Ex parte Kelley

         Montgomery Circuit Court, CV-15-900134.

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          Steve Marshall, atty. gen., and Sharon E. Ficquette, gen. counsel, and Felicia M. Brooks, deputy atty. gen., Department of Human Resources, for petitioner Kristi Kelley.

          Terrie Scott Morgan of Capell & Howard, P.C., Montgomery, for petitioner Becky Van Gilder.

          D. Brett Turnbull and Andrew J. Moak, of Cory Watson, P.C., Birmingham, for respondent.

         PER CURIAM.

         This case addresses whether a foster-care provider and a caseworker for the Department of Human Resources ("DHR") are immune from liability. Arnold Curry filed this wrongful-death action against Becky Van Gilder, a licensed foster-care provider, and Kristi Kelley,^[1] a caseworker with the Montgomery County DHR office, seeking damages for the death of his nine-year-old son A.C., who died of complications related to sickle-cell anemia after DHR removed him from Curry's home. Curry alleged that Van Gilder had acted negligently and wantonly in caring for A.C. and that Kelley had acted negligently and wantonly in managing A.C.'s case. Van Gilder and Kelley separately asked the Montgomery Circuit Court to enter summary judgments in their favor, denying liability and arguing that they were protected by immunity based on their respective roles as a foster parent and a DHR caseworker. The trial court denied their motions. They have separately petitioned this Court for writs of mandamus directing the trial court to vacate its previous order denying their summary-judgment motions and to enter a new order granting those motions. We have consolidated the petitions for the purpose of issuing one opinion. We grant the petitions in part and deny them in part.

         Facts and Procedural History

         On February 25, 2013, DHR removed A.C. and his two siblings from their home after receiving reports from officials at the children's school and a neighbor of the family indicating that Curry was physically abusing the children. DHR placed the children with Van Gilder and, after conducting an investigation and substantiating the allegations of abuse, DHR obtained legal custody of the children. Kelley was assigned to be the caseworker for the children and, in accordance with DHR policy, drafted the initial Individualized Service Plan ("ISP"), setting forth DHR's plans and goals for the family.

         Van Gilder was told at placement that A.C. suffered from sickle-cell anemia, and she subsequently took him to appointments with his primary-care physician and received instruction from the Sickle Cell Center associated with the University of Alabama at Birmingham Hospital. Van Gilder states that she was told it was important for A.C. to stay hydrated and to rest when he was tired but that he could otherwise engage in any activities that interested him. She also states that she was told to give him ibuprofen or acetaminophen if he complained of pain but that, if that medication did not alleviate his pain, if he complained of chest pain, or if he had a body temperature of over 101 degrees, she should seek emergency medical treatment. Kelley also attended at least some of A.C.'s medical appointments and visited the children on at least a monthly basis over the next several months.

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          On May 18, 2013, Van Gilder's grandmother died, and she made plans to attend the funeral, which was out of state. Van Gilder arranged for Susan Moss, a friend and another licensed foster parent, to care for A.C. and his siblings while she was away.^[2] Van Gilder states that she told Moss about A.C.'s condition and care and that, when she left the children with Moss on May 24, 2013, she also left pain medication for A.C. in case it was needed. That evening, A.C. told Moss that he had a stomachache; he subsequently felt better and no medication was administered. On May 25, 2013, A.C. again reported that he had a stomachache. Moss gave him acetaminophen and, after taking a nap, A.C. said he felt better. Van Gilder states that she communicated with Moss and A.C. later that day and that they both told her he was feeling better.

         A.C. did not complain of any discomfort over the next two days. On May 28, 2013, he woke up with a sore throat and asked for a Sprite soft drink. Shortly afterward, Van Gilder retrieved him and his siblings from Moss's home; A.C. apparently made no further complaints before going to bed that night. After A.C. went to bed, one of his siblings alerted Van Gilder that A.C. was in pain and was crying. Van Gilder checked on him, and, when he complained of chest pain, she took him to the emergency room. A.C. was admitted to the hospital. Van Gilder notified Kelley of his hospitalization the next morning, and Kelley went to the hospital and visited him.

         A.C. initially appeared to be in stable condition, but on May 30, 2013, his condition deteriorated, and the decision was made to transfer him to a hospital in Birmingham because he was showing symptoms of acute chest syndrome and hypoxia, which are complications of sickle-cell anemia. Van Gilder accompanied A.C. in the ambulance to Birmingham, but before A.C. could be given a needed blood transfusion, he suffered respiratory failure and died.

         On January 26, 2015, Curry, initiated this wrongful-death action against Van Gilder and Kelley, alleging that their negligence and wantonness caused A.C.'s death.^[3] The essence of Curry's complaint was that Van Gilder and Kelley failed to act in accordance with DHR policies and guidelines and that their failure to do so proximately caused A.C.'s death. Curry alleged that Van Gilder had been provided guidelines for caring for a child with sickle-cell anemia and that she violated those guidelines by not telling Moss to take A.C. to the hospital after being apprised that he had complained of stomach pain on consecutive days. Curry alleged that Kelley failed to properly manage A.C.'s case by not educating herself about A.C.'s condition and by failing to ensure that necessary information regarding his care was shared with all interested parties, including the different divisions of DHR, Van Gilder, and Moss. Curry further alleged that, if Kelley had acted properly, A.C. would have been classified as "medically fragile" and, under DHR policy, his caretakers

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would have been subject to additional training and oversight.

