Deegan Ex Rel. Deegan v. Jefferson County

525 N.W.2d 149, 188 Wis. 2d 544, 1994 Wisc. App. LEXIS 1328

• Court: Court of Appeals of Wisconsin
• Decided: October 27, 1994
• Docket: 93-3408
• Status: Published

Opinions

EICH, C.J.

After prevailing in a proceeding instituted by the Jefferson County Department of Human Services to terminate her parental rights to her son, J.T., Barbara Deegan sued the County and two of the social workers assigned to her case for damages, claiming that the workers had "intentionally, willfully and maliciously" engaged in a conspiracy to separate her from her child and failed to perform their duties under ch. 48, Stats., to assist her in keeping and caring for the child.¹

The trial court granted the defendants' motion to dismiss and for summary judgment, concluding that Deegan had failed to state a claim for money damages, either at common law for interfering with her right to "family unity" or under the statutes prescribing the duties of the County and its employees in providing social services to those in need of them. Alternatively, the court held that, even if such a "family unity" cause of action existed, and even if Deegan had stated a statutory claim, the social workers would be entitled to dismissal because they were immune from liability for their discretionary acts and, further, that Deegan's general allegations of malice were insufficient to pierce that immunity.

The issues Deegan raises on appeal are: (1) whether Wisconsin law recognizes a cause of action for damages for a governmental employee's intentional, willful and malicious interference with the right to "family unity"; and, if so, (2) whether there are disputed factual issues regarding Deegan's allegations of intent and malice that would render summary judgment inappropriate on the question of the defendants' immunity. Deegan has not persuaded us that the cause of action she asserts is recognized in the law of Wisconsin, but even if she were to prevail on that argument, she has failed to raise a disputed factual issue on her claim of malice. We therefore affirm the order.

The underlying facts are not in dispute. J.T. was bom in April 1989 when Deegan was seventeen years old and living in a foster home in Jefferson County. A few months later, Deegan ran away from the home with her boyfriend, taking J.T. with her, and was later arrested in Tennessee on charges of petty larceny. In November 1989, the court entered an order under § 48.13(4), Stats., finding — on Deegan's own petition — that J.T. was in need of protection and services because Deegan was unable to provide for his necessary care.² The petition noted that Deegan, after being evicted from her apartment, had disappeared for nearly one month in late 1989, leaving J.T. with her mother. Since Deegan's mother had recently terminated her parental rights to her own daughter (Deegan's sister), County social workers considered her an inappropriate caretaker for the child and believed that Deegan's act placed the child at "risk."

The court's order finding J.T. in need of protection or services mandated that Deegan participate in parental counseling. The order also directed the department to provide a "parent aide" and "respite" at a designated foster home.

On February 10, 1990, Deegan again disappeared after dropping off J.T. at her mother's home and leaving him in the care of a twelve-year-old child, with a note saying she would be back in three days. When she did not return as promised, her mother delivered J.T. to the department and "emergency" proceedings were instituted to place J.T. in a foster Home. On February 19 Deegan learned that J.T. had been placed in foster care, but did not contact the department. In succeeding days and weeks the department attempted to contact Deegan without success and, on March 6, 1990, the assigned caseworker, Kathie Gerber, petitioned the court for revision of the November order to transfer J.T.'s legal custody to the department and to set conditions for his return to Deegan. Gerber continued to attempt to contact Deegan and finally, on March 26, Deegan called the department and informed Gerber that she was living in Neenah.

The department notified Deegan of the hearing on its petition and she appeared without counsel. Finding that the department had "made reasonable efforts to keep [J.T.] in the home or with relatives" and that the grounds stated in the petition warranted a change in the earlier order, the court directed that J.T.'s custody be transferred to the department and that he remain in foster care. The order imposed several conditions for J.T.'s return to Deegan, including, among other things, that Deegan undergo a psychological evaluation, participate in individual or group therapy, attend parenting classes and demonstrate "adequate knowledge of the nutritional and health needs of J.T." The court warned Deegan of the potential termination of her parental rights to J.T. should she fail to meet the conditions stated in the order.

The department scheduled a "foster care review" for J.T. on May 4,1990, and mailed a notice to Deegan's Neenah address. She did not attend. Then, on May 7, Deegan informed Gerber that she had joined a carnival and would be leaving Neenah. Gerber recommended that she find other employment and advised her that joining a carnival would not aid her in getting J.T. back. From February 19, when Deegan learned of J.T.'s foster placement, to May 7, she visited him á total of six times.³

. Between May 7 and the end of September 1990, Gerber continued to try — again unsuccessfully — to contact Deegan through her mother and through the carnival for which she was working. During that time J.T. was transferred to a new foster home because the original foster parent had become ill and was unable to care for him. Notice of the change was sent to Deegan's Neenah address.

