Miller v. Gammie

• Decision Date: 06 June 2002
• Docket Number: No. 01-15491.,01-15491.
• Citation: 292 F.3d 982
• Parties: Christine L. MILLER, Guardian Ad Litem; Tonnie Savage, Guardian Ad Litem, Plaintiffs-Appellees, v. Nancy GAMMIE; Fran Zito, Defendants-Appellants, and Nevada Child and Family Services Department; Nevada Child Welfare Division; State of Nevada; Volunteers of America of Nevada, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

292 F.3d 982

Christine L. MILLER, Guardian Ad Litem; Tonnie Savage, Guardian Ad Litem, Plaintiffs-Appellees, v. Nancy GAMMIE; Fran Zito, Defendants-Appellants, and Nevada Child and Family Services Department; Nevada Child Welfare Division; State of Nevada; Volunteers of America of Nevada, Defendants.

No. 01-15491.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 2002.

Filed June 6, 2002.

Stephen D. Quinn, Deputy Attorney General, Carson City, NV, argued the cause for the defendants-appellants. Frankie Sue Del Papa, Attorney General, and Charles Hilsabeck, Deputy Attorney General, were on the briefs.

Monique Laxalt, Reno, NV, argued the cause for plaintiff-appellee Tonnie Savage. Sean P. Rose was on the briefs.

Appeal from the United States District Court for the District of Nevada; Howard D. McKibben, Chief District Judge, Presiding. D.C. No. CV-99-00275-HDM(PHA).

Before: O'SCANNLAIN and TALLMAN, Circuit Judges, and KING^*, District Judge.

O'SCANNLAIN, Circuit Judge.

We must decide whether state child services workers involved in ongoing state court dependency proceedings enjoy absolute immunity for the placement of a child in a foster home.

I

This case arises out of the sexual assault of Joe Roe, a minor, by Earl Doe, also a minor. At the time of the assault Earl was a ward of the State of Nevada placed in the foster home of Joe's parents, John and Jane Roe.¹ This suit is maintained on behalf of Earl by Tonnie Savage, his guardian ad litem.²

A

In late December, 1996, the Nevada Division of Child and Family Services (DCFS) removed Earl, age 12, and his older brother from their home for their protection and placed them in an emergency foster care facility.³ Nancy Gammie, a DCFS social worker, was responsible for Earl's case as well as those of his brother and sister. Fran Zito, a DCFS social therapist, provided therapy to Earl. Soon after removing Earl and his brother from their home, DCFS petitioned the Nevada Juvenile Court to declare Earl a ward of the State and to grant DCFS custody. The juvenile court approved the removal and placed Earl into the custody of DCFS.

At some point in January, 1997, both Earl and his brother were moved from the emergency facility to a foster home, where they lived together. Later that month, Gammie filed a Nevada Chapter 432B protective proceeding petition⁴ with the Juvenile Court asking the court to find Earl and his brother to be in need of protection and to continue their custody in the DCFS. The petition set forth that Earl had an extensive history of sexual abuse. Toward the end of the month Gammie filed an initial report providing further details of Earl's history of sexual abuse, and informed the court that Earl was in foster care. On February 3, the court declared Earl to be in danger, made him a ward of the State, gave custody to DCFS, and approved Gammie's plan for foster home placement. The court also ordered six-month periodic reviews.

In March, DCFS removed Earl's brother from the foster home based on allegations that he engaged in inappropriate sexual conduct with a young boy. Earl was also removed from the foster home in April; he was thereafter placed in a Volunteers of America (VOA) emergency shelter.

In her six-month report to the Juvenile Court filed in July, Gammie elaborated on the extent of Earl's sexual abuse history. She also informed the court of Earl's placement at the time and indicated that Earl would "be moving into a more homelike setting within the next few weeks." After studying the report, the Juvenile Court approved its recommendations.

B

Sometime in 1997, the Roes applied to VOA to become foster parents. At that time the Roes already had two young children of their own — a son, Joe, age 9, and a daughter, age 12. The application was accepted and, on December 2, 1997, Earl was placed into the Roes' home as a foster child. The very next day, December 3, Gammie submitted her second six-month report to the Juvenile Court. In that document, she reported Earl's placement in the Roes' home — although she did not mention that the Roes had young children. She also noted that Earl still "need[ed] a great deal of therapy" to deal with his past sexual abuse "and to reach the point of being safe with other children." On December 29, the court approved the placement decision.

