Catt v. Department of Human ServicesCatt v. Department of Human Services
This civil dispute arises from a failure by the Department of Human Services (DHS) to secure permanent legal residency status and, consequently, United States citizenship for plaintiff Blanca Catt while she was in DHS’s legal custody, and from DHS’s false representations to Blanca’s adoptive mother, plaintiff Lisa Catt, regarding Blanca’s citizenship.
I. FACTS
Because the trial court granted DHS’s motion for summary judgment, we state the facts most favorably to plaintiffs, the nonmoving parties. Jones v. General Motors Corp.,
While Blanca was in foster care, defendant Dunn was the primary DHS caseworker assigned to Blanca’s case. Defendant Dillner was the DHS caseworker responsible for pursuing Blanca’s American citizenship. On behalf of Blanca, and while DHS was responsible for her care, Dillner prepared and submitted two forms, an 1-360 Petition for Special Immigrant and an 1-485 Application to Register Permanent Resident or Adjust Status, to the former Immigration and Naturalization Service (INS), currently known as the United States Citizenship and Immigration Services (USCIS). Dillner filed the applications with INS to establish Blanca’s legal residency in the United States, a prerequisite for citizenship. Unfortunately, DHS’s attempt to file the legal residency applications was unsuccessful because of mistakes by DHS employees.
Once the parental rights of Blanca’s biological parents were terminated, Lisa and her then husband sought to adopt Blanca. Lisa requested that DHS complete the citizenship process for Blanca before the adoption was finalized. Though DHS had been unable to secure citizenship for Blanca, it informed Lisa that Blanca could establish citizenship either through adoption or a court order identifying permanent foster care for Blanca as the permanency plan. While Lisa was Blanca’s foster parent, DHS advised Lisa that Blanca would automatically obtain citizenship once Blanca was adopted because her adoptive parents, Lisa and her then husband, were United States citizens. At no point did DHS explain to Lisa that any further steps were necessary for Blanca to become a citizen.
In May 1999, Blanca’s adoption was finalized. Blanca was then eight years old.
In 2000, DHS represented to Lisa that, because of the passage of the Child Citizenship Act of 2000 (CCA), codified in relevant part at 8 USC sections 1431 and 1433, Blanca would automatically become a citizen through her 1999 adoption.
To obtain adequate proof of Blanca’s citizenship, Lisa filed an N-600 Application for Certificate of Citizenship with USCIS in February 2007. USCIS sent Blanca a letter dated August 2, 2007, denying her request for a certificate of citizenship because Blanca’s original entry into the United States was illegal and Blanca was never lawfully admitted to the United States as a permanent resident.
On or around November 6, 2007, Lisa filed an 1-130 form with USCIS to request permanent resident status for Blanca. Because the 1-130 form allowed Lisa to petition on behalf of Blanca until Blanca turned 21 years old, Lisa was unaware that, if Blanca’s immigration forms were not processed before Blanca turned 18 years old, she would be subject to “penalties.” Sometime after June 2009, Lisa was approved to act as Blanca’s agent for her immigrant visa petition, and Lisa paid the fees required for the immigrant visa in September 2009. At that time, Lisa continued to believe that it was “just a matter of time and more paperwork before Blanca would get an immigrant visa.”
Also in September 2009, for the first time, Lisa contacted immigration attorneys to assist her with Blanca’s immigrant visa application. An immigration attorney advised Lisa that, because Blanca was over 18 years old and considered an illegal alien, she would need to leave the United States and remain in Mexico for a minimum of three years until a visa was issued to her. The immigration attorney also advised Lisa that, after Blanca turned 19 years old in October 2009, the three-year bar to reenter the United States would increase to 10 years.
II. PROCEDURAL HISTORY
On October 6, 2009, plaintiffs sent DHS a tort claims notice that alleged that DHS and its agents had acted negligently and attached a copy of a complaint; DHS received the notice. Plaintiffs filed their complaint in the Multnomah County Circuit Court on October 7, 2009, before Blanca’s nineteenth birthday.
Plaintiffs brought two separate claims for negligence against DHS.
