Deal v. Brooks

• Decision Date: 24 June 2016
• Docket Number: Case Number: 113979
• Citation: 389 P.3d 375
• Parties: Charles DEAL and Annette Deal, Personal Representatives of the Estate of Serenity Deal, Plaintiffs/Appellants, v. Sean Devon BROOKS, Randy J. Lack, and Jennifer Shawn, Defendants, and State of Oklahoma ex rel. Oklahoma Department of Human Services, Defendant/appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

389 P.3d 375

Charles DEAL and Annette Deal, Personal Representatives of the Estate of Serenity Deal, Plaintiffs/Appellants,

v. Sean Devon BROOKS, Randy J. Lack, and Jennifer Shawn, Defendants,andState of Oklahoma ex rel. Oklahoma Department of Human Services, Defendant/appellee.

Case Number: 113979

Court of Civil Appeals of Oklahoma, Division No. 2.

Decided: June 24, 2016

Rehearing Denied August 4, 2016

Mandate Issued: December 30, 2016

Joe Vorndran, George Wright, STUART & CLOVER, PLLC, Shawnee, Oklahoma, for Plaintiffs/Appellants

Richard W. Freeman, Jr., Emily B. Fagan, ASSISTANT GENERAL COUNSEL, DEPARTMENT OF HUMAN SERVICES, Oklahoma City, Oklahoma, for Defendant/Appellee

DEBORAH B. BARNES, JUDGE:

¶ 1 This action arises from tragic circumstances involving the murder of a child placed in the custody of her biological father. Plaintiffs/Appellants Charles and Annette Deal (Plaintiffs) appeal the trial court's Order granting summary judgment in favor of Defendant/Appellee State of Oklahoma ex rel. Oklahoma Department of Human Services (DHS). Although the Order does not address all issues and Defendants, the Order states that "there is no just reason for delay," and it expressly directs that the Order "be filed as a final order and judgment as to the Plaintiffs' claims against [DHS] pursuant to 12 O.S. 2011 994."¹

¶ 2 The first issue presented on appeal is whether DHS is exempt from tort liability under the Oklahoma Governmental Tort Claims Act, 51 O.S. Supp. 2013 151 –172 (GTCA). In particular, 155 of the GTCA provides, in pertinent part, that "[t]he state or a political subdivision shall not be liable if a loss or claim results from: ...; 29. Any claim based upon an act or omission of an employee in the placement of children[.]" Because the claims asserted against DHS are based on acts or omissions of DHS employees in the placement of a child with her biological father, the plain and ordinary meaning of 155(29) requires that we find that a cause of action is unavailable under the GTCA.

¶ 3 The second issue presented on appeal is whether the facts—when viewed on summary judgment in a light most favorable to Plaintiffs—require that this case be remanded for further proceedings on a " Bosh claim" against DHS. As this Court recently explained in GJA v. Oklahoma Department of Human Services , 2015 OK CIV APP 32, 347 P.3d 310, the Oklahoma Supreme Court, in Bosh v. Cherokee County Building Authority , 2013 OK 9, 305 P.3d 994, held "that section 30, article 2 of the Oklahoma Constitution provides a private cause of action for excessive force against an arrested and detained person, notwithstanding the immunities under the GTCA [.]" GJA , ¶23 (emphasis added). In GJA , we confronted the issue of whether the Bosh case recognizes a broader scope of actionable claims based upon violations of constitutional rights. GJA , ¶26. We concluded in GJA that the facts alleged did not state a constitutionally-based claim against DHS under Bosh ; among other things, the custody arrangement that led to the harm to the children in GJA was the result of a custody order in a divorce decree rather than the result of actions undertaken while the children were in the custody of DHS. However, we did not exclude the possibility that a claim may exist against DHS under circumstances where the constitutional rights of a child have been violated by state employees. Indeed, the Oklahoma Supreme Court stated in Bosh that the GTCA

cannot be construed as immunizing the state completely from all liability for violations of the constitutional rights of its citizens. To do so would not only fail to conform to established precedent which refused to construe the [GTCA] as providing blanket immunity, but would also render the Constitutional protections afforded the citizens of this State as ineffective, and a nullity.

Bosh , ¶23.

¶ 4 In the present case, we conclude that genuine disputes of material fact exist as to whether the child's "substantive due process interest in safe conditions, personal security, and bodily integrity for persons in state custody," Yvonne L. ex rel. Lewis v. N.M. Dep't of Human Servs. , 959 F.2d 883, 891 (10th Cir. 1992) —an interest protected by the minimum requirements of the Oklahoma Constitution and the Constitution of the United States—was violated by DHS employees acting recklessly in conscious disregard of a known or obvious risk of serious, immediate, and proximate harm to the child, Currier v. Doran , 242 F.3d 905, 918 (10th Cir. 2001). The constitutional right at issue—described in GJA as a child's "clearly established constitutional right to be reasonably safe from harm when placed in the state's custody," GJA , ¶37 (footnote omitted)—is, as explained in greater detail below, guaranteed by the substantive component of the due process clause. As in Bosh , where the GTCA did not immunize the state from liability for excessive force inflicted on a prisoner while in its custody, we conclude the GTCA does not immunize DHS from liability for reckless and deliberate acts that deprive a child of her due process rights while in state custody.

