Merritt for Merritt v. State

696 P.2d 871, 108 Idaho 20, 1985 Ida. LEXIS 417

• Court: Idaho Supreme Court
• Decided: February 5, 1985
• Docket: 15043
• Status: Published

Opinions

DONALDSON, Chief Justice.

Walter Merritt initiated this action against the State of Idaho and Bonner County as guardian ad litem for his daughter Deborah. He alleged that they were negligent, first, in allowing Deborah to be confined in an inappropriate detention facility and, second, in allowing her to be subjected to an alleged assault while so confined. Bonner County settled prior to trial. The case was tried to a jury. The jury returned a special verdict finding the State of Idaho 75% negligent and Bonner County 25% negligent. Damages were assessed at $100,000.00. This appeal followed.

On appeal the State of Idaho contends: (1) that it is immune from liability under I.C. §§ 6-904(1) and (4); (2) that it was entitled to a directed verdict on the issue of negligence; and (3) that it is entitled to a new trial based on any of the following: the trial court’s admission of prejudicial testimony, the trial court’s failure to instruct the jury on Deborah’s contributory negligence, jury misconduct, or excessive damages. Because we hold that the State of Idaho was not negligent, as a matter of law, and thus, that the trial court’s judgment must be reversed, we do not address the rest of the State’s contentions.

The State of Idaho, Department of Health & Welfare (the Department) first became involved with Deborah Merritt in 1977. Deborah’s parents were divorced in 1975 and she lived with her father. Deborah’s relationship with her father was troubled and she ran away from home repeatedly. The Department pursued various placements for Deborah including protective supervision at home, placement with her natural mother, and placement in foster homes. On December 5, 1978, Deborah was found in the Sandpoint Bowling Alley carrying a notarized letter, signed by her father, stating that he denied all responsibility for her care or actions. Deborah was eleven years old at the time. Following this incident, Deborah was placed in the legal custody of the Department for one year. Prior to the expiration of the custody order, Deborah was returned to her father’s home on a trial basis. Her relationship with her father seemed to improve and she remained at home following the expiration of the custody order. However, the situation at home again deteriorated and on February 15, 1980, Deborah ran away and was at large until February 19 when she turned herself in to the Bonner County Sheriff’s Office asking to be placed in detention. She was held in jail overnight and returned to her father’s custody the next day. On February 21, 1980, Deborah ran away again. Deborah’s father did not file a runaway report and it was not immediately known that she was missing.

On March 3, Deputy Prosecutor Phil Robinson filed a motion with an accompanying affidavit by Allen Koski, a Department social worker, asking the court to enter an order of temporary shelter for the still missing Deborah. An order directing that Deborah be placed in foster care was signed on March 4. Deborah was finally located on March 7 and was placed in a foster home. She had been living with a 21-year-old male during the period that she was missing.

Pursuant to I.C. § 16-1614 and Rule 8 of the Idaho Juvenile Rules, a shelter care hearing to determine whether Deborah should remain in the custody of the Department was scheduled for March 10. However, because Walter Merritt was not served with notice of the hearing, it was continued until March 12. On March 10, the magistrate, anticipating that Deborah might not appear at the hearing, issued a supplemental order which provided in part:

“If Deborah Merritt shall for any reason without prior authority and authorization from the Department of Health and Welfare leave said shelter care placement or home prior to the adjudication of the above-entitled matter and hearing on the same, the same shall be grounds for contempt. Upon notification of the same a peace officer of the State of Idaho or subdivision thereof shall take into custody the said Deborah Merritt and place her in the juvenile detention facilities at the Bonner County Jail or the most accessible jail or detention facilities available to said law enforcement agency. Further, upon the occurrence of the above, said child shall not be released from detention until further order of this Court.

On March 11, Deborah skipped school and failed to return to her foster home. On March 13, Koski discovered that she was at a local motel with an adult male. Deborah was then picked up by the Sand-point Police and handed over to the custody of the Bonner County Sheriff to be detained in the Bonner County Jail pursuant to the March 10 Order.

Pursuant to I.C. § 16-1811 and Rule 17 of the Idaho Juvenile Rules, a hearing was held on March 14 to determine whether Deborah should remain in detention. Social worker Warren Middlemist, the Department’s representative at the hearing, recommended that Deborah be placed back in foster care. Deborah was present at the hearing and was represented by counsel. When questioned by the magistrate, she stated that she would run away if she were returned to her father or placed in foster care and that she preferred to remain in jail.

Under Rule 17, the court may order a child to be held in detention under the following circumstances: .