On October 17, 1990, Deegan called the department and, several days later, came to see Keren Pomp, who by that time had succeeded Gerber as Deegan's caseworker. Pomp warned Deegan of the potential termination of her parental rights if she did not immediately resume visitation with J.T.⁴ A few days later, Pomp petitioned the court to extend the disposi-tional order on grounds that Deegan had not complied with its terms and had not contacted J.T. for more than five and one-half months. That same day Deegan called to schedule a visit with J.T. for November 6,1990, one day before Deegan's parental rights could have been terminated on grounds of abandonment. See § 48.415(l)(a)2, Stats. After the visit, Deegan told Pomp that she was depressed, broke and unable to find work because she was pregnant.

Deegan appeared, with counsel, at the hearing on the department's petition to revise the order. She objected to several "return conditions" in the proposed order and the court removed them. The other conditions for J.T.'s return remained essentially the same as those in the prior order. The revised order, issued on December 7, 1990, also included written warnings to Deegan that failure to meet the conditions could result in termination of her parental rights.

Deegan's visits with J.T. in November and December "did not go very well," and by March 1991 a psychiatrist-observer recommended that the biweekly visits cease because they were harmful to J.T. Pomp then petitioned the court to revise the order yet again, this time to discontinue visitations until the caseworker and a psychiatrist deemed it appropriate for them to resume. She withdrew the motion when Deegan, through counsel, moved to terminate the order or, in the alternative, to revise it to establish a "permanency plan" designed to reunite Deegan and J.T. within two months.

The court granted Deegan's request, ordering preparation of a "needs assessment" and establishing a schedule of semiweekly one-hour visits between Dee-gan and J.T., with the ultimate objective of reuniting them. All other provisions of the previous order remained in effect. The revised order, to which all parties agreed, was to terminate on May 27,1991, the date on which J.T. was to be returned to Deegan.

During April 1991, Deegan adhered to the visitation schedule, entered counseling and received parenting instruction from the aide appointed by the department. In mid-month, Pomp petitioned the court to extend the order on grounds that Deegan had not yet met the conditions for J.T.'s return. Deegan continued the visitations and parental counseling and sought dismissal of the department's petition.

The court granted Deegan's request and ordered J.T. returned to her at the expiration date of the existing order, concluding that the department had "failed to make reasonable efforts to make it possible for [J.T.] to return to his home with [Deegan]" in the following respects:

(1) failing to address Deegan's transportation, income, housing and daycare needs in its "needs assessment";

(2) failing to develop a "permanency plan";

(3) failing to "set out achievable dates by which the objectives of the permanency plan shall be achieved"; and

(4) making visitations "difficult" for Deegan by scheduling them in Fort Atkinson and Janesville, rather than at Deegan's home, which was then in Watertown.

J.T. was returned to Deegan on May 27,1991. On August 19, 1991, Deegan filed a notice of claim with Jefferson County alleging that the department had engaged in a plan to keep J.T. away from her and to terminate her parental rights. She asked for $468,000 in damages and filed this lawsuit shortly thereafter. Other facts will be discussed in the body of the opinion.

The trial court ruled that Deegan's claim for damages for the caseworkers' alleged violation of their statutory duties does not exist at law and, alternatively, concluded that because the affidavits filed by Deegan in opposition to the defendants' motion for summary judgment dismissing the action were "con-clusory" in nature and thus failed to state a prima facie case that the defendants had acted maliciously, Dee-gan had failed to overcome the immunity enjoyed by public officers and employees for acts undertaken in the course of their employment.⁵

I. Sufficiency of Deegan's Amended Complaint

We first consider Deegan's argument that her complaint states a claim cognizable at law. Her amended complaint contains 136 "factual allegations" which, for the most part, assert various perceived shortcomings in the services provided to her by Gerber and Pomp.⁶ The most serious of the allegations — those considered by the trial court to be relevant in some way to Dee-gan's generalized claim of "malice" — are that Gerber and Pomp, either together or individually:

31. [Deliberately failed to include services [in the treatment plan] which would improve the conditions of [Deegan's] home to facilitate [J.T.'s] return

33. [P] lanned to work toward J.T. 's adoption [by a relative] ....