DHS moved for summary judgment, providing three separate arguments as to why plaintiffs’ claims for relief fail as a matter of law. First, DHS argued that plaintiffs failed to timely provide their tort claims notice as required by ORS 30.275. Second, DHS argued that plaintiffs’ claims for relief are barred by the statute of limitations. DHS asserted that plaintiffs’ action accrued on August 2, 2007, when Lisa received the letter from USCIS indicating that Blanca was not a citizen, and that plaintiffs waited too long — until October 2009, over two years later — to provide notice and file their action. Lastly, DHS argued that plaintiffs’ preadoption claim for relief was barred by the statute of ultimate repose, because DHS’s alleged negligence occurred more than 10 years before plaintiffs filed their complaint.
The trial court issued three separate letter opinions in response to DHS’s motion for summary judgment. In its first letter opinion, the trial court granted DHS’s motion for summary judgment on both claims after concluding that, once USCIS had sent the August 2, 2007, letter to Blanca denying her request for certificate of citizenship and plaintiffs had received it, “plaintiffs discovered that defendants were responsible for the injuries that plaintiffs had suffered” and this was sufficient “to trigger the tort claim notice and statute of limitations periods.” The trial court also concluded, alternatively, that plaintiffs’ preadoption claim was barred by the statute of ultimate repose.
Plaintiffs asked the trial court to reconsider its rulings. They argued that, even if plaintiffs had discovered their injury in August 2007, Blanca’s tort claims notice was timely because ORS 12.160 tolls claims for minors. Before the trial court entered judgment consistently with its first letter opinion, the court issued a second letter opinion, ruling that Blanca’s preadoption claim survived because she filed her complaint before the limitations period had expired, and Blanca was not required to provide DHS with a tort claims notice for its actions while she was in the state’s custody. However, the court did not address whether the statute of ultimate repose applied. In the trial court’s third letter opinion, it determined that the statute of ultimate repose barred plaintiffs’ preadoption claim. The trial court then granted DHS’s motion for summary judgment and entered a general judgment dismissing all of plaintiffs’ claims.
III. ANALYSIS
On appeal, plaintiffs assign as error the trial court’s ruling granting summary judgment in favor of DHS. We apply the familiar standard of review: summary judgment is appropriate if there is no genuine issue of material fact for trial, and the moving party is entitled to judgment as a matter of law. ORCP 47 C; Brehm v. Caterpillar, Inc.,
“There is no genuine issue of material fact if, ‘based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.’”
Plaintiffs reprise their three major arguments in the trial court on appeal. First, they argue that they gave timely notice of their tort claims. Blanca contends that the time period for giving notice was tolled for her until she turned 19 years old, and both plaintiffs argue that they discovered an actionable injury in September 2009, once they learned that Blanca was required to leave the
A. Timeliness of the Tort Claims Notice
The Oregon Tort Claims Act (OTCA) requires that a person seeking to file an action against a public body provide timely notice of his or her intent to do so. ORS 30.275. That section of the OTCA provides, in part:
“(1) No action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be maintained unless notice of claim is given as required by this section.
“(2) Notice of claim shall be given within the following applicable period of time, not including the period, not exceeding 90 days, during which the person injured is unable to give the notice because of the injury or because of minority, incompetency or other incapacity:
“(a) For wrongful death, within one year after the alleged loss or injury.
“(b) For all other claims, within 180 days after the alleged loss or injury.
«H? * * * *
“(8) The requirement that a notice of claim be given under subsections (1) to (7) of this section does not apply if:
“(a)(A) The claimant was under the age of 18 years when the acts or omissions giving rise to a claim occurred;
“(B) The claim is against the Department of Human Services or the Oregon Youth Authority; and
“(C) The claimant was in the custody of the Department of Human Services pursuant to an order of a juvenile court under ORS 419B.150, 419B.185, 419B.337 or 419B.527, or was in the custody of the Oregon Youth Authority under the provisions of ORS 419C.478, 420.011 or 420A.040, when the acts or omissions giving rise to a claim occurred.”
ORS 30.275 (emphasis added). The purpose of the notice period is to allow “the public body to investigate the claim while the evidence is still fresh and allow[] the public body speedily to correct the defect, if any, out of which the claim allegedly arose.” Perez v. Bay Area Hospital,
Under the OTCA, the applicable notice period depends on whether the injured person seeking to bring an action against a public body or employee is an adult or a minor. A competent adult plaintiff must provide notice of a claim within 180 days of the actionable injury; however, this 180-day notice period is extended for minors for a period “not exceeding 90 days, during which the person injured is unable to give the notice *** because of minority[.]” ORS 30.275(2). Thus, according to the plain language of ORS 30.275(2), minors have 270 days after the discovery of their alleged injury or loss to give the public body or employee notice of tort claims. See also Perez,
1. Tolling based on Blanca’s minority
Blanca contends that the period for a minor to provide a notice of tort claims under
“(1) Subject to subsection (2) of this section, if a person is entitled to bring an action that is subject to the statutes of limitation prescribed by ORS 12.010 to 12.050, 12.070 to 12.250 or 12.276, and at the time the cause of action accrues the person is a child who is younger than 18 years of age, the statute of limitation for commencing the action is tolled for so long as the person is younger than 18 years of age.