“(1) when the child has run away from his parents, guardian or legal custodian and the court has reason to believe that said child will remain away from his parents, guardian or legal custodian during the pendency of the proceedings, and that such absence from his parents, guardian or legal custodian would be detrimental to his welfare; or

“(2) the court has reasonable grounds to believe that the child will not appear before the court or its officers at such time as the court may order; or

“(3) the court has reasonable grounds to believe that said child will, during the pendency of the juvenile proceeding, be subjected to an environment or to persons whose effect upon said child would be injurious to said child’s welfare, [;] or

“(4) the court has reasonable grounds to believe that release of said child would endanger said child or society.” I.J.R. 17 (1980).

Based on the foregoing rule, the magistrate issued an Order of Detention providing that Deborah was to remain in the custody of the Bonner County Sheriff pending further proceedings. Walter Merritt was present at the hearing and consented to Deborah’s remaining in detention at the county jail. The magistrate made the following Findings of Fact and Conclusions of Law in support of his decision to continue Deborah in detention:

“1. The above-named child has failed to appear for previous hearings set before this Court, and specifically on March 12, 1980.

“2. The above-named child has presently run away from her parent, Walter Merritt, and the Court has reason to believe that said child would remain away from her parent during the pendency of these proceedings.

“3. The above-named child has run away from the previous shelter home, the home of Sandy Belote, and the Court has reason to believe that the child would not remain in a foster care home pending further proceedings, but that said child would likely run away from a temporary shelter home.

“4. The Court believes that the child will not appear before the Court at such time as the Court may order future hearings herein.

“5. The Court has reasonable grounds to believe that the child, during the pendency of these proceedings will be subject to an environment and persons whose effect upon said child would be injurious to the child’s welfare.”

The magistrate scheduled an adjudicatory hearing (I.C. § 16-1608) for March 26 to determine whether Deborah was within the purview of the Child Protective Act (CPA). At that hearing the magistrate found that Deborah was within' the purview of the CPA and that her custody should be vested in the Department. On March 28, 1980, a decree was entered vesting Deborah’s custody in the Department for a period of not to exceed one year from the date of entry. Since it was not possible for the Department to place Deborah immediately, it was further ordered that Deborah be detained at the Wallace Regional Detention Facility pending placement by the Department. The Bonner County Sheriff’s Office was ordered to transport Deborah to Wallace. Deborah was transported by the sheriff’s office on March 31.

In the meantime, Deborah remained in the Bonner County Jail where she was housed in a cell designed for adult prisoners. She had no access to a radio or television and testified that she did not recall receiving any reading material. An adjacent cell contained adult offender Richard Hendrickson, charged with aggravated assault and rape.

During the evening of March 26, after the adjudicatory hearing, Deborah’s toilet overflowed. The jailer released her from her cell and told her to clean up the mess. He then left her unsupervised in direct contravention of the jail’s written policy which required that a deputy or jailer had to be in the cellblock at any time a prisoner was out of his or her cell. According to Deborah, as she was returning to her cell after emptying the mop bucket, Hendrickson called out to her and offered her a cigarette. She testified that she walked up to his cell door and that he reached through the door opening with one arm and grabbed her cover-alls. He then used the same arm to reach into her cover-alls and fondle her breasts. Deborah testified that the incident lasted for two or three minutes and that she received a small scratch. She reported the incident to Deputy Sheriff Biggerstaff on March 27. It is this incident which serves as the basis for respondent’s negligence claim.

In order to establish negligence, respondent must first show that the State of Idaho owed Deborah a legal duty and that the State’s actions toward her amounted to a breach of that duty. See Alegria v. Payonk, 101 Idaho 617, 619, 619 P.2d 135, 137 (1980); W. Prosser and W. Keeton, The Law of Torts § 30 (5th Ed.1984). Respondent contends that the State of Idaho, Department of Health & Welfare, owed Deborah a duty of reasonable care and that it breached that duty when it allowed her to be confined in an inappropriate detention facility.

Under the Child Protective Act, Idaho Code, Title 16, Ch. 16, the State of Idaho has a duty to provide for the welfare and protection of abused, abandoned and neglected children. “Each child coming within the purview of this Act shall receive, preferably in his own home, the care, guidance and control that will promote his welfare and the best interest of the State of Idaho, and if he is removed from the control of his parents, guardian or other custodian, the State shall secure adequate care for him.” I.C. § 16-1601 (1979). In recognition of this duty, the Department, upon discovering that Deborah was at large in the community, filed a petition asking the court to enter an order of temporary shelter for her. The petition indicated that Deborah had been missing for 10 days at the time it was filed, that her father had not informed anyone that she had left home, and that he had not filed a runaway report so that the local authorities could have picked her up. Respondent concedes the propriety of the Department’s actions in ensuring that Deborah was located and placed in shelter care, however, he contends that the Department, thereafter, breached its duty to Deborah by allowing her to be detained in the Bonner County Jail. Respondent does admit, however, that he consented to Deborah being held in the Bonner County Jail pending an adjudicatory hearing to determine who should have legal custody of her.

