106 P.3d 319


No. S-10699.

Supreme Court of Alaska.

Feb. 4, 2005.

*320James Alan Wendt, Law Offices of James Alan Wendt, Anchorage, for Appellants.

Gail T. Voigtlander, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.

Before: EASTAUGH, FABE, and CARPENETI, Justices.


EASTAUGH, Justice.


Grandparents of an orphaned child sued the State of Alaska, claiming that it prevented them from adequately litigating their interests in child-in-need-of-aid (CINA) and adoption proceedings relating to their grandchild. We consider here whether it was error to grant the state's Alaska Civil Rule 12(b)(6) motion to dismiss their claims of negligence, intentional infliction of emotional distress (IIED), and violation of constitutional rights. We affirm the dismissal of their negligence claim, because the state owed them no actionable duty. We also affirm the dismissal of their constitutional claim, because they had alternative litigation remedies available. But because their complaint adequately pleaded an IIED claim, we reverse the Rule 12(b)(6) dismissal of that claim and remand.


The Alaska Division of Family and Youth Services (DFYS) took emergency custody of Johnny and Mary McGrews' infant granddaughter, Luey M.,1 after the sudden deaths of the infant's parents and twin sibling in July 1999. According to the MecGrews, Lucy's father shot and killed Lucy's mother, and then shot and killed himself. Lucy's *321twin sister died when Lucy's mother fell on the infant and smothered her. DFYS filed a petition for an adjudication that Lucy was a child in need of aid under AS 47.10.011. The superior court granted DFYS's petition and placed Lucy with Elsa C., who had been a friend of Lucy's mother and a babysitter for Lucy and her twin sister. In September 1999 the McGrews filed a motion to intervene in the CINA proceedings. In November 1999 Elsa and her husband, Dillon C., also moved to intervene in the CINA proceedings. The superior court granted both intervention motions. After conducting a hearing in February 2000, the superior court released Lucy from DFYS's custody and continued Lucy's pre-adoptive placement with the C. family.

In August 2001 Johnny and Mary McGrew filed a tort complaint against the Alaska Department of Health and Social Services, Division of Family and Youth Services. We refer to the defendants as the "state" or "DFYS." The complaint alleged that Mary McGrew had notified DFYS that she was a licensed foster care provider and that she and her husband, and other family members, were willing to take custody of Lucy. The complaint alleged that DFYS refused to provide the McGrews with any information about their granddaughter's placement, and that any information DFYS provided was "false and misleading."

The complaint alleged that even though DFYS had been advised that the McGrews were interested in obtaining custody of Lucy, DFYS appeared ex parte at Lucy's CINA hearing and failed to inform the court of the McGrews' interest in caring for their granddaughter,. The complaint also alleged that DFYS failed to notify the court that one of the adults with whom Lucy had been placed, Dillon C., had a criminal history. The complaint alleged that in placing Lucy, DFYS failed to abide by applicable statutes, rules, and its own policies and procedures.

The McGrews' complaint asserted three claims. Count I asserted a negligence claim for DFYS's alleged failure to abide by its own policies in placing Lucy. Count II asserted a "Bivens action" 2 for alleged failures to abide by the Alaska Constitution, applicable Alaska Statutes, the Alaska Administrative Code, and DFYS's internal policies. Count III asserted an IIED claim. The complaint sought compensatory damages, pre- and post-judgment interest, costs, and attorney's fees.

The state moved under Alaska Civil Rule 12(b)(6) to dismiss the entire action, arguing that the complaint failed to state legally cognizable claims.

The McGrews opposed the motion to dismiss, arguing that DFYS owed them an actionable duty and that no alternate remedies were available for purposes of the Bivens action. They asked for leave to amend their complaint under Alaska Civil Rule 15(a) if the court found the state's arguments persuasive.

The McGrews also moved in the superior court to supplement the record. The order denying their motion to supplement stated that "the issue of duty raised by the motion [to dismiss] is a legal issue, not a fact based inquiry.... As there is no need to consider factual issues, there is no need to allow [supplementation] of the record."

After hearing oral argument, the superior court granted the state's motion to dismiss the IIED and negligence claims, ruling that the state only owed a duty to the child in need of aid, and did not owe a duty to the child's relatives, such as parents and grandparents. The court also declined to allow a Bivens remedy in this case.

The McGrews moved for reconsideration under Alaska Civil Rule 77(k). The superior court denied this motion and entered final judgment for the state. The McGrews appeal the dismissal of their complaint and the denial of their motion to supplement the record.

The McGrews were also parties to another appeal challenging the superior court's dismissal of their adoption petition and the award of custody of Lucy to Elsa and Dillon *322C.3 In In re Adoption of L.E.K.M., decided after the superior court dismissed the tort claims in the present case, we affirmed the superior court's placement of Lucy with the C. family.4


A. Standard of Review

Alaska Civil Rule 12(b)(6) allows the dismissal of a complaint for "failure to state a claim upon which relief can be granted." We review the superior court's Rule 12(b)(6) dismissal of the MeGrews' complaint de novo,5 deeming all facts in the complaint "true and provable."6 To survive a motion to dismiss, a complaint need only allege "a set of facts consistent with and appropriate to some enforceable cause of action."7 A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of the claims that would entitle the plaintiff to relief.8

B. The Negligence Claim

The McGrews argue that because they were parties in the CINA proceeding, DFYS owed them a duty of care once it made the decision to seek and obtain temporary emergency custody of Lucy. They therefore argue that it was error to dismiss their negligence claim.

