Bolyard By and Through Bolyard v. Kansas Dept. of Social and Rehabilitation Services, 72896

• Decision Date: 08 March 1996
• Docket Number: No. 72896,72896
• Citation: 259 Kan. 447,912 P.2d 729
• Parties: Lance and Veronica BOLYARD, Minor Children By and Through their next friend, Vertie BOLYARD, Appellants, v. The KANSAS DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, et al., Appellees.
• Court: Kansas Supreme Court

Page 729

912 P.2d 729

259 Kan. 447

Lance and Veronica BOLYARD, Minor Children By and Through their next friend, Vertie BOLYARD, Appellants, v. The KANSAS DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES et al., Appellees.

No. 72896.

Supreme Court of Kansas.

March 8, 1996.

Syllabus by the Court

1. The Kansas Tort Claims Act is an open-ended act making governmental liability the rule and immunity the exception.

2. The governmental entity bears the burden to establish immunity under the exceptions to the Kansas Tort Claims Act.

3. In deciding whether the discretionary function exception of the Kansas Tort Claims Act applies, it is the nature and quality of the discretion exercised which should be the focus rather than the status of the employee exercising the discretion.

4. In determining whether a governmental action is discretionary for the purpose of the discretionary function exception of the Kansas Tort Claims Act, the test is whether the judgment of the governmental employee is of the nature and quality which the legislature intended to put beyond judicial review.

5. The more a judgment involves the making of policy, the more it is of a nature and quality to be recognized as inappropriate for judicial review.

6. The discretionary function exception to the Kansas Tort Claims Act is applicable only when no clearly defined mandatory duty or guideline exists which the government agency is required to follow. Thus, if specific mandatory guidelines are adopted by the agency regulating the conduct of its employees, thereby removing discretion by imposing a legal duty, the discretionary function exception would be inapplicable.

7. In caring for children within its custody, the government and its agents are continually called upon to make delicate and complex judgments, often involving weighing and balancing individual risks.

8. A new legal theory may not be asserted for the first time on appeal or raised in a reply brief.

9. For the purposes of the Kansas Tort Claims Act, the means by which Kansas Department of Social and Rehabilitation Services placements are monitored and the people to whom social workers converse in supervising placements are not subject to any carefully drawn, precise legal standard, but involve discriminating judgment between competing interests and are clearly beyond the nature and character of acts the legislature intended to be subject to judicial review.

Appeal from Russell District Court; Herb Rohleder, Judge. Affirmed.

Caleb Boone, of Hays, argued the cause and was on the brief for appellants.

Robert R. Hiller, Jr., of Topeka, argued the cause and was on the brief for appellee Ruth Sherlock.

Donald A. Frigon, of Dodge City, argued the cause and was on the brief for appellee Kansas Department of Social and Rehabilitation Services.

LARSON, Justice:

Vertie Bolyard, as father of Vertie Lance Bolyard, Veronica Bolyard, and Patricia Shannon Bolyard, appeals from the trial court's order of summary judgment in favor of the defendants Kansas Department of Social and Rehabilitation Services (SRS) and SRS caseworker Ruth Sherlock in an action for damages arising from their alleged negligence in the temporary placement of the plaintiff children with their mother.

The plaintiffs contend the trial court erred in determining that SRS and Sherlock are immune from liability under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. Plaintiffs had originally included in the suit Cheyenne County Attorney Scott Condray, who was dismissed with prejudice after he was granted summary judgment. Further, Patricia Shannon Bolyard, upon learning that the case had been filed on her behalf without her permission, withdrew with prejudice.

Because this action is based upon a factual scenario which occurred in 1982, we will briefly chronicle its background.

An acrimonious divorce action between Vertie Bolyard and his wife, Marguerite Allen Bolyard, commenced in 1978. It resulted in an October 1979 divorce decree wherein custody of the children was given to Vertie with visitation rights for Marguerite to be fixed upon her release from incarceration.