47. [IJnduced [Deegan] to sign an authorization to release information to the relative . . . who wanted to ... adopt J.T.

68. [N]ever developed, in any plan, a goal or objective of permanent placement [of J.T.] with [Deegan].

71. [Attempted to facilitate the transfer [] of J.T.'s affection from [Deegan] and her family to the [relative] with the goal of [terminating Deegan's parental rights] and adoption.

81. [Were predisposed] to cut [Deegan] off from visiting J.T., and told the potentially adoptifve] foster parent that.

102. [S]cheduled visits [with J.T.] far from [Dee-gan's] home and during J.T.'s nap time (which worsened his mood)....

133. [R]efused to comply with [the court] order and help [Deegan] with the return....

The complaint then sets forth two causes of action based on those allegations: (1) denial of Deegan's and J.T.'s "common law right to family unity"; and (2) injury by "intentionally, willfully and maliciously ignoring and failing to perform" the duties imposed on the department and its employees by ch. 48, Stats.⁷

Deegan's argument that she has stated a cognizable claim is based in large part on the supreme court's decision in Barstad v. Frazier, 118 Wis. 2d 549, 348 N.W.2d 479 (1984). Barstad involved a custody dispute between a parent and a grandparent, and the sole issue was "the standard to be applied in a custody dispute between a parent and a third party." Id. at 551, 348 N.W.2d at 481. In the course of its decision (which reversed the trial court's award of custody to the grandmother), the court stated:

Under ordinary circumstances, a natural parent has a protected right under both state law and the United States Constitution to rear his or her children free from governmental intervention. Absent compelling reasons narrowly defined, it is not within the power of the court to displace a fit and able parent simply because in the court's view someone else could do a "better job" of "parenting."

Id. at 567-68, 348 N.W.2d at 488-89.

As the defendants point out, however, Barstad arose under the custody provisions pf the family code, ch. 767, Stats., when the grandmother commenced an action to have the child's custody transferred from the mother to her. The supreme court, concluding that "the rule to be followed in custody disputes between parents and third parties is that a parent is entitled to custody ... unless the parent is either unfit or unable to care for the children or there are [other] compelling reasons for awarding custody to a third party," found no such reasons present and confirmed custody in the parent. Barstad, 118 Wis. 2d at 568-70, 348 N.W.2d at 489-90. Because Barstad arose under a different chapter of the statutes, with different principles and considerations at stake, and because the Barstad court itself recognized that "what are called parental 'rights' are both rights and responsibilities, and . . . neglect of one's responsibilities can result in a forfeiture of one's rights," id. at 568, 348 N.W.2d at 489, we do not consider the case as persuasive authority for recognizing Deegan's claimed cause of action.

Deegan next argues that we should recognize her claim under article I, section 9, of the Wisconsin Constitution, which provides, in part, that "[e]very person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character ...." As Deegan points out, the supreme court has interpreted this provision to provide that " '[w]hen an adequate remedy or forum does not exist to resolve disputes or provide due process, the courts ... can fashion an adequate remedy.' " Collins v. Eli Lilly Co., 116 Wis. 2d 166, 182, 342 N.W.2d 37, 45 (quoting In re D.H., 76 Wis. 2d 286, 294, 251 N.W.2d 196, 201 (1977), cert. denied, 469 U.S. 826 (1984)). Article I, section 9, however, confers no legal right to sue.

"That section [the certain remedy clause], though of great importance in our jurisprudence, is primarily addressed to the right of persons to have access to the courts and to obtain justice on the basis of the law as it in fact exists. No legal rights are conferred by this portion of the Constitution."

Oliver v. Travelers Ins. Co., 103 Wis. 2d 644, 650, 309 N.W.2d 383, 386 (Ct. App. 1981) (emphasis added) (quoting Mulder v. Acme-Cleveland Corp., 95 Wis. 2d 173, 189-90, 290 N.W.2d 276, 284 (1980)).

Deegan alleges in her complaint that Gerber and Pomp intentionally failed to carry out the responsibilities assigned to the department under various provisions of ch. 48, Stats., and by the court's disposi-tional order. As the supreme court stated in McNeill v. Jacobson, 55 Wis. 2d 254, 259, 198 N.W.2d 611, 614 (1972), a statute that does not itself create a civil liability, "but merely makes provision to secure the . . . welfare of the public ... is not subject to a construction establishing a civil liability." We followed that rule in Leahy v. Kenosha Memorial Hosp., 118 Wis. 2d 441, 449-50, 348 N.W.2d 607, 612 (Ct. App. 1984), and we see nothing in the statutes Deegan cites that would give rise to the cause of action she asserts. The court of appeals is primarily an error-correcting court, and if, as Deegan suggests, there are policy reasons for recognizing such a claim, her arguments are best directed to the state's highest court, wherein the law-declaring function primarily resides.

