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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Smith v. Stafford (02/29/2008) sp-6234

Smith v. Stafford (02/29/2008) sp-6234

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 12255
Appellant, )
) Superior Court No.
v. ) 3KN-03-00523 CI
Appellees. ) No. 6234 - February 29, 2008
          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Kenai,
          John Suddock, Judge.

          Appearances:  Mark  Osterman,  Osterman   Law
          Office, P.C., Kenai, for Appellant.  Megan R.
          Webb,  Assistant Attorney General, Anchorage,
          and   David  W.  M rquez,  Attorney  General,
          Juneau, for Appellees.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh,  and Carpeneti, Justices.  [Bryner,
          Justice, not participating.]

          CARPENETI, Justice.

          I.   This appeal stems from a Child in Need of Aid (CINA)
case  that was ultimately dismissed with the childs father  being
granted  sole custody of his daughter.  He subsequently sued  the
social  worker who handled the case and her supervisor,  alleging
thirteen causes of action.  The superior court dismissed  all  of
the  fathers claims on summary judgment, holding that the  claims
were precluded by collateral estoppel or, alternatively, official
immunity.  Many of the claims were properly dismissed, and as  to
those  we  affirm.  But because one count of the  complaint  gave
rise  to disputed issues of material fact, we reverse as to  that
count and remand for further proceedings.
     A.   Facts
          Vernon Smith had been separated from his estranged wife
Lisa  Baker1  for four months when Baker gave birth  to  A.B.  in
February 2000.  At the time of A.B.s birth, Smith was subject  to
a  domestic  violence-related restraining order.  Although  Baker
initially  served as A.B.s sole caretaker, this role  was  short-
lived.  In April 2000 Bakers substance abuse problems came to the
attention of the Division of Family and Youth Services, now known
as  the  Office of Childrens Services (OCS).2  OCS  removed  A.B.
from  Bakers home and initiated child in need of aid proceedings,
placing A.B. with foster parents, Matt and Candy Copple.
          Smith  participated  in the CINA proceedings  with  the
assistance   of  appointed  counsel.   Smith  joined   Baker   in
stipulating  that  A.B. was a child in need of  aid   and  sought
custody of A.B.  Although Smith was not granted custody of  A.B.,
the court permitted Smith to have supervised visits with her.
          Smiths original case plan identified placement of  A.B.
with  him or Baker as the primary goal, but conditioned placement
with  Smith  on his completion of several counseling requirements
including  a  drug  and alcohol assessment and  participation  in
batterers  intervention  programs.  Roughly  three  months  after
A.B.s CINA proceedings began, OCS placed social worker Margit Cox
and  supervisor Katie Stafford in charge of A.B.s case.  OCS also
instituted  a  concurrent case plan that called for  adoption  in
case A.B.s reunification with a parent did not occur.
          Smiths relationship with Cox began relatively well.  In
August  2000  Cox  placed  A.B. with Smith  on  a  temporary  and
informal basis.  This placement did not sit well with Baker,  who
asserted that Smith was unfit to care for A.B. and requested that
the   superior  court  review  A.B.s  placement.   After   Bakers
objection, Cox removed A.B. from Smiths home and returned A.B. to
the  Copples  care.  Smith appears to have felt betrayed  by  the
decision  to remove A.B. from his care and his relationship  with
Cox began to sour.
          After  Cox  removed A.B. from his home, Smith perceived
Cox  as  becoming hostile toward him.  Smith took issue with  the
counseling  requirements that Cox imposed as  part  of  his  case
plan, arguing that certain requirements were unnecessary and that
in  the  aggregate they were far too numerous.  Smith  complained
about  Coxs  handling of the case during a private  meeting  with
Stafford  in  September  2000.  He  informed  Stafford  that  the
numerous  counseling requirements were negatively  impacting  his
ability to keep his job and requested that another social  worker
be  appointed  to  handle  A.B.s case.  Smith  alleged  that  Cox
learned  about his complaint and subsequently threatened that  he
would not see A.B. again if he made further complaints.
          Despite  his  objections to the counseling requirements
included  in  his case plan, Smith participated in  the  mandated
counseling  programs and his visitation with A.B. was  eventually
          increased.   In December 2000 he was permitted  several
unsupervised home visits with A.B. during the week and A.B. spent
weekends with him.
