This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C4-99-1097

Susan Elfstrom, as Trustee for the Heirs and Next of Kin of Bruce Leo Tarasar, Jr.,
Appellant,

vs.

Robert Knox, et al.,
Defendants and Third-Party Plaintiffs,

and

Hennepin County, defendant and cross defendant,
Respondent,

vs.

Mary Jo Tarasar, individually,
Third-Party Defendant.

Filed January 25, 2000
Affirmed; motion granted
Peterson, Judge

Hennepin County District Court
File No. 98004934

Brad C. Eggen, Law Offices of Brad C. Eggen, 1100 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN 55402 (for appellant)

Amy Klobuchar, Hennepin County Attorney, Toni A. Beitz, Senior Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

A five-year-old child drowned in a swimming pool at the home of his grandparents, who had sole legal and physical custody of him under a court order. The child’s mother brought this wrongful death action against respondent Hennepin County alleging that the county was negligent in studying, investigating, recommending, reviewing, and supervising the placement of the child with his grandparents. The district court granted summary judgment in favor of Hennepin County on immunity grounds.[1] We affirm; we also grant the county’s motion to strike.

FACTS

Mary Tarasar had three children: J.J., born July 6, 1984; N.O., born April 19, 1988; and B.L.T., born June 12, 1991. In June 1990, Tarasar’s parents, Robert and Mary Knox, filed a children in need of protection or services (CHIPS) petition, alleging that J.J. and N.O. had been living with them since April 1990 and were in need of protection or services. The juvenile court returned custody of the children to Tarasar but ordered the Hennepin County Department of Children and Family Services (DCFS) to provide case planning and supervision. The CHIPS petition was dismissed in February 1991.

In January 1993, DCFS filed a CHIPS petition after receiving reports that Tarasar had been intoxicated when she picked the children up from daycare and that she had repeatedly left B.L.T., the youngest child, in the care of J.J., the oldest child, while she went out to bars, sometimes staying out all night. The juvenile court found that the children were in need of protection or services because they were without proper parental care due to Tarasar’s chemical dependency problems. The court transferred legal custody of the children to DCFS and ordered J.J. returned to her mother under DCFS’s protective supervision; B.L.T. was to continue in relative placement; and N.O. was to remain in placement with his father. B.L.T. stayed with the Knoxes until October 1993, when he was returned to Tarasar under a protective service plan.

In April 1994, police took all three children into custody and placed them on a health and welfare hold. The juvenile court again placed B.L.T. with the Knoxes where he remained until August 1994, when he was again returned to Tarasar under protective supervision. In February 1995, police again took custody of the children, and all three were placed with the Knoxes.

In October 1995, DCFS filed petitions to transfer legal and physical custody of the children to the Knoxes pursuant to Minn. Stat. § 260.191, subd. 3b (1994) (permanent placement of child in need of protection or services). At a hearing in December 1995, the parties stipulated that sole legal and physical custody of N.O. and B.L.T. would be transferred to the Knoxes and that physical custody of J.J. would be transferred to the Knoxes but that her legal custody would be shared by the Knoxes and the Lac du Flambeau Indian Tribe. Tarasar, the children’s fathers, and a guardian ad litem were all present at the hearing and represented by separate counsel. The district court accepted the parties’ stipulation and, in February 1996, issued an order incorporating the parties’ stipulation and dismissing the CHIPS petition.

A few months later, B.L.T. and N.O. were playing in the driveway of the Knoxes’ home. B.L.T. walked through an unlocked gate to the Knoxes’ swimming pool. N.O. later found B.L.T. at the bottom of the pool. B.L.T. died after being removed from life support equipment.

Tarasar, as trustee for B.L.T.’s heirs and next of kin, brought this wrongful death action against the Knoxes alleging that B.L.T.’s death resulted from their inadequate supervision of him; the maintenance of an unreasonably dangerous hazard and attractive nuisance on their property; and their failure to fully disclose limitations that affected their abilities to supervise and protect a five-year-old. An amended complaint later was filed adding Hennepin County as a defendant. The county filed a motion for summary judgment, and Tarasar filed a motion for a continuance. The district court denied Tarasar’s motion for a continuance, and granted summary judgment in favor of the county. This appeal followed.

D E C I S I O N

1. On appeal from a summary judgment, this court must review the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. In re Estate of Palmen, 588 N.W.2d 493, 495 (Minn. 1999). This court must view the evidence in the light most favorable to the nonmoving party. Id.

A defendant seeking immunity from suit has the burden of proving that it is entitled to the defense. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997). The applicability of an immunity defense is a question of law. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).

Judicial immunity protects judges from liability "for ‘acts done in the exercise of judicial authority.’" Sloper v. Dodge, 426 N.W.2d 478, 479 (Minn. App. 1988) (quoting Linder v. Foster, 209 Minn. 43, 45, 295 N.W. 299, 300 (1940)). Judicial immunity is based on the principle that judicial officers, in exercising their authority, must be free to act upon their own convictions without fear of personal consequences. Linder, 209 Minn. at 45, 295 N.W. at 300. Judicial immunity

extends beyond the courtroom to include "every proceeding of a judicial nature if the hearing is before a competent court or before a tribunal or officer clothed with judicial or even quasi-judicial powers."

Villarreal v. Independent Sch. Dist. No. 659, 505 N.W.2d 72, 74 (Minn. App. 1993) (quoting Matthis v. Kennedy, 243 Minn. 219, 224, 67 N.W.2d 413, 417 (1954)), rev’d on other grounds, 520 N.W.2d 735 (Minn. 1994).

