Smith v. Alameda County Social Services Agency

• Decision Date: 23 March 1979
• Citation: 90 Cal.App.3d 929,153 Cal.Rptr. 712
• Parties: Dennis SMITH, etc., Plaintiff and Appellant, v. ALAMEDA COUNTY SOCIAL SERVICES AGENCY et al., and Hayward Unified School District, Defendants and Respondents. Civ. 42753.
• Court: California Court of Appeals Court of Appeals

Page 712

153 Cal.Rptr. 712

90 Cal.App.3d 929

Dennis SMITH, etc., Plaintiff and Appellant, v. ALAMEDA COUNTY SOCIAL SERVICES AGENCY et al., and Hayward Unified School District, Defendants and Respondents.

Civ. 42753.

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

March 23, 1979.

Robert L. Walker, Abigail English, San Francisco, for plaintiff and appellant.

Richard J. Moore, County Counsel, E. Melville McKinney, Peter W. Davis, Judith R. Epstein, Crosby, Heafey, Roach & May by Peter W. Davis, Oakland, for defendants and respondents.

BRUNN, ^* Associate Justice (Assigned).

In this case we undertake the delicate and difficult task of deciding whether or not to fashion a new cause of action. Appellant, in an able brief, states the underlying question: "The principal issue raised by this appeal is whether a county social services agency which has been entrusted with the sole responsibility for finding an infant an adoptive home may be held liable (for damages) if that agency negligently fails to carry out its responsibilities."

Our discussion will be in three parts. We will first summarize the factual and procedural setting. Next, we will examine the main question. Finally, we will direct our attention to several additional issues raised by appellant.

I

Dennis Smith (hereafter Dennis) appeals from a judgment of dismissal. The judgment was entered after the court below sustained demurrers to his complaint without leave to amend and also granted motions to strike the complaint.

The complaint names many defendants. They fall into two groups. One is the Alameda County Social Services Agency, related other public agencies and named employees of and consultants to them. For the sake of simplicity we will refer to this group as the agency. The other group not involved in the principal cause of action includes the Hayward Unified School District, the district's board of education and its superintendent of schools. We will refer to these defendants as the school district. The pertinent allegations of the complaint are summarized as follows:

When he filed his complaint Dennis was seventeen. Shortly after he was born, his mother relinquished him to the custody of the agency for the purpose of adoption. This was done pursuant to Civil Code section 224m, which sets up a procedure by which a "father or mother may relinquish a child to a licensed adoption agency for adoption."

The agency placed Dennis in a series of foster homes, but no one adopted him. The thrust of Dennis' first cause of action is that the agency negligently or intentionally failed to take reasonable actions to bring about Dennis' adoption. The agency left him with one set of foster parents for many years without asking them whether they wanted to adopt him. The agency knew or should have known that other foster parents with whom Dennis was placed never intended to adopt him. The agency did not attempt to find a proper preadoptive home for Dennis. As a direct consequence of the agency's failures he was never adopted, but spent his entire childhood in a series of foster and group homes. He was, therefore, deprived of a stable environment, parental nurturing, continuity of care and affection, a secure and homelike family environment, and proper and effective parental care and guidance. This caused Dennis damage, primarily mental and emotional suffering and grave interference with his psychological development. ¹

This is the heart of Dennis' first and main cause of action. The "facts" we have recited are, of course, only allegations. In accord with familiar principles we accept them as true for the purpose of testing their legal sufficiency. We state them as facts without repeatedly and boringly adding "alleged."

We will discuss Dennis' other causes of action in part III of our opinion.

II

It is easy in a case of this kind to fall into analytic confusion and to treat the question primarily as one whether there is or is not immunity under the California Tort Claims Act. (Gov.Code, § 810 et seq.) Under that act, the inquiry would be whether the conduct here alleged involved "basic policy decisions." (Tarasoff v. Regents of the University of California (1976) 17 Cal.3d 425, 445, 131 Cal.Rptr. 14, 551 P.2d 334; Johnson v. State of California (1968) 69 Cal.2d 782, 793, 73 Cal.Rptr. 240, 447 P.2d 352.)