          In  March 2001 Smith requested that the superior  court
review  A.B.s  continued placement with her  foster  family,  the
Copples.  The superior court concluded that Coxs decision to keep
A.B.  in  the  Copples care and to condition  reunification  with
Smith  on  his  completion  of counseling  requirements  was  not
arbitrary,  capricious  or manifestly  unreasonable.   During  an
early  May permanency hearing the superior court again held  that
A.B.s  continued  placement with the Copples was  in  A.B.s  best
interest  and noted that Smith needed to continue to meaningfully
participate in the counseling programs included in his case  plan
in order to regain custody.
          In  late May 2001 A.B. left a weekend visit with  Smith
with  a  bruise on her cheek.  Smith explained that A.B.,  now  a
toddler,  tripped while trying to walk and hit her cheek  on  his
knee.  Cox investigated the incident.  She interviewed Smiths son
from  a previous marriage at his school.  Cox then visited Smiths
home   and  documented  what  she  viewed  as  several  dangerous
conditions,  including empty beer cans and  bottles  outside  the
house.   Smith  alleges that Cox arranged  these  beer  cans  and
staged  a  photograph of them.  As a result  of  her  home  visit
observations, Cox required Smith and his live-in girlfriend, Lynn
Reynolds, to submit to random urinalysis tests.
          Smith learned in July 2001 that the Copples planned  to
move  to  Arizona and wanted to take A.B. with them.  When  Smith
again  petitioned  the  superior court  to  conduct  a  placement
review,   the  superior  court  again  concluded  that  continued
placement with the Copples was in A.B.s best interest.  The court
held  that Smith was not capable of caring for A.B. at that  time
and  authorized  OCS to place A.B. with the Copples  in  Arizona.
The  court nonetheless required OCS to arrange and pay for  Smith
to  make monthly trips to Arizona to spend time with A.B.   Smith
made several trips to see A.B. in Arizona.
          In  November  2001  social worker Tim  Von  Hayden  and
supervisor  Bill  Galic  took  over  A.B.s  CINA  case.    Smiths
counseling  obligations  were diminished  and  he  completed  the
remaining  counseling  programs.  Von Hayden  informed  Smith  in
March  2002 that A.B. would be placed with him, and in  May  2002
A.B.  was  placed  with  Smith  on a  permanent  basis.   Shortly
thereafter,  A.B.s  CINA  case was  dismissed  pursuant  to  OCSs
          After   the  CINA  case  had  ended,  Smiths   attorney
interviewed Candy Copple, A.B.s foster mother.  Smith  apparently
viewed  Candys statements as suggesting that early  on  in  A.B.s
CINA  case  Cox had assured the Copples that Smith would  not  be
regaining  custody  of  A.B.  Candys statements  appear  to  have
convinced Smith that Cox and Stafford conspired to keep A.B. away
from him.
     B.   Proceedings
          Smith  sued  Cox and Stafford in July 2003 and  amended
his  complaint  in August 2004.  Smith alleged thirteen  separate
causes  of  action.   Smiths amended complaint  alleged  multiple
violations  of  CINA procedures, several defamation  and  privacy
torts,  and one violation of 42 U.S.C.  1983.
          Cox  and Stafford moved for summary judgment, which the
superior  court  granted.   The  superior  court  provided  three
alternative  grounds for dismissing Smiths  claims.   First,  the
court  held  that collateral estoppel applied and barred  all  of
Smiths claims.  Second, at least qualified immunity applied under
federal  law and barred Smiths  1983 claim.  Finally,  the  court
concluded  that  either absolute or qualified  official  immunity
applied  and  barred  all  of Smiths  state  law  claims.   Smith
          I.   We review orders granting summary judgment de novo.3   In
reviewing a grant of summary judgment, we will determine  whether
any  genuine issue of material fact exists and whether the moving
party  is  entitled  to  judgment on the law  applicable  to  the
established facts.4
          The  applicability of both state and  federal  immunity
are  questions  of law that are also subject to de novo  review.5
We  may  affirm the superior court  on  any basis  supported   by
the  record,  even  if  that  basis  was  not considered  by  the
court below or advanced by any party.6
     A.   Defining Smiths Claims
          A.   Smiths amended complaint asserts thirteen causes of action
against  Cox  and  Stafford.7  For the sake of clarity,  we  have
placed  each cause of action into one of three groups.   Group  A
includes  the counts that allege that Cox and Stafford failed  to
comply  with procedures required under CINA statutes.8   Group  B
includes  Smiths defamation and privacy torts.9   Finally,  Smith
