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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Tracy v. State, Dept. of Health & Social Services, Office of Children's Services (6/29/2012) sp-6686

Tracy v. State, Dept. of Health & Social Services, Office of Children's Services (6/29/2012) sp-6686

        Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

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RICHARD J. TRACY and                            ) 

DURENA K. TRACY,                                )       Supreme Court No. S-13904 


                Appellants,                     )       Superior Court No. 3AN-09-10436 CI 


        v.                                      )       O P I N I O N 


STATE OF ALASKA,                                )       No. 6686 - June 29, 2012 

DEPARTMENT OF HEALTH &                          ) 

SOCIAL SERVICES, OFFICE OF                      ) 

CHILDREN SERVICES,                              ) 


                Appellee.                       ) 




                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Peter A. Michalski, Judge. 

                Appearances:  Richard J. Tracy and Durena K. Tracy, pro se, 

                Wasilla, Appellants.       Laura C. Bottger, Assistant Attorney 

                General, Anchorage, and John J. Burns, Attorney General, 

                Juneau, for Appellee. 

                Before:      Carpeneti,     Chief    Justice,   Fabe,    Winfree,    and 

                Stowers, Justices.     [Christen, Justice, not participating.] 

                STOWERS, Justice. 

----------------------- Page 2-----------------------


                Richard and Durena Tracy appeal the superior court's dismissal of their 

state   law   negligence   and   federal   constitutional   claims   against   the   State   of   Alaska, 

Department of Health and Social Services, Office of Children's Services (OCS).                 This 

case    arises  out   of  Child   in  Need    of  Aid   (CINA)    proceedings     to  protect   their 

granddaughter, Annie.1      The Tracys also appeal the superior court's denial of summary 

judgment in their favor and its award of attorney's fees against them.             We affirm the 

superior court's dismissal of the case but vacate the award of attorney's fees. 


        A.      Facts 

                Richard and Durena Tracy (the Tracys) are the biological grandparents of 

the minor child Annie.      The Tracys are now also her adoptive parents, having adopted 

Annie some time after the events that gave rise to this action.          Prior to the initiation of 

the CINA   proceedings in this case, the Tracys were Annie's legal guardians.                 They 

received physical custody of Annie in June 2004 when Annie was approximately two 

years old. 

                In September 2007 Annie, then five years old, was living with the Tracys. 

OCS removed Annie from the home on September 19, 2007, responding to a report made 

earlier that day by Annie's kindergarten teacher who suspected, inaccurately, that Annie 

had been sexually abused by Richard.2        Annie was interviewed by OCS, the Alaska State 

Troopers   (AST),   and   the   Wasilla   Police   Department   (WPD).      Neither   Richard   nor 

Durena was allowed to be present for the interview, which was videotaped. 

        1       We use a pseudonym to protect Annie's privacy. 

        2       It was later determined that those allegations were mistaken and Richard 

Tracy was cleared of any wrongdoing. 

                                                -2-                                             6686 

----------------------- Page 3-----------------------

               After the interview, AST and WPD officers told Richard that he would have 

to leave his home until a complete investigation was conducted.  The officers informed 

Richard that, should he choose to remain at home, Annie would be placed in foster care. 

Richard left for a week but wanted to return home so that Durena could work outside the 

home.    Richard submitted to a polygraph test on September 25, 2007, hoping that it 

would clear him of any allegations of abuse, but the polygraph examiner determined 

Richard had not passed.3      The next day, on September 26, 2007, OCS took physical 

custody of Annie. 

               Over the next eight months, OCS continued its investigation into the alleged 

abuse of Annie.     Durena was allowed supervised visits with Annie, but Richard was 

allowed no visitation.    On April 15, 2008, clinical psychologist Dr. Michael C. Rose 

performed a psychological sex offender risk assessment on Richard.   Dr. Rose found no 

credible or conclusive evidence that Richard had sexually abused Annie and concluded 

that Richard presented no risk of sexual abuse.   Dr. Rose offered his opinion that OCS's 

investigation    of  the  case  was  an  "abuse   of  discretion  and   overzealous    pursuit   of 

confirmatory bias."     He recommended immediate reunification of Annie with Richard 

and "that OCS adopt a more conciliatory and supportive posture toward unification of 

[Annie] and Mr. and Mrs. Tracy." 

