Alewine v. State, Dept. of Health and Social Services, Div. of Public Assistance and Social Services, 89-217

• Decision Date: 04 January 1991
• Docket Number: No. 89-217,89-217
• Parties: Thomas A. ALEWINE and Jeffrey A. Alewine, a Minor Child, by and through his next friend, Thomas A. Alewine, Appellants (Plaintiffs), v. STATE of Wyoming, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, DIVISION OF PUBLIC ASSISTANCE AND SOCIAL SERVICES, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 1372

803 P.2d 1372

Thomas A. ALEWINE and Jeffrey A. Alewine, a Minor Child, by and through his next friend, Thomas A. Alewine, Appellants (Plaintiffs), v. STATE of Wyoming, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, DIVISION OF PUBLIC ASSISTANCE AND SOCIAL SERVICES, Appellee (Defendant).

No. 89-217.

Supreme Court of Wyoming.

Jan. 4, 1991.

Fred R. Dollison and J. John Sampson, Sheridan, for appellants.

Jeffrey A. Donnell of Davis, Donnell, Worrall & Bancroft, P.C., Worland, for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

GOLDEN, Justice.

Jeffrey Alewine, a minor, and Thomas Alewine, individually and as Jeffrey's next friend, appeal from summary judgment granted to the State of Wyoming Division of Public Assistance and Social Services (D-PASS) on their claims which arose from D-PASS' de facto guardianship of Jeffrey between June 16, 1985, and March 23, 1988. The Alewines sought to recover for alleged violations of civil rights under 42 U.S.C. § 1983, for intentional interference with child custody, and for intentional and negligent failure and refusal to reunify a family. Claims were also asserted on Jeffrey's behalf for institutional neglect and abuse, unlawful detention, and unlawful conversion of social security monies.

The trial court determined that the Alewines' complaint failed to state a cause of action for the alleged civil rights violation and that the remaining claims were barred by the Governmental Claims Act, W.S. 1-39-101, et seq. (June 1988 Repl.) sovereign immunity, and the W.S. 1-39-113(a) (June 1988 Repl.) statute of limitations. In their appeal the Alewines do not dispute summary judgment as to Thomas Alewine's claims, but argue that Jeffrey's negligence claims were improperly dismissed. Although stating the § 1983 claim, they proceed to waive it in light of Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). We affirm summary judgment as to the § 1983 claim, but reverse and remand on Jeffrey's negligence claims.

The Alewines present two issues for consideration:

I. This court should carve out an exception to the Wyoming Governmental Claims Act, Wyoming Statute, Sections 1-39-101 et seq, for claims against the state, its agencies, departments and officials which otherwise would have been cognizable under 42 United States Code, Section 1983, prior to the decision of Will v. Michigan Department of State Police, 491 U.S. 58, 105 L.Ed.2d 45, 109 S.Ct. 2304 (1989).

II. Did the court err in granting summary judgment on Jeffrey A. Alewine's negligent (sic) claims?

D-PASS responds by framing these issues as:

I. The district court was correct in granting Appellee's motion for summary judgment with respect to Appellants' claims under 42 U.S.C. § 1983.

II. The district court was correct in granting Appellee's motion for summary judgment with respect to the negligence claims of Jeffrey A. Alewine.

FACTS

Jeffrey Alewine is the son of Thomas Alewine; his mother, Linda Alewine, is now deceased. He was born on April 8, 1977, in Missouri. His parents were separated at the time of his birth and were subsequently divorced on July 15, 1977. Thomas Alewine gave up his efforts to see his son after his first attempts to exercise his visitation rights were thwarted by Linda Alewine and her family. In March, 1979, after an order amended the divorce decree to let Linda leave Missouri and require that Thomas make support payments directly to her, Linda and Jeffrey Alewine moved to Gillette, Wyoming. She did not inform Thomas Alewine of their new location and he was unable to locate them and lost all contact with his ex-wife and child.

In 1982 Linda Alewine learned that she had a degenerative and terminal illness and sought assistance from D-PASS. D-PASS initially tried to arrange a heart-lung transplant for Linda and provided public assistance and legal services for her. In 1984 it became apparent to Linda and the D-PASS personnel who assisted her that she would not live much longer and that alternative arrangements needed to be made for Jeffrey. To ensure continuing care for Jeffrey, Linda Alewine executed an "Agreement and Consent of Parent for Adoption" on June 4, 1984, which stated that Jeffrey was born out of wedlock and relinquished custody of Jeffrey to D-PASS in the event of her death. On June 20, 1984, she also signed an affidavit that identified Thomas Alewine as Jeffrey's natural father. On January 23, 1985, Linda executed a will, paid for by D-PASS, that named the agency as Jeffrey's guardian on her death.

