Nathan v. Dep't of Human Servs.

• Decision Date: 01 November 2017
• Docket Number: A158031
• Citation: 407 P.3d 857,288 Or.App. 554
• Parties: Hitto NATHAN, individually and as guardian ad litem for R. N., a minor child; and Hanny Nathan, Plaintiffs-Appellants, v. DEPARTMENT OF HUMAN SERVICES; Jodie Hoberg; Todd Hirano; Linda Canizales; Holli Arnold Cissna; and Brent Klabo, Defendants-Respondents.
• Court: Oregon Court of Appeals

288 Or.App. 554

407 P.3d 857

Hitto NATHAN, individually and as guardian ad litem for R. N., a minor child; and Hanny Nathan, Plaintiffs-Appellants,

v.DEPARTMENT OF HUMAN SERVICES; Jodie Hoberg; Todd Hirano; Linda Canizales; Holli Arnold Cissna; and Brent Klabo, Defendants-Respondents.

A158031

Court of Appeals of Oregon.

Argued and submitted February 9, 2016.

November 1, 2017

Katie H. Haraguchi argued the cause for appellants. On the briefs were Cody Hoesly and Larkins Vacura LLP.

Susan Yorke, Assistant Attorney General, argued the cause for respondents. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

ORTEGA, P. J.

After an employee of the Department of Human Services (DHS) removed four-year-old R from the care of plaintiffs Hanny and Hitto Nathan,¹ they brought federal and state claims against DHS and several DHS employees who were involved in R's removal and the resulting dependency proceedings.² Plaintiffs alleged that they were entitled to civil damages under 42 USC section 1983 because defendants deprived them of various constitutional rights. Further, they alleged that defendants committed several torts under Oregon law.

Plaintiffs moved for partial summary judgment on two of their section 1983 claims. Defendants cross-moved for summary judgment, asserting that plaintiffs' federal claims were barred by absolute and qualified immunity and that plaintiffs' state law claims, to varying degrees, either failed as a matter of law or were barred by discretionary immunity. The trial court denied plaintiffs' partial summary judgment motion, granted summary judgment to defendants, and entered a judgment dismissing plaintiffs' claims. On appeal, plaintiffs assign error to both the denial of their motion and the grant of summary judgment to defendants. Ultimately, as to the court's denial of plaintiffs' partial summary judgment motion, we affirm; as to the court's grant of summary judgment to defendants, we affirm in part, reverse in part, and remand.

On appeal from cross-motions for summary judgment, when error is assigned to the granting of one and the denial of the other, both rulings are reviewable. Bergeron v. Aero Sales, Inc., 205 Or.App. 257, 261, 134 P.3d 964, rev. den., 341 Or. 548, 145 P.3d 1109 (2006). The record on summary judgment "consists of documents submitted in support of and in opposition to both motions." Citibank South Dakota v. Santoro, 210 Or.App. 344, 347, 150 P.3d 429 (2006), rev. den., 342 Or. 473, 155 P.3d 51 (2007).

We review each of the cross-motions to determine whether there are any disputed issues of material fact and whether either party was entitled to judgment as a matter of law. Oregon Southwest, LLC v. Kvaternik, 214 Or.App. 404, 413, 164 P.3d 1226 (2007), rev. den., 344 Or. 390, 181 P.3d 769 (2008). "We review the record for each motion in the light most favorable to the party opposing that motion." Ellis v. Ferrellgas, L. P., 211 Or.App. 648, 653, 156 P.3d 136 (2007). Here, because the majority of our analysis involves whether the court appropriately granted summary judgment to defendants, we state the relevant facts in the light most favorable to plaintiffs—i.e., the parties opposing that motion.

I. FACTS

R was born in 2007 in the Marshall Islands. Plaintiffs are R's paternal grandparents and, shortly after R's birth, they adopted her and became her legal guardians under the common-law practices and customs of the Marshall Islands. Neither the common law nor the customs of the Marshall Islands include the "concept" of the termination of parental rights and no legal documentation is required in the Marshall Islands to establish plaintiffs' role as guardians or adoptive parents.

Plaintiffs travelled with R to Oregon in 2010 for a wedding and ended up extending their stay and living with their son Darren in his apartment in Eugene. Late on October 16, 2011, Darren and Hanny had about a 10-minute argument in the apartment. Darren was intoxicated and upset, and he retrieved his handgun and threatened to commit suicide. He then left the apartment without his gun. Hanny hid the handgun in a toy box in a bedroom. The next morning, while Hitto and R slept in another room, Hanny accidently discharged the gun while retrieving it from the toy box. The bullet traveled through the bedroom floor into the apartment below. Nobody was injured, but the downstairs neighbor contacted the Eugene Police Department to report the gunshot and the argument from the previous night.