In deciding whether a defendant owes a plaintiff a duty of reasonable care, we first determine whether a duty is imposed by statute, regulation, contract, undertaking, the parties' preexisting relationship, or existing case law.9 If these sources do not resolve the issue, we apply the multi-factor approach discussed in D.S.W. v. Fairbanks North Star Borough School District10 to determine whether an actionable duty of care exists.11

The McGrews argue that an actionable duty is imposed by AS 47.14.240, which specifies the responsibilities of the local review boards which review DFYS's placement decisions. It requires a review board to allow the child's relatives to participate.12 But another statute, AS 47.10.960, states that "Inljothing in this title creates a duty or standard of care for services to children and their families being served under AS 47.10." Lucy was a child "being served under AS 47.10." Section .960 therefore precludes the McGrews from contending in a tort suit that AS 47.14.240 can be the basis of an actionable duty.

The McGrews also assert that other statutes are sources of an actionable duty: AS *32347.10.142(a), (e), and (h);13 AS 47.10.020(a);14 AS 47.10.080(l) and (l)(2)(B);15 and AS Any claim based on these statutes is likewise barred by AS 47.10.960.

In Karen L. v. State, Department of Health & Social Services, Division of Family & Youth Services, we considered whether a mother could assert tort claims arising from CINA proceedings addressing placement of a child in DFYS custody.17 The superior court there granted summary judgment to the state, DFYS, state social workers, and the child's guardians ad litem, dismissing all of the mother's claims, including her negligence claims.18 We held that the state and the social workers did not owe the mother an actionable duty of care.19 The mother therefore could not maintain negligence claims against the state or its agencies and employees.

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."20 Karen L. establishes that DFYS does not owe a parent an actionable duty of reasonable care in a CINA proceeding.21 Karen L. therefore precludes the grandparents' negligence claim in this case.

The McGrews attempt to distinguish Karen L. on the theory there was no claim in that case that the state had bad motives. They assert that DFYS here engaged in intentional deceit and "affirmatively misled" them by making false statements about its placement plan for the child. That distinction is potentially pertinent only to the McGrews' claims alleging intentional misconduct. As to the McGrews' negligence claim, Karen L. controls.

The McGrews also argue that their case is distinguishable from Karen L because DFYS failed to comply with the statutory requirements of AS 47.14.240, denying them their right to be "meaningfully heard in a timely fashion." They therefore argue that *324Karen L. does not apply to them because the court there held that there was no statute that imposed an actionable tort duty.

But as we saw above, AS 47.10.960 establishes that DFYS owes the McGrews no actionable duty arising out of any provision in Title 47. Therefore, Karen L. cannot be distinguished on a theory the McGrews were owed a statutory duty not addressed in Karen L..

C. The Bivens-type Claim

A "Bivens claim" is the cause of action sometimes permitted in federal courts for a governmental violation of the plaintiffs constitutional rights.22 We have never decided whether a Bivens-like remedy is available for violations of the Alaska Constitution.23 In Brown v. Ely we noted that "federal courts have not permitted the Bivens remedy if alternative remedies are available." 24 The McGrews' opportunities to participate as in-tervenors in the CINA proceeding and to oppose the adoption decree gave them adequate alternative avenues to challenge the litigation conduct of the governmental agency, DFYS. The alleged misconduct occurred during existing judicial proceedings, during which the McGrews had opportunities to seek prompt judicial relief that might have avoided or remedied any harm they allegedly suffered. The availability of judicial remedies in the very proceedings in which the misconduct allegedly took place distinguishes the McGrews' case from federal cases in which grave governmental misconduct has immediate consequences that cannot be readily avoided or corrected in existing judicial proceedings.25 We see no reason why the McGrews should have an additional means of challenging, through a tort suit, the alleged unconstitutionality of that conduct.

Furthermore, the McGrews' Bivens claims inherently allege misconduct by persons acting for the government. At least in context of this case, the theoretical availability of an IIED claim would be an alternative remedy that obviates any need for a Bivens claim. We therefore do not need to approve a Bivens remedy here.

D. The Intentional Infliction of Emotional Distress Claim

The McGrews contend that Karen L. does not require dismissal of their claim that DFYS engaged in intentional misconduct. They argue that their allegations of intentional wrongdoing and deceit distinguish Karen L.26 The state simply responds that Karen L. bars the "McGrews' claims for negligence and emotional distress."

