Foster v. Washoe County, 28607
| Decision Date | 24 September 1998 |
| Docket Number | No. 28607,28607 |
| Citation | 114 Nev. 936,964 P.2d 788 |
| Parties | Yolanda FOSTER a/k/a Yolanda Duff, Individually, and as Guardian Ad Litem on Behalf of Aaron Duff; and Cameron Duff, Her Minor Children, Appellant, v. WASHOE COUNTY; Washoe County Social Services; Court Appointed Special Advocate (CASA); Shirley Alcantar, Individually; Noelle Collen, Individually; Dorothy Meline, Individually; and Johnye G. Colling, Individually, Respondents. |
| Court | Nevada Supreme Court |
Appellant Yolanda Foster (Yolanda) filed a complaint against respondents Washoe County (the County), Washoe County Social Services (Social Services), several Social Services employees, Court Appointed Special Advocate (CASA), and CASA Johnye G. Colling (Colling). Yolanda alleged that the respondents had been negligent in investigating ex-husband Tyrone Duff's report that Yolanda and her new husband, William Foster (Foster), had abused Yolanda and Duff's minor children. The district court dismissed Yolanda's complaint for failure to state a claim, concluding that respondents were statutorily immune from suit, and that CASA and Colling were judicially immune as well.
Yolanda and Duff married in 1975 and had two children--Cameron in 1982, and Aaron in 1985. Their decree of divorce on December 8, 1988, granted them joint legal custody of both children. The decree granted Yolanda primary physical custody of Cameron and Aaron and granted Duff reasonable visitation rights. On December 23, 1988, Yolanda began a romantic relationship with Foster, a convicted felon, whom she subsequently married. Duff filed a motion to change physical custody of the children to himself based upon Yolanda's association with Foster. On January 25, 1989, the district court entered a temporary protection order (TPO) precluding Foster from being in the presence of Cameron and Aaron.
Pending a full hearing, the district court modified the divorce decree, vesting Yolanda and Duff with alternating weeks of physical custody. During a September 1989 hearing, the district court heard evidence that Duff had been physically abusive to Yolanda and the boys, whereas Foster had never abused the boys. The court ordered the return of primary physical custody to Yolanda, and dissolved the TPO against Foster.
In May 1990, Duff and his future-wife, Linda, alleged that Cameron and Aaron were engaging in "aberrant sexual behavior." In August 1990, Duff hired Linda Peterson, Ph.D. (Dr. Peterson) to interview Cameron and Aaron regarding sexual abuse. During that interview, the boys stated that no one had abused them. However, in September 1990, the boys told Dr. Peterson that Linda's nephew, identified as a twelve-year-old named "Chris," had sexually abused them while they were visiting Linda's relatives in Doyle, California. Cameron and Aaron had spent time in Doyle prior and subsequent to the time Duff noted their allegedly "aberrant sexual behavior."
On October 10, 1990, Dr. Peterson reported to Noelle Collen, an employee of Social Services, that Aaron and Cameron had told her that a boy named Chris had forced them to perform sexual acts while they were visiting Linda's parents. Dr. Peterson also reported that the boys had admitted lying to Duff with regard to Foster. Dorothy Meline, a Social Services' employee, signed and ratified Dr. Peterson's report, and another Social Services' employee, Shirley Alcantar, also signed the report and was assigned to investigate the claims contained therein. No police report based upon Dr. Peterson's October 10, 1990 report was ever filed.
On October 16, 1990, Duff filed a report with Social Services alleging that Cameron and Aaron had been abused by Yolanda and Foster. Duff subsequently filed a police report accusing Foster of sexually abusing the boys, and applied for a TPO against Yolanda and Foster. Although not entirely clear from the complaint, it appears that a TPO against Yolanda and Foster was granted on November 15, 1990, on an ex-parte basis, and the boys were placed in Duff's custody.
On November 15, 1990, Detective James Overton of the Reno Police Department began investigating Yolanda and Foster on Duff's allegations of abuse. On February 8, 1991, Duff was granted temporary physical custody of Cameron and Aaron; the order granted Yolanda visitation on the condition that Foster not be in the children's presence. The February 8, 1991 order vesting temporary physical custody with Duff remained substantially in place until July 9, 1993.