               Even after OCS received Dr. Rose's report, OCS did not promptly facilitate 

reunification    of  Annie   and  the  Tracys.    Before   Annie    was  returned   home,   OCS 

conducted additional criminal background checks on Durena and Richard, conducted a 

home search, and requested a second "home study" by Catholic Social Services which 

       3       The record suggests there were obvious problems with the polygraph test 

indicating the test results were not valid. 

                                               -3-                                           6686 

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included additional interviews. Richard and Durena Tracy were eventually reunited with 

Annie in June of 2008 and later adopted her. 

        B.      Procedural History 

                The Tracys, acting pro se, filed a complaint for damages against OCS on 

September   24,   2009.     The   complaint   sought   reimbursement   for   attorney's   fees   they 

incurred during the CINA proceedings, damages for time lost from work relating to the 

CINA      proceedings,     and   other   expenses.     The    complaint     listed  thirteen   "[p]arties 

involved," including the Tracys, four OCS workers, two Alaska State Troopers, one 

Wasilla Police Department officer, Annie's kindergarten teacher, Dr. Rose, Superior 

Court Judge Peter Michalski, and an individual from an organization that may have 

interviewed   Annie.       The   caption   of   the   complaint   listed   only   the   State   of   Alaska, 

Department of Social Services, OCS as the defendant.                The Tracys sent the complaint 

and summons to the Attorney General in Juneau, the Civil Division of the Department 

of   Law   in   Anchorage,   and   to   OCS   in   Anchorage.     None   of   the   individual   "parties 

involved" listed in the body of the complaint were named as defendants in the caption 

or served with the complaint and summons. 

                OCS   responded   to   the   complaint   by   filing   a   motion   to   dismiss.  OCS 

contended that the Tracys' state law tort claims (negligence, perjury, and disregard of 

facts resulting in emotional distress) were subject to statutory immunity, and the Tracys' 

federal   constitutional   claim   was   not   viable   because   the   State   cannot   be   sued   under 

42 U.S.C.  1983.  In response to OCS's Motion to Dismiss, the Tracys filed a "Request 

for Summary Judgment."            In their request for summary judgment, the Tracys alleged 

claims of negligence, perjury, falsifying reports, denial of due process and constitutional 

rights,    and   denial   of   visitation.   The     Tracys    specified    they   were    not   seeking 

compensation under the perjury and falsifying reports claims, but rather saw these claims 

as part of the State's denial of due process.            The Tracys requested compensation for 

                                                   -4-                                             6686

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OCS's negligence and denial of rights in OCS's dealings with the Tracys as Annie's 

foster parents.  The Tracys clarified that they were "not . . . seeking compensation from 

non-OCS employees," but they argued that OCS employees could be subject to civil 

action as officials of the State. 

               In its opposition to the "Request for Summary Judgment," OCS interpreted 

the Tracys' claim of constitutional violations as a claim under 42 U.S.C.  1983.  The 

State argued that because OCS, the only named defendant, was not a "person" under 

 1983, the Tracys'  1983 claim must be dismissed.   OCS further asserted that Alaska 

law did not provide recovery for claims of state law negligence or due process violations. 

Finally, OCS argued that it owed no legal duty of care toward parents and grandparents. 

Implicit in OCS's argument is the contention that OCS owed no duty to the Tracys in 

their capacity as foster parents either. 

               At   oral  argument,   Richard   Tracy  spoke   for  the  appellants.  Richard 

conceded that the Tracys' objections were to OCS's policies rather than the acts of 

individual OCS employees.  He argued that the Tracys' role as foster parents should be 

sufficient to establish a duty from OCS to protect the Tracys' rights. Richard also argued 

that the State could be sued for constitutional claims, but did not provide support for his 


               After explaining that he would take the matter under advisement, Superior 

Court Judge Peter Michalski told the Tracys that "the law [was] very difficult" for them 

in terms of the issues presented and that they had endured a "terribly upsetting" situation. 

The court also remarked that Richard was a good person, father, and grandfather, but that 

the law does not provide a legal remedy for all wrongs. 

               The court subsequently issued a written order granting OCS's motion to 

dismiss.  The court dismissed the Tracys' negligence claim because it found the State 

owed no actionable duty of care to grandparents or foster parents in a CINA proceeding. 

                                              -5-                                        6686

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The court dismissed the perjury and false reporting claims on immunity grounds.  The 

court   dismissed   the      1983   constitutional   claims   because   the   State   is   not   a   proper 

defendant in a  1983 action and the Tracys named no other defendants. 

