Gja v. Okla. Dep't of Human Servs.

• Decision Date: 03 March 2015
• Docket Number: Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4. ,112,885.
• Citation: 2015 OK CIV APP 32,347 P.3d 310
• Parties: GJA, individually, and as Parent and next friend of John Doe and Jane Doe, minor children, and KA, an Individual, Plaintiffs/Appellants, v. OKLAHOMA DEPARTMENT OF HUMAN SERVICES ; John Does 1–30, unknown individuals employed by Oklahoma Department of Human Services, Defendants/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

347 P.3d 310

2015 OK CIV APP 32

GJA, individually, and as Parent and next friend of John Doe and Jane Doe, minor children, and KA, an Individual, Plaintiffs/Appellants

v.OKLAHOMA DEPARTMENT OF HUMAN SERVICES ; John Does 1–30, unknown individuals employed by Oklahoma Department of Human Services, Defendants/Appellees.

112,885.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.

Court of Civil Appeals of Oklahoma, Division No. 4.

March 3, 2015.

J. Christopher Davis, Jon D. Cartledge, Johnson & Jones, P.C., Tulsa, Oklahoma, and E. Anthony Mareshie, E. Anthony Mareshie, PLLC, Tulsa, Oklahoma, for Plaintiffs/Appellants.

Richard W. Freeman, Jr., Joseph W. Strealy, Assistant General Counsel, Department of Human Services, Oklahoma City, Oklahoma, for Defendant/Appellee Oklahoma Department of Human Services.

Opinion

KEITH RAPP, Presiding Judge.

¶ 1 Plaintiffs, GJA (Father), individually, and as parent and next friend of John Doe (Son) and Jane Doe (Daughter), minor children and KA (Step Mother), individually, appeal an Order sustaining the motion to dismiss filed by Defendant, Oklahoma Department of Human Services (DHS).¹ This appeal proceeds under the accelerated appeal procedures of Okla. Sup.Ct. Rule 1.36, 12 O.S.2011, Ch. 15, app. 2.

BACKGROUND

¶ 2 Plaintiffs alleged that Daughter and Son were abused while in their mother's (Father's former spouse) custody. The allegations are that Daughter was sexually abused and Son was abused by withholding needed medical treatment. According to the petition, DHS was informed about the abuse of both children and the agency and its employees did nothing. Moreover, Plaintiffs alleged that DHS and its employees did not report the sexual abuse as required by law.

¶ 3 After complying with the preliminary claim and notice provisions of the Governmental Tort Claims Act (GTCA), Plaintiffs sued. Plaintiffs asserted a claim for damages based upon tort claims of negligence, negligence per se and intentional infliction of emotional distress. They alleged a violation of their constitutional rights. Plaintiffs also alleged a civil conspiracy.

¶ 4 DHS moved to dismiss for failure to state a claim. 12 O.S.2011, § 2012(B)(6). DHS argued that it was immune from tort claims and that Bosh v. Cherokee County Bldg. Auth., 2013 OK 9, 305 P.3d 994, did not create an actionable claim under the facts of this case. DHS also argued that the petition did not state a claim for civil conspiracy.²

¶ 5 The trial court sustained the motion to dismiss. The trial court ruled that DHS was immune under the GTCA from tort liability. Next, the trial court ruled that the alleged violations of constitutional rights were not actionable under Bosh. Last, the trial court ruled that the petition did not state a claim for civil conspiracy.

¶ 6 Plaintiffs' response to the motion to dismiss included a request to stay the proceedings to allow discovery and pertinent amendments to the petition. The journal entry does not directly rule on this request, but necessarily denied it. Plaintiffs add, as trial court error, a failure to allow discovery before ruling on the motion.

¶ 7 Plaintiffs appeal.

STANDARD OF REVIEW

¶ 8 A trial court's dismissal for failure to state a claim upon which relief can be granted involves a de novo review to ascertain whether the petition, including its exhibits, is legally sufficient. Darrow v. Integris Health, Inc., 2008 OK 1, ¶ 7, 176 P.3d 1204, Indiana Nat'l Bank v. State Dep't of Human Services, 1994 OK 98, ¶ 2, 880 P.2d 371, 375.

¶ 9 A pleading must not be dismissed for failure to state a claim unless the allegations show beyond any doubt that the litigant can prove no set of facts which would entitle him to relief. Indiana Nat'l Bank, 1994 OK 98 at ¶ 3, 880 P.2d at 375. The trial court's task is to inquire whether relief is possible under any set of facts that could be established consistent with the allegations. Generally, a motion to dismiss may be sustained for two reasons: (1) lack of any cognizable legal theory, or, (2) insufficient facts under a cognizable legal theory. Indiana Nat'l Bank, 1994 OK 98 at ¶ 4, 880 P.2d at 375–76.

¶ 10 The appellate court will exercise its “plenary, independent, and non-deferential authority [when] reexamin[ing] a trial court's legal rulings.” Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., 1996 OK 125, ¶ 4, 932 P.2d 1100, 1103 n. 1 ; Spielmann v. Hayes, 2000 OK CIV APP 44, ¶ 8, 3 P.3d 711, 713. This Court's standard of review is de novo and gives no deference to the legal rulings of the trial court. State ex rel. Dep't of Human Services ex rel. Jones v. Baggett, 1999 OK 68, 990 P.2d 235.