alleged  one  count of wrongful deprivation of his constitutional
rights under color of law in violation of 42 U.S.C.  1983,  which
we  will  refer to as the  1983 claim.  We address each group  of
claims in turn.
     B.   Smiths Group A Claims Do Not State Viable Causes of Action.
          Smiths  Group  A  claims attempt to predicate  Cox  and
Staffords  liability   on  an  alleged  failure  to  comply  with
statutorily mandated procedures for CINA cases.  For the  reasons
discussed below, these claims are not actionable.
          Alaska   Statutes   47.10.005-.142  set   out   certain
procedures that must be followed in bringing and prosecuting CINA
cases.   These provisions govern, for example, when  a  child  is
considered in need of aid and what types of efforts must be  made
to  reunite  a  child with his or her parents  once  removal  has
          Although  AS  47.10.005-.142 create certain obligations
for  OCS officials involved in CINA cases, none creates a private
negligence  cause  of  action  for failure  to  comply  with  its
requirements.   To highlight this point, AS 47.10.960  explicitly
forecloses  any  argument that the provisions  were  intended  to
serve  as  the  basis  for a negligence claim.   The  version  of
section  .960  in  effect when Smith filed his amended  complaint
provided:   Nothing in this title creates a duty or  standard  of
care  for  services to children and their families  being  served
          under AS 47.10.10  Addressing this provision in McGrew v. State,
Department  of  Health & Social Services, Division  of  Family  &
Youth  Services,11  we held that it prevented  grandparents  from
alleging  negligence  claims based on  OCSs  alleged  failure  to
comply with certain CINA statutes.12
          Here,  Smiths  Group  A claims allege  that  Smith  was
injured  when Cox and Stafford failed to comply with  several  of
these  requirements.  Smiths Group A claims sound in  negligence:
Smith  alleges  he was injured by Coxs and Staffords  failure  to
comply  with  various  CINA provisions that established  specific
duties of care.  As in McGrew, section .960 precludes Smith  from
relying on CINA statutes to prove that Cox and Stafford owed  him
any special duties of care.13  As Smiths Group A claims depend on
a  special duty of care that does not exist, these claims are not
actionable and were properly dismissed14 by the superior court.15
     C.   Smiths Group B (State Tort) Claims, Except The Defamation
          and False Light Claims Referenced in Count X, Are Barred by
          Qualified Immunity.
          The  superior  court concluded that at least  qualified
immunity  applied to Smiths state law tort claims and that  Smith
was  unable  to  overcome that immunity. Smith  argues  that  the
superior  court  erred in concluding that any  form  of  immunity
applied and that even if qualified immunity applied, there was an
issue of fact regarding Coxs and Staffords state of mind.
          Under  Alaska  law,   the  doctrines  of  absolute  and
qualified  immunity protect public officials from tort suits  for
discretionary acts committed within the scope of their authority.16
Absolute  immunity immunizes officials from suit for all official
acts  without  regard to motive.17  Qualified immunity  immunizes
official acts only when undertaken in good faith.18  Both forms of
immunity  seek  to  balance the protection  of  private  citizens
rights and the substantial social costs of imposing liability  on
public officials.19
          A three-step inquiry is generally used to determine the
existence  and  scope  of  official  immunity:  First,  does  the
doctrine  of  official  immunity apply  to  the  state  officials
conduct?   Second, if it does apply, is the immunity absolute  or
qualified? And third, if it is only a qualified immunity, did the
state official act corruptly, maliciously, or in bad faith?20
          1.   Official immunity is applicable to Coxs and Staffords
          Official  immunity applies to an officials  conduct  if
(1) it is within the scope of the officials authority, and (2) it
is  a discretionary act.21  An official acts within the scope  of
the  officials  authority when he or she  has  the  authority  to
engage  in the underlying conduct out of which the alleged  claim
arises.22   Discretionary  acts are defined  as  those  requiring
personal deliberation, decision and judgment.23
          Coxs   and   Staffords  investigations,  reports,   and
recommendations were within their authority because they were the
types  of  actions that social workers and supervisors  undertake
during  a  CINA case.  Smith focuses on the second prong  of  the
          official immunity test, arguing that because Cox and Staffords
actions  were obligatory they could not qualify as discretionary.
