Vania Minor, Individually and as Mother, Natural Guardian and Next Best Friend of D.A. v. State of Iowa, Becky Grabe, Individually and Cleo Hester, Individually

IN THE SUPREME COURT OF IOWA
No. 09–1010
Filed June 15, 2012
VANIA MINOR, Individually and as
Mother, Natural Guardian and Next
Best Friend of D.A.,
Appellant,
vs.
STATE OF IOWA, BECKY GRABE,
Individually and CLEO HESTER,
Individually,
Appellees.
Appeal from the Iowa District Court for Linn County, Nancy A.
Baumgartner, Judge.
Plaintiff appeals a district court order granting the defendants’
motion for summary judgment. AFFIRMED.
Jeffrey R. Tronvold and Matthew J. Reilly of Eells & Tronvold Law
Offices, P.L.C., Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General and Jeffrey S. Thompson and
Anne E. Updegraff, Assistant Attorneys General, for appellee.
2
WIGGINS, Justice.
The State filed a child in need of assistance (CINA) petition. The
juvenile court issued a temporary removal order, removing the child from
her mother’s custody and placing her in foster care. After the CINA
proceeding was dismissed, the mother sued the State of Iowa and two
employees of the Iowa Department of Human Services (DHS), under
42 U.S.C. § 1983 (2000) and Iowa Code chapter 669 (2005), the Iowa Tort
Claims Act (ITCA), alleging the DHS social workers wrongfully removed
the child from her custody and negligently failed to protect the child from
abuse by a foster parent. The State and its employees sought summary
judgment, which the district court granted.
On appeal, we conclude a social worker is entitled to absolute
immunity when the social worker functions in the role of a prosecutor,
such as when the social worker files a petition to initiate a CINA
proceeding. Further, a social worker is entitled to absolute immunity
when the social worker functions in the role of an ordinary witness, such
as when the social worker files an affidavit after the initiation of CINA
proceedings. Additionally, a social worker is entitled to qualified
immunity when he or she acts in the role of a complaining witness, such
as when the social worker files an affidavit in support of a CINA petition.
Similarly, a social worker is entitled to qualified immunity for his or her
investigatory acts. Moreover, the alleged injured parties cannot maintain
an action against a social worker under the ITCA where the alleged
injured parties fail to exhaust the available administrative remedy prior
to filing the action in court. Finally, the alleged injured parties cannot
maintain an action against a state social worker under the ITCA where
the basis of the complaint is that the social worker engaged in conduct
3
functionally equivalent to misrepresentation or deceit. Accordingly, we
affirm the decision of the district court.
I. Background Facts and Proceedings.
A reasonable fact finder viewing the summary judgment record in
the light most favorable to the plaintiffs could find the following facts.
Vania Minor is the mother of D.A. Between April 2002 and January
2005, DHS conducted several child abuse assessments involving Minor
and D.A.
Becky Grabe, a social worker supervisor employed by DHS,
completed one such assessment on January 18, 2005, after DHS
received a report alleging D.A. had been exposed to an escort service run
by Minor out of their home. Grabe could not confirm the report, but
found that Minor allowed troubled adolescents to stay in her home and
frequently left D.A. with various caretakers. Believing Minor had placed
D.A. in an environment that was unpredictable and, at times, unsafe,
Grabe required Minor to sign a safety plan.
In February, Minor and D.A. were on a trip to Arizona with Minor’s
friend, Angel Pena, and her children. Pena testified that, at the time of
the Arizona trip, her children were the subjects of an ongoing CINA
proceeding and that she was not supposed to leave Iowa with them.
While in Arizona, Pena received a call from an unidentified DHS
employee. Pena testified the caller informed her that DHS was coming to
get her children. Pena also testified the caller promised that if she
cooperated she would not be in trouble and would get her kids back
when she returned to Iowa.
The caller asked Pena about D.A. Pena informed the caller that
D.A. needed to use the restroom while they were driving on the turnpike
and that, because they were not near a restroom, D.A. put on a pull-up
4
diaper and wet herself. 1 The caller then asked Pena to say that Minor
forced Pena to go on the trip from Iowa to Arizona. Because Minor had
not forced Pena to go to Arizona, Pena stopped cooperating with the
caller and did not tell her that Minor forced her to go on the trip. When
Pena returned to Iowa, she received another call from an unidentified
DHS employee who she believes to be the same person who called her in
Arizona. During this call, the unidentified DHS employee asked Pena if
Minor had a prostitution business.
Sometime following the conversations between the unidentified
caller and Pena, Grabe had a discussion with her supervisor concerning
a report DHS allegedly received on February 24 from an unidentified
reporter. The reporter suggested Minor was not providing D.A. with
proper supervision or adequate healthcare. In particular, the reporter
indicated that Minor had not taken D.A. to the doctor even though she
had been sick with a cough for two months, that D.A. was still wearing
pull-ups, and that Minor did not permit D.A. to use the restroom, which
contributed to D.A.’s inability to be fully toilet trained at the age of seven.
DHS did not perform a new assessment because of the cumulative
nature of the report. Instead, Grabe’s supervisor instructed her to refer
the case to the county attorney for possible CINA action. The county
attorney recommended that Grabe prepare an affidavit to file with the
CINA petition because of a concern that Minor had fled the State with
D.A. On April 5, the county attorney filed a CINA petition and attached
Grabe’s affidavit. Grabe’s affidavit included all of the allegations
provided by the February 24 reporter. It also included allegations based
on previous reports and DHS assessments, including allegations that
1Ina deposition, Minor admitted to giving D.A. a pull-up while they were driving
because they were not near any restrooms.
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Minor exposed D.A. to a prostitution business, that D.A. displayed
inappropriate sexualized behavior, and that Minor had left D.A. with
inappropriate caregivers.
The county sheriff could not serve Minor with a summons and
notice because she was no longer living at her listed address and did not
leave a forwarding address. At the time, Minor and D.A. were living in
Las Vegas. On May 5, the day set for the pretrial hearing, Grabe
provided the juvenile court with another affidavit asking the court to
place D.A. in temporary DHS custody. This affidavit indicated that Minor
exposed D.A. to her prostitution business, that Minor denied D.A.
contact with extended family members, that D.A. displayed sexualized
behavior, that D.A. was left with unsuitable caretakers, that Minor
exhibits behavior suggestive of mental illness and drug abuse, and that
Grabe believed Minor intentionally took D.A. out of the state in order to
flee the juvenile court and DHS systems. The court issued a temporary
removal order on the basis that Minor had left the state with D.A. after
the filing of the CINA petition and that Minor had allegedly exposed D.A.
to prostitution. After learning about the CINA petition, Minor voluntarily
returned D.A. to Iowa on May 7.
Grabe assigned D.A.’s case to Cleo Hester, another DHS social
worker. Upon her removal, DHS first placed D.A. with her paternal
grandmother, but the placement was discontinued because the
grandmother’s retirement community prohibited long-term guests.
Minor proposed that DHS place D.A. with Rebecca Stutzman, a family
friend. However, DHS next placed D.A. with Cathy Techau, a licensed
foster parent, on May 31. That same day, the court ordered DHS “to
complete a Home Study of any proposed alternate placement for the
child.” Hester, who was responsible for conducting any home study
6
pertaining to D.A.’s placement, admitted in his affidavit that he did not
consider the home study a priority because Minor had informed him she
was comfortable with Techau caring for D.A. Minor, who visited with
D.A. at least twice after DHS placed D.A. at Techau’s, admitted she did
not have any concerns about the placement prior to June 6.
While in Techau’s care, D.A. spent the weekdays in a daytime
program at a nonprofit agency that, among other things, helps children
with behavioral issues. Techau communicated concerns to the agency
about D.A.’s behavior. The agency’s employees indicated D.A. struggled
with social interactions with other children her age. When D.A.
misbehaved at the agency, she would receive discipline in the form of
short time outs, during which she would be prohibited from participating
in activities with the other children or be prohibited from earning certain
privileges. D.A. testified she received this type of discipline for more than
twenty consecutive days. According to D.A., Techau would send her to
her room after dinner on each day she was disciplined at the agency.
