Catt v. Dep't of Human Servs. ex rel. State

• Decision Date: 01 August 2012
• Docket Number: A146815.,091014151
• Citation: 251 Or.App. 488,284 P.3d 532
• Parties: Lisa CATT and Blanca Catt, Plaintiffs–Appellants, v. DEPARTMENT OF HUMAN SERVICES, on behalf of the STATE of Oregon; Maria Dunn; and Elizabeth Dillner, Defendants–Respondents, and Judith Swanson; Kathryn Underhill; and Juvenile Rights Project, Inc., Defendants.
• Court: Oregon Court of Appeals

251 Or.App. 488

284 P.3d 532

Lisa CATT and Blanca Catt, Plaintiffs–Appellants,

v. DEPARTMENT OF HUMAN SERVICES, on behalf of the STATE of Oregon; Maria Dunn; and Elizabeth Dillner, Defendants–Respondents,andJudith Swanson; Kathryn Underhill; and Juvenile Rights Project, Inc., Defendants.

091014151; A146815.

Court of Appeals of Oregon.

Argued and Submitted Nov. 7, 2011.

Decided Aug. 1, 2012.

Mark Kramer, Portland, argued the cause for appellants. With him on the briefs was Kramer & Associates.

Erin C. Lagesen, Assistant Attorney General, argued the cause for respondents. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

NAKAMOTO, J.

This civil dispute arises from a failure by the Department of Human Services (DHS) to secure permanent legal residency status and, consequently, United States citizenship for plaintiff Blanca Catt while she was in DHS's legal custody, and from DHS's false representations to Blanca's adoptive mother, plaintiff Lisa Catt, regarding Blanca's citizenship.¹ As relevant to this appeal, plaintiffs brought two claims against DHS and several of its employees ² under the Oregon Torts Claims Act, one based on pre-adoption conduct by DHS—primarily the failure to process Blanca's permanent residency status properly—and the other based on post-adoption conduct—false representations regarding Blanca's American citizenship. DHS moved for summary judgment, arguing that (1) plaintiffs failed to timely provide DHS with their tort claims notice; (2) plaintiffs' claims were barred by the statute of limitations; and (3) plaintiffs' pre-adoption claim was barred by the statute of ultimate repose. DHS prevailed on all grounds. We conclude that there are genuineissues of fact for trial regarding whether plaintiffs timely served their tort claims notice and brought a portion of their post-adoption claim; however, we also conclude that plaintiffs' pre-adoption claim and parts of their post-adoption claim are barred by the statute of ultimate repose. We therefore affirm in part and reverse in part.

I. FACTS

Because the trial court granted DHS's motion for summary judgment, we state the facts most favorably to plaintiffs, the nonmoving parties. Jones v. General Motors Corp., 325 Or. 404, 408, 939 P.2d 608 (1997). Blanca was born in Mexico in 1990. In 1993, Blanca's birth parents or other relatives brought Blanca into the United States illegally from Mexico. Blanca was then abused by her biological mother, causing DHS to seek and to obtain custody of Blanca. DHS then placed Blanca in the foster care of Lisa and her then husband. On October 23, 1996, an Oregon court terminated the parental rights of Blanca's biological parents, a decision partly based on findings that Blanca had suffered serious abuse in their care.

While Blanca was in foster care, defendant Dunn was the primary DHS caseworker assigned to Blanca's case. Defendant Dillner was the DHS caseworker responsible for pursuing Blanca's American citizenship. On behalf of Blanca, and while DHS was responsible for her care, Dillner prepared and submitted two forms, an I–360 Petition for Special Immigrant and an I–485 Application to Register Permanent Resident or Adjust Status, to the former Immigration and Naturalization Service (INS), currently known as the United States Citizenship and Immigration Services (USCIS). Dillner filed the applications with INS to establish Blanca's legal residency in the United States, a prerequisite for citizenship. Unfortunately, DHS's attempt to file the legal residency applications was unsuccessful because of mistakes by DHS employees.

Once the parental rights of Blanca's biological parents were terminated, Lisa and her then husband sought to adopt Blanca. Lisa requested that DHS complete the citizenship process for Blanca before the adoption was finalized. Though DHS had been unable to secure citizenship for Blanca, it informed Lisa that Blanca could establish citizenship either through adoption or a court order identifying permanent foster care for Blanca as the permanency plan. While Lisa was Blanca's foster parent, DHS advised Lisa that Blanca would automatically obtain citizenship once Blanca was adopted because her adoptive parents, Lisa and her then husband, were United States citizens. At no point did DHS explain to Lisa that any further steps were necessary for Blanca to become a citizen.

In May 1999, Blanca's adoption was finalized. Blanca was then eight years old.

