Weber v. State

Weber v. State, 2015 MT 161 (June 16, 2015) (Baker, J.) (5-0, aff’d & rev’d)

Issue: Whether the district court erred in denying the state’s motion for summary judgment based on immunity under § 41-3-203(1), MCA.

Short Answer: Yes.

Judgment for the state affirmed, denial of State’s motion reversed

Facts: Leslee Weber and Kelly Etapa are the birth parents of two minor daughters, FE and GE. In May 2007, Weber and Etapa were legally separated by a Wisconsin court. In June 2007, Weber and the girls left Wisconsin to spend the summer in Montana. Etapa trailered the family’s horses to Montana and returned to Wisconsin the next day.

Weber was hired as a counselor at the Willow Creek School in Broadwater County in July 2007, and notified Etapa via certified letter that she intended to remain in Montana with the girls.

In September 2007, Weber contacted the sheriff in Broadwater County and said Etapa had made threats to the girls. Weber was referred to the county crime victim advocate, Brooke Dolan. In October, Etapa filed a motion in Wisconsin to enforce that court’s order governing custody and visitation. The Wisconsin court ordered Weber to allow Etapa visitation over Christmas.

On November 30, 2007, Weber called Montana DPHHS and said she feared that once her divorce was final, Etapa would emotionally and verbally abuse the girls. She was instructed to discuss her concerns with her attorney.

Weber filed for divorce in Broadwater County in December 2007 and obtained a temporary order of protection barring Etapa from contact or communication with her or the girls. She asked Lisa Schmiesing, a licensed social worker, to evaluate the girls and determine how their upcoming visit with Etapa would affect them. Schmiesing met with the girls four times between Dec. 2007 and Jan. 2008. On Jan. 24, 2008, Schmiesing called DPHHS to report that she believed Weber was psychologically abusing the girls and might physically harm them. She filed a written child protection report documenting her concerns.

DPHHS assigned child protection specialist Kathryn Lamach to investigate. On the day DPHHS received Schmiesing’s report, Lamach interviewed Schmiesing and Dolan, and called a meeting with them, her supervisor, the regional child protection services administrator, and the Broadwater County attorney. Schmiesing provided her notes and discussed her observations of FE and GE. Dolan corroborated Schmiesing’s observations and advised she had seen a dramatic change in the way their children viewed their father since the previous summer. Both had witnessed Weber talking about the divorce and making disparaging remarks about Etapa in front of the girls.

After the county attorney’s petitions for emergency protective services, temporary investigative authority and temporary legal custody were granted, the department removed FE and GE from Weber’s custody, placed them into foster care and notified Weber of the removal. On Feb. 27, 2008, the district court dismissed the case, stating it was unable to find evidence that Weber is endangering the children or that they were being abused or neglected.

In 2011, Weber sued Schmiesing, the state, and Broadwater County. The court granted summary judgment to Broadwater County in 2012, and Weber later stipulated to dismissal with prejudice of her claims against Schmiesing. Weber alleged the state negligently failed to investigate Schmiesing’s report before removing the children from her care. Weber alleged that, as a result of the state proceedings, she was charged with and arrested for criminal contempt in Wisconsin, denied custody of and visitation with her children, and had suffered invasion of privacy, embarrassment and shame, financial loss, and severe and prolonged emotional distress.

Procedural Posture & Holding: The state moved for summary judgment in October 2012, arguing it was immune under § 41-3-203(1), MCA. In August 2013, the district court denied the motion based on the existence of material facts in dispute. The proceedings continued and the state moved again for summary judgment on the grounds that Weber had not provided expert testimony to establish that Lamach was subject to and violated a standard of care. The district court granted that motion, and entered judgment for the state in March 2014. Weber appeals, and the Supreme Court affirms judgment for the state and reverses the denial of summary judgment on immunity grounds.

Reasoning: By statute, anyone investigating or reporting an incident of child abuse or neglect, or participating in resulting judicial proceedings, is immune from civil or criminal liability unless the person was grossly negligent or acted in bad faith with malicious purpose or provided information knowing it to be false. § 41-3-203(1), MCA. Weber contends summary judgment was improper because there are genuine issues of material fact as to whether the state was grossly negligent or knowingly provided false information. Gross negligence is the failure to use slight care. Weber argues Lamach failed to use slight care because she could have done more prior to removing the children. Weber does not dispute that before filing her affidavits Lamach interviewed Schmiesing and Dolan, reviewing Schmiesing’s therapy notes, and discussed Schmiesing’s report with her supervisor, co-workers, regional administrator, and the prosecutor. All six professionals agreed that immediate removal was necessary to ensure the girls’ safety. Weber also contends Lamach provided falso information, pointing to one incorrect statement of fact in her affidavit. Standing alone, that statement does not establish a triable issue of fact. The state should have been granted summary judgment.