D.A. believed the door was locked. D.A. further testified she was not
permitted to leave her room and sometimes wet herself. She testified
that, although she did not know how to bathe properly, she took a bath
every other day while at Techau’s, but that Techau did not assist her.
While in Techau’s care, D.A. contracted an E. coli urinary tract
infection. Techau took D.A. to see a physician on June 22. The
physician diagnosed D.A. with the infection and prescribed antibiotics.
The physician opined an E. coli urinary tract infection is often caused by
poor personal bathroom hygiene. A follow-up visit revealed the infection
had cleared.
After learning about D.A.’s E. coli infection, Minor expressed
dissatisfaction with the quality of foster care provided by Techau to DHS.
7
This prompted an unannounced visit by another DHS social worker to
Techau’s home on June 28. A post-visit report indicated Techau’s home
was clean and not a health or safety hazard. Although D.A. was not
present during the visit, the report indicated the children, day care
center, and foster home “appeared to be well taken care of.”
Minor brought her concerns about the quality of Techau’s care to
the attention of the juvenile court on June 29 in an application to modify
D.A.’s placement conditions. In addition to noting D.A. contracted an
E. coli urinary tract infection, the application alleged that while in
Techau’s care D.A. was neglected, improperly supervised and disciplined,
locked in her room for long periods of time, denied basic grooming and
hygienic care, and not provided with proper medication. Minor urged the
court to remove D.A. from Techau’s home and order DHS to complete a
home study of Stuzman’s residence.
On June 30, the court ordered DHS to obtain a home study of the
Stutzman residence. Hester completed the Stutzman home study on
July 13, and DHS placed D.A. with Stutzman on July 15. On August 3,
the parties agreed to the dismissal of the CINA proceeding and the
juvenile court dismissed the case. D.A. returned to Minor’s care.
On May 4, 2007, Minor filed claims on behalf of herself and D.A.
with the state appeal board against Grabe. Minor asserted claims
against Grabe for intentional infliction of emotional distress, outrageous
conduct, and tortious interference with the parent–child relationship.
Minor did not file a claim against Hester with the state appeal board.
On May 7, Minor, acting individually and as D.A.’s next friend,
filed suit against the State of Iowa, Grabe, and Hester, asserting claims
under 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth
Amendments of the United States Constitution, for improperly removing
8
D.A. from Minor’s care, custody, and control, and for failing to meet the
affirmative duty to protect D.A. once she was placed in foster care. On
June 3, the state appeal board denied Minor’s state tort claims. Minor
then filed an amended and substituted petition in the district court,
which, in addition to the federal law claims, asserted state tort law
claims, including intentional infliction of emotional distress, outrageous
conduct, 2 and tortious interference with the parent–child relationship.
Specifically, Minor alleged that Grabe was the unidentified DHS
employee who called Pena, that Grabe used bribery and extortion to
obtain information regarding Minor and D.A., and that Grabe filed false
affidavits to remove D.A. from Minor’s care, custody, and control. Minor
further contended Grabe and Hester refused to comply in a timely
manner with the court orders directing DHS to conduct the Stutzman
home study. Finally, Minor alleged that, while in the care of Techau,
D.A. was denied adequate medical care, subjected to unclean and
hazardous conditions, physically and verbally abused, neglected,
improperly supervised, and locked in a room.
The State, Grabe, and Hester moved for summary judgment,
asserting various defenses based on immunity. The district court
granted summary judgment, holding (1) Minor may not assert a claim
against the State of Iowa under § 1983; 3 (2) Grabe and Hester are
entitled to absolute immunity from the claims pursuant to § 1983
because they were acting in the role of prosecutors; (3) Hester is entitled
to discretionary function immunity from the state tort claims pursuant to
2Minor later withdrew the claim for outrageous conduct in the district court.
3Minor and D.A. do not appeal the district court’s determination that a plaintiff
may not state a claim under § 1983 against the State of Iowa. Therefore, the appeal
involving federal civil rights claims under § 1983 does not involve the State.
9
Iowa Code section 669.14(1); (4) Grabe is entitled to immunity from the
state tort claims pursuant to Iowa Code section 669.14(4), which bars
claims arising out of misrepresentation or deceit; and (5) the State of
Iowa does not recognize a cause of action for tortious interference with a
parent–child relationship. Minor appeals.
II. Issues.
The issue in this appeal is whether a genuine issue of material fact
exists that would justify allowing the federal civil rights claims and state
tort claims to proceed to trial. Because the district court granted
summary judgment based on immunity, we must determine whether and
what kind of immunity state social workers are entitled to under § 1983
in the face of claims that they violated a parent’s right to the care,
custody, and control of her child and a child’s right to adequate medical
care, protection, and supervision. We must also determine whether
these state social workers are entitled to immunity from state tort claims
brought pursuant to the ITCA.
III. Scope of Review.
We review an order granting summary judgment for correction of
errors at law. Robinson v. Fremont Cnty., 744 N.W.2d 323, 325 (Iowa
2008). The district court correctly enters a summary judgment when the
moving party demonstrates that there is no genuine issue of material fact
and that he or she is entitled to judgment as a matter of law. Iowa R.
Civ. P. 1.981(3). To determine whether the moving party met his or her
burden, we examine the record in the light most favorable to the party
opposing the motion for summary judgment. Rants v. Vilsack, 684
N.W.2d 193, 199 (Iowa 2004). We review “the record before the district
court and determine whether there was a material fact in dispute and if
10
not, whether the district court correctly applied the law.” Robinson, 744
N.W.2d at 325.
IV. Federal Civil Rights Claims.
42 U.S.C. § 1983 enables those individuals whose constitutional
rights were deprived by persons acting under color of state law to seek
redress for their grievances. Dickerson v. Mertz, 547 N.W.2d 208, 214
(Iowa 1996). To prevail on a claim under § 1983, a plaintiff must
establish
(1) that the defendant deprived the plaintiff of a right secured
by the [C]onstitution and laws of the United States, (2) that
the defendant acted under color of state law, (3) that the
conduct was a proximate cause of the plaintiff’s damage, and
(4) the amount of damages.
Leydens v. City of Des Moines, 484 N.W.2d 594, 596 (Iowa 1992). While
§ 1983 does not recognize the defense of immunity on its face, the United
States Supreme Court has held government employees have absolute
immunity from suit in some circumstances and qualified immunity from
suit in others. See Buckley v. Fitzsimmons, 509 U.S. 259, 268–69, 113 S.
Ct. 2606, 2613, 125 L. Ed. 2d 209, 223 (1993) (stating that while
qualified immunity is usually sufficient to protect government officials,
some officials deserve absolute protection).
The district court concluded there was a genuine issue of material
fact as to whether Minor’s substantive due process rights and D.A.’s
Fourth Amendment right to be free from unreasonable seizure were
violated. However, the district court nonetheless granted the motion for
summary judgment, finding absolute immunity barred the claims
because Grabe’s actions in helping to initiate the CINA action and
Hester’s actions in making a recommendation for the placement of D.A.
were the functional equivalent of actions performed by a prosecutor.
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A. Absolute Immunity. Section 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected,
any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. Despite its broad language, the Supreme Court has
consistently held § 1983 did not abolish long-standing common law
immunities enjoyed by government officials in civil suits when Congress
enacted it in 1871. See Buckley, 509 U.S. at 268, 113 S. Ct. at 2612–13,
125 L. Ed. 2d at 222–23; Burns v. Reed, 500 U.S. 478, 484, 111 S. Ct.
1934, 1938, 114 L. Ed. 2d 547, 557 (1991); Imbler v. Pachtman, 424 U.S.
409, 417–18, 96 S. Ct. 984, 989, 47 L. Ed. 2d 128, 136 (1976). When
faced with a question of whether a government official has absolute
immunity from civil liability resulting from his or her acts, we employ a
“functional approach” to determine whether those actions “fit within a
common-law tradition of absolute immunity.” Buckley, 509 U.S. at 269,
113 S. Ct. at 2613, 125 L. Ed. 2d at 223; see also Beck v. Phillips, 685
N.W.2d 637, 642 (Iowa 2004).
