This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-96-218

Samuel Holmes, Sr., et al.,
Respondents,

vs.

Laurie Karp, et al.,
Appellants.

Filed July 9, 1996
Affirmed in Part and Reversed in Part

Short, Judge

Chisago County District Court
File No. C095640

Kenneth J. Jacobs, Westline Center, Suite 201, 1007 Broadway West, Forest Lake, MN 55025 (for Respondents)

Roger L. Rowlette, Michelle A. Gill, Johnson & Lindberg, P.A., Suite 1610, 8500 Normandale Lake Boulevard, Minneapolis, MN 55437 (for Appellants)

Considered and decided by Short, Presiding Judge, Schumacher, Judge, and Schultz, Judge.*

U N P U B L I S H E D O P I N I O N

SHORT, Judge

When the potential adoptive parents of C.D.H. and A.L.H. (children) reneged on their promise to support open adoption, the children's paternal aunt, uncle, and grandparents (relatives) brought this suit against social worker Laurie Karp and Chisago County (defendants), alleging: (1) a violation of 42 U.S.C. ' 1983; (2) fraud; (3) negligent misrepresentation; (4) intentional infliction of emotional distress; and (5) negligent infliction of emotional distress. Defendants moved for summary judgment. The trial court ordered summary judgment on the federal civil rights claim, but denied summary judgment on the remaining counts. On appeal, the defendants argue they were entitled to summary judgment on the state law tort claims because: (1) the relatives lack standing; (2) the defendants enjoy qualified, official, vicarious official, discretionary, and absolute immunity; and (3) the relatives have not demonstrated the existence of facts to support the essential elements of those counts. The defendants also moved to strike several items from the relatives' brief, but withdrew the motion at oral argument with the exception of an unpleaded and unlitigated negligent supervision claim. The relatives argue this appeal is wholly without merit and request an award of attorney fees. We affirm in part and reverse in part.

D E C I S I O N

When reviewing a trial court's decision on a motion for summary judgment, we determine (1) whether the trial court erred in its application of the law, and (2) whether there are any genuine issues of material fact. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). In so doing, we review legal questions de novo and give the nonmovant the benefit of any doubt concerning the existence of material issues of fact. See Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984) (reviewing questions of law de novo); Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981) (resolving all doubt against the moving party). Because the proper scope of our review extends only to those questions raised by the pleadings or litigated by consent, we do not address the relatives' discussion of negligent supervision. See Local 34, State, County and Municipal Employees v. County of Hennepin, 310 Minn. 283, 288, 246 N.W.2d 41, 44 (1976) (disregarding an issue that was neither raised in the pleadings nor litigated by consent).

I.

The defendants argue summary judgment is proper on all claims because the relatives lack standing to challenge any actions taken before they filed an adoption petition. See McGowan v. Our Savior's Lutheran Church, 527 N.W.2d 830, 833 (Minn. 1995) (recognizing the denial of a motion to dismiss for lack of subject matter jurisdiction is a decision entitled to immediate review); see also In re Welfare of Mullins, 298 N.W.2d 56, 61 & n.7 (Minn. 1980) (describing standing as a jurisdictional issue relating to the existence of a justiciable controversy). However, by virtue of their blood ties, the relatives were always eligible to adopt the children and, thus, have standing to maintain this action. See Carlson v. County of Hennepin, 428 N.W.2d 453, 456 (Minn. App. 1988) (holding the plaintiffs lacked standing until they became eligible to file an adoption petition), review denied (Minn. Oct. 10, 1988), cert. denied, 490 U.S. 1023 (1989); see also Minn. Stat. ' 259.22, subd. 2 (1994) (generally prohibiting adoption petitions until placement has occurred, but providing an exception for relatives within the third degree).

II.

The defendants also argue they were entitled to summary judgment on the basis of qualified, official, vicarious official, discretionary, and absolute immunity. See McGowan, 527 N.W.2d at 832 (recognizing the denial of immunity as an immediately appealable order).

Qualified immunity applies to federal civil rights actions and not to state law claims. Elwood v. County of Rice, 423 N.W.2d 671, 676-77 (Minn. 1988). Because the trial court disposed of the federal law claim at summary judgment, the defendants' continued discussion of qualified immunity is unnecessary.

