Griggs v. Oasis Adoption Services, Inc.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

THOMAS and JENNIFER GRIGGS, husband and wife,

Plaintiffs/Appellants,

v.

OASIS ADOPTION SERVICES, INC.; CATHERINE BRAMAN;

SARAH L. PEDRAZZA,

Defendants/Appellees.

No. 1 CA-CV 15-0289

FILED 10-6-2016

Appeal from the Superior Court in Maricopa County

No. CV 2012-014904

The Honorable Mark H. Brain, Judge

VACATED AND REMANDED

COUNSEL

Debus, Kazan & Westerhausen, LTD, Phoenix

By Larry L. Debus, Tracey Westerhausen

Counsel for Plaintiffs/Appellants

Renaud Cook Drury Mesaros, PA, Phoenix

By Denise J. Wachholz, Charles S. Hover, III

Counsel for Defendants/Appellees

GRIGGS v. OASIS et al.

Opinion of the Court

OPINION

Judge Margaret H. Downie delivered the opinion of the Court, in which

Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined.

D O W N I E, Judge:

¶1 Thomas and Jennifer Griggs appeal from the entry of

summary judgment in favor of Oasis Adoption Services, Inc., Catherine

Braman, and Sarah L. Pedrazza (collectively, “Oasis”) on the grounds of

judicial immunity.1 For the following reasons, we vacate that judgment

and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY2

¶2 The Griggses met D.R. through their church and agreed to

adopt her unborn child. The Griggses retained Oasis to “provide

adoption services,” including the statutorily required investigation and

report (also called a “home study”) that prospective adoptive parents

must obtain to be certified to adopt. See Ariz. Rev. Stat. (“A.R.S.”) § 8-

105(A).

¶3 After retaining Oasis, the Griggses filed an adoption

certification application, whereupon the juvenile court issued a July 8,

2011 minute entry that provided, in pertinent part:

IT IS ORDERED pursuant to ARS 8-104, that Oasis Adoption

Services shall complete the investigation and file an

Adoptive Home Study with the Court by 10/06/2011.3

1 During the relevant time period, Braman was the adoption agency’s

executive director, and Pedrazza served as assistant director.

2 We consider the facts and reasonable inferences therefrom in the light

most favorable to the non-moving party — the Griggses. See Hill-Shafer

P’ship v. Chilson Family Tr., 165 Ariz. 469, 472 (1990).

3 We agree with the superior court that the reference to A.R.S. § 8-104,

instead of § 8-105, appears to be a typographical error.

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GRIGGS v. OASIS et al.

Opinion of the Court

¶4 Disagreements arose between Oasis and the Griggses about

the scope of the certification investigation, causing the Griggses to

terminate Oasis’s services in a July 27, 2011 letter, stating:

[We] have consulted with legal counsel and other adoption

agencies regarding the adoption process and your

recommendations. We have made a decision to respectfully

withdraw our application for adoption through the Oasis

Adoption Agency.

Thereafter, the Griggses worked with Olos Adoption and Child Welfare

Agency (“Olos”) to complete the certification process.

¶5 Unbeknownst to the Griggses, on July 28, 2011, Braman sent

an ex parte letter to the juvenile court detailing concerns Oasis had about

Thomas Griggs and advising the court that the Griggses were

“withdrawing from the home study process” with Oasis.

¶6 D.R. gave birth to a baby girl in August 2011. The Griggses

took the child home the next day, and the juvenile court awarded them

temporary custody of her. See A.R.S. § 8-108 (delineating procedure for

uncertified persons to obtain temporary custody pending certification).

Meanwhile, Olos submitted a home study recommending that the court

certify the Griggses as acceptable to adopt.

¶7 In late September 2011, the juvenile court denied the

Griggses’ certification application without explanation. The Griggses

timely requested reconsideration. See Ariz. R. P. Juv. Ct. 77(C) (if denied

certification to adopt, applicant may request evidentiary hearing).

¶8 During an October status conference, the juvenile court

discussed the ex parte letter received from Oasis, which the Griggses had

not seen. The court ordered the Griggses to appear at an order to show

cause hearing three days later. The court also vacated the temporary

custody order and directed Child Protective Services to take custody of

the child. The court further ordered Oasis to disclose its July 28, 2011

letter to the Griggses, as well as “all relevant and discoverable information

in [their] file.”4 The court set an evidentiary hearing in December on the

Griggses’ motion for reconsideration.