¶ 5 Therefore, we affirm that portion of the trial court's Order finding that a cause of action under the GTCA is unavailable. However, because genuine disputes of material fact remain regarding a violation of the child's constitutional rights under the due process clause—in particular, whether certain DHS employees, acting within the scope of their employment, acted recklessly in conscious disregard of a known or obvious risk of serious, immediate, and proximate harm to the child, and whether their conduct, when viewed in total, is conscience shocking—we reverse the trial court's award of summary judgment, and we remand for further proceedings against DHS.

BACKGROUND

¶ 6 In November 2013, Plaintiffs filed their second amended petition asserting they are the maternal grandparents of a minor child who, on or about June 4, 2011, "was beaten to death by [Defendant Sean Devon Brooks]," her biological father. Indeed, Brooks is now serving a life sentence for murder in the first degree at the Joseph Harp Correctional Center in Lexington, Oklahoma. Plaintiffs assert the child, who was born in May 2006, did "not meet [Brooks] until she was four years old," and that, until that time, the child lived with her mother and Plaintiffs. They assert that in June 2009, "DHS received a referral relating to [the child's mother]," and that, in September 2010, "the [district court] placed [the child] in [the] emergency custody of [DHS]." Plaintiffs assert they filed a petition to adopt the child and, "[p]ursuant to Oklahoma Statute, Brooks was given notice of the proceedings, and a paternity test confirmed that he was the biological father of the child." They assert Brooks refused to consent to the adoption by Plaintiffs, and, subsequently, the district court ruled Plaintiffs could not adopt the child over the objection of Brooks. Plaintiffs acknowledge they appealed this ruling and "the Supreme Court affirmed ...."

¶ 7 Plaintiffs assert that in April 2010, Brooks filed a petition seeking sole custody of the child. They further assert that after the child was placed in the emergency custody of DHS, DHS failed to make proper recommendations, and also withheld vital information, relating to the child's placement. They assert that "[i]n the two months prior to DHS's placement of [the child] with Brooks, DHS workers"—i.e., certain DHS workers not named as defendants in this case—"expressed serious concerns about the placement." They assert, however, that these serious concerns, in addition to information evidencing abuse of the child by Brooks during unsupervised visitation, "was not released" to the district court or the district attorney prior to the placement determination.

¶ 8 Plaintiffs further assert that Defendants Jennifer Shawn (Shawn) and Randy J. Lack (Lack) are former DHS workers who both ultimately "pled guilty ... to a charge of suppressing evidence in violation of 21 O.S. 546" in connection with the placement determination. Plaintiffs further assert that both of these Defendants were then terminated by DHS.²

¶ 9 As against DHS, Plaintiffs assert tort theories of negligence, negligence per se, intentional infliction of emotional distress, and wrongful death. Plaintiffs also assert they complied with the notice requirements of the GTCA.

¶ 10 In the Answer of DHS, DHS asserts, among other things, that Plaintiffs' action against it "is barred by the [GTCA]," and, in particular, it asserts it is shielded from liability "pursuant to the applicable exemptions" set forth in 155 of the GTCA. DHS also asserts that the child's death was "the result of intervening and supervening criminal acts of third persons" for which DHS should not be held responsible.

¶ 11 Plaintiffs filed a motion for partial summary judgment in February 2015, seeking summary judgment against what it refers to as "the DHS Defendants"—i.e., Shawn, Lack, and DHS. In its response, DHS requests that Plaintiffs' motion be denied, and they request that summary judgment instead be granted in favor of DHS. DHS argues, among other things, that even if its employees were acting within the scope of their employment and were negligent, DHS is nevertheless exempt from tort liability as a matter of law under the exemptions set forth in 155 of the GTCA, including

51 O.S. 155(3) (losses resulting from execution or enforcement of a court order); 51 O.S. 155(4) (losses resulting from enforcement of or failure to enforce a statute or written policy); and 51 O.S. 155(29) (losses resulting from acts or omissions of an employee in the placement of children).

¶ 12 Pertinent to this appeal, the trial court, in its Order filed in May 2015, denied Plaintiffs' motion as to DHS and, instead, granted summary judgment in favor of DHS. As stated above, the trial court then ordered that, "as to the Plaintiffs' claims against [DHS]," there is no just reason for delay and it expressly...