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.

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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

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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.

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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 L.

28

Ed. 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.