His argument is unavailing in light of the nature of OCSs duties.
Alaska  Statute 47.05.065(4)(A), for example, makes OCS employees
like  Cox  and Stafford responsible for placing children  in  its
care in a safe, secure, and stable environment.  Determining what
constitutes a safe and stable environment is not a mechanical act
and  instead implicates the use of discretion; as was illustrated
in   this   case,   this   determination   necessarily   involves
consideration of various alternatives and a decision about  which
custody arrangement is in the childs best interest.  Because Coxs
and  Staffords  actions were within the scope of their  authority
and discretionary, some form of official immunity applies.
          2.   Stafford and Cox are not entitled to absolute immunity for
               Smiths Group B claims.
          Because we find that official immunity applies  to  the
actions of Stafford and Cox, it is essential to determine whether
that  immunity is absolute or qualified.  Stafford and Cox  argue
for  absolute  immunity,  while  Smith  disputes  that  they  are
entitled  to  any  immunity.   In  Aspen  Exploration  Corp.   v.
Sheffield,24, we considered three factors in determining whether a
public official is entitled to absolute immunity:
          (1) The nature and importance of the function
          that    the   officer   performed   to    the
          administration of government . . .;
          (2)  The likelihood that the officer will  be
          subjected to frequent accusations of wrongful
          motives and how easily the officer can defend
          against these allegations; and
          (3) The availability to the injured party  of
          other remedies or other forms of relief.[25]
          The superior court analyzed the actions of Stafford and
Cox  in  light  of these factors.  The court explained  that  the
nature and importance of the function factor cuts toward absolute
immunity  because  social  workers actions  are  vital  to  child
protection.  The court stated that the social workers role is one
of  the  most important functions that the state can  perform  on
behalf  of the most vulnerable and needy of its citizens,  little
kids.   Under the second factor, the court reasoned  that  it  is
likely   that   social  workers  will  be  subject  to   frequent
accusations  of  wrongful  motives because  of  the  high  stakes
emotional  involvement of parents.  Under the third  factor,  the
court  reasoned  that the injured party has relief  available  in
CINA  proceedings.   Thus, the superior court concluded,  [s]o  I
believe under State law that our Supreme Court would find this an
appropriate situation for absolute immunity.
          The  superior  courts analysis of the first  factor  is
convincing.  The actions of Stafford and Cox are highly important
because  social workers investigations are truly vital to protect
vulnerable  children.  Without social workers  freely  performing
their  investigatory  duties,  many  children  would  remain   in
          dangerous situations with unfit parents.  Few governmental
objectives can be considered more important than protecting  this
states  most  valuable resource, our children.  Thus,  the  first
factor would favor a rule of absolute immunity.
          However,  in examining the second factor, there  is  no
evidence  that under qualified immunity social workers  would  be
subjected  to  frequent lawsuits.  While it  is  true  that  CINA
proceedings involve the highly emotional issue of child  custody,
the level of emotion involved does not necessarily translate into
a  high number of lawsuits against social workers.  Historically,
these types of suits have been relatively rare, and Stafford  and
Cox  present no empirical evidence that more lawsuits  result  if
social  workers are protected by qualified rather  than  absolute
immunity.   Furthermore, defending against the types of  lawsuits
that could be brought by parents may not be difficult because the
suits  are  likely to involve basic questions  of  tort  law  and
factual  determinations of credibility.  Thus, the second  factor
may actually favor qualified immunity.
          Under  the  third  factor, a blanket rule  of  absolute
immunity for social workers would deny an injured party a  remedy
for  certain  claims.   The injured party will  not  always  find
relief in a CINA proceeding because such proceedings only involve
a  parents  rights  in  relation to  his  or  her  child.   Here,
prosecution of a suit for defamation or false light would be  the
only  way  to vindicate Smiths rights pertaining to Coxs  alleged
staging   of  photographs  and  false  reporting  regarding   the
incident.   If  Cox has absolute immunity from a  suit  for  such
intentional torts, then Smith has no remedy available.  Thus, the