Official immunity is a common law doctrine that protects government employees from civil liability to the extent they (1) are charged by law with duties that call for the exercise of judgment or discretion, and (2) have not committed a willful or malicious wrong. Id. at 677 (quoting Sulsa v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976)). While the first inquiry presents a question of law, the second involves a question of fact for the jury if there is evidence tending to suggest the official's behavior constituted a willful or malicious wrong. See Pletan v. Gaines, 494 N.W.2d 38, 41 (Minn. 1992) (evaluating de novo the level of discretion or judgment involved in a police officer's duties); see also State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994) (noting that public officials who exercised discretion are entitled to summary judgment on the grounds of official immunity if no facts tend to show the commission of a willful or malicious wrong). Proper analysis of the official immunity question requires us to address separately each underlying allegation of wrongful conduct: (1) Karp's failure to disclose the preference for adoption by relatives and the possibility of an adoption subsidy; (2) the presentation of the open adoption agreement as an enforceable contract; and (3) Karp's promise to return the children in the event of a disagreement. See Olson v. Ramsey County, 509 N.W.2d 368, 371 (Minn. 1993) (analyzing an immunity question by addressing separately the different aspects of the governmental conduct).

While officials enjoy a limited immunity when performing required duties that call for the exercise of discretion, they receive no protection for the execution of ministerial duties, which are absolute, certain, and imperative obligations involving no more than a specific task arising from fixed and designated facts. See Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (quoting Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937)). The relatives argue Karp was required absolutely and certainly, by statute and rule, to make special efforts to recruit an adoptive parent from among the children's kin, which in turn obligated her to inform them of the statutory preference for adoption by relatives and the circumstances under which they might receive an adoption subsidy. See Minn. Stat. '' 259.29, 259.57, subd. 2 (collectively setting forth the mandatory preference for relatives), 259.77 (1994) (requiring special recruitment efforts with limited exceptions); Minn. R. 9560.0040, subpt. 3 (1995) (requiring special recruitment efforts when feasible). However, while the recruitment duties are broad, they are not absolute. For example, regulations demand such efforts only when feasible. Minn. R. 9560.0040, subpt. 3. And, while Minn. Stat. ' 259.77 generally provides that child-placing agencies "shall" make such efforts, it expressly limits this duty by reference to Minn. Stat. ' 259.57, subd. 2, which deactivates the statutory preference when a relative is unavailable or when placement with a relative would be detrimental to the child. Because the rule does not define feasibility and the statute provides no guidance regarding the meaning of unavailability, an official must use judgment in deciding when special efforts are not required, and the exercise of that judgment falls within the limited protection of official immunity. See Pletan, 494 N.W.2d at 40 (explaining that official immunity protects the exercise of discretion at the operational level).

We further agree the relatives have produced no evidence tending to suggest that Karp's failure to discuss the relative preference and potential adoption subsidy constituted a willful or malicious wrong. See Rico, 472 N.W.2d at 107 (finding no evidence of a willful or malicious wrong if an official's behavior was not clearly prohibited by law or regulation). The defendants' unrefuted evidence establishes that Karp contacted the children's maternal relatives, none of whom wished to take the children. While Karp never asked the paternal relatives (the plaintiffs in this case) if they would adopt the children, their own affidavits establish: (1) they received de facto custody of the children from the children's biological parents; (2) the county agreed not to interfere with this arrangement; (3) the relatives later contacted Karp not to discuss their long-term options, but to explore the possibility of placing the children for open adoption; and (4) the aunt and uncle told Karp they could not support both children, did not wish to separate them, and preferred to place them for adoption. Under these circumstances, the statute and regulation did not clearly prohibit Karp's decision not to recruit them as adoptive parents. Thus, we reverse the trial court's denial of official immunity for Karp's recruitment decisions and we grant coextensive vicarious official immunity to the county. See Pletan, 494 N.W.2d at 42 (noting courts typically safeguard the practical significance of official immunity by allowing municipal employers to share in the benefits of that doctrine).