“(2) The time for commencing an action may not be extended under subsection (1) of this section for more than five years, or for more than one year after the person attains 18 years of age, whichever occurs first.”
(Emphasis added.) Although Blanca’s claims are subject to the statute of limitations in the OTCA for bringing most claims against a public body or public officers and employees, ORS 30.275(9), Blanca contends that the emphasized text in ORS 12.160 establishes that the tort claims notice period was tolled until she turned 19 years old, by which time she had provided DHS notice of her post-adoption claim.
Baker concerned whether, in amending the OTCA in 1981, the legislature intended to exempt claims under the OTCA from the rule that an action is commenced on the day the complaint is filed if the plaintiff serves process on the defendant within 60 days.
At the same time, Blanca attempts to distinguish Perez, a case concerning whether the 270-day notice period provided in ORS 30.275(2) was tolled until the appointment of a guardian ad litem for the injured minor. Although the Supreme Court concluded that the purpose of allowing minors to have an extra 90 days to provide notice of tort claims “is to recognize a minor’s legal disability and permit the appointment of a guardian ad litem,”
We agree with DHS that, even if there is some inconsistency between ORS 30.275(2) and ORS 12.160, the legislature expressly specified in the OTCA that the notice period is tolled for a period “not exceeding” 90 days
We also note that the Supreme Court has previously described the interplay between ORS 30.275(2) and ORS 12.160. In Bradford v. Davis,
“It is consistent with the remedial policy of the Tort Claims Act to assume that the legislature meant to assure local governments of an early opportunity to investigate claims even by minors, but that thereafter the extension of time to commence an action generally provided to minors and incapacitated persons by ORS 12.160 would apply to the same kinds of actions when brought against a public defendant.”
Accordingly, we conclude that, under ORS 30.275(2), minors are required to give notice of a tort claim to a public body and its employees within 270 days of the discovery of their alleged injuries, and ORS 12.160 does not toll this notice period.
2. Tolling based on the discovery rule
Having decided that ORS 12.160 did not toll the period for Blanca to provide a tort claims notice to DHS for her post-adoption claim, we turn, next, to plaintiffs’ argument that both Blanca’s and Lisa’s tort claims notice periods were tolled by the discovery rule. As previously noted, the 180-day notice period for adults, and the 270-day notice period for minors, begins to run from the date of the “alleged loss or injury.” ORS 30.275(2). This accrual date, however, can be tolled under the discovery rule. Adams v. Oregon State Police,
Under the discovery rule, the notice period begins to run when “the plaintiff knows or, in the exercise of reasonable care should know, facts that would make an objectively reasonable person aware of a substantial possibility that * * * an injury occurred, the injury harmed one or more of the plaintiff’s legally protected interests, and the defendant is the responsible party.” Edwards v. DHS,
The trial court concluded as a matter of law that plaintiffs discovered their injury in August 2007, upon their receipt of the letter from USCIS. The question before us, then, is whether a reasonable jury could conclude that plaintiffs discovered or should have discovered a legally cognizable injury — i.e., harm, causation, and tortious conduct — within 180 days (Lisa) or 270 days (Blanca) of their providing their tort claims notice to DHS in October 2009. On appeal, the parties dispute what constitutes plaintiffs’ harm and when plaintiffs discovered or should have discovered that harm.
In DHS’s view, the harm plaintiffs alleged that they suffered was Blanca’s lack of legal permanent resident status and United States citizenship. DHS asserts that plaintiffs were actually aware that they suffered their harm when they received the August 2007 letter from USCIS informing them that “Blanca [was] not a citizen or legal permanent resident of the United States[,]” making plaintiffs’ tort claims notice untimely.
