                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                JENNIFER GILLILAND, Plaintiff/Appellant,

                                        v.

                 CARLEE LILL, et al., Defendants/Appellees.

                             No. 1 CA-CV 17-0337
                               FILED 3-27-2018


           Appeal from the Superior Court in Maricopa County
                          No. CV2016-090669
           The Honorable Robert H. Oberbillig, Judge (Retired)

                                  AFFIRMED


                                   COUNSEL

Keith M. Knowlton LLC, Tempe
By Keith M. Knowlton
Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By James B. Bowen, Daniel P. Schaack
Counsel for Defendants/Appellees
                        GILLILAND v. LILL, et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Kenton D. Jones and Judge James B. Morse Jr. joined.


H O W E, Judge:

¶1             Jennifer Gilliland appeals the trial court’s dismissal of her
amended complaint against Department of Child Safety1 case manager
Carlee Lill. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            The underlying facts are undisputed. In April 2011, because
of mental illness, Gilliland erroneously believed that her daughter, M.G.,
was not actually her daughter. M.G. told her teacher about Gilliland’s
conduct and the teacher reported it to the Department. The Department
subsequently petitioned for dependency, alleging that M.G. was dependent
due to Gilliland’s mental health and neglect by failing to provide proper
supervision and care. The juvenile court found M.G. dependent and the
Department placed M.G. with her teacher and his spouse as foster parents.
During the dependency’s duration, Lill was the assigned case manager.

¶3           Over the next seven months, Gilliland participated in services
to address the mental health and neglect issues, but M.G.’s Guardian Ad
Litem (“GAL”) nevertheless moved to terminate Gilliland’s parental rights
in November 2011. The juvenile court denied the termination motion in
May 2012 and ordered that the case plan be family reunification and that
the Department provide services to Gilliland and M.G. that would help
mend their relationship. Lill facilitated these services.

¶4          In early 2013, Gilliland became concerned that M.G.’s foster
parents were alienating M.G.’s affections toward her and requested a
change in M.G.’s placement. In May 2013, M.G.’s foster parents moved to


1      During the time of this case, Child Protective Services was a division
of the Arizona Department of Economic Security; the Department of Child
Safety has since undertaken its responsibilities. See 2014 Ariz. Sess. Laws,
ch. 1 §§ 6, 20, 55 (2d Spec. Sess.). For consistency, we refer to Child
Protective Services as the Department throughout this decision.


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                          GILLILAND v. LILL, et al.
                            Decision of the Court

intervene in the dependency. The Department opposed the foster parents’
motion and noted that the foster parents were interfering with the family
reunification case plan and wanted to adopt M.G. In a June 2013 report to
the juvenile court, Lill discussed Gilliland’s progress in services. Lill added
that M.G.’s therapist, GAL, and foster parents had thwarted reunification
efforts because of their desire to honor M.G.’s statement that she was not
“ready” to have visitations and therapy with Gilliland. The juvenile court
denied the foster parents’ motion to intervene and ordered that Gilliland
and M.G. engage in counseling to facilitate therapeutic visitation. During
this time, M.G. told Gilliland that she would never speak to her again if
Gilliland did not rescind the request for a change in M.G.’s placement.
Gilliland withdrew the request.

¶5            Gilliland and M.G. participated in family therapy without
success. The family therapist found that M.G.’s individual therapist was not
helping to facilitate therapeutic visitation and that the foster parents did not
encourage M.G. to participate in the visitation. Because family therapy had
been unsuccessful, the Department informed the juvenile court in
December 2013 that the family reunification case plan was infeasible and
that since M.G. was now 16 years old, the Department recommended a
long-term foster care case plan. The juvenile court agreed and changed the
case plan to long-term foster care.

¶6            In May 2014, Lill reported that the family therapy service had
ended because M.G. stated that she was not ready for increased
communication with Gilliland. Lill also reported that the Department
would continue to provide monthly case management services but
recommended that M.G. remain with her foster family with ongoing visits
with Gilliland whenever M.G. was ready. The Department also
recommended that the case plan be changed to independent living, which
the juvenile court granted.

¶7            Six months later, the Department notified the juvenile court
that it would seek to terminate Gilliland’s parental rights. The juvenile court
requested that a termination petition be filed. The following month, M.G.
had her counsel file a termination motion. After the Arizona Adoption
Review Board informed M.G. that she would not qualify for services if she
were adopted, M.G. withdrew her termination motion. After M.G.
withdrew her termination motion, the juvenile court dismissed the
dependency effective the day before M.G.’s 18th birthday.

¶8             In March 2016, Gilliland brought a 42 U.S.C. § 1983 claim
against Lill, alleging that Lill violated Gilliland’s constitutional right to the


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                          GILLILAND v. LILL, et al.
                            Decision of the Court

care, custody, and companionship of M.G. Lill moved to dismiss based on
qualified immunity and the statute of limitations. The trial court ruled that
Lill was entitled to qualified immunity because a case manager in this
situation would not reasonably know that his or her conduct violated a
parent’s constitutional right while the parent’s child was in the State’s
custody. Gilliland timely appealed.