In any event, we agree with the trial court that even if such a cause of action were to be recognized, Deegan's claim would fail because the defendants are entitled to claim immunity from suit for actions undertaken in the course of their employment as public employees.

II. Immunity

Deegan's initial complaint in this action alleged that Gerber and Pomp (and the department), in violation of her and J.T.'s federal civil rights and their rights under state law, intentionally planned to terminate her parental rights to J.T. without reasonable cause. As indicated, the case was removed to federal district court and the defendants moved to dismiss for failure to state a claim, or in the alternative, for summary judgment. The district court granted the motion, concluding that the defendants did not violate Deegan's civil rights and, further, even if they had, they were entitled to qualified immunity because they did not violate "a clearly established right of which a reasonable person would have known." The court remanded the remaining state claims to the circuit court for Jefferson County.

The defendants filed motions to dismiss and for summary judgment, claiming first that the cause of action Deegan attempted to state in the complaint did not exist, and second, that they were immune from liability for their actions. Deegan, in an apparent attempt to overcome the immunity defense, then amended her complaint to add allegations that the defendants' actions were undertaken "intentionally, willfully and maliciously." As we have noted above, public officers and employees enjoy immunity from suit for discretionary actions undertaken in the scope of their public employment. Sheridan v. City of Janesville, 164 Wis. 2d 420, 425, 474 N.W.2d 799, 801 (Ct. App. 1991). As we also have indicated — and as Deegan acknowledges in her brief — the "[defendants are immune from liability for damages in this case unless their conduct is 'malicious.' "⁸

The defendants' summary judgment motion was accompanied by affidavits incorporating extensive materials and exhibits from the department's file on Deegan's case and excerpting deposition testimony outlining the actions the workers took in her case. They asserted that all such actions were undertaken in the exercise of their discretion as professional social workers. The affidavits submitted by Deegan in opposition to the summary judgment motion also summarize Gerber's and Pomp's actions and activities and largely restate and amplify the factual allegations stated in her amended complaint. She argues that only one inference may reasonably be drawn from those facts: that Gerber and Pomp willfully and maliciously attempted to separate her from J.T. The trial court disagreed with that assertion, as do we.

To prevail on a motion for summary judgment dismissing an action, a defendant must establish a prima facie defense that defeats the plaintiffs claim, and it must also appear that no triable issue of material fact exists and that summary judgment is appropriate under the law. Preloznik v. City of Madison, 113 Wis. 2d 112, 116, 334 N.W.2d 580, 582-83 (Ct. App. 1983). The party opposing the motion (Deegan) may not rest on the allegations of the complaint, but must establish a triable issue of material fact. E.S. v. Seitz, 141 Wis. 2d 180, 186, 413 N.W.2d 670, 673 (Ct. App. 1987).

Deegan, citing N.N. v. Moraine Mut. Ins. Co., 148 Wis. 2d 311, 434 N.W.2d 845 (Ct. App. 1988), rev'd, 153 Wis. 2d 84, 450 N.W.2d 445 (1990), argues that her case centers on the defendants' "intent," and that intent is a factual issue that should not be decided on a motion for summary judgment. As indicated, however, N.N. was reversed, and the supreme court recognized in that case that, while intent may be difficult to resolve on summary judgment, where the facts and factual inferences "lead to only one valid conclusion," summary judgment is appropriate. N.N., 153 Wis. 2d at 96, 450 N.W.2d at 450.