To plead a claim for IED, a plaintiff must allege these necessary elements: "(1) the conduct is extreme and outrageous, (2) the conduct is intentional or reckless, (8) the conduct causes emotional distress, and (4) the distress is severe."27 The McGrews' complaint alleged that DFYS's conduct was "extreme, outrageous and atrocious"; that its conduct was "intentional and/or reckless"; that its conduct "caused emotional distress" to the McGrews; and that their distress was *325"severe" and that they "suffered personal injury, personal humiliation, mental anguish, pain and suffering." Their complaint therefore adequately pleaded all necessary elements of an IIED claim. U

IED claims require the trial court to make a "threshold determination whether the severity of the emotional distress and the conduct of the offending party warrant a claim." 28 We review this threshold determination for abuse of discretion,29 but there was no threshold determination in this case about whether the state's alleged conduct was sufficiently outrageous or whether the McGrews' alleged emotional distress was sufficiently severe for an IIED claim. Instead, the Rule 12(b)(6) dismissal of the IIED claim seems to have been based on a conclusion that Karen L.'s discussion of duty also controls IIED claims against DFYS. We review that conclusion de novo because it presents an issue of law.30

In Karen L. we considered the "narrow question" whether the state defendants owed Karen "a duty of care to protect her from emotional distress with respect to the CINA proceeding." 31 We have usually discussed the element of "duty of care" in context of negligence claims, not intentional tort claims. For example, in Chizmar v. Mackie, we stated that "a plaintiff's right to recover emotional damages caused by mere negligence should be limited to those cases where the defendant owes the plaintiff a preexisting duty."32 We noted in Hawks v. State, Department of Public Safety that the first step in determining whether a negligence action can be maintained is determining whether the defendant owed the plaintiff a duty of care.33 Our discussion in Karen L. of a duty of care and the D.S.W. factors pertained only to Karen L.'s negligence claims against the state and its agencies and employees.34 That discussion does not control the McGrews' IIED claims here.

We discussed separately in Karen L. the mother's IIED claims against the state defendants. The superior court had dismissed the mother's ITED claims on summary judgment.35 We affirmed, holding that "Karen did not make the necessary threshold showing on the conduct element for an IIED claim, and the record requires the conclusion that the conduct of the social worker defendants was. neither outrageous nor extreme." 36 But the McGrews' IIED claim was dismissed on the pleadings, not summary judgment, and as we noted above, the McGrews' complaint sufficiently pleaded an IIED claim. The superior court here consequently never had to decide whether their case met the thresholds for an IIED claim.

Moreover, we discussed duty in Karen L. and D.S.W. in context of claims in which the existence of an actionable duty of care was legally and factually problematic. The legal determination whether there is an actionable duty of care has little if any conceptual relevance to an IIED claim. The concept of a "duty of care" is usually identified with negli-genee claims,37 and has no obvious bearing on a claim of intentional and outrageous conduct; 'the intentionality of the outrageous conduct needed for an IIED claim presupposes at least some intended relationship between the actor and the person harmed. The D.S.W. factors are typically applied to determine whether there is. an actionable duty of eare when there is no existing or *326intended relationship between the actor and the person harmed.38

We conclude that the D.S.W. multi-factor duty analysis we applied in Karen L. does not apply to intentional tort claims.

Karen L.'s duty discussion therefore does not preclude the McGrews' IIED claim. Because that claim was dismissed on the pleadings under Rule 12(b)(6), there was no opportunity to consider whether plaintiffs' evidence could surmount the thresholds for the severity of any emotional distress and the outrageousness of the actor's conduct.39 We therefore cannot affirm the dismissal of this claim on a possible alternative theory that the McGrews did not or cannot overcome the threshold for an IED claim. We consequently reverse the dismissal of their IIED claim.

E. Other Issues

The parties' briefs do not discuss whether our decision in the adoption case, L.E.K.M., has any effect on the McGrews' tort claims.40 We leave it to the parties to raise on remand any question about what effect LE.K M. may have on the TIED claim, particularly with respect to the issues of liability, causation, and damages.

Our rulings on the negligence and IIED claims and the Bivens-type remedy make it unnecessary to consider the McGrews' argument that the superior court erred when it denied their motion to supplement the record. Their negligence claim and Bivens action are precluded as a matter of law and were therefore properly dismissed on the pleadings. No factual disputes, however genuine, would be material to those claims. And because we reverse the dismissal of the IIED claim, the McGrews are free on remand to offer evidence relevant to that claim.

The McGrews assert that the state is not immune from suit under the Alaska Tort Claims Act, AS 09.50.250. The state does not address the issue of statutory immunity. As to the negligence claim and the Bivens-remedy claim, po discussion of immunity is needed here. And because the parties have altogether failed to explain what effect AS 09.50.250, particularly subsection .250(8), might have on the IIED claim, we decline to consider whether the state is immune from the IIED claim pleaded here.41


We AFFIRM the dismissal of the McGrews' negligence and constitutional violation claims. We REVERSE the dismissal of their IIED claim and REMAND for further proceedings.

BRYNER, Chief Justice, and MATTHEWS, Justice, not participating.

McGrew v. State, Department of Health & Social Services, Division of Family & Youth Services
106 P.3d 319

Case Details

McGrew v. State, Department of Health & Social Services, Division of Family & Youth Services
Decision Date
Feb 4, 2005

106 P.3d 319




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