Under this “functional approach,” we do not look to the identity of
the government actor, but instead to “the nature of the function
performed.” Forrester v. White, 484 U.S. 219, 229, 108 S. Ct. 538, 545,
98 L. Ed. 2d 555, 566 (1988). We only grant absolute immunity for those
governmental functions that were historically viewed as so
important and vulnerable to interference by means of
litigation that some form of absolute immunity from civil
liability was needed to ensure that they are performed “ ‘with
independence and without fear of consequences.’ ”
12
Rehberg v. Paulk, 566 U.S. ___, ___, 132 S. Ct. 1497, 1503, 182 L. Ed. 2d
593, 601 (2012) (quoting Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct.
1213, 1218, 18 L. Ed. 2d 288, 294 (1967)). A government official may be
entitled to absolute immunity where the official performs a function
analogous to that of a government official who was immune at common
law. See Butz v. Economou, 438 U.S. 478, 513–15, 98 S. Ct. 2894, 2914–
15, 57 L. Ed. 2d 895, 920–21 (1978) (holding an administrative agency’s
officials who perform functions analogous to those of a prosecutor or
judge are entitled to absolute immunity).
After determining the nature of the function, we evaluate “the effect
that exposure to particular forms of liability would likely have on the
appropriate exercise of those functions.” Forrester, 484 U.S. at 224, 108
S. Ct. at 542, 98 L. Ed. 2d at 563. In particular, we must examine
whether absolute immunity for the particular official performing this
particular function will “free the judicial process from the harassment
and intimidation associated with litigation.” Burns, 500 U.S. at 494, 111
S. Ct. at 1943, 114 L. Ed. 2d at 563; see also Butz, 438 U.S. at 512, 98
S. Ct. at 2913, 57 L. Ed. 2d at 919 (“Absolute immunity is thus
necessary to assure that judges, advocates, and witnesses can perform
their respective functions without harassment or intimidation.”). The
official seeking absolute immunity bears the burden of justifying such
immunity. Beck, 685 N.W.2d at 643; see also Burns, 500 U.S. at 486,
111 S. Ct. at 1939, 114 L. Ed. 2d at 558. “The presumption is that
qualified rather than absolute immunity is sufficient to protect
government officials in the exercise of their duties.” Burns, 500 U.S. at
486–87, 111 S. Ct. at 1939, 114 L. Ed. 2d at 558. Therefore, we must
“be sparing in our recognition of absolute immunity.” Beck, 685 N.W.2d
at 643.
13
For example, prosecutors are entitled to absolute immunity from
civil liability when they perform functions “intimately associated with the
judicial phase of the criminal process.” Imbler, 424 U.S. at 430, 96 S. Ct.
at 995, 47 L. Ed. 2d at 143. As such, a prosecutor has absolute
immunity “in initiating a prosecution and in presenting the State’s case.”
Id. at 431, 96 S. Ct. at 995, 47 L. Ed. 2d at 144. Acts falling within this
function include the preparing and filing of trial information and
motions. Kalina v. Fletcher, 522 U.S. 118, 129, 118 S. Ct. 502, 509, 139
L. Ed. 2d 471, 480–81 (1997); see also Burr v. City of Cedar Rapids, 286
N.W.2d 393, 396 (Iowa 1979) (holding a prosecutor has absolute
immunity for signing and filing a complaint or information containing
false statements); Blanton v. Barrick, 258 N.W.2d 306, 310–11 (Iowa
1977) (holding a prosecutor has absolute immunity for initiating a
prosecution). Such acts also include decisions not to prosecute, Beck,
685 N.W.2d at 644, decisions to defer prosecution, recommendations
that criminal defendants pay court costs when prosecutions are
dismissed or deferred, and for the training, supervision, and control of
another prosecutor, Hike v. Hall, 427 N.W.2d 158, 160–62 (Iowa 1988).
Prosecutors, however, do not have absolute immunity when they
perform investigatory acts before probable cause to arrest arises because
police traditionally perform this function. Buckley, 509 U.S. at 274–76,
113 S. Ct. at 2616–17, 125 L. Ed. 2d at 226–28; McGhee v.
Pottawattamie Cnty., 547 F.3d 922, 933 (8th Cir. 2008) (“[I]mmunity does
not extend to the actions of a County Attorney who violates a person’s
substantive due process rights by obtaining, manufacturing, coercing
and fabricating evidence before filing formal charges, because this is not
a ‘distinctly prosecutorial function.’ ”). For example, prosecutors do not
have absolute immunity when they give advice to the police to aid them
14
in obtaining a confession. Burns, 500 U.S. at 496, 111 S. Ct. at 1944–
45, 114 L. Ed. 2d at 564–65. Moreover, prosecutors do not have
absolute immunity when they perform administrative acts. See Buckley,
509 U.S. at 277–78, 113 S. Ct. at 2617–18, 125 L. Ed. 2d at 228–29
(holding a prosecutor’s act of holding a press conference was an
administrative act not entitled to absolute immunity because it did “not
involve the initiation of a prosecution, the presentation of the state’s case
in court, or actions preparatory for these functions”); Beck, 685 N.W.2d
at 645 (concluding a prosecutor’s act of writing letters to the police
department and mayor is not “intimately associated with the judicial
phase of the criminal process” (internal citation and quotation marks
omitted)).
Finally, absolute immunity does not shield a prosecutor who
prepares and files a sworn affidavit to accompany a motion for an arrest
warrant. Kalina, 522 U.S. at 130–31, 118 S. Ct. at 510, 139 L. Ed. 2d at
482. This is because, in doing so, the prosecutor is “perform[ing] the
function of a complaining witness,” 4 not that of an advocate. Kalina, 522
U.S. at 131, 118 S. Ct. at 510, 139 L. Ed. 2d at 482; see also Malley v.
Briggs, 475 U.S. 335, 343–45, 106 S. Ct. 1092, 1097–98, 89 L. Ed. 2d
271, 280–81 (1986) (holding absolute immunity does not protect a police
officer who files an affidavit in support of an arrest warrant and receives
4When Congress enacted § 1983 as part of the Civil Rights Act of 1871, private
parties frequently prosecuted criminal cases. Rehberg v. Paulk, 566 U.S. ___, ___, 132
S. Ct. 1497, 1503, 182 L. Ed. 2d 593, 602 (2012). Although these private individuals
did not necessarily give testimony at trial, they were called “complaining witnesses.” Id.
at ___, 132 S. Ct. at 1507, 182 L. Ed. 2d at 606. “Complaining witnesses” were not
absolutely immune from civil liability at common law. Malley v. Briggs, 475 U.S. 335,
340, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271, 278 (1986). Public officials increasingly
assumed the prosecutorial function after Congress passed the Civil Rights Act of 1871.
Rehberg, 566 U.S. at ___, 132 S. Ct. at 1504, 182 L. Ed. 2d at 603. Unlike private
prosecutors, public prosecutors were absolutely immune from tort claims at common
law to protect them from harassing litigation. Id.
15
the arrest warrant even though he lacks probable cause to arrest).
Complaining witnesses are distinguishable from witnesses at trial,
ordinary witnesses, who are absolutely immune from any claim arising
from their testimony. Rehberg, 566 U.S. at ___, 132 S. Ct. at 1505, 182
L. Ed. 2d at 604; see also Briscoe v. LaHue, 460 U.S. 325, 335–36, 103
S. Ct. 1108, 1115–16, 75 L. Ed. 2d 96, 108 (1983) (holding a police
officer is entitled to absolute immunity when he gives perjured testimony
during a criminal trial).
The Supreme Court has never considered whether social workers
are entitled to absolute immunity, but many other jurisdictions have.
