                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-2054
                            Filed December 23, 2015

PAM CUMMINGS, Administrator of the
Estate of C.H.,
      Plaintiff-Appellant,

vs.

THE STATE OF IOWA,
     Defendant-Appellee
______________________________

PAM CUMMINGS, as Next Friend of
D.C., formally D.H., a Minor,
       Plaintiff-Appellant,

vs.

THE STATE OF IOWA,
     Defendant-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Jackson County, Mark R. Lawson,

Judge.

      Pam Cummings, as the administrator of the estate of C.H., appeals from

the district court’s grant of summary judgment. AFFIRMED.



      Mark E. Liabo of Currie & Liabo Law Firm, P.L.C., Cedar Rapids, and

Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Joanne Moeller, Assistant

Attorney General, for appellee.



      Considered by Doyle, P.J., and Mullins and Bower, JJ.
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BOWER, Judge.

       Pam Cummings, as the administrator of the estate of C.H., appeals from

the district court’s grant of summary judgment finding Cummings failed to state a

claim upon which relief could be granted and the discretionary function exception

to the waiver of the State’s liability barred her claim. We affirm.

I.     BACKGROUND FACTS AND PROCEEDINGS

       The parties do not contest the factual background; therefore we adopt the

district court’s recitation:

                D.H. (born in 2003) and C.H. (born in 2005) were brothers.
       Their mother was a drug addict who was in and out of prison. She
       initially placed first D.H., and later C.H., with her brother and his
       wife, Andy and Danielle . . . . Later, when her parental rights to the
       children were terminated in separate proceedings, the children
       were placed with [Andy and Danielle] under the auspices of the
       Iowa Department of Human Services (“DHS”). DHS retained
       guardianship of the children until they were adopted by [Andy and
       Danielle]. D.H. was adopted December 12, 2006; C.H. was
       adopted August 10, 2007. In addition to these two children, [Andy
       and Danielle] had three children of their own.
                In April 2007—prior to the adoptions—DHS received a report
       that D.H. had been spanked with a belt for wetting his pants. The
       allegations of physical abuse were investigated by a DHS child
       protective worker but were not confirmed.
                Within a month of C.H.’s adoption, there was a second
       report of child abuse regarding D.H. The child protective worker
       noted various bruises; particularly bruising and linear marks around
       the child’s waist. Because the worker observed an injury but could
       not determine a cause, the allegations were not confirmed.
                In August 2008, a third report of child abuse was made. The
       report specifically accused Danielle of using methamphetamine
       while caring for her children. This time, a child protective worker
       founded a denial of critical care. Danielle was ordered to remain
       out of the home for approximately two weeks. DHS provided
       services to the family, including in-home supervision and substance
       abuse treatment for Danielle. The case remained open for eleven
       months. During this time, DHS became aware of allegations of
       domestic abuse by Andy towards Danielle and Danielle’s
                                        3



      hospitalization for cutting herself and punching a wall. She was
      diagnosed with schizophrenia.
              At all times, DHS workers and supervisors were aware that
      the children of parents who use methamphetamine are at greater
      risk of being abused. Although Danielle initially lied about her
      methamphetamine use, she ultimately admitted to using following a
      positive drug test. Upon her successful completion of treatment for
      substance abuse, the case was closed on July 31, 2009. DHS had
      no further contact with the family until the following summer.
              On June 12, 2010, C.H. was drowned in a bathtub by
      Danielle. He was four years of age. The surviving children were
      removed from the home and placed in the custody of DHS. A child
      abuse assessment was initiated. Following a lengthy investigation,
      it was determined that D.H. and C.H. had suffered severe physical
      and mental abuse in [Andy and Danielle’s] home, including
      beatings, burnings, choking, confinement, withholding of food,
      verbal and psychological abuse, and submersion in cold bath water
      as punishment.
              Andy and Danielle were arrested and charged with murder in
      the first degree and child endangerment. Andy died prior to trial.
      Danielle pleaded guilty to child endangerment resulting in death
      and is serving a prison term.

      Cummings is the administrator of C.H.’s estate and is also the adoptive

parent of D.H. (now D.C.). Cummings filed a tort claim with the State of Iowa

Appeal Board on behalf of C.H.’s estate claiming DHS caseworkers were

negligent in failing to properly investigate the abuse, protect the safety of C.H.,

and remove him from the abusive home. She filed a similar claim on behalf of

D.H. Following the denial of both claims by the appeal board, Cummings filed

separate lawsuits containing similar allegations. The district court consolidated

the two lawsuits.

