Montgomery Circuit Court, CV-15-900134.
PETITION FOR WRIT OF MANDAMUS
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.
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 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 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 to the extent it is based on
alleged wantonness.
Despite
the fact that the parental-immunity doctrine is inapplicable
to wantonness, Van Gilder argues that a summary judgment
should have been entered in her favor on Curry's entire
claim, because, she says, Curry has not put forth substantial
evidence to support his wantonness allegation. Van
Gilder's argument, however, is not appropriate for
mandamus review. As we explained when discussing the standard
of review, our mandamus review in cases such as this is
limited to determining only whether immunity applies. The law
is clear that foster parents are entitled to parental
immunity with regard to negligence-based claims but not with
regard to wantonness-based claims, and we decline to look
beyond that principle in this case. Whether there is
substantial evidence to support Curry's allegation of
wantonness is a decision for the trial court to make, and its
decision is not reviewable at this stage of the litigation by
mandamus petition. See Ex parte Hudson, 866 So.2d at
1120 ("Matters relevant to the merits of the underlying
tort claim ... are best left to the trial court ....");
Mitchell v. Davis, 598 So.2d 801, 805-06 (Ala. 1992)
(explaining that in determining the applicability of the
doctrine of parental immunity the trial court must determine
whether the acts of the defendant foster parents constitute
negligence or rise to the level of wantonness).
In
summary, Van Gilder has established that Curry's
wrongful-death claim is barred by the doctrine of parental
immunity to the extent the claim is based on her alleged
negligence. The doctrine of parental immunity, however, does
not shield Van Gilder from suit to the extent the
wrongful-death claim is based on alleged wantonness. Her
petition for the writ of mandamus is therefore granted in
part and denied in part.
Kelley's
Petition (no. 1170988)
Kelley
first argues that, as a DHR caseworker, she too has parental
immunity. In support of her argument, she cites
Mitchell, in which this Court, after extending the
doctrine of parental immunity to foster parents, explained:
"The parental immunity doctrine should also be
available, in a qualified form, to the commissioner [of DHR],
the [Barbour County DHR], the [Barbour County DHR] director,
and the case supervisor charged with the care and custody of
foster children. That is, they also should be able to assert
the parental immunity doctrine as a defense to claims of
simple negligence by foster children. Alabama has already
concluded that DHR stands in loco parentis to
children of unfit parents. [Citations omitted]. As DHR stands
in loco parentis, ...