Some federal circuit courts grant social workers absolute immunity on
the basis that their functions are “quasi-judicial,” like those of
prosecutors. See Ernst v. Child & Youth Servs., 108 F.3d 486, 495 (3d
Cir. 1997); Thomason v. SCAN Volunteer Servs., Inc., 85 F.3d 1365, 1373
(8th Cir. 1996); Millspaugh v. Cnty. Dep’t of Pub. Welfare, 937 F.2d 1172,
1176 (7th Cir. 1991); Vosburg v. Dep’t of Soc. Servs., 884 F.2d 133, 135
(4th Cir. 1989); Salyer v. Patrick, 874 F.2d 374, 378 (6th Cir. 1989);
Meyers v. Contra Costa Dep’t of Soc. Servs., 812 F.2d 1154, 1157 (9th
Cir. 1987). These courts hold a social worker performs a function
analogous to that of a prosecutor when the social worker prepares for,
initiates, or prosecutes child dependency proceedings. See, e.g., Ernst,
108 F.3d at 495; see also Meyers, 812 F.2d at 1157 (denying a social
worker’s claim of absolute immunity where, prior to the initiation of
dependency proceedings, the social worker ordered a father to stay away
from his home until after a hearing before the juvenile court). These
courts reason social workers must exercise independent judgment in
determining when to bring such proceedings and note dependency
proceedings incorporate measures to safeguard citizens from the
16
unconstitutional acts of social workers. See Ernst, 108 F.3d at 495. As
the Ninth Circuit explained,
Although child services workers do not initiate
criminal proceedings, their responsibility for bringing
dependency proceedings, and their responsibility to exercise
independent judgment in determining when to bring such
proceedings, is not very different from the responsibility of a
criminal prosecutor. The social worker must make a quick
decision based on perhaps incomplete information as to
whether to commence investigations and initiate proceedings
against parents who may have abused their children. The
social worker’s independence, like that of a prosecutor,
would be compromised were the social worker constantly in
fear that a mistake could result in a time-consuming and
financially devastating civil suit.
Meyers, 812 F.2d at 1157. Conversely, courts have denied social
workers absolute immunity in cases in which they characterized the
social workers’ conduct in removing children from their home without a
court order, see Hodorowski v. Ray, 844 F.2d 1210, 1216 (5th Cir. 1988);
Robison v. Via, 821 F.2d 913, 919–20 (2d Cir. 1987), or in ordering a
father to stay away from his home until after a hearing before the
juvenile court, Meyers, 812 F.2d at 1157, as investigatory or other
conduct taking place prior to the initiation of dependency proceedings.
Courts have arrived at varying results in suits involving allegations
social workers included false statements or intentional
misrepresentations in sworn affidavits submitted to the court. Some
courts have declined to grant social workers absolute immunity in these
cases on the basis the social workers were performing functions
analogous to complaining witnesses. See Beltran v. Santa Clara Cnty.,
514 F.3d 906, 908 (9th Cir. 2008) (holding social workers are not entitled
to absolute immunity from claims that they made false statements in a
sworn affidavit accompanying a child dependency petition); Austin v.
Borel, 830 F.2d 1356, 1363 (5th Cir. 1987) (holding social workers are
17
not entitled to absolute immunity in the face of claims they filed a sworn
statement containing allegedly false statements). Other courts, however,
have granted social workers absolute immunity in these situations. See
Pittman v. Cuyahoga Cnty. Dep’t of Children & Family Servs., 640 F.3d
716, 725–26 (6th Cir. 2011) (holding a caseworker who allegedly made
intentional misrepresentations in affidavits was entitled to absolute
immunity); Thomason, 85 F.3d at 1373 (“To the extent [the caseworker is]
sued because [the caseworker] made arguably false statements in her
affidavit in her role as a witness before the state court, the doctrine of
absolute witness immunity applies.”).
These latter cases reason that advocacy is the key to prosecutorial
immunity and that social workers are entitled to absolute immunity
when they act as an advocate before the court, which includes the act of
filing an affidavit reflecting the social worker’s opinions and
recommendations as to what is in the best interests of the child. See
Pittman, 640 F.3d at 725, Thomason, 85 F.3d at 1373; see also Holloway
v. Brush, 220 F.3d 767, 776 (6th Cir. 2000) (“[A]bsolute immunity
extends to social workers only when they are acting in the capacity of
legal advocates. It is apparent that Ohio law does not envision a
caseworker’s principal function as that of an advocate, although at a
certain stage in custody proceedings a caseworker might be called by the
prosecutor to present reports or make recommendations that,
functionally, constitute advocacy.”).
We believe an appropriate application of the functional analysis
prohibits us from making a broad decision about the type of immunity
available to social workers when they file an affidavit allegedly containing
false statements or misrepresentations. Accordingly, if the social worker
is acting as a complaining witness, then the social worker is not entitled
18
to absolute immunity because complaining witnesses were not absolutely
immune at common law. See Rehberg, 566 U.S. at ___, ___, 132 S. Ct. at
1504, 1507, 182 L. Ed. 2d at 606. However, if the social worker is
functioning as an ordinary witness, then the social worker is entitled to
absolute immunity. See Briscoe, 460 U.S. at 332–34, 103 S. Ct. at 1114–
15, 75 L. Ed. 2d at 106–07.
1. Whether Grabe is entitled to absolute immunity. Although the
district court found that Grabe’s actions generally constituted the
initiation of CINA proceedings, we must narrow the scope in which we
view her actions. The claim against Grabe is predicated on allegations
that she manufactured, coerced, and fabricated evidence and then used
such evidence to remove D.A. from Minor’s care, custody, and control.
Minor and D.A. claim Grabe bribed and extorted Pena and attempted to
suborn perjury in order to cause the county attorney to file a CINA
petition. They also claim Grabe used this information in two affidavits,
which resulted in D.A.’s removal. Therefore, we need to evaluate whether
Grabe is immune from liability potentially stemming from three separate
acts—procuring evidence by coercing Pena to provide information and
false testimony, causing the county attorney to file a CINA petition, and
filing two sworn affidavits.
Minor and D.A. first complain Grabe’s procurement of evidence
violated her constitutional rights. Assuming Minor and D.A.’s account of
the facts is correct, Grabe was the DHS employee who called Pena
seeking information about Minor and D.A. Grabe then included
information acquired during this call in the affidavit she provided with
the CINA petition. The procurement of evidence, no matter how
accomplished, constitutes an investigatory act. See Buckley, 509 U.S. at
274–76, 113 S. Ct. at 2616–17, 125 L. Ed. 2d at 226–28. Although
19
Grabe’s investigation ultimately led to the initiation of a CINA action, we
conclude Grabe is not entitled to absolute immunity for her investigatory
acts. Because the Supreme Court has refused to apply such an
expansive interpretation of absolute immunity to prosecutors serving an
investigatory function, we believe absolute immunity cannot shield a
social worker from liability for his or her investigatory acts.
Second, Minor and D.A. allege Grabe violated her rights by causing
the county attorney to file a CINA petition. Once DHS determines the
best interests of the child or safety concerns necessitate juvenile court
action, DHS must “act appropriately to initiate [a CINA] action.” Iowa
Code § 232.71C(1). By statute, only DHS, a juvenile court officer, or a
county attorney may file a CINA petition. Id. § 232.87(2). Regardless,
however, of whether the county attorney or a DHS social worker files the
petition, the county attorney represents DHS in CINA proceedings. Id.
§ 232.90(1).
Minor and D.A. argued in their resistance to the motion for
summary judgment that DHS social workers perform a function more
akin to police than to prosecutors. Following the reasoning of the federal
circuits granting absolute immunity to social workers, Grabe would be
entitled to absolute immunity if she had filed the petition on her own. It
would be perverse to deny Grabe absolute immunity for the act of filing
the petition on the basis she sought the advice of the county attorney,
who in fact filed the petition. The presence of the county attorney
provides an additional layer of protection to the public against a social
worker abusing his or her authority.
