Amanda C. ex rel. Richmond v. Case

• Decision Date: 23 May 2008
• Docket Number: No. S-06-1097.,S-06-1097.
• Citation: 275 Neb. 757,749 N.W.2d 429
• Parties: AMANDA C., by and through Gary RICHMOND, Natural Parent and Next Friend, Appellee, v. Kelly CASE, Appellant.
• Court: Nebraska Supreme Court

749 N.W.2d 429

275 Neb. 757

AMANDA C., by and through Gary RICHMOND, Natural Parent and Next Friend, Appellee, v.Kelly CASE, Appellant.

No. S-06-1097.

Supreme Court of Nebraska.

May 23, 2008.

Jon Bruning, Attorney General, and Michael J. Rumbaugh, Lincoln, for appellant.

Monte L. Neilan, of Douglas, Kelly, Ostdiek, Battels & Neilan, P.C., Scottsbluff, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

HEAVICAN, C.J.

I.INTRODUCTION

Amanda C., by and through her natural father, Gary Richmond, sought damages, costs, and attorney fees from Kelly Case, an employee of the Nebraska Department of Health and Human Services(DHHS).The suit was filed against Case in her personal capacity based on her alleged interference with Amanda's constitutional right to a relationship with Richmond.The district court for Kimball County granted summary judgment in favor of Amanda on the issue of Case's "liability" and held a bench trial to determine damages.The court ultimately awarded Amanda $150,000 in damages, $53,437.50 in legal fees, and $11,260.03 in costs and expenses.Case now appeals.We affirm for reasons set forth below.

II.BACKGROUND

Richmond and Carol C. married and settled in the Omaha, Nebraska area.While living in Omaha, Richmond and Carol had two children together.For reasons that are not entirely clear from the record, both of these children were taken into DHHS custody at birth.It is clear, however, that Carol suffered from a mental illness, and this may have been a contributing factor.Regardless, both of the children were eventually placed with Carol's father and stepmother, Clyde and Connie C., who also lived in Omaha.Richmond and Carol eventually relinquished their custodial rights to both children.

When Carol became pregnant with Amanda, Richmond and Carol moved from Omaha to Kimball, Nebraska.The move was apparently made to prevent DHHS from seizing Amanda at birth.Amanda was born on July 21, 1987.Approximately 5 years later, a neighbor reported that Carol was abusing Amanda.No allegations of abuse were or have been made regarding Richmond.On July 23, 1993, DHHS took Amanda into its custody.

Initially, Amanda was placed in a foster home in Kimball, where she prospered and had regular visitation with Richmond.It appears, however, that Carol still managed to abuse Amanda, though it is not clear exactly how she did so.Regardless, on June 1, 1995, DHHS placed Amanda with her maternal grandfather and stepgrandmother, Clyde and Connie, in Omaha.Richmond was not consulted about this move.No arrangements were made to allow Richmond to have regular visitation with Amanda.There is some evidence that Richmond did not have a friendly relationship with Clyde and Connie.Once Amanda was relocated to Omaha, her visits with Richmond ceased.

On September 4, 1996, the Kimball County Attorney filed a petition in the county court for Kimball County to terminate Richmond's parental rights.On July 29, 1997, the court appointed Monte Neilan to represent Richmond in the matter.Meanwhile, DHHS representatives began contacting Richmond and asking him to voluntarily relinquish his parental rights.Richmond repeatedly refused these requests.Not long after Neilan was appointed to represent Richmond, the two lost contact for the better part of a year.On May 5, 1998, the juvenile court entered an order stating that Neilan would be excused from the case if Richmond did not immediately contact him.Richmond resumed contact with Neilan a day or two later.

On August 4, 1998, Case, a caseworker at DHHS, was assigned to Amanda's file.As with prior caseworkers before her, Case wanted Richmond to relinquish his parental rights so that Amanda could be formally adopted by Clyde and Connie.To that end, Case spoke with Richmond over the telephone and met with him in person immediately after she was assigned to the case.Richmond initially explained that he was not willing to relinquish his rights.However, he also indicated that he wanted to take Amanda's preferences into account.During their conversations, Case explained that if they could arrange an open adoption, Richmond could still visit Amanda even if he relinquished his parental rights.Case also explained that such visitation opportunities would disappear if Richmond's parental rights were terminated in the proceeding pending in county court.