                 OCS moved for an award of attorney's fees pursuant to Civil Rule 82, and 

the   court   entered   final   judgement   and   an   award   of   20%   of   the   State's   attorney   and 

paralegal fees in the amount of $7,897.94. 

                 The Tracys appeal.4 


                 A decision to grant a motion to dismiss a complaint under Alaska Civil Rule 

12(b)(6)   for   failure   to   state   a   claim   upon   which   relief   may   be   granted   is   reviewed 

de   novo.5    We   deem   all   facts   alleged   in   the   complaint   "true   and   provable"   when 

reviewing a motion to dismiss.6 

        4        On appeal to this court, the Tracys nominally raised several new issues. 

The Tracys included the Alaska Constitution in their "Authorities Principally Relied 

Upon" and briefly argued in their reply brief that denial of civil rights is a violation of 

the State constitution.  The Tracys also included a breach of contract claim, arguing that 

the existence of their foster care agreement with the State created a duty of care owed to 

the Tracys by the State. The Tracys also raised a procedural claim and a claim of judicial 

misconduct.       Because all of these claims were raised for the first time on appeal, we 

decline to address them.         See Parks v. Parks, 214 P.3d 295, 300 n.12 (Alaska 2009) 

("We do not consider claims raised for the first time on appeal, absent plain error."); 

Matter   of   H.C. ,   956   P.2d   477,   480   n.7   (Alaska   1998)   (citing Kodiak   Elec. Ass'n   v. 

DeLaval Turbine, Inc. , 694 P.2d 150, 153 n.4 (Alaska 1984) (holding that "even though 

the    issue  was    included    in  appellant's    points   on   appeal    statement,    the  issue   was 

abandoned because appellant failed to adequately brief it")). 

        5       McGrew v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth 

Servs., 106 P.3d 319, 322 (Alaska 2005). 

        6        Id. 

                                                    -6-                                              6686

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                We   review   an   award   of   attorney's   fees   under   an   abuse   of   discretion 

standard.7    We will find an abuse of discretion upon "a showing that the award was 

arbitrary, capricious, manifestly unreasonable, or stemmed from improper motive."8 


        A.	     The Superior Court Did Not Err In Dismissing The Tracys' Negligence 

                Claims Against OCS. 

                The Tracys argue that the superior court erred in determining that the State 

owed them no duty of care.         They contend they were owed a duty as foster parents and 

prospective adoptive parents, and that OCS violated certain provisions of Title 47 of the 

Alaska Statutes, giving rise to liability.  However, they do not present persuasive legal 

authority for these statements.  The Tracys cite to AS 47.17.033(i), which requires OCS 

employees to undergo training that addresses "the constitutional and statutory rights of 

children and families that apply throughout the investigation and . . . the applicable legal 

duties to protect the rights and safety of a child and the child's family."9          The Tracys do 

not address AS 47.10.960(a), which states, "Failure to comply with a provision of this 

title does not constitute a basis for civil liability for damages," nor do they address its 

application as a bar to civil suits for alleged violations of Title 47. 

                Alaska case law establishes that there exists no actionable duty on the part 

of OCS towards grandparents, legal guardians, foster parents, or prospective adoptive 

parents under the circumstances of this case.  In Karen L. v. State, Department of Health 

        7       Ware v. Ware, 161 P.3d 1188, 1192 (Alaska 2007). 

        8       Id . (internal citation omitted). 

        9       AS 47.17.033(I). 

                                                  -7-                                              6686 

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and Social Services, Division of Family and Youth Services,10 for example, we held that 

although     the   emotional    harm    resulting   from    improper     CINA     proceedings     was 

foreseeable, "allowing aggrieved parents to sue the State for actions or inactions during 

the course of a CINA investigation or proceeding would greatly burden society's already 

scarce social worker resources. Social workers should be helping children in need of aid. 

They should not be spending their time in burdensome collateral litigation."11                  This 

holding was reiterated in McGrew v. State, Department of Health and Social Services, 

Division of Family and Youth Services ,12 where we explained that "the [S]tate and the 

social workers did not owe the mother an actionable duty of care."13 

                Here, the superior court correctly concluded that the State did not owe a 

duty of care based on the Tracys' status as grandparents or foster parents.  Furthermore, 

AS 41.10.960(a) expressly provides that OCS's failure to comply with Title 47 does not 

constitute a basis for civil damages. 