third  factor  favors qualified immunity for  Cox  and  Stafford.
In sum, although the first factor may suggest that social workers
should  generally  be  entitled to absolute immunity,  the  other
factors,  particularly the factor concerning the availability  of
an   alternative  remedy,  suggest  that  qualified  immunity  is
appropriate.  We conclude that Stafford and Cox are entitled only
to qualified immunity for the Group B intentional tort claims.
          Our  conclusion  that  social workers  enjoy  qualified
rather  than  absolute immunity finds support  in  our  case  law
addressing immunity claims for other governmental officials.   In
Prentzel  v.  State, Department of Public Safety,  we  held  that
police  officers were entitled to qualified immunity rather  than
absolute  immunity for discretionary acts.26  In  a  footnote  in
Prentzel, we recognized that generally absolute immunity  applies
only  to  judges, legislators, and the highest executive officers
of  various  levels of government and that other public  officers
are covered by qualified immunity.27  Based on our analysis of the
three-factor  test, we conclude that adoption of a  blanket  rule
extending absolute immunity for all actions of social workers  is
not  warranted.  Thus, we analyze the actions of Stafford and Cox
under qualified immunity.
          3.   A genuine issue of material fact remains as to whether Cox
                                             is entitled to qualified immunity for the Count X defamation and
                                             false light claims, but all other Group B claims fail under
                                             qualified immunity.
          1.   Smith has alleged that Cox and Stafford committed the torts
          of false light, false reporting, defamation, and trespass.28
          Qualified immunity precludes liability for such acts if
they  were  done  in  good  faith, that is,  not  maliciously  or
corruptly.29   Where qualified immunity is raised by  the  moving
party  as  grounds for summary judgment, the nonmoving party,  in
order  to  avoid  summary judgment, must present some  admissible
evidence that creates an issue of fact as to whether the official
acted  in  bad  faith or with an evil motive.30   In  determining
whether the nonmoving party has established the existence of such
an  issue  of fact, we will consider the affidavits, depositions,
admissions,  answers  to interrogatories and similar  material.31
Where  no  issue of material fact exists and the moving party  is
entitled  to  judgment as a matter of law,  summary  judgment  is
          Aside   from  the  allegations  contained   in   Smiths
complaint, there is scant evidence in the record supporting  most
of  Smiths Group B claims.  This shortcoming notwithstanding,  we
view  another  omission as fatal to most of these  claims:  Smith
failed  to  present evidence that Cox or Stafford  acted  in  bad
faith  or with a corrupt state of mind except with regard to  his
Count  X  defamation  and  false light  claims.   Unsubstantiated
allegations  contained in Smiths complaint that Cox and  Stafford
conspired against him are insufficient to create a genuine  issue
of  material fact regarding Coxs and Staffords states of mind  as
to the claims in Counts VII-IX.33  We conclude that Smiths failure
to identify any admissible evidence that could create an issue of
fact  regarding Coxs and Staffords states of mind  justified  the
superior  courts  decision  to grant  Cox  and  Stafford  summary
judgment  on  the basis of qualified immunity on  the  claims  in
Counts VII, VIII, and IX.
          However,   Smiths  affidavit  does  contain  assertions
indicating   that  a  genuine  issue  of  material  fact   exists
concerning  Coxs state of mind with regard to the defamation  and
false  light  claims  in Count X.  In the affidavit,  Smith  made
specific statements about Cox staging photographs showing garbage
I  had  collected from cleaning the yard of the house I had  just
bought  and  arranging  old muddy beer cans  collected  from  the
cleanup, claiming that I was drinking or having parties.  He also
claimed  in his affidavit that, after he complained to  Stafford,
Cox  was told of his complaint and Cox threatened [that] I  would
never  see  my  child  if I ever complained about  her  again  or
questioned  her authority.  These statements provide evidence  of
Coxs  alleged  actions  as well as implications  of  her  motive.
While  the  statements may be unsubstantiated by other  evidence,
they  were made in an affidavit of a duly sworn witness, and they
correspond  to  allegations made in Count X.  Such  an  affidavit
must be considered in determining whether a genuine issue of fact