The defendants further argue Karp was entitled to official immunity for her representation of the open adoption agreement as an enforceable contract and her promise to return the children in the event of a dispute. We disagree. Official immunity protects public employees when they perform a legally required duty that calls for the exercise of discretion. See Rico, 472 N.W.2d at 106-07 (noting the doctrine applies to public officials "charged by law with duties that call for the exercise of judgment"). At oral argument, the defendants acknowledged their failure to submit any evidence regarding the scope of Karp's duties. Consequently, the record discloses no facts to justify a conclusion that Karp was performing a legally required duty calling for the exercise of discretion. The defendants' counsel further conceded at oral argument that there is "conceivably some evidence" of maliciousness with regard to this behavior. See City of Mounds View, 518 N.W.2d at 571 (allowing summary judgment on the basis of official immunity only if no facts tend to show the commission of a willful or malicious wrong). Based on the record before us, we must affirm the trial court's decision not to grant official immunity to Karp for representations concerning the agreement's enforceability and her promise to return the children in the event of a disagreement.

Discretionary immunity protects the separation of powers by insulating the policy decisions of planning-level officials from collateral attack through the judicial process. Rico, 472 N.W.2d at 104. The availability of discretionary immunity presents a question of law, subject to de novo review. Soucek v. Banham, 503 N.W.2d 153, 161 (Minn. App. 1993). The county maintains it is entitled to discretionary immunity for any conduct not covered by vicarious official immunity. However, it has not come forward with any evidence of a planning-level official's decision to adopt a policy authorizing social workers to draft open adoption agreements, to advise the public of their enforceability, and to promise the children's return in the event of a dispute. See id. at 163 (holding discretionary immunity protects only policy decisions made at the planning level). Under these circumstances, the trial court properly denied the county's claim of discretionary immunity.

It is well established that quasi-judicial officials enjoy absolute immunity from civil liability for their judicial acts. See, e.g., Linder v. Foster, 209 Minn. 43, 46-48, 295 N.W. 299, 300-01 (1940) (recognizing the doctrine of absolute judicial immunity and its application to quasi-judicial officers, including prosecutors). The defendants argue they are entitled to quasi-judicial immunity for any behavior not covered by official immunity. We disagree. First, although the defendants insist they raised this issue before the trial court, we are unable to locate any discussion of absolute immunity in the record and, therefore, conclude the question is not properly before us. See Thayer v. American Fin. Advisers, Inc., 322 N.W.2d 599, 604 (Minn. 1982) (limiting appellate review to questions presented to, and decided by, the trial court). And second, Karp's formulation of an open adoption arrangement, statements regarding its enforceability, and promise to return the children possess no intimate link to exercise of judicial authority, but manifest a closer resemblance to the relationship between a private attorney and his or her client, which is not the proper object of absolute immunity. See Babcock v. Tyler, 884 F.2d 497, 502 (9th Cir. 1989) (recognizing the crucial inquiry is whether the relevant function is so intimately connected to the judicial process as to require the extension of absolute immunity), cert. denied, 493 U.S. 1072 (1990).

III.

While the defendants set forth additional arguments concerning their entitlement to summary judgment, they have not explained how immediate review of these claims would serve the interests of justice. Larsen v. Wright County Human Serv. Agency-Day Care Div., 526 N.W.2d 59, 61 (Minn. App. 1995) (recognizing an appellate court's discretionary power to address nonimmunity questions), review denied (Minn. Mar. 14, 1995). Under these circumstances, we decline to take immediate review of the remaining issues and emphasize that the exercise of this authority should constitute the exception instead of the rule. See Swint v. Chambers County Comm'n, 115 S. Ct. 1203, 1211-12 (1995) (refusing to adopt a position that would encourage parties to parlay immunity orders into multi-issue interlocutory appeals tickets).

IV.

Citing the defendants' behavior in related litigation, the relatives seek an award of attorney fees on appeal. See Minn. Stat. ' 549.21, subd. 2 (1994) (authorizing awards based on the assertion of unfounded positions solely for purposes of delay). However, the defendants' conduct in related proceedings bears no relevance to the matter before us, in which the defendants' partial success contradicts the allegation of bad faith. Under these circumstances, we decline to award fees on appeal.

In conclusion, we affirm the trial court's decision that the relatives have standing. We reverse the denial of official and vicarious official immunity only with regard to Karp's failure to discuss the relative preference and possible adoption subsidy. In all other respects, we affirm the denial of immunity. We decline to exercise our discretion to address the remaining issues raised by the defendants or to award the relatives attorney fees on appeal.

Affirmed in part and reversed in part.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, ' 10.