On August 13, 1998, Case met with Richmond at the DHHS office in Scottsbluff, Nebraska.During the meeting, Case placed a call to Clyde and Connie's residence in Omaha.A conference call was held with Case and Richmond in Scottsbluff and Connie and Amanda in Omaha.During the telephone call, Amanda stated that she wanted to be adopted by Clyde and Connie, since she was in Omaha and Richmond was in Kimball.However, Amanda also stated that she wanted to have contact and visits with Richmond.Promises were made — though it is not clear whether by Case, Connie, or both — that an open adoption would be used.Notably, Case did not inform Neilan, the Kimball County Attorney, Amanda's guardian ad litem, or the county court about any of the above.

After the conference call, Case prepared the documents that, once signed, would divest Richmond of his parental rights over Amanda.Case then contacted Neilan to inform him that she was working with Richmond to secure his relinquishment of parental rights.In response, Neilan sent a letter to Case stating that Richmond did not want to relinquish his parental rights.Case would later claim that she did not receive the letter.Either way, Case avoided further contact with Neilan.

Case then met with Richmond to discuss the relinquishment.Notably, Case once again counseled Richmond regarding the legal ramifications of a relinquishment as opposed to a court-ordered termination of parental rights.In particular, Case explained that relinquishment left open the possibility of visitation with Amanda, whereas termination would not.Case left the relinquishment documents with Richmond and told him to discuss them with his attorney.It is not clear whether Richmond ever did.Once again, Case never notified Amanda's guardian ad litem, the county attorney, or the county court about these meetings.

Case and Richmond met for a final time on August 25, 1998.Case again explained the legal benefits of relinquishment and stated that relinquishment was in Richmond's best interests.Richmond then signed the documents and thereby relinquished his parental rights over Amanda.Case filed the documents with the county court.

In 1999, Richmond sued Case based on the aforementioned sequence of events.¹Richmond alleged that, among other things, Case engaged in the unauthorized practice of law — and thereby abused her authority as a DHHS employee — when she counseled Richmond about the legal benefits of relinquishing his parental rights.Richmond alleged that this action deprived him of his substantive due process right to custody of his child and therefore sought relief pursuant to 42 U.S.C. § 1983(2000).

A jury trial was held on February 6, 2003.The jury found in favor of Richmond on his § 1983 claim, but awarded him a mere $1 in compensatory damages.The jury did, however, award Richmond $65,000 in punitive damages.It is unclear whether attorney fees were awarded.Moreover, the relinquishment agreements were declared null and void by the court in its June 3, 2003, judgment.

Case appealed to this court.While that appeal was pending, the parties agreed to a settlement.Case agreed to abandon the appeal if Richmond accepted a $130,000 settlement, of which $84,031.65 was for attorney fees and another $4,977.17 for costs.The remaining $40,991.18 represented "compensatory damages" under the terms of the agreement.Richmond accepted the offer, and the appeal was dismissed by joint stipulation.

On May 20, 2004, less than a year later, Richmond filed another complaint against Case in the district court for Kimball County.This time, Richmond filed the complaint against Case in her personal capacity on behalf of his then minor daughter, Amanda.Among other claims, the complaint alleged that Case's misconduct had deprived Amanda of her substantive due process rights to a parent-child relationship in violation of § 1983.All other causes of action were quickly abandoned so that only the § 1983 claim remained.Amanda then moved for summary judgment on the issue of "liability."A hearing was held on November 1, 2005, to resolve the motion.

The district court found that the judgment against Case in the previous suit in Kimball County District Court, case No. CI99-82(hereinafter CI99-82), had a preclusive effect regarding her misconduct in dealing with Richmond.The court concluded that such misconduct not only violated Richmond's parental rights, but also violated Amanda's substantive due process rights as a child.Finally, the court relied on deposition testimony by Dr. Daniel Scharf, a psychologist who evaluated Amanda, in concluding that the relinquishment had caused harm to Amanda.Accordingly, the court granted Amanda's motion for summary judgment as to Case's liability and scheduled a bench trial on the issue of damages.

On May 24, 2006, the district court issued a judgment awarding Amanda $150,000 in damages.In its judgment, the court recounted the aforementioned sequence of events.The court also noted that sometime after the relinquishment, Amanda began to use drugs, ran away from (and refuses to return to) the home of Clyde and Connie, gave birth to a child out of wedlock, and appears to be suffering financially.In short, the court found that Case"interfered with [Amanda's] parent-child relationship with [Richmond]." and that Amanda's life "spun out of control" as a result.

After the court issued its judgment, Amanda filed a petition on June 13, 2006, requesting legal fees, expenses, and costs.Per a stipulated order, the court...