                                DISCUSSION

¶9            Gilliland argues that Lill did not have qualified immunity and
therefore the trial court erred by dismissing the amended complaint.
Gilliland contends that she had a fundamental constitutional right to a
continued relationship with her child and that Lill’s conduct violated that
right. We review the trial court’s grant of qualified immunity in a § 1983
claim de novo. See Ochser v. Funk, 228 Ariz. 365, 369 ¶ 11 (2011). Because the
alleged unlawfulness of Lill’s conduct was not clearly established at the
time of the challenged conduct, the trial court correctly found that Lill had
qualified immunity.

¶10            Federal law governs whether a government official has
qualified immunity from a § 1983 claim. Id. at ¶ 12. “The doctrine shields
federal and state officials from money damages unless a plaintiff pleads
facts showing (1) that the official violated a statutory or constitutional right,
and (2) that the right was clearly established at the time of the challenged
conduct.” Id. Reviewing courts have discretion to decide which of the two
prongs to consider first and need not address both prongs if either prong is
satisfied. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). Additionally, “[c]ourts
should think carefully before expending scarce judicial resources to resolve
difficult and novel questions of constitutional or statutory interpretation
that will have no effect on the outcome of the case.” Id.

¶11            A government official’s conduct violates clearly established
law when, at the time of the challenged conduct, “[t]he contours of [a] right
[are] sufficiently clear” that every “reasonable official would have
understood that what he is doing violates that right.” Id. at 741. This is so
because government officials should know that their conduct is unlawful
before they are subjected to suit. Ochser, 228 Ariz. at 371 ¶ 27. As such, “the
right allegedly violated must be defined at an appropriate level of
specificity before a court can determine if it was clearly established.” Id. at
371 ¶ 27.

¶12           Our supreme court has stated that “[t]o determine whether a
right was clearly established at the time of an [official’s] conduct, we look



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                         GILLILAND v. LILL, et al.
                           Decision of the Court

to cases from the Supreme Court and [the Arizona Supreme Court], as well
as cases from other courts exhibiting a consensus view.” Id. at 372 ¶ 28.
Although a case need not be directly on point, “existing precedent must
have placed the statutory or constitutional question beyond debate.” al-
Kidd, 563 U.S. at 741.

¶13            Lill’s conduct did not violate any clearly established law.
Although Gilliland does not plainly state Lill’s exact conduct that violated
a clearly established law, we surmise her argument to be that Lill should
have placed M.G. in, or later removed M.G. to, a foster family that
supported the family reunification case plan. At the time of Lill’s conduct,
however, no court had held in a published decision that a case manager’s
objective reporting and decision to not remove a child from foster parents
who interfered with a case plan violated a parent’s right to a relationship
with his or her child. Lill and the Department diligently complied with the
case plan from the time that the dependency was initiated in April 2011
until the Department informed the court that family reunification was
infeasible in December 2013. Lill reported to the juvenile court all the issues
occurring with M.G. and the foster parents, and the juvenile court approved
the change in case plan to long-term foster care. No reasonable case
manager would have known that the conduct here violated any clearly
established constitutional right a parent may have during a dependency
proceeding. As such, Lill was entitled to qualified immunity.

¶14            Citing Kelson v. City of Springfield, 767 F.2d 651, 653–54 (9th
Cir. 1985) and Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010), Gilliland
counters that a State official is liable under § 1983 when the official’s
conduct: (1) deprives a parent of his or her protected liberty interest in
ongoing companionship with his or her child, or (2) is so intrusive that the
conduct essentially results in a termination of parental rights. But those
cases describe at a high level of generality a parent’s rights to
companionship with his or her child and do not suffice in qualified
immunity cases to provide a constitutional right that is beyond debate. See
District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (“We have repeatedly
stressed that courts must not define clearly established law at a high level
of generality, since doing so avoids the crucial question whether the official
acted reasonably . . . .”). The cases Gilliland relies on do not involve parents
whose children are in State custody or define a clearly established right of
those parents to expect a case manager to side with them when foster
parents interfere with a case plan; that is, to advocate on behalf of the
natural parents. Therefore, these cases are irrelevant to our consideration of
whether Gilliland’s right was clearly established at the time of the
challenged conduct. And contrary to Gilliland’s assertion, any alleged


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                         GILLILAND v. LILL, et al.
                           Decision of the Court

violations were not so obvious that Gilliland’s highly general allegations of
impropriety by Lill satisfy the “clearly established” requirement. See
Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (noting that where violations are
obvious, the “clearly established” requirement can be satisfied when cast at
a high level of generality even without a body of relevant case law).

¶15            Gilliland cites no authority supporting the legal premise that
a Department case manager has a duty to force a parent’s 16-year-old child
to participate in therapy or visitation. Nor does Gilliland cite any cases that
have held a Department case manager has a duty to act in a parent’s favor
during a dependency. While Gilliland is correct that M.G.’s foster parents
interfered with the court-ordered case plan—and the Department does not
argue otherwise—that interference was not attributable to Lill. In fact, Lill
reported the interference to the juvenile court and Gilliland does not
suggest that Lill was dishonest or failed to report that or any other pertinent
information to the court. Lill exercised her discretion in not requesting a
change in placement as did Gilliland when she rescinded her request for a
change of placement. On this record, Gilliland has not shown any specific
violations of a clearly established right, and the trial court did not err by
dismissing Gilliland’s amended complaint.

                               CONCLUSION

¶16           For the foregoing reasons, we affirm.




                          AMY M. WOOD • Clerk of the Court
                           FILED: AA




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