ANALYSIS AND REVIEW

A. Sovereign Immunity

¶ 11 DHS asserted sovereign immunity for all tort claims alleged by Plaintiffs.³ The GTCA specifies the extent to which sovereign immunity has been waived. 51 O.S.2011, § 153(A) and (B).⁴ In Smith v. City of Stillwater, 2014 OK 42, ¶ 14, 328 P.3d 1192, 1198, the Court held:

The GTCA is the exclusive remedy by which an injured plaintiff may recover against a governmental entity for its negligence. The GTCA adopts the doctrine of sovereign immunity and provides that the State, its political subdivisions, and all of their employees acting within the scope of their employment, whether performing governmental or proprietary functions, shall be immune from liability for torts. The GTCA waives the immunity of the State and its political subdivisions, but only to the extent and in the manner provided in the act. Title 51 O.S. § 153 extends governmental accountability to all torts for which a private person or entity would be liable, subject only to the act's specific limitations and exceptions. (Citations omitted.)

¶ 12 DHS relies upon two of the statute's exceptions: 51 O.S.2011, § 155(4) and (29).⁵

1. Section 155(4)

¶ 13 DHS condensed and summarized Plaintiffs' allegations. DHS described the petition as charging that DHS was guilty of negligence and negligence per se “in breaching its common law and statutory duties to protect (Child Plaintiffs) from sexual assault or abuse, physical abuse, emotional abuse and other abuses.”

¶ 14 Plaintiffs alleged that DHS, by its employees, knew or should have known of the abuse of both children occurring or beginning in March and July of 2011. Plaintiffs claimed that DHS was informed about the abuse of Son and took no action. Plaintiffs further alleged that DHS was informed of the sexual abuse of Daughter, stopped its investigation, and took no action, including not reporting the sexual abuse claim to the police.⁶

¶ 15 By statute, DHS is directed to respond to reports of child abuse and conduct an investigation. 10A O.S.2011, § 1–2–105 (amended effective November 1, 2014). This statute describes the duties and authority of DHS in conducting its investigation and requires a written report to the District Attorney.

¶ 16 DHS cited Skurnack v. State ex rel. Dep't of Human Services, 2002 OK CIV APP 37, 46 P.3d 198. In Skurnack, the Court held that DHS was immune under the previously numbered child abuse investigation statute. The facts of that case are that DHS tried to investigate, but the investigation was thwarted by the parents. DHS had to resort to intervention in court by the District Attorney. Thus, the Court observed that the record was clear that DHS was “attempting to enforce” the statute requiring it to investigate or assess the referral of neglect. Consequently, the immunity based upon “enforcement” of law shielded DHS from the liability claimed by Skurnack.

¶ 17 Here, the allegations are different than the facts in Skurnack, where the “enforcement” exemption for immunity applied. The Plaintiffs alleged that DHS did nothing regarding the abuse report involving Son and virtually did nothing regarding the abuse report involving Daughter.⁷ In other words, Plaintiffs alleged that DHS failed to enforce the law.

¶ 18 Section 155(4) provides for immunity for “[a]doption or enforcement of or failure to adopt or enforce a law, whether valid or invalid, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy.” (Emphasis added.) Viewed in the best light possible, Plaintiffs alleged that DHS failed to enforce the law. DHS is thus immune from liability. See, Felkins v. Oklahoma Firefighters Pension and Ret. Sys., 2005 OK CIV APP 39, ¶ 13, 116 P.3d 195, 198 (retirement system trustees immune based on alleged failure to enforce law); and, Bordwine v. Oklahoma Firefighters Pension and Ret. Sys., 2004 OK CIV APP 75, ¶ 11, 99 P.3d 703, 706–07 (failure to credit military service as required by law).

¶ 19 Therefore, the trial court correctly ruled that the tort claims of negligence, negligence per se and intentional infliction of emotional distress must be dismissed because DHS has immunity under Section 155(4). The damage claim for loss of consortium was also correctly dismissed, because it is an item of damages for the dismissed torts

2. Section 155(29)

¶ 20 DHS merely stated that Section 155(29) affords immunity. Section 155(29) pertains to acts or omissions of an employee in the placement of children. Here, according to the allegations, both children were living with their mother at the time and in accordance with the Decree of Divorce. Thus, the children were not “placed” by DHS employees. The Legislature could have, but did not, include “removal of children” in this subdivision of the statute.

¶ 21 Moreover, a reasonable reading of the petition does not disclose any claim based upon an act or omission in the placement of the children. Section 155(29) does not apply.

B. Constitutional Claim

¶ 22 Plaintiffs alleged that the actions and inactions of DHS employees, with respect to the abuse claims, violated their constitutional rights to Due Process of Law as guaranteed by the Oklahoma Constitution. Plaintiffs further alleged that discovery might reveal additional violations of constitutional rights, but none were specifically...