Osborn v. Kan. Dep't for Children & Families

• Decision Date: 13 May 2022
• Docket Number: 662,122
• Parties: Franklin James Osborn, as Heir at Law of A.O., and Administrator of the Estate of A.O., Appellant, v. Kansas Department for Children and Families; Laura Howard, in Her Official Capacity as Secretary of DCF; KVC Health Systems, Inc. d/b/a KVC Behavioral Healthcare, Inc., Appellees.
• Court: Court of Appeals of Kansas

Franklin James Osborn, as Heir at Law of A.O., and Administrator of the Estate of A.O., Appellant,
v.
Kansas Department for Children and Families; Laura Howard, in Her Official Capacity as Secretary of DCF; KVC Health Systems, Inc. d/b/a KVC Behavioral Healthcare, Inc., Appellees.

No. 122, 662

Court of Appeals of Kansas

May 13, 2022

NOT DESIGNATED FOR PUBLICATION

Appeal from Bourbon District Court; Mark Alan Ward, judge. Affirmed in part, reversed in part, and remanded with directions.

Michaela Shelton, of Shelton Law office, P.A., of Overland Park, for appellant.

Corliss S. Lawson, for appellees Department for Children and Families and Laura Howard in her official capacity as Secretary.

Heather Hatley, John G. Schultz, and Derek G. Johannsen, of Franke Schultz & Mullen, P.C., of Kansas City, Missouri, for appellee KVC Behavioral Healthcare, Inc.

Before Atcheson, P.J., Hill and Cline, JJ.

MEMORANDUM OPINION

Hill, J.

This is an appeal of the dismissal of a civil action against the Kansas Department for Children and Families and its contractor, KVC Health Systems, Inc. d/b/a KVC Behavioral Healthcare, Inc. The plaintiff is the father of a young boy who was

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abused and then murdered by a man who was living with the boy's mother. Father claims the state agency and its contractor failed to take reasonable steps to protect his son after they had received reports of the abuse and neglect of his son and seeks damages in this tort action.

The district court dismissed the claims against DCF after finding that it was immune from suit and that DCF owed no special duty to the boy. The court dismissed the claims against KVC, ruling the claims were barred by the statute of limitations. Father appeals, raising three errors related to the ruling about DCF, and three issues on the court's ruling about KVC.

This lawsuit was dismissed and then returned to district court after a successful appeal.

In 2015, DCF received reports that six-month-old A.O. was being abused. Later, he was killed by his mother's boyfriend, Anthony Anderson. A.O. died on April 28, 2015. Anderson is now serving a life sentence for the child's murder. State v. Anderson, 308 Kan. 1251, 1252-53, 427 P.3d 847 (2018).

On April 25, 2017, Franklin James Osborn, A.O.'s father, sued Anderson, A.O.'s mother, DCF, and the secretary of DCF for wrongful death. Osborn alleged that DCF had received two hotline reports of neglect and abuse of A.O. He contended that DCF had then conducted a preliminary inquiry, opened a file, commenced an active investigation into the reports, and sought to render services to A.O. By doing so, Osborn argued that DCF had a special duty to protect A.O., but that DCF acted unreasonably by allowing A.O. to continue to live with Anderson, thus creating an unjustifiable risk that A.O. would be harmed. After filing his lawsuit, Osborn served DCF with a discovery request about its investigation of the alleged abuse.

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In response, DCF admitted that it had received "one 'hotline' report of alleged abuse/neglect regarding A.O. on February 27, 2015 and a subsequent report on March 2, 2015." DCF moved to dismiss the lawsuit, contending that Osborn lacked standing to sue for wrongful death because he was not A.O.'s biological father. The district court agreed and dismissed the case. This court reversed, finding that Osborn was A.O.'s legal father and had standing to sue. Osborn v. Anderson, 56 Kan.App.2d 449, 460, 431 P.3d 875 (2018).

The case returned to district court in early 2019, and discovery began. In July 2019, Osborn amended his petition to add factual allegations based on records that DCF had produced. In August 2019, Osborn filed a second amended petition and added a claim against a new party, KVC-DCF's contractor.