4 The Griggses had previously asked Oasis to provide a copy of its

July 28 letter, but Oasis refused.

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GRIGGS v. OASIS et al.

Opinion of the Court

¶9 At the evidentiary hearing, the juvenile court heard

testimony from Braman, Pedrazza, Thomas Griggs, Jennifer Griggs, and a

representative of Olos. On January 31, 2012, the court certified the

Griggses as acceptable to adopt. By that time, though, D.R.’s child had

been placed with another family.

¶10 The Griggses filed a civil complaint against Oasis, alleging

abuse of process, negligence, and infliction of emotional distress. Among

other things, the Griggses alleged that Oasis’s ex parte letter to the court

contained “untruths and misstatements” that caused them to lose custody

of D.R.’s baby. Oasis moved for summary judgment on the basis of

judicial immunity. After briefing and oral argument, the superior court

granted Oasis’s motion. The Griggses filed a timely notice of appeal from

a final judgment entered after the superior court denied their motion for

new trial. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

¶11 We review both the grant of summary judgment and the

application of judicial immunity de novo. See Emmett McLoughlin Realty,

Inc. v. Pima Cty., 212 Ariz. 351, 353, ¶ 2 (App. 2006) (summary judgment);

Lavit v. Superior Court, 173 Ariz. 96, 99 (App. 1992) (judicial immunity).

I. Adoption Certification Process

¶12 In determining whether Oasis is entitled to judicial

immunity for the challenged conduct, we first examine the role adoption

agencies fulfill in the certification process — a role that is

comprehensively defined by statutes and regulations. See In re Webb’s

Adoption, 65 Ariz. 176, 179 (1947) (adoption is a purely statutory right

unknown at common law); Sargent v. Superior Court, 28 Ariz. 605, 607

(1925) (“An adoption proceeding is a statutory one, and is governed by

the terms of the statute providing for it.”).

¶13 The Department of Child Safety (“DCS”) licenses adoption

agencies. A.R.S. § 8-126. DCS also oversees licensed agencies, assists “the

staffs of all agencies by giving advice on methods and procedures,” and

establishes rules for “[t]he form and content of investigations, reports and

studies concerning adoption placement.” A.R.S. § 8-126(3), (4)(c). DCS

has promulgated extensive rules governing adoption-related activities,

including certification investigations and reports. See Ariz. Admin. Code

(“A.A.C.”) R21-5-301, et seq.

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GRIGGS v. OASIS et al.

Opinion of the Court

¶14 The version of A.R.S. § 8-105(A) in effect when the

certification proceedings at issue here occurred stated, in pertinent part:5

Before any prospective adoptive parent may petition to

adopt a child the person shall be certified by the court as

acceptable to adopt children. A certificate shall be issued

only after an investigation conducted by an officer of the

court, by an agency or by the division.

The legislature has defined the scope of certification investigations, as well

as the content of home study reports that agencies must submit to the

court:

This investigation and report to the court shall consider all

relevant and material facts dealing with the prospective

adoptive parents’ fitness to adopt children and shall include:

1. A complete social history.

2. The financial condition of the applicant.

3. The moral fitness of the applicant.

4. The religious background of the applicant.

5. The physical and mental health condition of the

applicants.

6. Any court action for or adjudication of child abuse,

abandonment of children, dependency or termination

of parent-child relationship in which the applicant

had control, care or custody of the child who was the

subject of the action.

7. Whether the person or persons wish to be placed on

the central registry established in subsection M of this

section.

8. All other facts bearing on the issue of the fitness of the

prospective adoptive parents that the court, agency or

division may deem relevant.

5 We rely on statutory provisions in effect at the time of the juvenile

court proceedings — 2011 — some of which have since been amended.

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GRIGGS v. OASIS et al.

Opinion of the Court

A.R.S. § 8-105(F).6

¶15 The legislature has also mandated timeframes for

certification-related activities:

Within ninety days after the original application . . . has been

accepted, the division or the agency or a person or agency

designated by the court to conduct an investigation shall

present to the juvenile court the written report required by

subsection F of this section, which shall include a definite

recommendation for certifying the applicant as being

acceptable or nonacceptable to adopt children and the

reasons for the recommendation.

A.R.S. § 8-105(H). Within 60 days of receiving a home study, the juvenile

court “shall certify the applicant as being acceptable or nonacceptable to

adopt children based on the investigation report and recommendations of

the report.” A.R.S. § 8-105(I). The court may require additional

investigation necessary to “make an appropriate decision regarding

certification.” A.R.S. § 8-105(J).