Deborah was jailed under a contempt order. It was the magistrate, not the Department, who placed Deborah in the Bonner County Jail. In fact, the testimony at trial indicates that the Department recommended at the March 14 hearing that Deborah be returned to shelter care rather than held in detention. The magistrate had jurisdiction over Deborah beginning at the moment she was taken into custody on March 13. I.C. § 16-1811. Deborah remained in jail pursuant to a court order issued after a hearing. She was represented by counsel at each stage of the proceedings and appeared before a magistrate before any action was taken. The hearing was held in accordance with Idaho Juvenile Rule 17 which provides the guidelines under which a court may order a juvenile into detention. The Department of Health & Welfare has no authority to put a child in detention, nor does it have the authority to take a child out of detention without a court order. In fact, the March 10 Supplemental Order specifically provided that “said child shall not be released from detention until further order of this Court.”

I.C. § 16-1812 provides that a jail may be used as a detention facility if it meets the standards of I.C. § 16-1812A. That section requires, among other things, that juveniles be segregated from sight and sound of adult prisoners, that they have access to reading materials, and that they receive supervision and observation adequate to protect their physical and mental health. The Bonner County Jail was deficient in all three respects. Deborah was able to converse with adult prisoners, she did not have reading materials, and she was left unsupervised, allowing the assault to occur. However, it is the county commissioners and the court, rather than the Department of Health & Welfare, who are responsible for providing adequate juvenile facilities. “The County Commissioners shall provide a detention home or homes for the temporary detention of children to be conducted by the court, or, subject to the approval of the court, by other appropriate public agency, provided that such detention shall comply with the provisions of section 16-1812A, Idaho Code ____” I.C. § 16-1812 (1979).

Based on the foregoing, we conclude that once the court ordered Deborah into detention at the Bonner County Jail, the Department was entitled to rely on the sheriffs office to discharge its statutory duties pursuant to court order. One who is required by law to assume the custody of another so as to deprive him of his normal power of self-protection or to subject him to association with persons likely to harm him, has a duty to exercise reasonable care to protect him from harm. Restatement (Second) of Torts §§ 314A and 320 (1965). This duty is specifically applicable to a police officer or to a jailer at a penal institution. Id. § 320.

The Department of Health & Welfare cannot be held responsible for the conditions and operating procedures in county jails. The Department did not have custody of Deborah until March 28, 1980 when the magistrate’s decree was entered, and, absent a showing of custody, had no duty to control the conduct of third persons so as to protect her from harm. Id. § 315. It was Bonner County’s responsibility to insure that the Bonner County Jail complied with the standards set forth in I.C. § 16-1812A for juvenile detention facilities. I.C. § 16-1812. However, Bonner County settled prior to trial and is not a party to this law suit.

Respondent further contends that the Department was negligent in not ensuring that Deborah was transported to Wallace immediately after the March 26 adjudicatory hearing. I.C. § 16-1610 sets forth the requisite disposition procedure when the evidence presented at an adjudicatory hearing demonstrates that a child comes within the purview of the CPA. That section requires the court to issue a written decree containing the findings of fact and conclusions of law upon which it bases its exercise of jurisdiction over a child. Upon entry of its decree, one of the alternatives available to the court is to vest legal custody in the Department of Health & Welfare. That decree becomes binding on the Department from the date it is entered and continues to be binding for an indeterminate period not to exceed one year. I.C. § 16-1610 (1979). See also, I.J.R. 12 (1980).

Pursuant to the above requirements, the magistrate on March 28, 1980, entered an “Order of Legal Custody.” The Order provided:

“IT IS HEREBY ORDERED that legal custody of Deborah Merritt is committed to the Idaho Department of Health and Welfare for an indeterminate period not to exceed one (1) year from the entry of this order.

“IT IS FURTHER ORDERED that said child be placed in the Department of Health and Welfare Regional Center, Wallace, Idaho, pending placement by the Department of Health and Welfare. Transportation to said Regional Center to be provided by the Bonner County Sheriffs Office.”

Thus, it is apparent that the Department did not have legal custody of Deborah until the court entered its decree on March 28, 1980. Absent legal ■ custody, the Department had no authority to transport Deborah anywhere and cannot be found negligent for failing to transport her on March 26.