Although we agree with DHS that, in part, plaintiffs alleged that Blanca’s lack of citizenship, stemming from the failed application for legal permanent resident status, was a harm, we agree with plaintiffs that this case involves a different harm as well. In their complaint, plaintiffs alleged two different harms. One was to Blanca’s right to citizenship and a second harm was to Blanca’s right to remain in the United States, without being subjected to deportation proceedings, without being required to travel to Mexico to apply for an immigrant visa, and without being subjected to exclusion from this country for a decade or more to obtain legal permanent residency.
With regard to the first type of harm, plaintiffs alleged that, had DHS properly filed the 1-360 and 1-485 forms, Blanca would have become a permanent resident and her initial illegal entry into the United States when she was three years old would have been waived. That, in turn, would have allowed her to become a United States citizen immediately had she applied for naturalized citizenship before she reached age 18. Plaintiffs alleged economic harm, including the legal expenses for immigration counsel and the financial consequences of Blanca’s inability to be lawfully employed or to receive financial aid to go to college, and extreme emotional distress as a result.
But plaintiffs also alleged that DHS’s initial improper filing of Blanca’s permanent residency documents (and failure to refile them) and its misleading of Lisa subjected Blanca to “the necessity of departing [from] the United States” and “the 10-year bar to reentry to the United States” when she does so. Plaintiffs alleged that they suffered extreme emotional distress due to the fear and uncertainty that came with Blanca’s status as an illegal alien in the United States and the anguish that she would be subject to deportation to Mexico, exclusion from the United States, and lengthy separation from her home and family. In other words, as plaintiffs’ expert explained, Blanca and Lisa were harmed because Blanca was subject to deportation and needed to depart and to remain outside the United States for at least 10 years in order to be allowed to return to the United States legally, absent a waiver based on extreme hardship. That is a separate actionable harm from Blanca’s lack of citizenship. Cf. Gaston v. Parsons,
DHS also argues that plaintiffs merely allege that they suffered additional damages, relying on cases in which we have stated that a tort claim “‘accrues from the date the injury is, or should have been discovered, not from the time the full extent of damages is
Based on plaintiffs’ second theory of harm, a reasonable jury could easily find on this record that, when they received the letter from USCIS in 2007, neither plaintiff actually knew of the harm, that is, Blanca’s possible removal and the requirement that she leave and remain outside this country for at least a decade in order to enter legally. When plaintiffs received the letter, Lisa believed that “it was only a matter of paperwork, fees, and time to establish Blanca as a citizen” and that it was her “job * * * to correctly process the paperwork that DHS failed to do correctly.”
As instructed by the USCIS letter, Lisa filed an 1-130 Petition for Alien Relative to establish Blanca’s permanent residency, applying for an adjustment of status, and later applied for an immigration visa. Lisa’s application indicated that she believed that she could obtain an adjustment of Blanca’s status. At that point, based on DHS’s prior statements that Blanca was automatically a citizen once she was adopted, plaintiffs believed that it was a matter of paperwork to correct Blanca’s citizenship status. Moreover, based on the Petition for Alien Relative, plaintiffs believed they could file that paperwork for Blanca until she turned 21. In her affidavit, Lisa stated, “I was not aware that there would be penalties for Blanca when she was no longer a minor as form 1-130 (Petition for Alien Relative) allowed me to petition [for] my unmarried child up to age 21.”
As previously noted, the August 2007 letter did not indicate that Blanca would have to leave the country if she was not a legal permanent resident before she turned 18 years old. The fact that the letter informed plaintiffs that Blanca was not a citizen or a legal resident does not necessarily imply that she would have to leave the country if she did not obtain legal residency by the age of 18. Lisa testified that, until September 2009, when she contacted the immigration attorney, she did not understand that (1) “Blanca would be subject to a 3-year, and later a 10-year exclusion if citizenship paperwork was not processed by her attaining age 18 or 19”; and (2) even if Blanca did leave the country for the minimum period of time, “there was no guarantee that the *** government would actually issue Blanca a visa.” Viewing the evidence in the light most favorable to plaintiffs, a reasonable jury could conclude that they were unaware of their harm until September 2009, when Lisa obtained immigration counsel.