Further, we have stated a county attorney has a duty to advocate
for the position of DHS and may not “ ‘assert his [independent] vision of
the state interest.’ ” In re A.W., 741 N.W.2d 793, 803 (Iowa 2007)
20
(citation omitted); see also Iowa Code § 232.90(2). In that case, we
considered whether a county attorney could appeal a juvenile court’s
ruling on his own while, at the same time, the Iowa Attorney General
moved to dismiss the appeal. In re A.W., 741 N.W.2d at 800. We did not
consider that case in the context of whether a county attorney must
follow DHS’s recommendation of filing a CINA petition. However,
because we strive to afford the greatest possible protection to victims and
potential victims of child abuse, see Iowa Code § 232.67, when a social
worker presents an assessment indicating child abuse to a county
attorney and the social worker recommends the initiation of CINA
proceedings, we believe the social worker is performing a function akin to
that of a prosecutor. The CINA hearing will provide additional protection
to the people of Iowa from social workers who abuse their authority.
Therefore, when a DHS social worker refers a case to the county
attorney for possible CINA action and the county attorney files the CINA
petition, the social worker is performing a function analogous to that of a
prosecutor and should be afforded comparable immunity. Consequently,
Grabe has absolute immunity from liability stemming from the act of
referring the case to the county attorney for possible CINA action and the
county attorney’s act of filing of the CINA petition.
Finally, Minor and D.A. complain Grabe violated their rights by
filing two affidavits—one filed with the CINA petition requesting the
juvenile court adjudicate D.A. pursuant to the CINA section of the Iowa
Code and one presented at a hearing regarding the CINA proceeding
recommending the court place D.A. in temporary DHS custody. By
statute, a CINA petition must be supported by an affidavit setting forth
the information and beliefs upon which the petition is based. Iowa Code
§ 232.36(2). We believe a social worker who files an affidavit along with a
21
CINA petition acts as a complaining witness. Just as prosecutors,
Kalina, 522 U.S. at 130–31, 118 S. Ct. at 510, 139 L. Ed. 2d at 482, and
police officers, Malley, 475 U.S. at 343–45, 106 S. Ct. at 1097–98, 89
L. Ed. 2d at 280–81, are not afforded absolute immunity for the act of
preparing and filing a sworn affidavit to accompany a motion or
application for an arrest warrant, social workers should not be afforded
absolute immunity for this act either. Therefore, Grabe does not have
absolute immunity for the filing of the affidavit attached to the petition.
The filing of an affidavit after the CINA proceeding starts is more
complicated. The purpose of the affidavit is not to initiate a proceeding,
but rather, to testify before the court with testimony during the course of
the proceeding to provide a basis to temporarily remove the child from
the present custodian. See Iowa Code § 232.78(7)(a). In other words, the
social worker is nothing more than an ordinary witness at this point in
the proceeding, providing his or her testimony by affidavit, rather than in
person. As a social worker’s testimony and recommendations may be
vitally important, the social worker should be able to present his or her
testimony and recommendations in court without fear of liability arising
from such testimony and recommendations. See Briscoe, 460 U.S. at
335–36, 103 S. Ct. at 1115–16, 75 L. Ed. 2d at 108. Therefore, Grabe
has absolute immunity for the filing of the affidavit regarding temporary
custody.
2. Whether Hester is entitled to absolute immunity. The § 1983
claim against Hester is that he failed to ensure D.A. was provided
adequate medical care, protection, and supervision while in the care of
Techau through his refusal, despite a court order, to timely conduct the
Stutzman home study. This alleged conduct is not protected by absolute
immunity because it is not an integral part of the judicial process.
22
The district court held Hester’s role in the court action was to
“make a recommendation for placement of D.A.” The court then held
that, based on Thomason, Hester was entitled to absolute immunity
because witness immunity applies to providing reports and
recommendations to the court. See Thomason, 85 F.3d at 1373. Hester
ultimately filed an investigative report—the Stutzman home study—as
ordered. However, the claims of Minor and D.A. are not based on the
content of that report. The claims against Hester are instead based on
the allegation that he failed to timely conduct his investigation and make
his report, in violation of a court order, and failed to provide adequate
medication, protection, and supervision to D.A. Hester is not entitled to
absolute immunity for liability stemming from investigatory conduct,
such as this.
Further, the district court’s reasoning is directly at odds with
federal case law denying social workers qualified immunity where they
fail to meet their obligation to provide adequate medical care, protection,
and supervision to children placed in the custody of the state. See, e.g.,
Norfleet v. Ark. Dep’t of Human Servs., 989 F.2d 289, 293 (8th Cir. 1993).
Accordingly, we conclude absolute immunity does not shield Hester for
his actions in this case.
B. Qualified Immunity. Because the district court held Grabe
and Hester are entitled to absolute immunity, the court did not
determine whether Grabe is entitled to qualified immunity for her
investigative acts or for the act of filing as a complaining witness. The
court also did not address whether Hester is entitled to qualified
immunity for his actions in allegedly failing to timely conduct the
Stutzman home study and in failing to investigate D.A.’s placement. We
have stated that we will, “in the interest of sound judicial
23
administration,” decide an issue the parties raised below and fully
briefed and argued in this court even if the district court did not reach
the issue because it was “deemed unnecessary to the decision under the
rationale it elected to invoke.” Chauffeurs, Teamsters & Helpers, Local
Union No. 238 v. Iowa Civil Rights Comm’n, 394 N.W.2d 375, 378 (Iowa
1986) (internal citation and quotation marks omitted). Here, the parties
raised the issue of qualified immunity before the district court. They also
raised and argued it in their briefs before this court, and we choose to
address it.
Even if absolute immunity does not shield an official from liability,
“the doctrine of qualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 231,
129 S. Ct. 808, 815, 172 L. Ed. 2d 565, 573 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396,
410 (1982)); see also Leydens, 484 N.W.2d at 597. Qualified immunity
balances two important competing interests—“the need to hold public
officials accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and liability when
they perform their duties reasonably.” Pearson, 555 U.S. at 231, 129
S. Ct. at 815, 172 L. Ed. 2d at 573.
In addressing the defendants’ claim of qualified immunity, we
consider, in any order, whether the facts alleged by the plaintiff “make
out a violation of a constitutional right” and whether that right was
“ ‘clearly established’ at the time of defendant’s alleged misconduct.”
Pearson, 555 U.S. at 232, 236, 129 S. Ct. at 815–16, 818, 172 L. Ed. 2d
at 573, 576. A constitutional right is clearly established when “[t]he
24
contours of the right [are] sufficiently clear that a reasonable official
would understand that what he [or she] is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97
L. Ed. 2d 523, 531 (1987). “In other words, ‘existing precedent must
have placed the statutory or constitutional question beyond debate.’ ”
Reichle v. Howards, 566 U.S. ___, ___, 132 S. Ct. 2088, 2093, 182 L. Ed.
2d 985, 992 (2012) (quoting Ashcroft v. al-Kidd, 563 U.S. ___, ___, 131 S.
Ct. 2074, 2083, 179 L. Ed. 2d 1149, 1159 (2011)). Therefore, if the law
at the time of the alleged conduct did not clearly establish that the
government official’s conduct would violate the Constitution, the
government official is entitled to qualified immunity. Brosseau v.
Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 599, 160 L. Ed. 2d 583, 589
(2004).
1. Whether Grabe violated clearly established constitutional rights
of Minor or D.A. Minor and D.A. assert Grabe violated her clearly
established constitutional rights by bribing and extorting Pena,
attempting to suborn perjury, and filing an affidavit containing perjured
testimony. Although the district court found a genuine issue of material
fact as to whether Grabe’s actions violated Minor’s interest in the care,
custody, and control of D.A. 5 and D.A.’s Fourth Amendment right to be
free from unreasonable search and seizure, we need not decide whether
Grabe’s conduct violated these constitutional rights.
Minor and D.A. argue it was clearly established in 2005 that a
DHS employee could not bribe or extort a witness or suborn perjury. In
5The Due Process Clause of the Fourteenth Amendment to the United States
Constitution protects this right. See Troxel v. Granville, 530 U.S. 57, 65–66, 120 S. Ct.
2054, 2060, 147 L. Ed. 2d 49, 56–57 (2000); see also In re K.M., 653 N.W.2d 602 (Iowa
2002) (“Normally, there is no justification for the State’s interference in the private
relations of a family . . . because a parent’s . . . right to the companionship, care,
custody, and management of his or her children is an important interest . . . .”).