D-PASS made a brief effort to locate Thomas Alewine in 1984. It was unsuccessful and the matter was dropped. Linda Alewine died on June 16, 1985. She had already placed Jeffrey with a Gillette couple, and D-PASS continued that arrangement on a supervised foster care basis. Another attempt was made to locate Thomas Alewine, including a search by the state parent locator service, but D-PASS did not find him. This attempt was also dropped. Jeffrey remained with his foster parents, who were approved for adoption although no formal action was taken on either the adoption or the termination of Thomas Alewine's parental rights. D-PASS paid the foster care costs and collected social security survivor benefits for Jeffrey, which were forwarded to the state as partial reimbursement for the foster care expenses.

Thomas Alewine, who was still in Missouri, learned of Linda Alewine's death during a chance discussion on October 27, 1987. He immediately began a search for Jeffrey. He received the phone number of Gillette attorney Douglas Lesley from his father, and on October 29, 1987, learned from Lesley that his son was in Gillette. He travelled to Gillette and requested custody of his son from D-PASS personnel on November 9, 1987. His request was refused, and he then filed a petition for a writ of habeas corpus, on which a hearing was held on November 13, 1987. On the same date Jeffrey's foster parents filed an adoption petition.

The district court concluded that the relinquishment was misleading, that D-PASS had not made any effort to legitimate its continuing custody of Jeffrey, and that the child had a right to know his father and have a relationship with him. It issued an interim order permitting visitation between Jeffrey and Thomas Alewine and ordering an investigation into the background and circumstances of Thomas Alewine before entering its final order. On March 23, 1988, the district court awarded custody of Jeffrey to Thomas Alewine. Thomas and Jeffrey Alewine then returned to Missouri. They filed their notice of claim as required by the Governmental Claims Act on September 21, 1988, and this action followed on November 1, 1988.

42 U.S.C. § 1983 CLAIM

42 U.S.C. § 1983 provides that

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory * * * subjects * * * any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law * * *.

The Alewines concede that their § 1983 claim is without merit because of the United States Supreme Court pronouncement in Will that "neither a State nor its officials acting in their official capacities are 'persons' under § 1983." Will, 491 U.S. at ----, 109 S.Ct. at 2312, 105 L.Ed.2d at 58. However, they have attempted to craft an argument for a judicially created exception to the Governmental Claims Act that would preserve their suit. This court has clearly expressed its recognition of the directive of art. 1, § 8 of the Wyoming Constitution that "[s]uits may be brought against the state in such manner and in such courts as the legislature may by law direct. " White v. State of Wyoming, 784 P.2d 1313, 1317 (Wyo.1989) (and cases cited therein). We will not deviate from the view that the power to determine whether, and to what extent, the state is liable to suit is vested in the legislature. As we recently said, "to hold otherwise would be tantamount to holding the constitution unconstitutional." Id. We decline the invitation to usurp the legislative function and affirm the trial court's disposition of the Alewines' § 1983 claim.

JEFFREY ALEWINE'S NEGLIGENCE CLAIMS

We find that the trial court erred regarding Jeffrey Alewine's claims. The court concluded, and Thomas Alewine does not dispute, that the period for giving the state notice of his claim expired through his lack of diligence. Jeffrey's claims were not specifically addressed in the decision letter. However, the district court apparently granted summary judgment against Jeffrey because of his father's lack of diligence.

Although no reason was given for rejecting Jeffrey's claims, D-PASS argues that summary judgment was appropriate because Jeffrey did not prove that the state had insurance coverage for the alleged injuries; he failed to notify the state of his claim within the two-year period prescribed by W.S. 1-39-113; and, because Jeffrey is a minor, the failure of his father to act on his behalf within that two-year notice period bars the claim. D-PASS rests the latter contentions on this court's holding in Awe v. University of Wyoming, 534 P.2d 97 (Wyo.1975) and its analysis of the discovery rule, which looks to the parents' knowledge to establish the time that the injury is discovered. We do not find that our holding in Awe forecloses Jeffrey's suit and believe that the facts in this case prevent application of the discovery rule advocated by D-PASS and entitle Jeffrey to a trial on his negligence claims. We note that the cases cited by D-PASS to bolster its reading of the discovery rule as applied to minors do not involve similar situations, and one, Banda By and Through Banda v. Danner, 87 Or.App. 69, 741 P.2d 514 (1987), actually rejects the proposition it is cited for.

D-PASS' first...