Although DHS focuses on plaintiffs’ actual knowledge of cognizable harm in 2007, to the extent that DHS contends that plaintiffs should have discovered their claims by seeking legal advice about the consequences of Blanca’s lack of legal permanent resident status and citizenship once they received the letter in 2007, we conclude that is an issue of fact for trial as well. Whether the plaintiff has a duty to inquire about facts that might disclose the existence of an actionable injury at any particular point in time is, generally, a factual question for the jury. Cole v. Sunnyside Marketplace, LLC,
In this case, a reasonable jury could find that, when plaintiffs received the USCIS letter, they did not have a duty to retain an expert, such as a lawyer, to investigate whether they had a claim against DHS related to Blanca’s legal permanent resident status and citizenship and instead acted reasonably by attempting to rectify the situation with immigration authorities. At the time,
We also reject DHS’s argument that, even if plaintiffs were not aware of each specification of negligence relevant to their two claims for relief, their obligation to provide a tort claims notice arose when they became aware of a substantial possibility that they had “suffered some harm as a result of’ DHS’s alleged negligence. Cairns v. Dole,
In making that argument, DHS overlooks the import of a second distinct type of harm: Blanca was subject to deportation proceedings, was required to travel to Mexico to apply for an immigrant visa, and was subject to exclusion from this country for a decade or more to obtain legal permanent resident status. See Gaston,
B. Timeliness of the Complaint Under the Statute of Limitations
DHS argues that, even if plaintiffs’ claims are not barred because their tort claims notice was untimely, their claims are nonetheless barred by the statute of limitations, ORS 30.275, because they discovered their claims in August 2007 but filed this action more than two years later, in October 2009. Like the notice period, the statute of limitations can also be tolled by the discovery rule. Stephens v. Bolman,
DHS’s statute of limitations arguments rely on the same case law and are essentially the same as their arguments that plaintiffs’ tort claims notice was untimely served. As previously explained, we cannot conclude, as a matter of law, when plaintiffs should have discovered their actionable injury based on the harm to Blanca’s right to remain in the United States. DHS is not entitled to summary judgment on that portion of plaintiffs’
C. Statute of Ultimate Repose
Finally, plaintiffs also assign as error the trial court’s alternative ruling that plaintiffs’ preadoption claim is barred by the statute of ultimate repose. The statute of ultimate repose, ORS 12.115, provides, in part:
“(1) In no event shall any action for negligent injury to person or property of another be commenced more than 10 years from the date of the act or omission complained of.”
DHS asserted and prevailed on its contention that plaintiffs’ preadoption claim is barred because DHS’s alleged negligent acts occurred more than 10 years before plaintiffs filed their complaint.
Unlike the statue of limitations, the discovery rule does not toll the statute of ultimate repose, because it was intended “to provide an overall maximum upper limit on the time within which a tort action could be brought, regardless of the date of discovery or of any other circumstances.” Josephs v. Burns & Bear,
Relying on Little, plaintiffs contended that DHS had such a continuing duty to them until Blanca turned 18 years old, and so the statute of ultimate repose was inapplicable. The trial court rejected that argument, concluding that, although
“plaintiffs did establish certain duties that the state owed the plaintiffs, *** [the court] do[es] not find that those duties are by their terms capable of absorbing the state’s pre-adoption, [discrete] acts of the alleged negligence into a larger, overarching duty that expired only when Blanca reached majority.”
Plaintiffs also argued that the statute of ultimate repose was tolled because they had a continuous relationship of trust with DHS. The statute of ultimate repose can be tolled by an “active, continuous relationship” between the defendant and the plaintiff during the period when an action is permitted such that, because of the “relationship of trust and confidence” between the parties, the plaintiff is not in a position to recognize the existence of a claim against the defendant. Cavan v. General Motors,
On appeal, plaintiffs reiterate their two arguments as to why their preadoption claim is not barred by the statute of ultimate repose. We first address the continuing-duty argument.
1. Continuing Duty
As noted above, evidence of a continuous, mandatory duty can be used to avoid the applicability of the statute of ultimate repose. Little,
Plaintiffs specifically rely on former OAR 413-130-0170(1) (9/17/96), an administrative rule regarding post-adoption services, which provided:
“Freeing a special needs child for adoption through [DHS] presupposes a commitment by the agency to the child until the child reaches the age of 18 years or emancipation, whichever comes first. [DHS] assumes an obligation to the child, the adoptive parent(s) and to the family as a whole to maintain the placement through the delivery of adoption preservation services.”