25
support of this proposition, they point to sections of the Iowa Code
criminalizing extortion, bribery of a witness, and suborning perjury.
Even assuming Grabe engaged in this illegal conduct, Minor and D.A.
have not pointed to any judicial opinion existing at the time of the alleged
conduct holding a social worker violates the constitutional rights of a
parent or child by engaging in such conduct. While Minor and D.A. need
not point to a case holding this conduct violates constitutional rights per
se, they must nonetheless point to authority sufficiently analogous to
make the violation of the constitutional right apparent. See Anderson,
483 U.S. at 640, 107 S. Ct. at 3039, 97 L. Ed. 2d at 531; see also
Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1115 (9th Cir.
2010) (holding the deliberate falsification of evidence in a child abuse
investigation and the inclusion of false evidentiary statements in an
affidavit violates constitutional rights where a deprivation of liberty or
property interests occurs, but that this rule only applies in future cases
in the circuit and not to the case at bar).
Minor and D.A. also allege Grabe committed perjury by submitting
an affidavit as a complaining witness containing falsified evidence.
Again, Minor and D.A. have failed to identify authority existing at the
time of the alleged conduct that demonstrated a social worker violates
the constitutional rights of a parent or child by filing an affidavit
containing false statements. Even if Minor had identified such an
authority, see, e.g., Costanich, 627 F.3d at 1115, the facts viewed in the
light most favorable to them do not demonstrate Grabe was successful in
fabricating evidence or coercing false evidence. At most, the facts viewed
in the light most favorable to Minor and D.A. support an allegation that
Grabe attempted unsuccessfully to coerce false evidence from Pena.
Even if Grabe suborned perjury, the record does not support a finding
26
that Pena supplied false evidence to Grabe or that false evidence
appeared in Grabe’s affidavit. All of the evidence in Grabe’s affidavit can
be traced to truthful information provided by Pena or information
obtained during previous investigations conducted in good faith. Minor
and D.A. do not assert the previous DHS investigations were not
conducted in good faith. Had the affidavit contained information
obtained through the subornation of perjury, then a genuine issue of
material fact may have existed to defeat summary judgment.
Therefore, Minor and D.A. have not presented a genuine issue of
material fact regarding whether Grabe violated their clearly established
constitutional rights through her investigatory acts or by submitting an
affidavit as a complaining witness to the court. Accordingly, Grabe is
entitled to qualified immunity as a matter of law for these alleged actions.
2. Whether Hester violated the clearly established constitutional
rights of Minor or D.A. Minor and D.A. argue Hester deliberately failed to
conduct the Stutzman home study and failed to investigate D.A.’s
placement after Minor raised concerns about the conditions in Techau’s
home, which violated D.A.’s right to adequate medical care, protection,
and supervision. Hester acknowledges children who have been removed
from the care of their parents and placed in foster care have a clearly
established constitutional right to adequate medical care, protection, and
supervision. See Burton v. Richmond, 276 F.3d 973, 979–80 (8th Cir.
2002) (finding social workers are not entitled to qualified immunity under
§ 1983 for a claim based on a failure to provide for basic human needs
and reasonable safety of children in foster care by failing to supervise
their foster care placement, to conduct a criminal history check on the
foster parent, and to investigate or remove the children after numerous
complaints of sexual abuse and discovery of a foster parent’s criminal
27
history of sexual abuse); Norfleet, 989 F.2d at 293 (finding social workers
were not entitled to qualified immunity where a child with severe asthma
died after he was placed with foster parent who ignored his medical
needs). Hester argues, however, that he is entitled to qualified immunity
because Minor and D.A. failed to raise a genuine issue of material fact as
to whether he violated D.A.’s clearly established constitutional right
under the particular facts presented in the summary judgment record.
Although federal circuit courts have recognized the right of a foster
child to adequate care, they have expressed some disagreement regarding
the proper standard for determining whether a social worker violated
those rights. Some apply a standard adopted by the Supreme Court in
Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d 28(1982), which addressed the rights of an involuntarily institutionalized
and mentally handicapped plaintiff who was injured while in state care.
Under Youngberg, a state actor is liable for his conduct if it amounts to
“such a substantial departure from accepted professional judgment,
practice, or standards as to demonstrate that the person responsible
actually did not base the decision on such a judgment.” Id. at 323, 102
S. Ct. at 2462, 73 L. Ed. 2d at 42. The Tenth Circuit expressly adopted
the Youngberg standard, explaining that
[t]o the extent there is a difference in the standards, we agree
with the Seventh Circuit that the Youngberg standard
applies. The compelling appeal of the argument for the
professional judgment standard is that foster children, like
involuntarily committed patients, are “entitled to more
considerate treatment and conditions” than criminals. These
are young children, taken by the state from their parents for
reasons that generally are not the fault of the children
themselves.
Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883, 894 (10th Cir.
1992) (quoting Youngberg, 457 U.S. at 321–22, 102 S. Ct. at 2461, 73 Lans. Ch.
28Ed. 2d at 41); see also K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 854
(7th Cir. 1990) (explaining social workers expose themselves to liability if
they place a child “in hands they know to be dangerous or otherwise
unfit” without a justification based on financial constraints or
“considerations of professional judgment”).
Other circuits apply a deliberate indifference standard, first
articulated by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 97
S. Ct. 285, 50 L. Ed. 2d 251 (1976), and originally applied to challenges
by prisoners under the Eighth Amendment. See Taylor ex rel. Walker v.
Ledbetter, 818 F.2d 791, 796–97 (11th Cir. 1987); Doe v. N.Y.C. Dep’t of
Soc. Servs., 649 F.2d 134, 145 (2d Cir. 1981). Under this standard,
social workers may be liable under § 1983 if they “exhibited deliberate
indifference to a known injury, a known risk, or a specific duty and their
failure to perform the duty or act to ameliorate the risk of injury was a
proximate cause of plaintiff’s deprivation of rights.” Doe, 649 F.2d at
145; see also Burton, 276 F.3d at 980 (finding the record could
demonstrate that social workers were not entitled to qualified immunity
because they exhibited a “grossly deliberate indifference” where they
ignored numerous allegations of sexual abuse).
However, we need not decide whether to adopt the Youngberg or
deliberate indifference standard. Irrespective of which standard we
adopt, we hold Minor and D.A. failed to raise a genuine issue of material
fact as to whether Hester violated their clearly established constitutional
rights.
In this case, the duration of D.A.’s placement with Techau was
from May 31 until July 15, a relatively short time. To determine whether
Hester substantially departed from accepted professional judgment,
practice, or standards or exhibited deliberate indifference to known risks,
29
we must examine the nature of the concerns Minor expressed to DHS,
when Minor informed DHS of her concerns, and DHS’s response. Minor
fails to provide any affidavit or testimony stating the exact complaints
she made to DHS or the date on which she made them. Some of the
concerns about Techau’s care for D.A. appear to relate to improper
discipline of D.A. Techau would report to the agency where D.A. spent
her days that D.A. had misbehaved in the foster home and had to stay in
her room. The agency would then discipline D.A. by preventing her from
participating in activities. Then, when the agency reported to Techau
that D.A. had been disciplined, Techau would allegedly lock D.A. in her
bedroom after dinner, thereby perpetuating the cycle. Examining the
record in the light most favorable to Minor, the record does not indicate
whether Minor informed DHS of her concerns about D.A.’s discipline.
The concerns about D.A.’s care also relate to an E. coli urinary
tract infection. Minor alleges the infection developed because Techau
denied D.A. appropriate access to bathroom facilities. D.A. testified by
deposition that she sometimes wet the bed when she was allegedly
locked in her room. D.A.’s occasional bed-wetting prompted Techau to
get pull-up diapers for D.A. D.A. also testified that she bathed every
other day, but that Techau did not help her and she did not know how to
clean herself properly. It is uncontested that Techau took D.A. to a
doctor shortly after symptoms of the infection manifested, that the
infection is common in young girls, and that the infection cleared up in
the expected time after D.A. took medication.