          The statements in the affidavit, if true, indicate that
Cox may have been acting in bad faith.  Manufacturing a scene  of
excessive alcohol consumption by arranging beer cans for a  photo
to  falsely  create evidence to imply that Smith has  an  alcohol
problem  or  is an unfit father could be malicious  and  corrupt.
Threatening  that Smith would never see his child in  retaliation
          for complaining about those acts could likewise be evidence of
malice.  Thus, summary judgment in favor of Cox is improper as to
the  Count X defamation and false light claims because Cox is not
protected  by  qualified immunity for actions taken  maliciously,
corruptly, or in bad faith.
          In  sum,  summary  judgment in favor  of  Stafford  was
justified because there are no material issues of fact in dispute
and  she  is entitled to judgment as a matter of law. But because
genuine  issues of material fact remain as to whether  Cox  acted
maliciously  when she entered Smiths property, took  photographs,
and filed a report to document the incident, summary judgment was
not  appropriate  for  the  Count X defamation  and  false  light
     D.   Smiths  1983 Claim Is Barred by Qualified Immunity Under
          Federal Law.
          Smiths final argument is that the superior court  erred
in dismissing his  1983 claim on the basis of qualified immunity.
In  his  complaint, Smith based his  1983 claim on the  following
broadly  worded allegation:  Ms. Cox and Ms. Stafford denied  Mr.
Smith  and  his  daughter the protections of  the  United  States
Constitution . . .  by preventing and denying Plaintiff Smith and
the  ability  [to]  seek the protections  of  the  law  by  their
conspiracy  and actions.  On appeal Smith asserts  that  Cox  and
Stafford  impinged upon the fundamental liberty  interest  [that]
[Smith]  retains in the care, custody, and management  of  [A.B.]
even in the context of a CINA case.
          Under  federal law, as under state law, officials being
sued  in  their private capacity for discretionary acts performed
as  part  of  their  official duties are protected  by  at  least
qualified  immunity.34  A two-step process is used  to  determine
whether  qualified  immunity bars a  1983 action.   Courts  first
ask,  [t]aken in the light most favorable to the party  asserting
the  injury,  do  the  facts alleged show  the  officers  conduct
violated  a  constitutional right?35  If the allegations  show  a
constitutional violation, courts then must determine whether  the
right  allegedly violated was clearly established,  which  occurs
where  the contours of the right [are] sufficiently clear that  a
reasonable  official  would understand  that  what  he  is  doing
violates that right.36  Where either of these requirements is not
met,  the   1983 claim will be barred by the officials  qualified
          Smiths  1983 claim is based on allegations that Cox and
Stafford  acted improperly during A.B.s CINA case.  Specifically,
Smith  alleges that Cox and Stafford made false statements during
their  investigation and conspired to prevent him from  regaining
custody  of  A.B.   Smiths  claims  about  false  statements  and
conspiracy  fail to allege a violation of a constitutional  right
because  they  are conclusory assertions without  the  leaven  of
confirming  factual details.37  Smith does not identify  specific
false  statements  made by Cox or Stafford and  fails  to  allege
facts  sufficient  to establish a conspiracy between  the  two.38
Further,   as   Smith  was  actively  involved  in   A.B.s   CINA
proceedings,  it  cannot  reasonably be said  that  a  reasonable
          official in Coxs or Staffords position would understand that they
were  violating Smiths due process or parental rights by  placing
A.B.  in  foster care with the superior courts approval.  Because
the  facts  alleged  in Smiths  1983 claim fail  to  identify  or
factually    support   any   specific   violations   of    Smiths
constitutional  rights,  the  superior  court  did  not  err   in
dismissing this claim on the basis of federal qualified immunity.
          Because Smiths Group A claims fail to state a cause  of
action  upon which relief can be granted; because Smiths Group  B
claims, except the defamation and false light claims in Count  X,
are  barred by qualified immunity; and because qualified immunity
under  federal law preclude Smiths   1983 claims, we  AFFIRM  the
superior courts grant of summary judgment to Cox and Stafford  as
to  these claims.  But because Smiths affidavit creates a genuine
issue  of material fact relevant to Coxs state of mind, we VACATE
the superior courts grant of summary judgment in favor of Cox  on
the  Count  X  defamation and false light claims and  REMAND  for
further proceedings consistent with this opinion.