The term “special needs” includes a member of an ethnic, racial, or cultural minority” that includes Hispanics. Because Blanca is Hispanic, her family was eligible for post-adoption services. Former OAR 413-130-0020(2)(c) (9/17/96). Families that were eligible for post-adoption services could access services provided by DHS, other agencies, or community services, “such as counseling, adoptive parent’s support group, family resource or unity meeting, respite care, temporary out-of-home care or residential treatment[.]” Former OAR 413-130-0180(2) (9/17/96). Plaintiffs note that Blanca and her family received post-adoption services from DHS in the form of a subsidy and health insurance benefits for Blanca until she reached 18 years of age.
Plaintiffs also rely on other administrative rules that require DHS to verify a child’s citizenship for certain services, such as foster care or adoption assistance, that, in turn, are reserved for children who are citizens or “qualified aliens.”
Based on those rules, plaintiffs conclude that DHS had a continuous duty to secure citizenship for her. According to plaintiffs, because DHS “knew that Blanca’s citizenship status had not been finalized,” it had a continuous duty, until Blanca turned 18, to provide services to ensure Blanca would become a citizen in order to “preserve” her adoption. Plaintiffs argue that the statute of ultimate repose was not triggered until plaintiffs stopped receiving post-adoption services when Blanca turned 18 years old, 11 months before they filed their complaint; therefore, their preadoption claim is timely.
Little is inapplicable. Unlike the defendant in Little, DHS was not required, under the statutes or administrative rules cited by plaintiffs, to establish Blanca’s citizenship after she was adopted. Although plaintiffs received some financial subsidies from DHS after she was adopted because Blanca was a qualified “special needs child,” none of the rules on which plaintiffs relies created a mandatory
Nor does plaintiffs’ reliance on other administrative rules show that DHS assumed any continuing, mandatory duty owed to plaintiffs. As DHS highlights, OAR 413-130-0040(3)(c) (7/1/08), the administrative rule that obligates DHS to verify a child’s status either as a citizen or a “qualified alien” for eligibility to receive certain services, was not in effect until 2008, well after Blanca’s 1999 adoption. Similarly, we reject plaintiffs’ contention that, under OAR 413-215-0411(2)(b)(H) (10/17/08), DHS, like private adoption agencies, had a continuous duty to plaintiffs to disclose the costs and consequences of any likely action by USCIS. Assuming DHS had an analogous requirement, any duty to provide Lisa and her then-husband, a prospective adoptive family, with information regarding the cost of Blanca’s adoption was breached in the 1990s. The duty runs to prospective adoptive families; the text of the rule does not suggest that the agency has a continuous duty to provide that information after families adopted children. See OAR 413-215-0411(2)(b) (10/12/08) (“Before providing an adoption service to a prospective adoptive parent, the adoption agency must itemize and disclose in writing to the parents the estimated fees and expenses the parent will be changed[.]” (Emphasis added.)). Accordingly, none of the administrative rules that plaintiffs cite establishes that DHS had the continuing, mandatory duty to establish Blanca’s citizenship or permanent residency, which, according to plaintiffs, avoids the application of the statute of ultimate repose.
2. Relationship of Trust
The resolution of the continuing duty issue leads to plaintiffs’ second, tolling-based argument concerning the statute of ultimate repose. Absent an ongoing relationship of trust between the parties, “the legislature did not intend the statute [of ultimate repose] to be circumvented by allegations that subsequent to the fundamental wrong, a continuing duty existed to rectify the results of such wrong.” Josephs,
Plaintiffs argue that they were dependent on DHS for care and services even after Blanca’s adoption, because Blanca was an abused, special needs child. Plaintiffs analogize the parties’ relationship to a doctor-patient relationship. See Cavan,
DHS contends that, after Blanca’s adoption was complete, the parties were not in an ongoing relationship of any significance that would have prevented plaintiffs from recognizing
We agree with DHS that the parties did not have an ongoing relationship of trust that extended years after the adoption. In 2000, DHS conferred with Lisa and explained that, after the passage of the CCA, Blanca would automatically become a citizen because her adoptive parents were United States citizens. There is no evidence of any other communications between the parties from 2000 to 2009. Plaintiffs point only to the payments they received from DHS and the existence of some administrative rules as their evidence that they had a relationship of trust with DHS after Blanca was adopted. That evidence, however, would not permit a reasonable factfinder to conclude that there was “an active, continuous relationship” of trust between the parties, at least between 2000 and 2009 after Lisa’s communications with DHS ceased, such that plaintiffs were unable to recognize the existence of a cause of action. See Rutter v. Neuman,
In light of the foregoing, the trial court correctly dismissed plaintiffs’ preadoption claim, which pertains to alleged negligent acts by DHS that occurred before Blanca’s adoption, more than 10 years before plaintiffs filed their complaint. We also accept DHS’s argument that some of plaintiffs’ allegations concerning DHS’s negligent acts are, in effect, alleged failures to remedy past and time-barred negligent conduct in applying for Blanca’s legal permanent resident status and, therefore, are also barred by the statute of ultimate repose. To the extent that plaintiffs allege such time-barred negligent acts in their post-adoption claim, those specifications of negligence are no longer actionable. What remains at issue are other negligent acts specified in plaintiffs’ post-adoption claim, such as negligent misrepresentations in 2000, that allegedly resulted in the penalties Blanca has experienced, namely, her need to depart the United States with an exclusion from the United States for 10 years before she can apply for a visa to reenter this country legally. Whether plaintiffs timely asserted such allegations of negligence through their tort claims notice to DHS and by filing this action is a question for the jury, because there is a factual question as to the date plaintiffs knew or should have known that they had suffered harm to Blanca’s right to remain in the United States.
