Robbins v. Hamburger Home for Girls, B073217

• Decision Date: 22 February 1995
• Docket Number: No. B073217,B073217
• Citation: 38 Cal.Rptr.2d 534,32 Cal.App.4th 671
• Court: California Court of Appeals Court of Appeals
• Parties: Nelson L. ROBBINS et al., Plaintiffs and Appellants, v. HAMBURGER HOME FOR GIRLS etc., et al., Defendants and Respondents.

Page 534

38 Cal.Rptr.2d 534

32 Cal.App.4th 671

Nelson L. ROBBINS et al., Plaintiffs and Appellants, v. HAMBURGER HOME FOR GIRLS etc., et al., Defendants and Respondents.

No. B073217.

Court of Appeal, Second District, Division 4, California.

Feb. 22, 1995.

Certified for Partial Publication ^*.

[32 Cal.App.4th 674] Nelson L. Robbins and Sharon E. Robbins, in pro. per.

Morris, Polich & Purdy, Robert S. Wolfe, Douglas J. Collodel, Richard H. Nakamura, Jr., and Marilyn Muir, Los Angeles, for defendants and respondents.

INTRODUCTION

CHARLES S. [32 Cal.App.4th 675] VOGEL, Associate Justice.

The then-15-year-old daughter of plaintiffs Nelson and Sharon Robbins left home for three days and stayed at a private nonprofit shelter for abused and troubled teenage girls, claiming that she did not want to go home because she was fighting with her parents and her father had physically abused her on three recent occasions. The suspected child abuse was reported to the authorities, who advised the shelter not to disclose the girl's whereabouts. Within that three-day period, the authorities apparently determined to take no action, and plaintiffs then came to the shelter and took their daughter

home. Subsequently, plaintiffs filed this action on their own behalf against the shelter and its counselors, alleging federal civil rights violations and various state law causes of action, asserting that the defendants interfered with parental rights of custody and inflicted emotional distress on plaintiffs. The trial court granted summary judgment in favor of defendants on all causes of action. Plaintiffs appeal. We affirm.

I

FACTUAL BACKGROUND

Stripped of mere conclusions and legal arguments in plaintiffs' opposition to defendants' motion for summary judgment, the pertinent undisputed and disputed facts supported by deposition testimony and declarations based on personal knowledge (Code Civ.Proc., § 437c, subd. (b)) are as follows.

Defendant and respondent Hamburger Home for Girls, doing business as Aviva Center, is a private nonprofit shelter for troubled girls aged 12 to 17. Its purpose is to provide a safe environment for troubled girls and, through individual and group counseling, to enable its temporary residents to work out their problems and return home. It is licensed by the state as a group home and has a contract with the City of Los Angeles to provide services as a residential care facility. It is not, however, a "holding facility" for any city, county, or state entity, nor do any governmental entities "place" minors there. Its temporary residents come there voluntarily and they are free to leave.

All the events concerning this case took place between December 8 and December 12, 1986. On the afternoon of December 8, plaintiffs' 15-year-old daughter Tricia did not return home from high school. She instead went to defendant Aviva Center. She had reported to one of her high school teachers that day that she was having problems at home and did not want to return home. She told the teacher of one specific instance of her father hitting her when she had done something wrong. Someone at the high school (Tricia did not remember whether it was a friend or a school employee) told Tricia about the Aviva Center and that it was a safe place to go. She went there voluntarily of her own choice. She did not want to go home because she was not getting along with her parents.

When Tricia went to the shelter, defendant and respondent Greg Rose, resident counselor, conducted an intake interview. Tricia told him that she wanted a safe place to stay, she had had a fight with her parents and did not want to return home. Tricia told Rose of three separate occasions of physical abuse by her father, the most recent having occurred the prior weekend. She said she feared for her life and contemplated suicide. As required by the Child Abuse and Neglect Reporting Act, Rose subsequently reported the incidents of suspected abuse to the Department of Childrens Services. His written report stated, "Tricia reports 3 incidents in which her father became violent each one progressively worse. 1) Oct. '86 he picked her up & threw her to the floor 3x's[.] 2) Nov. '86 he whipped her on the buttocks & thieghs [sic ] & again threw her to the floor. 3) 12/8/86 Tricia states that he picked her up by the neck, this left observable marks-bruises, threw her to the ground 3x's & also hit her across the face w/ an open hand.'' ¹ Rose's written report, dated December 16, states that he reported the suspected child abuse to the Department of Childrens Services by telephone at 1:00 p.m., December 10.