        B.      The Court Did Not Err In Dismissing The Tracys'  1983 Claim. 

                As explained above, the Tracys filed a complaint for damages against OCS 

and the caption listed only OCS as the defendant.             Among other claims, the Tracys 

alleged a denial of their due process rights and an infringement of their civil rights by the 

        10      953 P.2d 871 (Alaska 1998). 

        11      Id . at 877 (internal citations omitted). 

        12      106 P.3d 319 (Alaska 2005). 

        13      Id . at 323 ("We recognize here, as we did in Karen L. , that 'it is to be 

expected that any litigation, and certainly a CINA proceeding in which the child is taken 

from its [relatives] . . . will cause the [relatives] some distress.   That does not mean that 

the distress should be actionable.' Karen L. establishes that DFYS does not owe a parent 

an   actionable   duty   of   reasonable   care   in   a   CINA   proceeding. Karen   L.   therefore 

precludes the grandparents' negligence claim in this case." (quoting Karen L. , 953 P.2d 

at 876) (alteration in original)). 

                                                 -8-                                           6686

----------------------- Page 9-----------------------

State.  Both OCS and the superior court interpreted the Tracys' constitutional claims as 

a claim under 42 U.S.C.  1983.   The superior court dismissed the  1983 claim because 

OCS is not a "person," and therefore not a proper defendant under  1983.   In doing so, 

the court did not advise the Tracys what steps they might have taken to amend their 

complaint to name a proper defendant. We asked for supplemental briefing on this issue 

to   evaluate    whether    the   superior   court   abused    its  discretion   in  not   giving   further 

assistance to the Tracys, who are pro se litigants.           We conclude the court did not abuse 

its discretion.14 

                 The United States Supreme Court has held that the state and state officers 

acting in their official capacity are not persons under  1983, and therefore cannot be 

sued for damages under  1983.15              In the body of their complaint, the Tracys listed 

several individuals as "[p]arties involved" but ultimately sued only one party - OCS. 

Therefore, the superior court correctly dismissed the Tracys'  1983 claim against OCS. 

However, even if the individuals listed as "parties involved" had been named defendants, 

the Tracys evidently intended to name them in their official, not individual, capacities.16 

         14      It is well-established that "pleadings of pro se litigants should be held to 

less stringent standards than those of lawyers," and that "the trial judge should inform 

a pro se litigant of the proper procedure for the action he or she is obviously attempting 

to   accomplish."      Breck   v.   Ulmer ,   745   P.2d   66,   75   (Alaska   1987)   (italics   omitted). 

However, requiring a judge "to instruct a pro se litigant as to each step in litigating a 

claim would compromise the court's impartiality in deciding the case by forcing the 

judge to act as an advocate for one side."             Bauman v. State, Div. of Family & Youth 

Servs., 768 P.2d 1097, 1099 (Alaska 1989). 

         15      Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). 

         16      In their appeal brief, the Tracys explain, "This case concerns actions by 

officials   and   employees   of   the   State   of   Alaska   that   violate   the   .   .   .   United   States 

Constitution. This Court has jurisdiction to review whether a systemic atmosphere exists 


                                                    -9-                                              6686

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Had the Tracys amended their complaint to sue the listed individuals in their official 

capacities, the complaint still would have been properly dismissed.  Because individuals 

acting in their official capacity are immune from suit under  1983, the Tracys would not 

have been helped by amending their pleading.17              The superior court did not abuse its 

discretion in not advising the Tracys that they might amend their complaint, nor did it 

err by dismissing the Tracys'  1983 claim. 

        C.      It Was Error To Award Attorney's Fees To The State. 

                The Tracys also challenge the superior court's award of attorney's fees. 

While this argument is not fully   developed, we consider it because the Tracys have 

proceeded pro se, and because it appears that it was plain error for the court not to have 

applied AS 09.60.010(c)(2)18 and case law interpreting 42 U.S.C.  1988's attorney's fee 


within the Office of Children's Services that condones violations of constitutional rights. 

. . ."  The Tracys argue that "[s]ince individuals (in their [respective] official capacities) 

who   are   sued   under   1983   Civil   Rights   violations   are   represented   by   the   Attorney 

General's office and given immunity from cases of misrepresentation, slander, perjury, 

or negligence, this technicality should not be used by the state to dismiss this case." 

Finally, Richard explained at oral argument that, although he would have liked to, he 

knew that he could not sue OCS employees in their individual capacity without showing 

malice on their part, so he instead sued OCS (the State) based on its policies.                 These 

statements, though not entirely clear, indicate that the Tracys understood the difference 

between suing State employees in their official versus individual capacities, and that the 

Tracys determined to name only OCS as defendants. 