In 2000, DHS represented to Lisa that, because of the passage of the Child Citizenship Act of 2000 (CCA), codified in relevant part at 8 U.S.C. sections 1431 and 1433, Blanca would automatically become a citizen through her 1999 adoption.³ DHS also explained to Lisa that, if Blanca needed proof of her citizenship, then Blanca's new birth certificate, evidence of Lisa's and her then husband's citizenship, and the adoption decree would be sufficient under the CCA. Based on DHS's representations, Lisa and Blanca assumed that Blanca was a United States citizen since her adoption.

In 2006, Blanca applied for a driver's permit, but her application was denied because her Social Security card had her former last name instead of Catt. Blanca sought to update her Social Security record and to obtain a new card with the name Catt, but the Social Security Administration denied her request because Blanca's adoption certificate and adoption judgment were insufficient proof of her citizenship.

To obtain adequate proof of Blanca's citizenship, Lisa filed an N–600 Application for Certificate of Citizenship with USCIS in February 2007. USCIS sent Blanca a letter dated August 2, 2007, denying her request for a certificate of citizenship because Blanca's original entry into the United States was illegal and Blanca was never lawfully admitted to the United States as a permanent resident.⁴ According to USCIS's letter, to obtain United States citizenship for Blanca, Lisa would be required to file an I–130 Petition for Alien Relative, so that Blanca would first become a lawful permanent resident, a prerequisite to citizenship. After receiving USCIS's letter, Lisa believed that “it was only a matter of paperwork, fees, and time to establish Blanca as a citizen” and it was her “job * * * to correctly process the paperwork that DHS failed to do correctly.”

On or around November 6, 2007, Lisa filed an I–130 form with USCIS to request permanent resident status for Blanca. Because the I–130 form allowed Lisa to petition on behalf of Blanca until Blanca turned 21 years old, Lisa was unaware that, if Blanca's immigration forms were not processed before Blanca turned 18 years old, she would be subject to “penalties.” Sometime after June 2009, Lisa was approved to act as Blanca's agent for her immigrant visa petition, and Lisa paid the fees required for the immigrant visa in September 2009. At that time, Lisa continued to believe that it was “just a matter of time and more paperwork before Blanca would get an immigrant visa.”

Also in September 2009, for the first time, Lisa contacted immigration attorneys to assist her with Blanca's immigrant visa application. An immigration attorney advised Lisa that, because Blanca was over 18 years old and considered an illegal alien, she would need to leave the United States and remain in Mexico for a minimum of three years until a visa was issued to her. The immigration attorney also advised Lisa that, after Blanca turned 19 years old in October 2009, the three-year bar to reenter the United States would increase to 10 years.

II. PROCEDURAL HISTORY

On October 6, 2009, plaintiffs sent DHS a tort claims notice that alleged that DHS and its agents had acted negligently and attached a copy of a complaint; DHS received the notice. Plaintiffs filed their complaint in the Multnomah County Circuit Court on October 7, 2009, before Blanca's nineteenth birthday.

Plaintiffs brought two separate claims for negligence against DHS.⁵ First, in plaintiffs' preadoption negligence claim, as stated in their second amended complaint, they alleged that DHS owed a special duty to plaintiffs and breached that duty when DHS (1) “fail[ed] to properly process Blanca's permanent residency documentation such that Blanca would become a permanent resident of the United States as a Special Immigrant Juvenile [ ] * * * ”; (2) “fail[ed] to properly and timely refile” Blanca's permanent residency documentation; (3) “fail[ed] to advise [Lisa] and Blanca * * * of the consequences of [DHS's] failure to obtain permanent residency status for Blanca”; (4) “fail[ed] to advise [Lisa] and Blanca to seek permanent residency status for Blanca before she attained the age of 18”; and (5) made “false representations as to Blanca's citizenship status.” In their post-adoption negligence claim, plaintiffs alleged that DHS was similarly negligent after the adoption was final, with only slight variations from the allegations in their pre-adoption claim: (1) instead of alleging that DHS failed to properly process the permanent residency documents, plaintiffs alleged that DHS failed to determine whether the applications were successful; (2) instead of alleging that DHS failed to advise plaintiffs of the consequences of the failure to obtain legal permanent residency for Blanca, plaintiffs alleged that DHS failed to tell plaintiffs about the failure; and (3) plaintiffs alleged that DHS also made false representations about Blanca's permanent residency status and her citizenship.

DHS moved for summary judgment, providing three separate arguments as to why plaintiffs' claims for relief fail as a matter of law. First, DHS argued that plaintiffs failed to timely provide their tort claims notice as required by ORS 30.275. Second, DHS argued that plaintiffs' claims for relief are barred by the statute of limitations. DHS asserted that plaintiffs' action accrued on ...