     1    Lisa Baker is a pseudonym we have used to protect A.B.s

     2      For  the  sake  of  consistency we  use  the  current
acronym, OCS.

     3     Tongass  Sport Fishing Assn v. State, 866  P.2d  1314,
1317 n.7 (Alaska 1994).

     4    Wright v. State, 824 P.2d 718, 720 (Alaska 1992).

     5     See  Lawson v. Helmer, 77 P.3d 724, 726 (Alaska  2003)
(de  novo  review  for state immunity); Mabe  v.  San  Bernardino
County,  Dept of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th  Cir.
2001) (de novo review for federal immunity).

     6     Gilbert  M. v. State, 139 P.3d 581, 586 (Alaska  2006)
(citing  Sopko v. Dowell Schlumberger, Inc., 21 P.3d  1265,  1269
(Alaska 2001)).

     7     Because  of the procedural posture of this  case,  the
superior  court  did  not address the merits of  the  allegations
underlying Smiths claims against Cox and Stafford.

     8     Group  A includes:  Count I (Cox and Stafford violated
obligation  to  place child with relative within ninety  days  of
removal);  Count  II (Coxs and Staffords demands were  arbitrary,
unnecessary,  and intended to harass Smith); Count III  (Cox  and
Stafford  violated obligation to maintain adequate  and  accurate
case   plan  for  Smith);  Count  IV  (Cox  and  Stafford  abused
safeguards by restricting Smiths visitation with A.B.);  Count  V
(Cox  and  Stafford violated obligation to place A.B.  in  Smiths
home  or home of a relative); Count VI (Cox improperly classified
A.B.  as special needs child); Count XI (Cox improperly conspired
to   keep   A.B.   in   foster   care   through   special   needs
classification);  and Count XII (Cox improperly  placed  A.B.  in
foster care).

     9     Group B includes:  Count VII (Cox portrayed Smith in a
false light by filing a false report about him); Count VIII  (Cox
portrayed  Smith  in  a  false light by  creating  false  medical
reports);  Count IX (Cox defamed Smith by making false statements
about  Smith  to  his  ex-wife); and Count X (Cox  trespassed  on
Smiths property, defamed and portrayed Smith in a false light  by
filing  false  reports  about  her findings,  and  made  improper

     10    AS 47.10.960 was amended in July 2005.  Ch. 64,  29 SLA
2005.   In  its current version, it provides: Failure  to  comply
with  a  provision of this title does not constitute a basis  for
civil liability for damages.

     11    106 P.3d 319 (Alaska 2005).

     12    Id. at 323.

     13     See  id. at 324 (dismissing negligence claim  because
section  .960 prevents actionable duty from arising  out  of  any
provision in Title 47).