Affirmed in part, reversed in part, and remanded.
Notes
For clarity, we refer to the individual plaintiffs by their first names.
Defendants on appeal include DHS employees Dunn and Dillner. We refer to defendants collectively as “DHS” unless the context requires otherwise. Other defendants unrelated to DHS were dismissed from the action before the summary judgment proceedings at issue.
Section 320 of the CCA provides:
“(a) A child horn outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:
“(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.
“(2) The child is under the age of eighteen years.
“(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.
“(b) Subsection (a) of this section shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 1101(b)(1).”
8 USC § 1431. Thus, if Blanca had been lawfully admitted for permanent residency, she would have been eligible for citizenship automatically after the enactment of the CCA.
The August 2007 letter incorrectly stated that Blanca’s “Application for Citizenship” was denied when the application was actually for a certificate of citizenship, not an application for citizenship.
In their complaint, plaintiffs allege a single claim of negligence, but the parties and the trial court have treated it as two separate claims.
The trial court ruled, and it is undisputed on appeal, that Blanca was not required to give DHS a tort claims notice for her preadoption claim, because all of the requirements for dispensing with notice in ORS 30.275(8) are met in this case: Blanca was under the age of 18 when the claimed negligence occurred, the claim is against DHS, and she was in DHS’s custody at the time of the negligent acts. Thus, the parties dispute whether Blanca’s tort claims notice was timely only as to her post-adoption claim.
In part of their response, plaintiffs argue that the trial court erred when it imputed Lisa’s knowledge of the August 2007 letter to Blanca. Plaintiffs contend that Blanca was 17 years old when the letter was received and that there is nothing in the record to suggest that Blanca read the letter or understood the consequences resulting from the information in the letter. However, the letter from USCIS was addressed to Blanca, and, contrary to plaintiffs’ assertion, Lisa’s affidavit affirmatively states that Blanca was aware that she was not a citizen of the United States after she received the August 2007 letter.
Plaintiffs do not seriously defend the timeliness of their notice of tort claims based on Blanca’s lack of citizenship. Plaintiffs knew in 2007 that Lisa had asked DHS to finalize American citizenship for Blanca and yet Blanca lacked citizenship, contrary to DHS’s representations. The trial court did not err in dismissing the portion of plaintiffs’ claims based on that theory of harm.
See OAR 413-100-0120(3)(b) (verification of child’s U.S. citizenship status for foster care eligibility); OAR 413-100-0210(1), (2) (an eligible child for foster care must be a “United States citizen” or a “qualified alien”); OAR 413-100-0460(1) (12/29/95) (the child must be a United States citizen to be eligible for medical assistance); OAR 413-130-0040(3)(c) (7/1/08) (the child must a United State citizen or a “qualified alien” to be eligible for adoption assistance); OAR 413-130-0045(1) (7/1/09) (adoption assistance is limited to United States citizens).
Plaintiffs raised two additional arguments as to why the statute of ultimate repose should be tolled. Those arguments rely on case law that is not controlling in Oregon. Because the case law is unpersuasive in light of Oregon law, we reject plaintiffs’ arguments without further discussion.