IN THE COURT OF APPEALS OF IOWA
No. 13-1626
Filed July 30, 2014
GATLUAK JERWENG, GATLUAK JERWENG
as Next Friend of S.M. and B.M., and GATLUAK
JERWENG as Administrator for the Estate of D.M.,
Plaintiffs-Appellants,
vs.
STATE OF IOWA (DEPARTMENT OF HUMAN SERVICES),
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert B. Hanson,
Judge.
Gatluak Jerweng, individually, and as next friend of S.M. and B.M., and as
administrator of the estate of D.M., appeals from the district court’s ruling
dismissing his tort claims stemming from the death of one of his children.
AFFIRMED.
Darrell G. Meyer, Marshalltown, for appellants.
Thomas J. Miller, Attorney General, Anne E. Updegraff, Assistant Attorney
General, for appellee State.
Considered by Vogel, P.J., and Doyle and Mullins, JJ.
2
DOYLE, J.
Gatluak Jerweng, individually, and as next friend of S.M. and B.M., and as
administrator of the estate of D.M. (collectively hereinafter “Jerweng”), appeals
from the district court’s ruling dismissing tort claims stemming from the death of
one of his children. The district court granted the State’s motion to dismiss for
failure to state a claim under Iowa Rule of Civil Procedure 1.421. Finding no
error at law, we affirm.
I. Background Facts and Proceedings.
This case arises out of tragic circumstances that left a young child dead.
Gatluak Jerweng is the father and Nyachuol Poch is the mother of three
children: S.M., B.M., and D.M. The family came to the attention of the Iowa
Department of Human Services (DHS) in 2009. All three minor children were
living with Poch at the time. The DHS provided in-home services to Poch and
the children throughout 2009. D.M. was less than two-years old when he was
beaten to death by Poch on April 12, 2010.
Jerweng brought a pro se tort action against the State under the Iowa Tort
Claims Act, Iowa Code chapter 669 (2013). The suit alleges the DHS was aware
of Poch’s mental instability and allegations that Poch beat and starved the
children. The suit further alleges the children were not removed from the care of
Poch, nor placed with Jerweng, “despite knowledge of physical and mental child
abuse” by Poch. The suit alleges the DHS, through its agents, acted negligently
and failed to use the “degree of skill, care and learning ordinarily possessed and
exercised by service providers under similar circumstances.” Specifically, the
suit alleges the DHS was negligent in: (a) failing to accurately assess Poch’s risk
3
to her minor children; (b) misleading others to believe that Poch was mentally
stable; (c) failing to warn others of the risk posed to the minor children by Poch;
(d) failing to protect the children [from] physical and mental abuse; and (e) failing
to appropriately monitor and report the safety concerns to the children’s father,
relevant agencies, and authorities.
The State filed its pre-answer motion to dismiss asserting Jerweng failed
to state a claim upon which relief could be granted. Jerweng then filed a motion
for leave to amend his petition to add a claim of intentional wrongful conduct by
the DHS for intentionally: (a) misleading others to believe that Poch was mentally
stable; (b) failing to warn others of the risk posed to the minor children by Poch;
and (c) failing to report abuse and safety concerns to authorities. Jerweng also
filed a resistance to the motion to dismiss. The State filed a reply to Jerweng’s
resistance, and Jerweng moved to strike the reply as being untimely.
After an unreported hearing, the district court granted Jerweng’s motion
for leave to amend, denied Jerweng’s motion to strike, and granted the State’s
motion to dismiss, concluding “whether couched in terms of negligence or
intentional behavior, [Jerweng’s] claims are barred.”
Jerweng appeals the dismissal.
II. Scope and Standards of Review.
We review for correction of errors at law the district court’s decision on a
motion to dismiss for failure to state a claim. Ostrem v. Prideco Secure Loan
Fund, LP, 841 N.W.2d 882, 891 (Iowa 2014). We take the well-pled facts in the
petition as true, but not the conclusions. Id. “A court should grant a motion to
4
dismiss for failure to state a claim only if the petition shows the plaintiff cannot
recover under any state of facts.” Id.
III. Discussion.
Our supreme court has declined to recognize a common law cause of
action for social service personnel’s negligent failure to remove children from an
inadequate home. See Rittscher v. State, 352 N.W.2d 247, 251 (Iowa 1984).1
Furthermore, the court has held no common law action exists for the negligent
failure to take steps to remove children from an inadequate parental home. M.H.
ex rel. Callahan v. State, 385 N.W.2d 533, 536 (Iowa 1986). In apparent
recognition of these holdings, Jerweng limits the issues on appeal, claiming the
suit “sufficiently [pled] facts supporting a statutory cause of action and common
law intentional tort cause of action.”
We will therefore limit our discussion to those two issues.
A. Negligence Claim Founded Upon Alleged Violation of Iowa Code
Section 232.75(2).
To provide protection to victims or potential victims of child abuse in Iowa,
our legislature has mandated that certain persons report suspected cases of
child abuse to the DHS. See Iowa Code §§ 232.67, .69, .70(3).2 Social workers
1
The court in Rittscher stated the “question is not whether those personnel and
the State have a cloak of protection in the form of privilege, but whether the law raises a
private damage action in the first place.” 352 N.W.2d at 250. The court held “[n]ot every
claimed negligence creates a civil cause of action.” Id. at 251. Finally the court
concluded “a tort does not arise from the State’s role as parens patriae.” Id.