     14    Although the superior court did not cite Smiths failure
to  state  a  claim  as grounds for dismissing  these  causes  of
action,  we  may  affirm based on any grounds  supported  by  the
record.   See  Gilbert  M. v. State, 139 P.3d  581,  586  (Alaska

     15     We  note that parents who find themselves in conflict
with  OCS  officials have remedies that may well be  superior  to
after-the-fact   civil  suits  such  as   this   one:   (1)   the
comprehensive  administrative procedures set out  in  the  Alaska
Administrative Code at 7 AAC 54.210-.240, which are  designed  to
hear  and  resolve  complaints about OCS officials  and  (2)  the
review provisions of Alaska Child in Need of Aid Rule 19.1, which
allows court review of OCSs visitation and placement decisions.

     16     Alpine Indus., Inc. v. Feyk, 22 P.3d 445, 447 (Alaska

     17    Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 157-
58 (Alaska 1987).

     18    Id. at 158.

     19     Anderson v. Creighton, 483 U.S. 635, 638-39 (1987).

     20     Alpine  Indus.,  22  P.3d  at  447-48  (citing  Aspen
Exploration, 739 P.2d at 154, 158, 160).

     21    Id. at 448.

     22     See Aspen Exploration, 739 P.2d at 155 & n.11.  ([A]n
abuse of authority is not synonymous with a lack of authority.).

     23    Id. at 155 (quotations omitted).

     24    739 P.2d 150 (Alaska 1987).

     25    Id. at 159-60.

     26    53 P.3d 587, 591 (Alaska 2002).

     27    Id. at 591 n.12 (quoting 1 Civil Actions Against State
And  Local  Government   4.5, at 308 (Shephards  Editorial  Staff
eds., 2d ed. 1992)).

     28    Smith alleges, as part of his trespass claim, that Cox
improperly   attempted  to  dissuade  him  from  making   further
complaints  about  her  conduct.  This  allegation  most  closely
resembles  a  constitutional tort, i.e.,  1983 claim,  but  Smith
failed  to  pursue  it  as such.  Even if viewed  as  alleging  a
constitutional tort, however, Smiths claim would be weak  because
Coxs  alleged threat does not appear to have dissuaded Smith from
challenging   her  handling  of  A.B.s  case  during   the   CINA
proceedings as he alleges.

     29    Aspen Exploration Corp., 739 P.2d at 158-59.

     30    See Jennings v. State, 566 P.2d 1304, 1309 n.14 (Alaska
1977)  (The non-movant, in order to prevent the entry of  summary
judgment, must set forth facts, admissible in court, which  would
. . . demonstrate that a triable issue of fact exists.).

     31     Charles v. Interior Regl Hous. Auth., 55 P.3d 57,  59
(Alaska 2002) (internal quotations omitted).

     32     Duncan v. Retired Pub. Employees of Alaska, Inc.,  71
P.3d 882, 886 (Alaska 2003).

     33    See State, Dept of Highways v. Green, 586 P.2d 595, 606
n.32  (Alaska  1978) (Mere assertions of facts in  pleadings  and
memoranda  are  insufficient for denial of a motion  for  summary

     34     Federal qualified immunity principles differ slightly
from  their state law counterpart.  Federal law uses an objective
standard for determining whether a violation is of the type  that
is  actionable, while state law looks at the officials  state  of
mind  and asks whether the official acted in bad faith.   Compare
Anderson  v.  Creighton,  483 U.S. 635,  640  (1987)  with  Aspen
Exploration Corp., 739 P.2d at 158-59.

     35    Saucier v. Katz, 533 U.S. 194, 201 (2001).

     36    Id. at 201-02 (quoting Anderson, 483 U.S. at 640).

     37     Geter  v. Fortenberry, 849 F.2d 1550, 1559 (5th  Cir.

     38     Cf.  id.  at  1560 ([Plaintiffs allegations]  contain
sufficient  facts  that, if proven at trial,  would  defeat  [the
officials] immunity defense.) (emphasis added).

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