Rose's declaration states the Department of Childrens Services advised him "that I was not to disclose the address of the Aviva Center to Tricia Robbins['s] parents, due to the fact that the allegations of physical abuse involved Tricia Robbins['s] father, Nelson Robbins. [p] ... I was further advised that the only information I could give to Tricia Robbins'[s] parents was that she was safe, that she was in protective care, and that all further inquiries could be directed to the Department of Children[s] Services."

When Tricia failed to return home from school on December 8, plaintiffs contacted school employees, who professed lack of knowledge of Tricia's whereabouts. On December 9, the school employees told plaintiffs that Tricia had made allegations of child abuse and that the suspected child abuse had been reported to authorities and to the police. Plaintiffs went to the police station, where a police detective learned that Tricia was at the Aviva Center. The detective telephoned the Aviva Center and put Mr. Robbins on the line.

Mr. Robbins identified himself as Tricia's father, stated that he did not consent to Tricia's being there, and demanded that she be returned to him, and that he be allowed to speak to her. According to Robbins's declaration, defendants refused to return Tricia, refused to let plaintiffs speak to her, and refused to divulge the location of Aviva Center. According to Greg Rose's declaration, Rose told Mr. Robbins that "his daughter was safe, that she was in protective care, and that all other inquiries should be directed to the Department of Children[s] Services." Rose further declared that Tricia was free to telephone her parents and that plaintiffs were never advised they could not speak to Tricia. Mr. Robbins's declaration states, however, that at no time did defendants advise him that Tricia was in protective care or that further inquiries should be directed to the Department of Childrens Services. Both declarations agree that Mr. Robbins repeatedly telephoned over the next two days making similar demands and receiving similar responses.

Neither side introduced any evidence indicating what action, if any, the Department of Childrens Services took in response to the child abuse reports. Mr. Robbins declared that, on December 11, Greg Rose telephoned plaintiffs and said they could come pick up Tricia, but when plaintiffs went to the address Rose gave them, it was not the Aviva Center but a closed commercial building.

Plaintiffs picked up Tricia at the Aviva Center on December 12. When Tricia was told her parents were coming, she did not want to go, she wanted to stay at the shelter indefinitely. Defendants told her there was no basis to hold her there and that she should go home with her parents. After a difficult meeting with plaintiffs and the counselors, Tricia went home with plaintiffs.

II

PROCEDURAL BACKGROUND

Plaintiffs' first amended complaint, filed in propria persona, asserts seven causes of action against defendants (the Los Angeles Unified School District defendants are not before us; see Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 4 Cal.Rptr.2d 649). The first is under the Federal Civil Rights Act, Title 42, United States Code, section 1983, alleging that defendants wrongfully deprived plaintiffs of parental rights of child custody in violation of plaintiffs' constitutional due process interests. The second alleges that defendants interfered in plaintiffs' personal rights declared by Civil Code section 49, which states, "The rights of personal relations forbid: [p] (a) The abduction or enticement of a child from a parent...." These constitute the gist of the action. The other causes of action flow from the first two, on the assumption that defendants' conduct was unjustified. ² All causes of action are on behalf of plaintiffs, the parents; Tricia is not a party, nor is any cause of action asserted on her behalf.

III

DISCUSSION

Summary judgment shall be granted if all the papers submitted show there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. This presents a question of law for our review independent of the trial court's conclusion. (Code Civ.Proc., § 437c, subd. (c); Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1449-1450, 16 Cal.Rptr.2d 320.)

We conclude summary judgment was properly granted because defendants either committed no tortious acts or were privileged to act as they did or were immune from liability. ³ The uncontradicted evidence shows that Tricia voluntarily went to the shelter and that defendants' conduct was for the purposes either of complying with the Child Abuse and Neglect Reporting Act or of protecting Tricia from possible physical abuse during a short period while the public authorities investigated.

A

Child Abuse and Neglect Reporting Act

As plaintiffs contend, their action is not based on the reporting of child abuse but rather on the subsequent concealment of Tricia's whereabouts. The whole episode arose, however, amid allegations of physical abuse, and we find it appropriate to begin by reviewing the legal context in which it occurred.

The Child Abuse and Neglect Reporting Act (Pen.Code, § 11164 et seq.) ⁴ requires designated persons coming into contact with children to report to the...