Zito worked with Earl during his placement with the Roes. During one of their sessions together, it came out that Earl had been sexually abused and had sexually abused others.⁵ Jane Roe asked Zito if it was safe for Earl to remain in the Roes' home with their natural children; Zito assured her that there was nothing to worry about.

Earl's placement with the Roes was a disaster. After about two months had elapsed, in February 11, 1998, Joe Roe discreetly told his sister that Earl had molested him on a prior night. The sister told Mr. and Mrs. Roe of her conversation with Joe, and Joe himself eventually informed his parents that Earl had molested him. On February 13, 1998, Earl was arrested and admitted to sodomizing Joe between three and five times.

C

On June 16, 1999, Tonnie Savage, as guardian ad litem for Earl Doe, commenced an action for redress of civil rights violations in the Second Judicial District Court of the State of Nevada, in and for the County of Washoe. The complaint contained various claims under 42 U.S.C. § 1983 for alleged constitutional violations in connection with Earl's placement in the Roe home, and also various state law claims. It named as defendants DCFS, Gammie, Zito, and VOA. The defendants removed the action to the United States District Court for the District of Nevada.

DCFS, Gammie, and Zito moved for dismissal on the pleadings.⁶ After argument, the district court dismissed the claims against DCFS, and also the claims against Gammie and Zito in their official capacities, based on the Eleventh Amendment. The court also remanded the state law claims to state court.⁷ The court declined to rule, however, on the motion in so far as it requested dismissal of the claims against Gammie and Zito in their individual capacities based on absolute immunity. At oral argument, the court seemed troubled by allegations that Zito and Gammie had failed to comply with a Nevada statute requiring social workers to inform foster parents of any history of behavioral problems experienced by a foster child before placement in a foster home.⁸ The court ruled:

I'm granting leave to raise [the absolute immunity defense] at the completion of the discovery limited to those issues, because there was an issue raised today that I think merits some additional consideration, and that's on the notice. But I'm not satisfied, necessarily, that that's going to preclude that defense, but I want more information presented to me on that. I don't think there was enough submitted.

Counsel for Zito and Gammie then indicated that, based on that ruling, he would appeal the denial of absolute immunity immediately. The court then retrenched, responding,

Why don't you do this. Vacate my order on the motion that's pending. I'm not going to deny that motion, but I will compel discovery ... on all of the issues that relate to absolute immunity.... But there will be no order granting or denying that motion at this point, and then you have nothing to appeal.

By a subsequent order, the court lifted a stay of discovery that it had previously imposed and granted discovery limited to "the issue of absolute immunity under the § 1983 claim as to individual liability, which discovery shall be completed within one hundred and twenty days from this date." Zito and Gammie timely appealed the district court's order.

II

Before addressing the merits we must deal with a threshold jurisdictional issue. By motion appellee Savage has asked us to dismiss this appeal for lack of jurisdiction. The parties agree that this court has jurisdiction, if at all, pursuant to the collateral order doctrine.

A

The collateral order doctrine, of course, stems from the Supreme Court's decision in Cohen v. Beneficial Industries Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In Cohen, the Supreme Court recognized that under 28 U.S.C. § 1291 the courts of appeals have jurisdiction only over "final" orders of the district courts. As the Court explained, "[t]he effect of the statute is to disallow appeal from any decision which is tentative, informal or incomplete. Appeal gives the upper court a power of review, not one of intervention. So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal." Id. at 546, 69 S.Ct. 1221.

Nonetheless, the Court recognized that there is a small class of orders "which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id. The Court held that such orders, termed collateral orders, are immediately appealable. Id. As we recently reaffirmed, an order must satisfy three requirements to qualify as a collateral order: (1) it must be conclusive; (2) it must resolve an important question separate from the merits; and (3) it must be effectively unreviewable on appeal from a final judgement. See Osband v. Woodford, 290 F.3d 1036, 1038-39 (9th Cir.2002) (quoting Wharton v. Calderon, 127 F.3d 1201, 1203 (9th Cir.1997)).

B

The Supreme Court has repeatedly concluded that orders denying absolute immunity are reviewable on interlocutory appeal under the collateral order doctrine. See, e.g., Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) (concluding that appellate jurisdiction over denial of President's claim to absolute immunity was proper); Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979) (reviewing claim of immunity under Speech or Debate Clause); see also ...