Our conclusion that the Department did not have legal custody until the court entered its written decree is consistent with the general rule in Idaho requiring a written order before a judgment is final. For example, the time for filing an appeal does not begin running until after the date of entry of the written order or decree. See I.R.C.P. 83(e) (1980); I.A.R. 14 (1980). A premature notice of appeal, filed before entry of a written order or decree, is held in abeyance and does not mature until the written judgment is filed. State v. Gissell, 105 Idaho 287, 668 P.2d 1018 (Ct.App.1983). Similarly, I.R.C.P. 54(d)(5) provides that a Memorandum of Costs must be filed within ten (10) days after entry of judgment. In interpreting this rule, this Court held that the legislature intended to refer to a written pronouncement signed by the judge and filed with the clerk. Big O Tires of Idaho, Inc. v. Hanley, 101 Idaho 56, 57, 608 P.2d 413, 414 (1980) (quoting Page v. Noland, 85 Idaho 369, 373, 379 P.2d 661, 663 (1963)).

As we stated above, I.C. § 16-1610 requires the court to set forth the findings of fact and conclusions of law which constitute the basis for its jurisdiction. In Sorenson v. Adams, 98 Idaho 708, 571 P.2d 769 (1977) (overruled on other grounds Owen v. Boydstun, 102 Idaho 31, 624 P.2d 413 (1981)), we noted that a judge’s bench remarks may be quite different from his or her ultimate written findings. “Benchmarks, sometimes referred to as tentative impressions of what the evidence shows, do not substitute nor rise to the dignity of written findings of fact and conclusions of law, either separately stated, or embodied in a written memorandum opinion.” Id. 98 Idaho at 713, 571 P.2d at 774. In Stewart Min. Co. v. Ontario Min. Co., 23 Idaho 724, 132 P. 787 (1913), affd, 237 U.S. 350, 35 S.Ct. 610, 59 L.Ed. 989 (1915), the appellant assigned as error a portion of the trial judge’s oral holding announced at the end of the trial. In disposing of this assignment of error, this Court stated:

“under the statutes of this state and the rule of law frequently announced by this court these remarks or observations of the trial court were no part of the decision of the court. The decision consists of the findings of fact and conclusions of law which must be in writing and filed with the clerk.” Id. 23 Idaho at 736, 132 P. at 792.

Finally, we note that the magistrate specifically ordered the sheriff’s office to transport Deborah to Wallace. It appears from the evidence adduced at trial that the Bonner County Sheriff’s Office was the only agency that transported juveniles between detention centers. Specifically, Gary Finney, who was the Bonner County Prosecuting Attorney in March of 1980, testified that in the ten years preceding this incident, no one in Bonner County other than the sheriff’s office or the State Police had ever transported a juvenile between detention centers.

All the record shows that the Department was responsible for in this case was initiating a petition providing for foster care for a runaway teenager who had been at large in the community for ten days. We hold that the respondent has failed to establish that the State of Idaho was negligent and, thus, the damage award must be reversed.

Respondent has cross-appealed objecting to the trial court’s dismissal of County IX of his amended complaint. Count IX sought damages against the State for violations of Deborah’s constitutional rights under 42 U.S.C. § 1983.¹ The trial court held that a state is not a person under § 1983 and dismissed Merritt’s claim.

The vast majority of cases under § 1983 are brought in federal court where states are immune from liability under the eleventh amendment to the United States Constitution. Thus, only a handful of cases have addressed the issue of whether a state is a person under § 1983.

In Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979), the United States Supreme Court held that Congress, in adopting the provision which is now § 1983, did not intend to subject the States to liability since such liability would have deprived the states of their immunity from suit under the eleventh amendment. We interpret Quern v. Jordan to hold not only that § 1983 does not abrogate the states eleventh amendment immunity, but also as holding that states are not “persons” for purposes of § 1983. As Justice Brennan’s concurring opinion points out, the majority opinion implicitly includes such a decision. Id. at 350, 99 S.Ct. at 1150 (Brennan, J., concurring). The majority of state courts which have addressed this issue are in accord. See State v. Green, 633 P.2d 1381 (Alas.1981); Boldt v. State, 101 Wis.2d 566, 305 N.W.2d 133 (1981), cert. denied, 454 U.S. 973, 102 S.Ct. 524, 70 L.Ed.2d 393 (1981); DeVargas v. State ex rel N.M. Dept. of Corr., 97 N.M. 450, 640 P.2d 1327 (N.M.App.1981); Edgar v. State, 92 Wash.2d 217, 595 P.2d 534 (1979), cert. denied, 444 U.S. 1077, 100 S.Ct. 1026, 62 L.Ed.2d 760 (1980).

Thus we affirm the trial court’s dismissal of Count IX of respondent’s Amended Complaint on the grounds that the State of Idaho is not a person under 42 U.S.C. § 1983.

The decision of the trial court is affirmed in part, and reversed in part.

No costs or attorney fees on appeal.

BAKES and SHEPARD, JJ., concur.

1 . 42 U.S.C. § 1983 provides in relevant part:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proceeding for redress.”