R from the care of plaintiffs Hanny and Hitto
Nathan,  they brought federal and state claims
against DHS and several DHS employees who were involved in
R's removal and the resulting dependency
proceedings. 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
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.
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
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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"); (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"); 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"). 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.
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.
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.
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.
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.
appeal, the parties generally reprise their arguments from
below. We begin by addressing plaintiffs' federal claims
before moving on to their state tort claims.
Wrongful Removal Claim
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).
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).
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).
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