2
We note the supreme court has stated: “We believe it is clear that in enacting
Iowa Code sections 232.67-.71 and 25A.14 [now 669.14] the legislature did not intend to
imply a tort action against the State, its department and employees for a failure to
thoroughly and promptly report and investigate incidents of child abuse.” M.H. ex rel.
Callahan, 385 N.W.2d at 537. The court concluded:
5
are among the persons enumerated as mandatory reporters in section
232.69(1).3 Section 232.75(2) provides that
[a]ny person . . . required by section 232.69 to report a suspected
case of child abuse who knowingly fails to do so or who knowingly
interferes with the making of such a report in violation of section
232.70 is civilly liable for the damages proximately caused by such
failure or interference.
Consequently, social workers are civilly liable under section 232.75(2).
On appeal, Jerweng argues the DHS is vicariously liable for the acts of its
social workers subject to section 232.75(2) civil liability. No such claim was
specifically pled. Jerweng’s petition alleges the DHS was negligent in “failing to
appropriately . . . report the safety concerns to . . . relevant agencies and
authorities.” The amended petition adds an allegation of intentional wrongful
conduct, alleging the DHS “intentionally failing to report abuse and safety
concerns to authorities.” Neither the petition nor the amendment references Iowa
Code section 232.75(2). Jerweng’s resistance to the State’s motion to dismiss
makes only a passing reference to the section. It is therefore no surprise that the
State made no reference to the statute in its reply to Jerweng’s resistance. In
granting the State’s motion to dismiss, the district court made no reference to any
We also believe public policy reasons are persuasive in the
dismissal of these negligence claims. As indicated, department
employees weigh the interest of the parties in their resolution of
proper action in a family abuse case. Their judgments should not
be restrained by apprehension about being liable for their decision
in a negligence suit. Accordingly, we do not recognize plaintiffs’
negligence claims based on breach of either a common law or
statutory duty.
Id. at 538.
3
Although the term “social worker” is not defined in chapter 232, the “[p]ractice of
social work” is defined in the chapter concerning licensure of social workers, Iowa Code
chapter 154C. See Iowa Code § 154C.1(3). A person shall not engage in the practice
of social work without a license. Id. § 147.2(1).
 6
claim founded upon violation of the statute. Apparently such a claim was not
argued at the hearing.4
It is axiomatic that in order to preserve error, the issue must be raised and
decided by the district court.5 Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa
2002) (observing that an issue is preserved for review if it has been raised and
decided by the district court). There is nothing in the record before us showing a
claim based upon violation of section 232.75(2) was raised before the district
court. Furthermore, the district court only ruled on Jerweng’s claims as “couched
in terms of negligence or intentional behavior;” it made no ruling on the issue of a
claim founded upon violation of section 232.75(2). Jerweng did not seek a ruling
on this issue following the motion to dismiss order. Accordingly, we do not
address it on appeal. See id. (“When a district court fails to rule on an issue
properly raised by a party, the party who raised the issue must file a motion
requesting a ruling in order to preserve error for appeal.”).6
4
There is no transcript of this hearing available in the court record, nor has
Jerweng filed a statement of evidence or proceedings as provided in Iowa Rule
Appellate Procedure 6.806(1) to provide us with a record of what transpired at that
hearing.
5
Jerweng states error was preserved by “timely filing a notice of appeal.” “While
this is a common statement in briefs, it is erroneous, for the notice of appeal has nothing
to do with error preservation.” Thomas A. Mayes & Anuradha Vaitheswaran, Error
Preservation in Civil Appeals in Iowa: Perspectives on Present Practice, 55 Drake L.
Rev. 39, 48 (Fall 2006) (footnote omitted).
6
Additionally, we note that Jerweng did not plead that the allegedly responsible
DHS employees were social workers. In considering a motion to dismiss, we are
confined to the four corners of the petition. See Crall v. Davis, 714 N.W.2d 616, 619
(Iowa 2006). “[F]acts not alleged cannot be relied on to aid a motion to dismiss nor may
evidence be taken to support it.” Rieff v. Evans, 630 N.W.2d 278, 284 (Iowa 2001).
Moreover, “facts outside the pleadings should not be considered.” Estate of Dyer v.
Krug, 533 N.W.2d 221, 223 (Iowa 1995). If facts outside the pleadings cannot be
considered, we certainly cannot consider on appeal Jerweng’s apparent assumption that
the unidentified DHS employees are social workers. Jerweng’s petition is thus fatally
flawed as it relates to an asserted cause of action founded upon violation of section
232.75(2).
7
B. Common Law Intentional Tort Claim.
Claims of misrepresentation and deceit are specifically excepted from
state tort liability. See Iowa Code § 669.14(4). Where “the basis of the plaintiff’s
claim is the functional equivalent of a cause of action listed in section 669.14(4),”
the State is immune. See Minor v. State, 819 N.W.2d 383, 406 (Iowa 2012). On
appeal, Jerweng notes the amended petition alleges the DHS intentionally misled
others to believe that Poch was mentally stable and intentionally failed to warn
others of the risk posed to the minor children by Poch. These claims are the
functional equivalents of misrepresentation and deceit. See id. at 406-08.
Consequently, the State is immune from these claims.
IV. Conclusion.
For the reasons stated above, the district court properly granted the
State’s motion to dismiss for Jerweng’s failure to state a claim upon which relief
can be granted. Accordingly, we affirm.
AFFIRMED.