Although it is undisputed Minor raised concerns about the quality
of Techau’s foster care, the exact date she raised those concerns is
unknown. Minor admitted in her deposition that she did not have
concerns about the placement prior to June 6 at the earliest. Further,
30
Minor indicated she did not become concerned about D.A.’s health until
she learned that D.A. had an E. coli infection. Although Minor knew
D.A. was going to see a doctor, she could not have known about the
doctor’s diagnosis until June 22, the date Techau took D.A. to see the
doctor. Hester’s affidavit confirms Minor did not raise her concerns until
at least this date because it states that Minor initially informed him she
was comfortable with Techau caring for D.A. and that Minor did not raise
concerns about the quality of Techau’s care until late June.
Once Minor expressed concerns to DHS about the foster care, a
DHS social worker made an unannounced visit to investigate the Techau
home on June 28. At most, the unannounced visit took place on the
fourth business day following D.A.’s visit to the doctor. A subsequent
report indicated no problems with Techau’s home or the care she was
providing.
Moreover, Techau is a state-licensed foster parent. Licensed foster
parents are subject to at least one unannounced inspection each year.
See Iowa Code § 237.7. There is nothing in the record indicating
Techau’s foster home had any previous problems, complaints, health
risks, or safety risks prior to the time Minor raised her concerns.
Therefore, Hester did not ignore the concerns Minor raised about
the quality of Techau’s foster care because DHS conducted an
unannounced assessment of the Techau home after Minor raised her
concerns. Additionally, as we have already noted, Techau took D.A. to
the doctor when the symptoms of an infection arose and the doctor
testified the infection resolved within the expected time after a doctor
prescribed medication.
Finally, although the court ordered DHS “to complete a Home
Study of any proposed alternate placement for the child” on May 31,
31
Minor originally informed Hester that she was comfortable with Techau
caring for Minor and did not raise any concerns to DHS or the court
about Techau’s care until the end of June. The court ordered Hester to
complete the Stutzman home study on June 30. Hester completed the
study on July 13. There is no factual basis in this record supporting a
finding that thirteen days was an unreasonable length of time to
complete the home study given that the recently completed DHS report of
the conditions within the Techau home produced no evidence of a poor
environment.
Accordingly, there is no genuine issue of material fact that Hester
deliberately allowed D.A. to continue a foster care placement that he
knew “to be dangerous or otherwise unfit” because the unannounced
visit did not reveal any health or safety concerns with Techau’s home.
See K.H., 914 F.2d at 854. Similarly, there is no genuine issue of
material fact that Hester demonstrated “a grossly deliberate indifference”
to D.A.’s welfare. See Burton, 276 F.3d at 980. Hester responded to
concerns about the foster care placement based on his professional
judgment informed by the recent unremarkable results of the worker’s
visit to the Techau home and thereafter followed through on the
Stutzman home study within a reasonable amount of time after the court
ordered him to do so. Consequently, we find no genuine issue of
material fact on the issue of whether Hester violated the clearly
established constitutional rights of Minor or D.A. and Hester is entitled
to qualified immunity as a matter of law.
C. State Tort Claims. Minor’s amended and substituted petition
alleges two state law claims against Grabe, Hester, and the State of Iowa.
Specifically, Minor claims intentional infliction of emotional distress and
tortious interference with the parent–child relationship. Minor brought
32
these claims pursuant to the ITCA, codified in Iowa Code chapter 669.6
As a preliminary note, there is some debate as to whether Iowa
recognizes a cause of action for tortious interference with the parent–
child relationship. We express no opinion as to whether Iowa recognizes
this cause of action and any references to a claim for tortious
interference with the parent–child relationship are solely for the purpose
of discussing the district court’s grant of summary judgment.
The ITCA waives sovereign immunity for tort claims against the
State with certain exceptions. Feltes v. State, 385 N.W.2d 544, 545 (Iowa
1986); see also Iowa Code § 669.4. While the ITCA does not create a
cause of action, it “recognizes and provides a remedy for a cause of
action already existing which would have otherwise been without remedy
because of common law immunity.” Engstrom v. State, 461 N.W.2d 309,
314 (Iowa 1990).
1. Claims against Hester under the ITCA. Although the district
court granted summary judgment in favor of Hester, finding that Hester
was entitled to immunity pursuant to Iowa Code section 669.14(1), the
discretionary function exception, we affirm because the court lacks
subject matter jurisdiction to hear any claims against Hester under the
ITCA.
Hester argues the district court lacked subject matter jurisdiction
to hear the state tort claims brought against him because Minor did not
file a claim against him with the state appeal board as required by
statute. 7 Iowa Code section 669.5 precludes the filing of a suit under the
6Prior to 1993, Iowa Code chapter 25A contained the ITCA.
7Even if Hester had failed to raise this argument, we may examine the grounds
for subject matter jurisdiction on our own motion regardless of whether a party raised
the issue. See In re Jorgensen, 627 N.W.2d 550, 554–55 (Iowa 2001).
33
ITCA “unless the state appeal board has made final disposition of the
claim.” Iowa Code § 669.5. 8 Section 669.13 provides, “[e]very claim and
suit permitted under this chapter shall be forever barred, unless within
two years after such claim accrued, the claim is made in writing to the
state appeal board under this chapter.” Id. § 669.13. 9
We have interpreted these provisions to mean that the state appeal
board has exclusive jurisdiction over all tort claims against the state.
Swanger v. State, 445 N.W.2d 344, 347 (Iowa 1989). Therefore, a
plaintiff must present his or her claim under the ITCA to the state appeal
board before filing a petition in the district court. Drahaus v. State, 584
N.W.2d 270, 272–73 (Iowa 1998); In re Estate of Voss, 553 N.W.2d 878,
880 (Iowa 1996). “Improper presentment of a claim, or not presenting
one at all, has been considered a failure to exhaust one’s administrative
remedies, depriving the district court of subject matter jurisdiction.”
Voss, 553 N.W.2d at 880. If a court lacks jurisdiction when a suit is
filed, then the court must dismiss the suit. Feltes, 385 N.W.2d at 549.
Minor and D.A. did not file a claim against Hester with the state
appeal board. At best, Minor and D.A. raised their claims against Hester
for the first time in the district court. Thus, Minor and D.A. failed to
exhaust the administrative remedy available to them. Accordingly, we
must affirm the granting of summary judgment in favor of Hester on the
state tort claims because the court lacks jurisdiction to hear them.
8The legislature amended section 669.5 in 2006 to preclude the filing of a suit
until the attorney general has the opportunity to make a final disposition of the claim.
2006 Iowa Acts ch. 1185, § 107.
9The legislature also amended section 669.13 in 2006 to provide that a party
must submit his or her claim or suit in writing to the director of the department of
management within two years. Id. § 108.
34
2. Whether Grabe is entitled to immunity under the intentional tort
exception. Minor and D.A. assert claims against Grabe for intentional
infliction of emotional distress and tortious interference with the parent–
child relationship, for which Minor maintains our prior decisions have
recognized a cause of action. The district court determined Grabe was
immune from these claims based on Iowa Code section 669.14(4), which
provides an exception to state tort liability for claims arising out of
certain intentional torts. We conclude the district court was correct.
On appeal, Minor and D.A. assert for the first time that Grabe did
not raise section 669.14(4) as a defense more than sixty days before the
date set for trial, as required by Iowa Rule of Civil Procedure 1.981.
Minor and D.A. also claim for the first time on appeal that, because
Grabe first raised the argument in a reply brief filed in the district court,
her due process rights were violated because she did not have the
opportunity to respond to the argument. Minor and D.A., however, did
not raise these arguments in the district court. Therefore, we cannot
evaluate these arguments because it is unfair for us to consider an
argument the trial court did not have an opportunity to consider. See
DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002).
Section 669.14(4), commonly referred to as the intentional tort
exception, provides that the State’s waiver of sovereign immunity from
tort claims does not apply to “[a]ny claim arising out of assault, battery,
false imprisonment, false arrest, malicious prosecution, abuse of process,
libel, slander, misrepresentation, deceit, or interference with contract
rights.” Iowa Code § 669.14(4). We construe this exception narrowly.