Before the question of governmental immunity can arise, a more fundamental issue needs first to be faced: Is there any liability for damages under the circumstances before us, in the absence of governmental immunity? In other words, would a private adoption agency such as the Children's Home Society be liable under similar facts? Only if the answer is yes would the issue of immunity become important. (See Van Alstyne, California Government Tort Liability (Cont.Ed.Bar 1964) 143.)

Decisions as to whether to tighten or enlarge "the circle of rights and remedies" ² are often phrased in terms of a "duty of care." The existence or absence of a duty cannot be determined by mechanical or formal tests. Rather, "judicial recognition of such duty in the defendant, with the consequence of his liability in negligence for its breach, is initially to be dictated or precluded by considerations of public policy." (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 822, 131 Cal.Rptr. 854, 859; Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912; Raymond v. Paradise Unified School Dist. (1963) 218 Cal.App.2d 1, 8-9, 31 Cal.Rptr. 847.) " '(D)uty' is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." (Prosser, Law of Torts (3d ed.) 333, quoted with approval in Dillon v. Legg, supra.) Invasion of a protected interest has replaced duty of care in the Restatement's delineation of the essentials for a negligence cause of action. (Rest.2d Torts, § 281; see also Peter W., supra, at p. 824, 131 Cal.Rptr. 854.)

Whether viewed from the perspective of duty of care or of protecting a particular interest, the nature of our inquiry is essentially the same as in Peter W., supra. The inquiry is not affected significantly by phrasing it in terms of recognizing a new set of rights and duties or in terms, used in Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561, of departing from the basic principle of liability for negligence. No matter now the question is approached, the inquiry turns upon policy considerations.

In Rowland v. Christian, supra, the court stated the major factors to be considered: "(T)he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (69 Cal.2d at p. 113, 70 Cal.Rptr. at p. 100, 443 P.2d at p. 564.)

Similarly, in Raymond v. Paradise Unified School District, supra, 218 Cal.App.2d at page 8, 31 Cal.Rptr. at page 851, 852 the court said:

"The social utility of the activity out of which the injury arises, compared with the risks involved in its conduct; the kind of person with whom the actor is dealing; the workability of a rule of care, specially in terms of the parties' relative ability to adopt practical means of preventing injury; the relative ability of the parties to bear the financial burden of injury and the availability of means by which the loss may be shifted or spread; the body of statutes and judicial precedents which color the parties' relationship; the prophylactic effect of a rule of liability; in the case of a public agency defendant, the extent of its powers, the role imposed upon it by law and the limitations imposed upon it by budget; and finally, the moral imperatives which judges share with their fellow citizens such are the factors which play a role in the determination of duty. (Citations.)"

When we apply the various considerations of policy we find that they militate strongly against liability in the situation before us:

A. As in Peter W. the duty sought to be imposed here does not present us with a reasonably clear or manageable standard for assessing the wrongfulness of the agency's conduct. A trier of fact would have to exercise hindsight over 17 years of social work involving difficult and at least partially subjective decisions about when and with whom to place a preadoptive child. Dennis had two long-term placements with foster parents, neither of which resulted in his adoption. Until the fairly recent decline in the birth rate, the number of children accepted for adoption by social service agencies exceeded the number eventually placed. (tenBroek, California's Adoption Law and Programs (1955) 6 Hast.L.J. 261, 319.) More importantly, despite changes in the supply of and demand for children to adopt, the chances of a child being adopted by a foster family remain low; it is not uncommon for children who need adoptive homes to live in supposedly temporary foster homes for years and never be adopted. (Bodenheimer, New Trends and Requirements in Adoption Law and Proposals for Legislative Change (1975) 49 So.Cal.Law Rev. 10, 13, 35.) Whether an agency could or should have done something different with regard to the placement of any of the many children who received foster care but were not fortunate enough to be adopted would involve an inquiry of a highly speculative nature. To paraphrase what we said in Peter W., unlike the activity of the highway or the marketplace, social work methodology provides no readily acceptable standards of care or cause.

B. If we examine the first...