Because we are reviewing a dismissal on the pleadings, we offer some details found in the pleadings. In his second amended petition, Osborn brought a wrongful death claim against DCF on theories of negligence and negligent supervision of KVC and what he called "a survival action as third-party beneficiary against KVC for breach of contract." Osborn alleged that DCF had:

• Received five hotline calls from different individuals reporting A.O. was being physically abused and neglected by A.O.'s mother and Anderson

• opened a case file

• investigated;

• determined services were necessary to keep A.O. safe;

• referred A.O.'s case to KVC for services;

• created a written case plan to keep A.O. safe;

• identified Anderson as an immediate risk to A.O.'s safety;

• knew that Anderson was named as a perpetrator of child abuse against another young child;

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• knew that Anderson was a cause of domestic violence in the home;

• knew that A.O.'s mother was only 17 years old and had a history of mental health issues;

• knew that A.O.'s mother had not complied with the written case plan;

• assigned an unqualified KVC employee to the case; and

• failed to protect A.O.

Osborn also alleged that KVC breached its written contract with DCF to provide services to children and families referred to KVC from DCF.

Both defendants sought a dismissal of the lawsuit on the pleadings. DCF claimed it owed no legal duty to A.O. and also claimed immunity based on the discretionary function exception to the Kansas Tort Claims Act. KVC claimed Osborn's cause of action against it was barred by the 2-year statute of limitations because his claims sounded in tort rather than contract law. The court granted both motions and Osborn appeals.

The nature of the district court's ruling-granting judgment on the pleadings-is significant and affects our ruling.

The statute, K.S.A. 2020 Supp. 60-212(b)(6), requires us to examine the issues here in a unique way. Since we are reviewing a judgment entered only on the pleadings, we will review all factual allegations in those pleadings in a light most favorable to Osborn. We will assume those facts are true, as well as any inferences we may draw from them. If those facts and inferences state any claim upon which relief can be granted, then we will rule the court's dismissal of the petition was improper. The rule is clear-at this point, dismissal of the lawsuit is proper only when the allegations in the petition demonstrate the plaintiff does not have a claim. See Steckline Communications, Inc. v. Journal Broadcast Group of Kansas, Inc., 305 Kan. 761, 767-68, 388 P.3d 84 (2017).

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After first reviewing some fundamental legal principles found in the Tort Claims Act, we will examine the three issues concerning DCF. After that, we will look into the issues about KVC. But we begin with the three questions we must answer about the claims against DCF:

• Did the district court err by ruling DCF was immune from liability because of the discretionary function of the Kansas Tort Claims Act?

• Did the district court err when it ruled that DCF owed A.O. a public duty and not a special duty?

• Did the district court err when it held that DCF was immune from liability for any negligent supervision of KVC?

According to the Kansas Tort Claims Act, discretionary acts of government officials and State agencies are immune from civil liability. Ministerial acts are not.

The Kansas Tort Claims Act allows individuals to sue governmental entities for the negligent or wrongful acts of their employees. Under the Act, governmental liability is the rule and immunity is the exception. A government entity is liable if a private person could be liable under the same circumstances and no statutory exception to liability applies. The government entity has the burden to establish an exception applies. Patterson v. Cowley County, 307 Kan. 616, 630, 413 P.3d 432 (2018). This means DCF must show it is immune to the claims here.

But there are exceptions to liability recognized in the Act. One such exception is the discretionary function exception. Under K.S.A. 75-6104(e), a governmental entity is not liable for damages resulting from "any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless

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of the level of discretion involved."

The Act does not define "discretionary function or duty." So courts have looked to "the nature and quality of the discretion exercised to determine whether a function or duty is discretionary." Montgomery v. Saleh, 311 Kan. 649, 664, 466 P.3d 902 (2020). Not every exercise of judgment qualifies for immunity. After all, some exercise of judgment is involved in every case. But the more a judgment involves policymaking, the more it is of a nature and quality inappropriate for judicial review. 311 Kan. at 664.

Such discretionary acts tend to require expertise, whether educational or from experience. Williams v. C-U-Out Bail Bonds, LLC, 310 Kan. 775, 795, 450 P.3d 330 (2019). Discretion implies the exercise of discriminating judgment within the bounds of reason. It involves the choice of exercising of the will, of determination made between competing and sometimes conflicting considerations. Bolyard v. Kansas Dept. of Social & Rehabilitation Services, 259 Kan. 447, 452, 912 P.2d 729 (1996). In contrast, ministerial acts do not involve particular skill or training. Williams, 310 Kan. at 795.

When a defined mandatory duty exists, the discretionary function exception does not apply. "Such duty may arise from agency directive, caselaw, or statute." Saleh, 311 Kan. at 664-65. A government agency is not immune from liability for violating a defined legal duty. A defined mandatory duty leaves little room for individual decision making, exercise of judgment, or use of skill. Henderson v. Montgomery Cty. Bd. of Commissioners, 57 Kan.App.2d 818, 830, 835, 461 P.3d 64, rev. denied 312 Kan. 891 (2020).

Further...