Deegan's affidavits in opposition to the motion are voluminous. Her attorneys filed affidavits compiling the department's extensive case records on Deegan. These records, on which the department also relies, are undisputed. Deegan's attorneys also filed excerpts from the depositions of Deegan, Gerber, Pomp and Chapman, the social worker who first handled Dee-gan's case. While the excerpts from Deegan's deposition purport to explain some of her conduct, the facts put forth are undisputed to the extent they have any bearing on her claim of malice. Deegan also filed her own affidavit in which she explains her conduct and activities and disagrees with various other facts that are largely immaterial to the issue of malice.⁹

Taken in their entirety, Deegan's affidavits claim no more than that the defendants did not satisfactorily perform the tasks required of them under the statutes and the court's order and, further, that they were attempting to seek a permanent out-of-home placement for J.T. rather than restore him to Deegan's custody. The department plays a significant role in cases involving children in need of protection or services, and the polestar of ch. 48, STATS., is the protection and advancement of the child's best interests. As the defendants point out, the statutes set forth numerous services and procedures through which the department can address a variety of situations in which a child may need assistance, from providing services to assist the family in maintaining the child at home to facilitating the termination of parental rights and the child's eventual adoption in appropriate cases.

We have also recounted undisputed facts that indicate to us that the acts of which Deegan principally complains — the social workers' attempts to facilitate J.T.'s adoption — may be considered appropriate acts of discretion in light of the statutory guidelines and Dee-gan's behavior. We note as but one example Deegan's failure to make contact with the child until the day before the department could have terminated her parental rights under applicable statutes — and then only after Pomp advised her to do so. And we agree with the defendants that it would indeed have been questionable conduct on their part, in view of Deegan's apparent abandonment of the child, to wait until the six-month period had expired to begin planning for his future.

We do not draw from Deegan's affidavits any reasonable inference that Gerber and Pomp acted maliciously or with the intent to harm her and her son in supervising her case. The trial court's findings that the caseworkers failed to exercise sufficient diligence in working with her to justify extending the order a third or fourth time do not imply malice or intent to harm.

In Harman v. La Crosse Tribune, 117 Wis. 2d 448, 344 N.W.2d 536 (Ct. App.), appeal dismissed and cert. denied, 469 U.S. 803 (1984), Harman, a shareholder in a law firm, was discharged after he publicly accused the local newspaper — a client of the firm — of deliberately printing false information in violation of the criminal code. Id. at 451, 344 N.W.2d at 538. He sued the other firm shareholders claiming, among other things, that they wrongfully interfered with his employment relationship with the firm. The defendants moved for summary judgment, advancing the well-recognized principle of law that corporate shareholders are not subject to suit for good faith acts done in the course of carrying out their responsibilities to the corporation. They claimed that Harman's actions had created a conflict of interest with one of their principal clients and that the termination of his employment was motivated by a desire to maintain the firm's good reputation. Id. at 455, 344 N.W.2d at 540. Harman opposed the motion, claiming that the shareholders' "conditional privilege" was destroyed by their "wrongful motive" in seeking his termination. Id. He argued that such wrongful motives could be inferred from the undisputed facts that he was fired immediately after his accusations were made public, that the shareholders produced no evidence that his accusations were false, and that although he consulted with several of them before making the accusations, none advised him that it would create a conflict of interest for the firm. He claimed those facts gave rise to an inference of a bad-faith firing in retaliation for his actions. Id. at 456, 344 N.W.2d at 540-41. Wé rejected the argument, concluding that Harman "ha[d] presented no factual material from which a reasonable jury could infer that the shareholders lacked good faith." Id. at 457, 344 N.W.2d at 541. And because he had failed to establish the existence of "a genuine issue as to any material fact," we upheld the trial court's entry of summary judgment dismissing Harman's action. Id.

The same reasoning, and the same result, obtains here. Not only has Deegan failed to establish the existence of a disputed issue of material fact — or reasonable inferences from undisputed facts — with respect to her allegations of malice, but our own review of the affidavits and other proofs filed in connection with the summary judgment motion satisfies us that the only reasonable inference from the undisputed facts is that the defendants' actions in this case were not motivated by malice or ill will toward Deegan or her son.

Because Deegan has not persuaded us that her complaint states a cognizable claim under Wisconsin law — or that we should create the cause of action she advocates — and because, even if such a claim did exist, the defendants are protected by the immunity afforded to public officials acting in the course of their employment, we affirm the order.

By the Court. — Order affirmed.

1 In her original complaint, Deegan alleged that the defendants had violated her (and her son's) civil rights — in particular, their right to "reunification." The case was then removed to federal district court, and the district court granted the defendants' motion to dismiss with prejudice, concluding that Deegan had lost any rights to "family integrity" when she abandoned the child and failed to provide for his care and later requested the County's services. The district court also held that even if the social workers had violated Deegan's claimed "right of family integrity," they were entitled to qualified immunity.