         On November 17, 2017, Van Gilder and Kelley filed separate motions for a summary judgment. Van Gilder argued in her motion that the doctrine of parental immunity barred any claim against her based on negligence and that Curry had identified no evidence indicating that she had acted wantonly in caring for A.C. In her summary-judgment motion, Kelley argued that she was entitled to parental immunity as well as State-agent immunity. Kelley further argued that Curry had identified no act or omission on her part that had proximately caused A.C.'s death. On February 1, 2018, the trial court conducted a hearing on the motions for summary judgment. Several months later, the trial court denied both motions without stating its rationale for doing so. Van Gilder and Kelley subsequently filed separate petitions for the writ of mandamus with this Court.

         Standard of Review

         "A writ of mandamus is a

"`drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.'

"Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993)."

Ex parte Wood, 852 So.2d 705, 708 (Ala. 2002). This Court generally will not entertain a mandamus challenge to a trial court's denial of a summary-judgment motion, but we make an exception to this rule when a trial court has denied a summary-judgment motion that is "grounded on a claim of immunity." Id. See also Ex parte Spurgeon, 82 So.3d 663, 665 (Ala. 2011) (considering a petition for a writ of mandamus filed by foster parents arguing that they were entitled to a summary judgment on the basis of the doctrines of parental immunity, State immunity, and State-agent immunity); Ex parte Sumerlin, 26 So.3d 1178, 1183 (Ala. 2009) (considering a petition for a writ of mandamus filed by a DHR employee arguing that a summary judgment should have been entered in her favor based on the doctrine of State-agent immunity). Because one of the purposes of immunity is to spare a defendant from the demands associated with defending a drawn-out lawsuit, a defendant wrongfully denied immunity protection has no adequate remedy if the case is erroneously permitted to go to trial. Ryan v. Hayes, 831 So.2d 21, 31-32 (Ala. 2002).

         We emphasize, however, that this Court will consider such petitions only to the extent they challenge the trial court's determination of immunity issues. This Court will not consider secondary arguments about the appropriateness of summary judgment on other grounds or review the trial court's conclusions on other issues decided at the same time as the immunity issue. See Spurgeon, 82 So.3d at 670 (stating that this Court would not consider the trial court's rulings on matters not "relevant to the resolution of the issues of the applicability of parental, State, or State-agent immunity" because those rulings were "beyond the proper scope of mandamus review"); Ex parte Hudson, 866 So.2d 1115, 1120 (Ala. 2003) (explaining that on mandamus review of a denial of a summary-judgment motion grounded on immunity "[w]e confine our interlocutory review to matters germane to the issue of immunity," and that "[m]atters relevant to the merits of the underlying tort claim, such as issues of duty or causation, are best left to the trial court").

         As further explained in Wood, the standard of review we apply on a

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petition for a writ of mandamus to a trial court's denial of a motion seeking a summary judgment on immunity grounds is the same standard of review we would apply in any appeal reviewing a trial court's ruling on a motion for a summary judgment:

"If there is a genuine issue as to any material fact on the question whether the movant is entitled to immunity, then the moving party is not entitled to a summary judgment. Rule 56, Ala. R. Civ. P. In determining whether there is [an issue of] material fact on the question whether the movant is entitled to immunity, courts, both trial and appellate, must view the record in the light most favorable to the nonmoving party, accord the nonmoving party all reasonable favorable inferences from the evidence, and resolve all reasonable doubts against the moving party, considering only the evidence before the trial court at the time it denied the motion for a summary judgment. Ex parte Rizk, 791 So.2d 911, 912 (Ala. 2000)."

852 So.2d at 708.

         Van Gilder's Petition (no. 1170995)

         Van Gilder argues first that the trial court erred by not entering a summary judgment in her favor on Curry's wrongful-death claim to the extent that claim is premised on alleged negligence. She bases her argument on the doctrine of parental immunity, which she says bars negligence-based claims against a foster parent. In support of her argument, Van Gilder cites multiple cases decided by this Court, including Spurgeon, in which we stated the rule that "in Alabama the parental-immunity doctrine extends to foster parents with regard to simple negligence claims." 82 So.3d at 668. Curry concedes that Van Gilder's argument is meritorious, and he does not oppose this Court's granting her petition with regard to the negligence allegations in his complaint.

         Curry argues, however, that to the extent his wrongful-death claim is based on wantonness, it is not barred by the doctrine of parental immunity. Van Gilder agrees. The parties' view of the scope of parental immunity is in accord with the applicable law, which we explained in Spurgeon:

"The [foster parents] do not argue that they are entitled to parental immunity on the wantonness claims, and, indeed, our decision in Mitchell [v. Davis, 598 So.2d 801 (Ala. 1992)], makes it clear that such claims against foster parents are not barred by the parental-immunity doctrine. Mitchell, 598 So.2d at 805-06 (`[T]he trial court must determine whether the acts by the defendants alleged to give rise to liability would amount only to simple negligence or would rise to the level of wantonness. ... If the alleged acts amounted to wantonness ..., then the wantonness claim by the foster children would not be barred by the parental immunity doctrine.')."

82 So.3d at 669. Thus, there is no question that the doctrine of parental immunity bars Curry's wrongful-death claim against Van Gilder to the extent that claim is based on alleged negligence, but not ...