Young v. Van Duyne

• Decision Date: 28 April 2004
• Docket Number: No. 23,788.,23,788.
• Citation: 135 N.M. 695,92 P.3d 1269
• Parties: Christopher Paul YOUNG, individually, as personal representative of the Estate of Norma Lee Young, deceased, and as next friend to her minor children, Jeromiah T. Cabrera, Nicolas A. Cabrera, and Sara B. Salomon, Plaintiff-Appellant, v. Arnell VAN DUYNE, New Mexico Children, Youth & Families Department, Jane Doe, and John Doe, Children, Youth & Families Department employees, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

92 P.3d 1269

135 N.M. 695

Christopher Paul YOUNG, individually, as personal representative of the Estate of Norma Lee Young, deceased, and as next friend to her minor children, Jeromiah T. Cabrera, Nicolas A. Cabrera, and Sara B. Salomon, Plaintiff-Appellant, v. Arnell VAN DUYNE, New Mexico Children, Youth & Families Department, Jane Doe, and John Doe, Children, Youth & Families Department employees, Defendants-Appellees.

No. 23,788.

Court of Appeals of New Mexico.

April 28, 2004.

Jon C. Fredlund, James W. Klipstine, Jr., LLC, Hobbs, for Appellant.

Timothy V. Flynn-O'Brien, Bryan & Flynn-O'Brien, Albuquerque, Steven L. Bell, Roswell, for Appellee Children, Youth & Families Dep't.

OPINION

SUTIN, Judge.

{1} Plaintiff appeals a dismissal of his Tort Claims Act wrongful death claim arising from the alleged negligent failure of the New Mexico Children, Youth & Families Department (CYFD) to disclose to him and his deceased wife that their adopted son had violent tendencies. The wrongful death claim was filed after the adopted son killed his adoptive mother. The dismissal was based on statutory immunity under NMSA 1978, §§ 41-4-2(A) (1976) and 41-4-4(A) (2001). The district court rejected Plaintiff's contention that immunity was waived under NMSA 1978, § 41-4-6 (1977). We affirm in part and reverse in part.

BACKGROUND

{2} Plaintiff Christopher Paul Young, individually, as personal representative of the estate of Norma Lee Young, deceased, and as next friend of the deceased's minor children Jeromiah T. Cabrera, Nicolas A. Cabrera, and Sara B. Salomon, filed a wrongful death action against Defendants Arnell Van Duyne and CYFD. Christopher Paul Young and Norma Lee Young were the adoptive parents of Van Duyne. {3} Plaintiff alleged that CYFD and its employees were responsible for placement of Van Duyne into the Youngs' home "initially for foster care and ultimately for adoption." After his adoption, Van Duyne was placed in CYFD custody again and was sent to the New Mexico Boys' School, which was operated by CYFD, for evaluation, care, and treatment. At the Boys' School, Van Duyne was given a psychological evaluation. The evaluator concluded that Van Duyne "was a walking time bomb who was potentially explosive and would not take anything from anyone, particularly women." The evaluator noted that Van Duyne's issues could not be resolved without therapeutic intervention. At the end of Van Duyne's six-month stay at the Boys' School, the Youngs, at CYFD's urging, took Van Duyne back into their home. Sometime after returning from the Boys' School, Van Duyne beat his adoptive mother to death with a baseball bat.

{4} Plaintiff further alleged that both before Van Duyne's "placement in the Young[s'] home and after his release from its custody, CYFD and its employees knew or should have known that [Van Duyne] was capable of violent and uncontrolled behavior and that such behavior was likely to occur without therapeutic intervention." Plaintiff asserts that CYFD and its employees violated statutory and common law duties by failing to disclose to the Youngs the violent tendencies of Van Duyne and that this failure was the proximate cause of Norma Young's death.

{5} In his response to CYFD's motion to dismiss, Plaintiff asserted that CYFD exercised detailed control over the Youngs' home as "a licensed foster placement building" and that this control constituted "operation" of that building by CYFD, creating a waiver of immunity under the "building waiver" provision of Section 41-4-6 of the Tort Claims Act. See § 41-4-6. He also asserted a waiver of governmental immunity under NMSA 1978, § 37-1-23(A) (1976), based on "the many written agreements, including the foster placement agreement, (out of which the adoption originated), the pre-adoption agreement, and the adoption placement agreement, etc., [that] were valid contracts with [CYFD]." Plaintiff further asserted that CYFD breached statutory duties contained in the Adoption Act, citing, specifically, NMSA 1978, § 32A-5-3(J)(1) to (10) (1995, currently § 32A-5-3(M)(1) to (10) (2003)), NMSA 1978, §§ 32A-5-12(E) (1995), and 32A-5-31(A)(11) (2001), as well as "applicable sections of the New Mexico Administrative Code," stating in addition that it would violate public policy to grant immunity in the face of violations of these statutes. Plaintiff's response states that a memorandum in support of the response "is attached hereto," but no memorandum exists in the record.