II. Judicial Immunity

¶16 In Arizona, judicial immunity is a common law exception to

the general rule of tort liability. See Adams v. State, 185 Ariz. 440, 447

(App. 1995) (“Judicial immunity is a creature of common law and the

courts are responsible for shaping and monitoring the course of the

common law.”). “There is perhaps no doctrine more firmly established

than the principle that liability follows tortious wrongdoing; that where

negligence is the proximate cause of injury, the rule is liability and

immunity is the exception.” Stone v. Ariz. Highway Comm’n, 93 Ariz. 384,

392 (1963). “[I]mmunity deprives individuals of a remedy for

wrongdoing and should be bestowed only when and at the level

necessary.” Grimm v. Ariz. Bd. of Pardons and Paroles, 115 Ariz. 260, 265–66

(1977) (rejecting absolute immunity for parole board members in favor of

qualified immunity).

6 DCS has prescribed additional information agencies must obtain as

part of their certification investigations. See A.A.C. R21-5-404. DCS also

dictates substantive requirements for certification investigations and

reports. See A.A.C. R21-5-405.

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GRIGGS v. OASIS et al.

Opinion of the Court

¶17 Judicial officers are absolutely immune “from damages

lawsuits for their judicial acts.” Burk v. State, 215 Ariz. 6, 9, ¶ 7 (App.

2007). Over the years, judicial immunity has been extended to “[c]ourt

officers, employees, and agents who perform functions intimately related

to or . . . an integral part of the judicial process.” Id. See, e.g., Acevedo v.

Pima Cty. Adult Prob. Dep’t, 142 Ariz. 319, 321–22 (1984) (probation officers

submitting presentence investigation reports); Lavit, 173 Ariz. at 98–99

(psychologist acting under court directive to evaluate family court

litigants); Burk, 215 Ariz. at 12–13, ¶ 19 (court employee making child

custody recommendation); Widoff v. Wiens, 202 Ariz. 383, 386, ¶ 11 (App.

2002) (court-appointed guardian ad litem in family court proceeding);

Desilva v. Baker, 208 Ariz. 597, 599, ¶ 1 (App. 2004) (probation officers

filing revocation petitions).

¶18 “The nature and scope of judicial immunity raise perplexing

and somewhat amorphous issues, which are not susceptible to easy

resolution in some cases.” Adams, 185 Ariz. at 443. As in Adams, “[t]his is

such a case.” Id. For purposes of our analysis, we assume, without

deciding, that adoption agencies are entitled to judicial immunity for

home studies they submit to the court pursuant to A.R.S. § 8-105. Indeed,

this Court relied on a similar assumption in Adams, when considering

whether Arizona Department of Economic Security adoption caseworkers

were entitled to immunity for certain conduct. 185 Ariz. at 445.

¶19 Oasis, though, did not submit a home study report pursuant

to A.R.S. § 8-105. It instead sent an ex parte letter to the court after its

services were terminated. Other than expressing concerns about Thomas

Griggs, Oasis did not provide the statutory detail required of an

investigative report and made no “definite recommendation” regarding

certification, as required for home study reports. See A.R.S. § 8-105(H).

Nor did Oasis’s letter address topics that adoption agencies must consider

in making certification recommendations. See A.A.C. R21-5-406. Had the

submission been a home study, the Griggses would have been entitled by

law (and by their contract with Oasis) to receive a copy of the report

before it was filed with the court. See A.A.C. R21-5-406(D) (adoption

agency recommending against certification “shall send the applicant

written notice of the unfavorable recommendation, the reason for the

denial, and an explanation of the applicant’s right under A.R.S. § 8-105, to

petition the court for review” at least five days before filing report with

the court).

¶20 “To determine when a non-judge is cloaked with judicial

immunity, we examine the nature of the function entrusted to that person

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Opinion of the Court

and the relationship of that function to the judicial process.” Burk, 215

Ariz. at 9, ¶ 8. A generalized connection to the judicial process does not

confer immunity for all activities. In Acevedo, for example, the court held

that probation officers are entitled to judicial immunity for presentence

reports submitted to the court, but rejected as over-broad the proposition

that judicial immunity attaches to the supervision of probationers

“because the task arises out of a judicial proceeding and is a continuation

of that proceeding.” 142 Ariz. at 321–22. And in Adams, we rejected the

notion that “because DES [adoption] caseworkers work closely with the

court and are expected to comply with its guidelines as well as the

statutory and regulatory requirements, these nonjudicial employees are

absolutely immune from liability for all adoption-related acts or

omissions.” 185 Ariz. at 446.