        17      Will, 491 U.S. at 71. 

        18      Alaska     Statute   09.60.010(c)(2)      reads:   "In   a  civil  action   or  appeal 

concerning the establishment, protection, or enforcement of a right under the United 

States Constitution or the Constitution of the State of Alaska, the court . . . may not order 

a claimant to pay the attorney fees of the opposing party devoted to claims concerning 

constitutional rights if the claimant as plaintiff, counter claimant, cross claimant, or third- 


                                                 -10-                                            6686

----------------------- Page 11-----------------------

provision19, at least with respect to the Tracys'  1983 claim.  For example, in DeNardo 

v. Johnstone , the United States District Court for the District of Alaska described the care 

a court should exercise in determining whether to award fees against an unsuccessful 

 1983 pro se litigant: 

                 Nevertheless, before awarding fees to a defendant, the court 

                 should be able to find that the plaintiff, if he appears pro se, 

                 knew or should have known that his case was without merit. 

                 It is not enough that the court is able to summarily dispose of 

                 the case without trial. Bearing in mind[] Congress's desire to 

                 encourage those whose rights have been infringed[] to pursue 

                 those    rights    in  the   courts,   a   district   court   should     be 

                 particularly hesitant to award fees against an unrepresented 

                 plaintiff.  In such a case, the court must consider the pro se 

                 plaintiff's ability to recognize the merits or demerits of his or 

                 her case.  In practice, the court should refrain from awarding 

                 fees   against    a  pro   se  plaintiff   unless   it  can  find   that  a 

                 reasonable lay person, having knowledge of the facts known 

                 to the plaintiff, would have recognized that his or her claim 

                 was without merit.  Such a finding is most appropriate where 

                 the court finds that the plaintiff is proceeding in bad faith or 

                 for an improper motive.[20] 


party plaintiff in the action or appeal did not prevail in asserting the right, the action or 

appeal asserting the right was not frivolous, and the claimant did not have sufficient 

economic incentive to bring the action or appeal regardless of the constitutional claims 


        19       42   U.S.C.      1988(b)   (2006)   provides:   "In   any   action   or   proceeding   to 

enforce a provision of section[] . . . 1983 . . . the court, in its discretion, may allow the 

prevailing party, other than the United States, a reasonable attorney's fee as part of the 

costs . . . ." 

        20       772 F. Supp. 462, 465-66 (D. Alaska 1991) (internal citations and italics 


                                                    -11-                                              6686

----------------------- Page 12-----------------------

Alaska Statute 09.60.010(c)(2) is of similar effect: the superior court "may not order a 

[non-prevailing] claimant to pay the attorney['s] fees of the opposing party devoted to 

claims concerning constitutional rights" where the claim is not frivolous. 

                On the record before us, it is clear that the Tracys were not proceeding in 

bad faith or for any improper motive.           Even OCS's retained psychologist, Dr. Michael 

Rose, explained that in his opinion, OCS's investigation of the allegations of abuse was 

an "abuse of discretion and overzealous pursuit of confirmatory bias."                   The superior 

court also acknowledged that the Tracys had endured a "terribly upsetting" situation. 

                A major part of the Tracys' claims against OCS involved their claims that 

OCS violated their constitutional or civil rights. Though they were unsuccessful on these 

constitutional claims, there is nothing in the record before us to suggest that their claims 

were asserted in bad faith or for any improper motive.              The superior court should not 

have     awarded     attorney's    fees  against    the  Tracys    at  least   with   respect   to  their 

constitutional claims.      We therefore vacate the attorney's fees award and remand.  On 

remand, if the State elects to seek Rule 82 attorney's fees for the non-constitutional and 

non-civil   rights   claims,   the   superior   court   may   consider   Rule   82(b)(3)21    factors   to 

determine whether there are grounds to vary any attorney's fees award. 


                We   AFFIRM   the   superior   court's   dismissal   of   the   Tracys'   negligence, 

constitutional,     and   other  claims.   We    VACATE        the  award    of  attorney's   fees,   and 

REMAND for further proceedings. 

        21      "The court may vary an attorney's fee award calculated under subparagraph 

(b)(1)   or   (2)   of   this   rule   if,   upon   consideration   of   the   factors   listed   .   .   .   the   court 

determines a variation is warranted. . . ." 

                                                  -12-                                               6686 

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