However, on May 13, 1991, the Washoe County District Attorney's Office declined to proceed on Duff's criminal complaint against Yolanda and Foster; the district attorney allegedly stated:
Cameron Duff ... consistently stated that nothing has happened. Aaron Duff seems to give a different story each time he is asked about any sexual misconduct. Considering the status of the child custody and the battle that has occurred there, as well as the negative statements concerning the character of the father ..., I do not see how we can place any reliability on his story in trying to prove a case in this matter.
The State's case against Yolanda and Foster remains closed.
Notwithstanding the State's failure to prosecute, Yolanda alleges that unidentified Social Services' employees continued to contact Detective Overton with allegations of Yolanda's and Foster's misconduct. On June 3, 1991, Detective Overton executed a search warrant at Yolanda's and Foster's residence, but found nothing incriminating. In July 1991, the district court assigned a CASA to the case; CASA Colling reported to the court that after speaking with the boys, Duff, Linda, Detective Overton, Social Services' employees, Dr. Peterson, and Yolanda, she believed that Yolanda's visitation with Cameron and Aaron should be restricted.
Prior to Colling's recommendation, Yolanda's attorney had sent a list containing the names of nineteen people whom he suggested that Colling interview regarding the sexual abuse allegations against Yolanda and Foster. Yolanda asserts that she met with Colling on only one occasion for a period of less than two minutes, and that Colling never interviewed Foster or their friends, family, and neighbors. From August 26, 1991, through March 24, 1993, various motions were filed and hearings were held concerning the custody of Cameron and Aaron who had remained in Duff's custody. Yolanda alleges that Social Services never disclosed to the court allegations of Cameron and Aaron against Linda's nephew, "Chris," as described in Dr. Peterson's October 10, 1990 report.
Between July 6th and 9th, 1993, the district court conducted hearings on a motion by Duff to modify custody, so as to grant Duff full custody. On July 7, 1993, the lower court entertained a motion made by Cameron's and Aaron's then-attorney requesting that primary physical custody be restored to Yolanda immediately, based upon the testimony of several doctors.
According to Yolanda's complaint, the district court immediately returned physical custody of both boys to Yolanda based upon expert testimony of a court-appointed psychologist "that the emotional abuse inflicted upon Aaron ... and Cameron ... by ... Duff strongly outweighed the slight-to-nonexistent possibility that either or both Mr. Foster and Yolanda ... engaged in inappropriate sexual conduct." On July 26, 1993, the district court found that (among other things) Duff had serious psychological and/or emotional disorders; that Duff deliberately impaired Yolanda's relationship with her children; and that the sexual abuse allegations were unfounded. The court awarded full legal and physical custody of Cameron and Aaron to Yolanda.
During one of the 1993 custody hearings, another Social Services' employee, Michelle Lucier, had testified that:
[T]he standard and customary procedure of SOCIAL SERVICES personnel is to direct the reporting party to actually file a police report with a law enforcement agency regarding the sexual abuse; and, to follow-up with the reporting party to insure that a police report had been filed with the local law enforcement agency consistent with the intake report.
On July 7, 1995, Yolanda filed the complaint at issue, individually, and as guardian ad litem to Cameron and Aaron. Specifically, the complaint asserts that the County, Social Services, Collen, Meline, and Alcantar were negligent in (1) failing to follow established procedure because they failed to check that a report based on Dr. Peterson's report had been filed with local law enforcement; and (2) failing to adequately investigate the Duff case. The complaint further asserts that CASA Colling 1 failed to adequately investigate the "wrongful allegations of sexual misconduct" against Yolanda and Foster, resulting in the same injuries stated above.
On December 4, 1995, all of the respondents filed a joint motion to dismiss the complaint asserting inter alia that the County, Social Services, and the Social Services employees were statutorily immune from suit, that CASA and Colling were judicially immune from suit, and that neither Social Services nor CASA were entities subject to suit. On March 12, 1996, the district court issued an order granting the respondents' motion stating: 2 Yolanda appeals from this order, individually, and as Cameron's and Aaron's guardian ad litem.
"The standard of review for a dismissal under NRCP 12(b)(5) is rigorous, as this court 'must construe the pleading liberally and draw every fair intendment in favor of the [non-moving party].' " Breliant v. Preferred Equities Corp., 109 Nev. 842, 845, 858 P.2d 1258, 1260 (1993) (alteration in original) (quoting ...
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