Walker v. State, 801 N.W.2d 548, 567 (Iowa 2011). Further, because the
legislature intended the ITCA to have the same effect as the Federal Tort
35
Claims Act (FTCA), we give great weight to relevant federal decisions
interpreting the FTCA. 10 Feltes, 385 N.W.2d at 547.
We have interpreted this section as a list of “excluded claims in
terms of the type of wrong inflicted.” Greene v. Friend of Ct., Polk Cnty.,
406 N.W.2d 433, 436 (Iowa 1987); accord Hawkeye By-Prods., Inc. v.
State, 419 N.W.2d 410, 411 (Iowa 1988). Therefore, where the basis of
the plaintiff’s claim is the functional equivalent of a cause of action listed
in section 669.14(4), the government official is immune. Trobaugh v.
Sondag, 668 N.W.2d 577, 584 (Iowa 2003); JBP Acquisitions, LP v. U.S. ex
rel. F.D.I.C., 224 F.3d 1260, 1264 (11th Cir. 2000) (“ ‘It is the substance
of the claim and not the language used in stating it which controls’
whether the claim is barred by an FTCA exception.” (citation omitted)).
There must be more than “[a] mere conceivable similarity” in order to
establish “the nexus of functional equivalency” between the claimed tort
and the type of wrong listed under section 669.14(4). Trobaugh, 668
N.W.2d at 585. Consequently, a defendant may successfully assert
section 669.14(4) as a defense even though the tort complained of is not
itself listed in section 669.14(4).
Although we held in Dickerson that state employees are not entitled
to an exception to the waiver of sovereign immunity under section 669.14
when the plaintiff asserts a claim for intentional infliction of emotional
distress, we nonetheless noted the defendants did not argue the
10The analogous section of the Federal Tort Claims Act provides: “Any claim
arising out of assault, battery, false imprisonment, false arrest, malicious prosecution,
abuse of process, libel, slander, misrepresentation, deceit, or interference with contract
rights: Provided, That, with regard to acts or omissions of investigative or law
enforcement officers of the United States Government, the provisions of this chapter
and section 1346(b) of this title shall apply to any claim arising, on or after the date of
the enactment of this proviso, out of assault, battery, false imprisonment, false arrest,
abuse of process, or malicious prosecution.” 28 U.S.C. § 2680(h) (2000).
36
exceptions listed in section 669.14(4) included intentional infliction of
emotional distress. 547 N.W.2d at 213–14. Here, Grabe argues the
alleged conduct underlying Minor’s claims for intentional infliction of
emotional distress and tortious interference with the parent–child
relationship, if true, would amount to conduct listed in section 669.14(4),
specifically misrepresentation and deceit. Therefore, we need to
determine whether the basis of Minor and D.A.’s claims of intentional
infliction of emotional distress and tortious interference with the parent–
child relationship is the functional equivalent of misrepresentation or
deceit.
We have examined the deceit exception before. In Saxton v. State,
206 N.W.2d 85 (Iowa 1973), we found the basis of the plaintiff’s
complaint was functionally equivalent to deceit where the complaint
alleged the department of agriculture intentionally concealed a veterinary
diagnosis from the plaintiff. 206 N.W.2d at 86. In Hawkeye By-Products,
we determined the basis of the plaintiff’s complaint was the functional
equivalent of misrepresentation, deceit, and interference with contract
rights because the complaint alleged the department of agriculture either
recklessly or negligently made assurances to the plaintiff “in a manner
calculated to produce detrimental reliance on their part.” 419 N.W.2d at
411.
We have also examined the misrepresentation exception. In
Hubbard v. State, 163 N.W.2d 904 (Iowa 1969), we held the
misrepresentation exception barred a plaintiff’s claim that the State
negligently diagnosed the plaintiff’s herd with a disease even though they
were not so infected. 163 N.W.2d at 905, 912. In Adam v. Mount
Pleasant Bank & Trust Co., 340 N.W.2d 251 (Iowa 1983), where farmers
alleged they lost grain because the Iowa State Commerce Commission
37
negligently licensed an insolvent grain company, we determined the
misrepresentation exception applies if the alleged damages were caused
by a negligent communication of information. 340 N.W.2d at 251, 253.
In doing so, we stated, “ ‘the essence of an action for misrepresentation,
whether negligent or intentional, is the communication of misinformation
on which the recipient relies.’ ” Id. (quoting Block v. Neal, 460 U.S. 289,
296, 103 S. Ct. 1089, 1093, 75 L. Ed. 2d 67, 74 (1983)).
In this case, Minor and D.A. allege Grabe was the unidentified DHS
employee who called Pena and coerced her to give information on Minor
and D.A. in exchange for favorable treatment. They allege Grabe
included the information obtained through coercion in her affidavits.
Further, Minor and D.A. claim the information in Grabe’s affidavits was
false. All of this, Minor and D.A. allege, led to the removal order placing
D.A. in a foster home where D.A. was allegedly abused, neglected,
improperly supervised, subjected to unsanitary conditions, and denied
proper medical care. Minor and D.A. contend Grabe intentionally took
these actions in order to investigate Minor to remove D.A. from Minor’s
care, custody, and control. In other words, the basis of their claim is
that, to intentionally inflict emotional distress and interfere with their
parent–child relationship, Grabe obtained false information from Pena,
communicated the false information to the district court, and the district
court relied on it in deciding to remove D.A. from Minor’s custody. The
district court concluded this fell within the deceit and misrepresentation
categories of section 669.14(4). We agree.
In all of the cases above, the misrepresentation or deceit exception
applied because the government provided misleading information to or
concealed information from the plaintiff. This situation differs from the
other cases because Minor was not the party alleged to have been
38
deceived or the recipient of misleading information. However, in
interpreting the FTCA’s misrepresentation exception, federal circuits
have held it does not matter whether the misrepresentation giving rise to
a plaintiff’s claim was made to the plaintiff or a third party. See, e.g.,
JBP Acquisitions, 224 F.3d at 1266; see also Schneider v. United States,
936 F.2d 956, 960 (7th Cir. 1991) (holding the misrepresentation
exception barred plaintiffs’ claims based on the government’s
misrepresentation to a private builder from whom the plaintiffs
purchased their homes); Baroni v. United States, 662 F.2d 287, 288–89
(5th Cir. 1981) (holding the misrepresentation exception barred plaintiffs’
claims where the government made a misrepresentation to a real estate
developer and not to the plaintiffs). This principle makes sense because
the basis of Minor’s claims would not exist but for Grabe’s alleged
misrepresentation to the juvenile court. Further, we find the reasoning
underlying this principle equally applicable to the deceit exception.
Therefore, we hold the district court correctly granted summary
judgment in favor of Grabe because the basis of her complaint is the
functional equivalent of misrepresentation and deceit.
V. Disposition.
We conclude Grabe is entitled to absolute immunity from liability
under 42 U.S.C. § 1983 for her involvement in causing the county
attorney to file the CINA petition and when she acted as an ordinary
witness in filing an affidavit requesting the court grant temporary
custody to DHS. Grabe is not entitled to absolute immunity for her
investigatory acts or the act of filing of the affidavit as a complaining
witness. Likewise, Hester is not entitled to absolute immunity under
§ 1983. However, Grabe is entitled to qualified immunity under § 1983
for her investigatory acts and the filing of the affidavit as a complaining
39
witness and Hester is entitled to qualified immunity under § 1983 for his
acts because Minor and D.A. have failed to present a genuine issue of
material fact as to whether either violated their clearly established
constitutional rights. Moreover, the court lacks subject matter
jurisdiction to hear state tort claims against Hester under the ITCA.
Finally, the plaintiffs cannot maintain an action against Grabe under the
ITCA because the basis of the complaint against Grabe is the functional
equivalent of misrepresentation and deceit. Therefore, we affirm the
entry of summary judgment by the district court.
AFFIRMED.