When the police arrived shortly thereafter, their conversation with plaintiffs was hampered because plaintiffs spoke limited English. According to the police report, plaintiffs initially denied knowledge of the gun. However, the police located it in Hanny's handbag. They also observed that Hitto was "carrying what looked like a beer mug" when they first approached him, although the report is silent as to whether the mug contained alcohol. Darren returned to the apartment and explained to the officers the circumstances of the argument from the night before. The officers confiscated the gun, contacted DHS, and cited plaintiffs for reckless endangerment, criminal mischief, and tampering with physical evidence.³

Defendant Hoberg, a DHS case worker, received the call about the disturbance at Darren's apartment. After the officers relayed information to her about what they had observed, she responded to the apartment and spent "a few hours" questioning plaintiffs about the incident. Hitto communicated to Hoberg that plaintiffs were R's adoptive parents and guardians and had raised her since birth. Hoberg separated R from plaintiffs and asked her where her "parents" were. She indicated that they were "inside." Hoberg "clarified the difference" between grandparents and parents to R and she "didn't appear to understand." Hoberg asked R additional questions about her family, but when she received no further details, she ended the "interview." Hoberg attempted to contact plaintiffs' other son, Hanto, to help with the language barrier and help her "understand the circumstances" better. Those attempts failed. At that point, Hoberg decided to take R into protective custody and place her in shelter care, given what Hoberg deemed the "severity of the circumstances," including R "possibly being subjected to her uncle holding a handgun and making suicidal threats, as well as a firearm being discharged in the child's bedroom" and because Hoberg did not know the "whereabouts" of R's biological parents, and "it is unknown whether or not the grandparents have any type of legal custody" of R.

After deciding to take R into protective custody, Hoberg attempted to explain that decision to plaintiffs, but she was uncertain whether they understood. She contacted Hanto's wife, Adelle, to explain the situation and to ask the family to attend a "family meeting" after the shelter hearing to gain some clarity as to R's circumstances.

Two days later, the juvenile court held a shelter hearing, see ORS 419B.185 (requiring evidentiary hearing after child taken into protective custody), at which DHS filed a protective custody report. That report identified R's biological parents as the persons with legal custody of R. It also noted that their whereabouts were unknown, but that it appeared that they resided in the Marshall Islands. DHS also filed a dependency petition asking the court to take jurisdiction of R. DHS named R's biological parents in the petition but did not name plaintiffs as parties to the dependency proceeding—i.e., plaintiffs were not identified as parties on any of DHS's dependency pleadings and did not receive service of summons. Although Hoberg notified plaintiffs about the shelter hearing, they were not allowed to participate, and were not granted any of the rights that parties have in dependency proceedings. See ORS 419B.875(2) (specifiying some of the rights that parties have in juvenile dependency proceedings).⁴

The dependency petition included a statement that "[n]o person, not party to this proceeding, has physical custody of the child, or claims custody or visitation rights." Defendant Klabo, a DHS social worker, signed the petition based on information provided by Hoberg. At the close of the shelter hearing, the court ordered R into the custody of DHS and set a jurisdictional and dispositional hearing for early December 2011. DHS placed R in foster care.

After the hearing, a "family meeting" was held that included Hoberg, plaintiffs, Darren, Adelle, and Hanto. Hoberg explained DHS's concerns and learned that R's biological parents resided in the Marshall Islands and had not been involved in R's life except for occasional communications. At the meeting, plaintiffs gave Hoberg an "Affidavit of Identity" signed by R's biological mother that, in part, indicated that plaintiffs had adopted R under the common-law practices and customs of the Marshall Islands. They also gave Hoberg an "Affidavit of Guardianship," also signed by R's biological mother, that stated that plaintiffs had "full legal guardianship duties and functions" until January 18, 2012. Defendants were "confused" by the documents and they did not amend the petition to name plaintiffs as R's guardians or parents.

At the jurisdictional and dispositional hearing in December 2011, R's biological father participated by telephone from the Marshall Islands and admitted to an allegation that he was unavailable to protect R or meet R's needs. R's biological mother did not participate. The court took jurisdiction based on father's admission.

Early in April 2012, plaintiffs gave DHS a declaration from the Marshallese Ambassador to the United States that confirmed the validity of plaintiffs' claims of adoption and guardianship. DHS filed an amended dependency petition, signed by defendant Cissna, that named plaintiffs as parties to the proceeding (as R's guardians), and added new...