After a November 1981 hearing on Marguerite's motion for temporary visitation, the trial court ordered a home study, and Marguerite was granted visitation on six specific occasions.

Vertie refused to permit the visitation ordered by the court, prompting Marguerite to seek a citation for contempt in January 1982. Vertie failed to appear before assigned Judge Keith Willoughby. Judge Willoughby found Vertie in contempt and placed the children in SRS custody but allowed a January 14, 1982, weekend visitation with Marguerite in Gorham, Kansas, to continue.

The social worker, SRS employee Sherlock, based upon a recent favorable home study report, called Judge Willoughby the weekend the father was in jail for contempt of court. The judge approved SRS's plan, outlined by Sherlock, to leave the children with the mother while the father remained in jail.

Judge Willoughby held a hearing and released Vertie from jail based on his promise to comply with further court orders. Judge Willoughby then recused himself based on an affidavit Vertie filed alleging partiality. In a January 20, 1982, letter to Judge Charles Worden, Judge Willoughby recounted his actions and stated that he had advised Vertie that he had placed the children in the custody of SRS, who in turn had placed them with their mother, and they were not in Russell County.

Judge Steven P. Flood was assigned to the case in early February 1982 and notified all parties that he would hear all pending motions at one time on a later agreed date.

Between January and March of 1982, the Russell SRS had three telephone contacts with Marguerite, visited Shannon's teacher at school, and conducted one home visit. As a result of those contacts, SRS concluded that Marguerite and Will McCurley's (Marguerite's current husband) home was a fit home for the children and more than adequate for their physical, emotional, and mental well-being.

Vertie did nothing for 6 months, but in August 1982, Marguerite, her husband, and the children left Kansas for Florida, without informing SRS or Marguerite's parole officer.

Marguerite did not return to Kansas until January 1984, when she was arrested and pled guilty to aggravated interference with parental custody. The children were returned to Vertie.

In January 1990, the present action was filed in Russell County by Vertie on behalf of the three children, seeking $5,000,000 in damages and contending that SRS and Sherlock were negligent in placing the children with Marguerite and permitting them to remain there in violation of an alleged ministerial duty not to place the children in the home of a parent without the written permission of a district court judge. In addition, the petition alleged that from January 14, 1982, until August 24, 1982, SRS was negligent in failing to regularly inspect Marguerite's home and monitor the children's placement, in violation of an alleged ministerial duty to do so.

In July 1994, the trial court held as a matter of law that SRS and Sherlock were immune from liability since all of the actions they had taken were discretionary functions under the Kansas Tort Claims Act. The trial court rejected the plaintiffs' claim that under the SRS Kansas Manual of Services to Children and Youth, written consent of a district court was required before the children could be placed with a parent, because the manual provisions cited by the plaintiffs did not apply to the present fact situation.

Vertie appeals on behalf of his children. We affirm.

Did SRS and Ruth Sherlock have a ministerial duty not to place the children with Marguerite under the provisions of the SRS manual such that they cannot claim immunity from liability under the Kansas Tort Claims Act?

We review this matter under the well-known standard of review for orders of summary judgment set forth in Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995), whereby we resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling was sought. Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law; an adverse party must come forward with evidence to establish a dispute as to a material fact; and the facts subject to the dispute must be material to the conclusive issues. If we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994).

Vertie, on behalf of his two children remaining in the case, contends the trial court erroneously concluded, as a matter of law, that the actions of SRS and Sherlock in placing the children with Marguerite were discretionary acts subject to immunity under the Kansas Tort Claims Act.

The version of the Kansas Tort Claims Act in effect at the time of the alleged improper placement set forth exceptions to liability in K.S.A.1981 Supp. 75-6104, which reads in applicable part:

"A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from:

....

"(d) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused."

The 1987 amendment to 75-6104 added the phrase "and regardless of the level of discretion involved" and designated the discretionary function exception as subsection (e). The 1987 amendment does not affect the instant case.

The Kansas Tort Claims Act is an open-ended act making governmental liability the rule...