Deegan's remaining state law claims were remanded to the circuit court for Jefferson County, and the defendants moved to dismiss for failure to state a claim and for summary judgment. Shortly thereafter, Deegan amended her complaint to add allegations of "intent" and "malice." This appeal is from the circuit court's order granting the defendants' motion to dismiss and for summary judgment.

2 Section 48.13, Stats., gives the juvenile court jurisdiction over children alleged to be in need of protection or services in cases, among others, where the parent "signs the petition requesting jurisdiction and states that he or she is unable to care for, control or provide necessary special treatment or care for the child." Section 48.13(4). Under other provisions of ch. 48, the court may, upon adjudging the child to be in need of protection or services, order that a variety of measures be undertaken, including out-of-home placement of the child, provision of services by state and county agencies and imposition of conditions to be met by the parent for the child's care and well-being. See §§ 48.345 and 48.355, STATS.

As will be seen below, Deegan claims that when she signed the petition she believed it was necessary in order to obtain parenting assistance but did not recall being told that the document indicated she was unable to provide for the child's needs. As will also be seen, we do not consider that assertion to raise an issue of material fact.

3 Deegan asserts in her affidavits and briefs that her visits with J.T. were seriously curtailed by transportation difficulties which, she claims, the defendants did not remedy. Here, too, we do not consider this assertion to raise a contested issue of material fact insofar as her claim of malicious interference with the family unit is concerned.

4 One of the grounds for termination of parental rights under § 48.415(l)(a)2, Stats., is the failure of a parent whose child is in out-of-home placement to "visit or communicate with the child for a period of 6 months ...."

5 Generally, a public officer or employee is immune from personal liability for injuries resulting from acts performed within the scope of his or her public employment. This immunity is not absolute, however, in that the officer may be liable for damages resulting from the negligent performance of a purely ministerial duty and, in any case, "a public officer is afforded no immunity for conduct that is malicious, wilful and intentional." Sheridan v. City of Janesville, 164 Wis. 2d 420, 425, 474 N.W.2d 799, 801 (Ct. App. 1991).

6 Generally, she alleges — as the trial court found in terminating the placement order — that the caseworkers failed to adequately carry out their responsibilities to assist her in meeting the conditions of the various orders, and that overall Gerber and Pomp were not as helpful as her former caseworker, David Chapman, had been. She claims, for example, that they did not provide her the same type of help in finding a place to live or in cooking, budgeting, and so forth as the former caseworker did, and she cites several examples of their failure to "investigate and develop resources" to obtain necessary services for her.

7 The "duties" Deegan claims Gerber, Pomp and the department violated are many. She first claims they violated several of the underlying legislative purposes of ch. 48, STATS., as stated in § 48.01(b), (e) and (g): to "provide for the care, protection and wholesome mental and physical development of children, preserving the unity of the family whenever possible"; to "respond to children's needs for care and treatment . . . and to keep children in their homes whenever possible"; to "provide children in the state with permanent and stable family relationships"; and to "assist parents in changing any circumstances in the home which might harm the child or ... require the child to be placed outside the home."

She then points to several other statutes, claiming that the defendants violated them as well: § 48.069(l)(c), STATS., which provides that the department should "[m]ake an affirmative effort to obtain necessary or desired services for the child and the child's family and investigate and develop resources toward that end"; and several subsections of § 48.355, STATS., which prescribe the contents of court orders in CHIPS cases, including provisions stating it to be the intent of such orders to, among other things, preserve "the family unit." Section 48.355(1). She also points to statutes requiring the department to make "reasonable efforts" to keep the child in his or her family home and to make and periodically review plans directed toward those and other objectives of the statute. Sections 48.355(2)(b)6 and 48.38(5), Stats.

8 Because Deegan has thus conceded that the other conditions for immunity exist — that the defendants' actions were either quasi-legislative or quasi-judicial in nature, see § 893.80 (4), STATS. — it is unnecessary to consider such issues and our discussion is properly confined to whether she has shown the existence of disputed issues of material fact, or factual inferences, with respect to her claim of malice.

9 She states, for example — apparently to contradict statements from the defendants that at one point she indicated it might be best that her parental rights to J.T. be terminated — that she "d[id] not recall telling [the department] that it would be best for... J.T. if I would terminate my parental rights ...." She also states that when she signed the petition declaring J.T. a child in need of protection or services, she did so "in order to obtain assistance in caring for . . . J.T.," and was unaware that the document "was an admission of my inability to care for [him]." Finally, she states that she signed the authorization to release information to prospective adoptive parents "[w]ithout advice of counsel."