¶21 In submitting its ex parte letter, Oasis was not acting

pursuant to delegated judicial authority or any mandate from the

legislative or executive branch. Oasis’s suggestion that adoption agencies

are immune for anything they do in furtherance of or in connection with a

certification investigation finds no support in our appellate jurisprudence.

See Lavit, 173 Ariz. at 101 (“Narrow parameters . . . apply to the activities

to which absolute immunity applies.”). Even probation officers, “a well-

recognized part of the judicial department,” Desilva, 208 Ariz. at 603, ¶ 23,

do not enjoy immunity for all of their probation-related activities.

¶22 In evaluating whether conduct is protected by judicial

immunity, some courts consider whether due process protections exist for

individuals potentially aggrieved by the underlying conduct – a

consideration we also deem relevant. See, e.g., Demoran v. Witt, 781 F.2d

155, 158 (9th Cir. 1985) (probation officers filing presentence reports are

immune, in part because “a plethora of procedural safeguards surround

the filing of a presentencing report”); cf. Adams, 185 Ariz. at 446 (“We

cannot say there are sufficient accountability safeguards inherent to or

routinely used . . . to warrant the granting of absolute immunity in this

context.”). Although due process considerations were not specifically

discussed in Lavit or Widoff, the aggrieved parties in those cases received

notice and an opportunity to be heard about the conduct later deemed

immunized. See Lavit, 173 Ariz. at 98 (court order entitled parties to copy

of evaluator’s report); Widoff, 202 Ariz. at 385, ¶ 4 (guardian ad litem

recommendations presented at evidentiary hearing attended by the

parties).

¶23 Protections exist for prospective adoptive parents who are

facing adverse certification recommendations. See A.A.C. R21-5-406(D)

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GRIGGS v. OASIS et al.

Opinion of the Court

(agency recommending against certification must give written notice of

recommendation and reasons therefor at least five days before report is

filed with court). The same is not true for the ex parte letter at issue here.

Moreover, the record reflects that Oasis refused to give the Griggses a

copy of the July 28 letter after they learned of its existence, depriving them

of the right to notice and an opportunity to be heard before the court took

adverse action against them. See Curtis v. Richardson, 212 Ariz. 308, 312, ¶

16 (App. 2006) (Due process rights include “notice and an opportunity to

be heard at a meaningful time and in a meaningful manner.”). Oasis

shared the letter with the Griggses only after being ordered to do so by the

court.

¶24 Oasis contends that, as a matter of public policy, its conduct

should be insulated from liability because the best interests of potential

adoptive children are at stake. But that argument sweeps too broadly, in

contravention of the tenet that immunity “should be bestowed only when

and at the level necessary.” Grimm, 115 Ariz. at 265–66; see also Ryan v.

State, 134 Ariz. 308, 311 (1982) (“[W]e propose to endorse the use of

governmental immunity as a defense only when its application is

necessary to avoid a severe hampering of a governmental function or

thwarting of established public policy.”). To the extent Oasis had qualms

about the Griggses’ suitability as adoptive parents, it could have

communicated those concerns in a court filing that afforded the Griggses

notice and an opportunity to be heard regarding information submitted to

(and relied on by) the court in making a decision about their ability to

adopt children.

CONCLUSION7

¶25 We vacate the judgment in favor of Oasis and remand for

further proceedings regarding the Griggses’ complaint.8 The Griggses are

7 We do not address Oasis’s alternative argument — urged for the

first time on appeal — that the Griggses cannot establish the necessary

elements of negligence. See In re MH 2008-002659, 224 Ariz. 25, 27, ¶ 9

(App. 2010) (“We do not consider arguments raised for the first time on

appeal except under exceptional circumstances.”).

8 Our decision to vacate the judgment in its entirety obviates the

need to separately address the Griggses’ challenge to the award of taxable

costs.

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GRIGGS v. OASIS et al.

Opinion of the Court

entitled to recover their taxable costs on appeal upon compliance with

Arizona Rule of Civil Appellate Procedure 21.

AMY M. WOOD • Clerk of the Court

FILED: AA

10