{6} The district court found that "CYFD knew of [Van Duyne's] explosive tendencies, and yet failed to fully disclose the content of psychological evaluations that revealed those tendencies to the Youngs, contrary to specific duties to disclose such information contained in the statutes." Nevertheless, the district court granted CYFD's motion to dismiss Plaintiff's tort claim based on sovereign immunity. In a letter to the parties, the court stated the following:

In the context of the Rule 12(b)(6) motion, I accept the following facts as true: Arnell Van Duyne was a much troubled youth that found himself in the custody of CYFD. The Plaintiff, Mr. Young, and his wife, now deceased, opened their home to [Van Duyne], first as foster parents and ultimately as adoptive parents. Following a stint in the New Mexico Boy's [sic] School, [Van Duyne] returned to the Young's' [sic] home where on July 5, 2001, he brutally, and without provocation, beat his adoptive mother to death with a baseball bat. CYFD knew of [Van Duyne's] explosive tendencies, and yet failed to fully disclose the content of psychological evaluations that revealed those tendencies to the Youngs, contrary to specific duties to disclose such information contained in the statutes. Mr. Young acknowledges the provisions of the Act but believes that CYFD's governmental immunity under the act is waived under the facts of this case.

Also in the letter, the court stated that the Section 41-4-6 immunity waiver does not extend "to a private home in which the Young's [sic] resided with their adopted son," and further "does not waive immunity for claims of negligence through supervision nor does it waive immunity for negligent performance of an employee's duties." The court mentioned that Plaintiff's response to CYFD's motion to dismiss suggested a contractual theory of recovery based on the contract waiver of sovereign immunity in Section 37-1-23(A). However, the court rejected the theory because Plaintiff's complaint contained "no cause of action relating to breach of contract," and because Plaintiff failed to articulate how a relationship between CYFD as employer and foster parent as employee "constitute[d] any sort of safe harbor for [foster parents] under the Tort Claims Act." The court's letter did not discuss any constitutional argument.

{7} Plaintiff appeals on the ground that, under the averments of the complaint and his legal theories, the court erred in dismissing the complaint. On appeal, Plaintiff asserts that four legal theories keep his claims alive:

1) sovereign immunity is waived according to the building waiver exception of the New Mexico Tort Claims Act, § 44-4-6[sic] NMSA (1978); 2) the public policy behind the New Mexico Tort Claims Act supports this kind of suit against the State to be tried in a court of law; 3) CYFD and the Youngs entered into a contract which was governed by the laws and regulations of the State, which CYFD breached; 4) the Appellant[] ha[s] a valid constitutional claim against CYFD in accordance with 42 U.S.C. § 1983 (1994) when they did not fully disclose Van Duyne's medical condition to the Youngs and placed him back into the Young home, therefore creating a dangerous environment in the Young home.

Plaintiff further asserts that the court's dismissal denied him the opportunity for discovery concerning these legal theories, although it appears this point was not raised below.

DISCUSSION

The Contract and Constitutional Claims

{8} The complaint solely asserted claims of negligence per se and violation of statutory and general duties of care. Plaintiff averred no claim for breach of contract, nor any constitutional claim under 42 U.S.C. § 1983 (1996). He nevertheless argues that facts in the complaint support a claim for breach of contract and his § 1983 claim. Plaintiff argues that we should treat these additional legal theories as implicit in the averments of the complaint. Relying on Morse v. Regents of the University of Colorado, 154 F.3d 1124, 1127 (10th Cir.1998), Plaintiff contends the court "adopted the notion that it was acceptable for a court to draw reasonable inferences from the pleadings to determine whether they actually supported an additional cause of action." He also refers us to Moriarty Mun. Schs., 2001-NMCA-096, 131 N.M. 180, 34 P.3d 124, which reversed a motion to dismiss and remanded for trial because the plaintiff's claims "sounded in contract."

{9} Plaintiff nowhere points out where he raised this point or these cases below. He nowhere indicates whether he requested leave to amend his complaint. We are under no obligation to search the record to locate information in order to save a party from lack of preservation of issues. See State v. Desnoyers, 2002-NMSC-031, ¶ 25, 132 N.M. 756, 55 P.3d 968

("The Court will not search the record to see if an issue was preserved when Defendant does not refer the Court to appropriate transcript references."); In re Heeter, 113 N.M. 691, 694, 831 P.2d 990, 993 (Ct.App.1992) ("This court will not search the record to find evidence to support an appellant's claims."). Plaintiff could have sought to amend at any point in time up to the point of dismissal. See Moffat v. Branch, 2002-NMCA-067, ¶ 24, 132 N.M. 412, 49 P.3d 673. Nothing in the record or in the hearing on CYFD's motion to dismiss indicates that Plaintiff sought leave to amend. Furthermore, nothing in the complaint permits any reasonable inference or conclusion that supports a claim of breach of...