Because judicial immunity is intended to protect the judicial process, it also extends to persons who are integral parts of that process, including prosecutors, counsel, and witnesses.

Sloper, 426 N.W.2d at 479 (citing Briscoe v. LaHue, 460 U.S. 325, 334-35, 103 S. Ct. 1108, 1115-16 (1983)).

Appellant argues that judicial immunity does not protect the county from this lawsuit because the negligence claim is based on the county’s failure to exercise reasonable care in investigating the suitability of the Knoxes as custodians and their home as a custodial environment for a child, conduct which occurred prior to the placement decision. In determining whether judicial immunity applies, the court looks to the nature of the lawsuit, not the characterization placed on it by the parties. See Myers v. Price, 463 N.W.2d 773, 776 (Minn. App. 1990) (application of judicial immunity depended on acts giving rise to lawsuit, not on legal theories asserted by plaintiffs), review denied (Minn. Feb. 4, 1991). The essence of appellant’s complaint is that the court-ordered placement of B.L.T. with the Knoxes caused B.L.T. to be placed in a dangerous environment and that the court, in approving the parties’ stipulation to the placement, relied on the county’s recommendation.

Once the court ordered B.L.T. placed with the Knoxes, the placement decision became protected by judicial immunity. We must determine whether that immunity extends to the information provided to the court by the county in connection with the placement proceeding. The Supreme Court has cited the following reasons for extending judicial immunity to witnesses:

A witness who knows that he might be forced to defend a subsequent lawsuit, and perhaps to pay damages, might be inclined to shade his testimony in favor of the potential plaintiff, to magnify uncertainties, and thus to deprive the finder of fact of candid, objective, and undistorted evidence. But the truthfinding process is better served if the witness’ testimony is submitted to "the crucible of the judicial process so that the factfinder may consider it, after cross-examination, together with the other evidence in the case to determine where the truth lies."

* * * *

"* * * The ability of courts, under carefully developed procedures, to separate truth from falsity, and the importance of accurately resolving factual disputes in criminal (and civil) cases are such that those involved in judicial proceedings should be ‘given every encouragement to make a full disclosure of all pertinent information within their knowledge.’"

* * * "[C]ontroversies sufficiently intense to erupt in litigation are not easily capped by a judicial decree. * * * Absolute immunity is thus necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation."

Briscoe, 460 U.S. at 333-35, 103 S. Ct. at 1114-15 (citations omitted).

The reasons for extending judicial immunity to witnesses apply to the information provided by the county to the court in connection with the placement proceeding under Minn. Stat. § 260.191, subd. 3b (1994). Appellant’s claim against the county is not based on any acts by the county that were independent of or unrelated to the placement proceeding. Appellant cannot avoid the application of judicial immunity by attempting to separate the information provided to the court by the county from the manner in which the county obtained the information.

Appellant argues that even following the court-ordered placement of B.L.T. with the Knoxes, the county had a duty to monitor the placement because the parties intended the placement to be temporary and the county had agreed to monitor the placement until the children could be returned to their mother. The placement, however, was ordered under Minn. Stat. § 260.191, subd. 3b (1994), which governs a child’s permanent legal and physical custody, requires no further judicial reviews or hearings, and provides for modification of custody under Minn. Stat. § 518.18, .185. The parties cannot change the nature of a court-ordered placement by making an extra-judicial agreement concerning the terms of the placement, and the court-ordered placement imposed no duty on the county to monitor the placement. The district court did not err in granting summary judgment in favor of the county.[2]

Because the county was immune from suit, the district court did not err in denying appellant’s motion for a continuance to conduct discovery. See Rehn v. Fischley¸ 557 N.W.2d 328, 332 (Minn. 1997) (application of immunity typically is a question of law that is best resolved before the parties engage in lengthy discovery); Elwood v. Rice County, 423 N.W.2d 671, 675 (Minn. 1988) (immunity questions "should be resolved at the earliest possible stage to shield officers from disruptive effects of broad-ranging discovery and effects of litigation").

2. The record on appeal shall consist of "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings." Minn. R. Civ. App. P. 110.01. An appellate court may not base its decision on matters outside the record and may not consider matters not produced and received in evidence before the district court. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).

The county filed a motion to strike excerpts from the depositions of Robert and Mary Knox. The depositions were not taken until after the district court issued its order granting the county’s motion for summary judgment, and the depositions were taken in connection with a separate lawsuit and are not part of the record in this lawsuit. Appellant argues that matters outside the record may be considered to assist in determining whether a live or moot controversy exists. The rule, however, is that

[i]f, pending an appeal, an event occurs which makes a decision on the merits unnecessary or an award of effective relief impossible, the appeal will be dismissed as moot.

In re Inspection of Minn. Auto Specialties, Inc., 346 N.W.2d 657, 658 (Minn. 1984). Appellant is attempting to use the depositions for the opposite purpose, to demonstrate that a live controversy exists and that the district court erred in granting summary judgment in favor of the county. The county also moves to strike a reference to a Miller-Shugart settlement. The settlement is part of the record in this case but was not filed in the district court until after the district court issued the order granting the county’s motion for summary judgment. We grant the county’s motion to strike.

Affirmed; motion granted.

[1] After judgment was entered in favor of the county, appellant Susan Elfstrom was substituted for Mary Tarasar, as trustee for the heirs and next of kin of B.L.T.

[2] Although the district court granted summary judgment in favor of the county on grounds of statutory and official immunity, we will affirm a summary judgment if it can be sustained on any grounds. Myers, 463 N.W.2d at 775.