      In its answer, the State of Iowa denied liability and raised the affirmative

defense Cummings had failed to state a claim upon which relief could be

granted, the suit was barred by sovereign immunity under the Iowa Tort Claim

Act (ITCA), and it was barred by the applicable statute of limitations. In August,
                                        4



2014, the State filed a motion for summary judgment raising the same defenses.

Cummings resisted.

      In November 2014, the district court granted the State’s motion finding

Cummings had failed to state a claim upon which relief could be granted and the

State was immune from liability pursuant to the discretionary function immunity

exception.   The court denied the State’s motion on the statute of limitations

grounds.

      Cummings now appeals from the grant of summary judgment.

II.   STANDARD OF REVIEW

      We review rulings on motions for summary judgment for the correction of

errors at law. City of Cedar Rapids v. James Props., Inc., 701 N.W.2d 673, 675

(Iowa 2005). “Summary judgment is appropriate only when the entire record

demonstrates that no genuine issue of material fact exists and the moving party

is entitled to judgment as a matter of law.” Stevens v. Iowa Newspapers, Inc.,

728 N.W.2d 823, 827 (Iowa 2007). A genuine issue of material fact exists if

reasonable minds can differ on how an issue should be resolved. Seneca Waste

Solutions, Inc. v. Sheaffer Mfg. Co., 791 N.W.2d 407, 411 (Iowa 2010). We

examine the record in the light most favorable to the nonmoving party and draw

all legitimate inferences the evidence bears in order to establish the existence of

questions of fact. Mason v. Vision Iowa Bd., 700 N.W.2d 349, 353 (Iowa 2005).

“A party resisting a motion for summary judgment cannot rely on the mere

assertions in [her] pleadings but must come forward with evidence to
                                        5



demonstrate that a genuine issue of fact is presented.” Stevens, 728 N.W.2d at

827.

III.   MERITS

       A.    Failure to State a Claim

       “The Iowa Tort Claims Act prescribes procedures governing tort claims

against the State for the negligent acts of its officers, agents, or employees.”

See generally Iowa Code ch. 669 (2013); Schneider v. State, 789 N.W.2d 138,

146 (Iowa 2010).     The ITCA preserves aspects of sovereign immunity by

excluding certain claims from its scope. See Schneider, 789 N.W.2d at 146.

“While the ITCA does not create a cause of action, it ‘recognizes and provides a

remedy for a cause of action already existing which would have otherwise been

without remedy because of common law immunity.’” Minor v. State, 819 N.W.2d

383, 405 (Iowa 2012).

       Cummings claims the State was negligent in investigating the reports of

child abuse and, consequently, by failing to protect D.H. and C.H. from abuse.

Cummings asks us to revisit the holdings in Rittscher v. State, 352 N.W.2d 247

(Iowa 1984) and Callahan v. State, 385 N.W.2d 533 (Iowa 1986), and find the

State can be held liable (pursuant to recent holdings applying the Restatement

(Third) of Torts1) when its social workers fail to prevent children from being

abused by their parents or legal guardians.




1
 See, e.g., Thompson v. Kaczinski, 774 N.W.2d 829, 836 (Iowa 2009) (adopting
Restatement (Third) of Torts Liability for Physical Harm).
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       In Rittscher, our supreme court declined to find the State liable for allowing

a minor to remain in the care of her mother and by not placing the minor in foster

care. 352 N.W.2d at 252. Specifically, the minor (now an adult), claimed the

State had a duty to provide for her welfare under the doctrine of parens patriae2

and the State is liable pursuant to the applicable statutes. Id. at 250. In declining

to find the State liable, our supreme court refused to recognize a tort action for

the State’s failure to act as parens patriae—under the specific facts presented in

the case. Id. at 251.

       Similarly, in Callahan, our supreme court declined to find the State liable,

pursuant to a common law or statutory duty, for negligently delaying the removal

of three minor children from an inadequate home. 385 N.W.2d at 540. The three

children were subjected to extensive sexual abuse by their mother and her

boyfriend. Id. at 534. The court found Rittscher applicable and reasoned:

               Our holding in Rittscher encompassed the principle that the
       State’s responsibility to care for its citizens, including protecting a
       child from his or her parent, does not give rise to tort liability when
       social service personnel negligently fail to take steps to remove a
       child from an inadequate parental home. 352 N.W.2d at 251. We
       believe plaintiffs’ claim in this case is substantially the same as a
       claim arising from the State’s failure to protect a child from his or
       her parent. Plaintiffs do not present a cause of action that is an
       exception to the Rittscher principle.
               ....
               A state agency and its employees would be placed in a
       rather precarious situation if they could be held liable for a failure to
       remove a child from the home of his or her parents. On one hand,
       the purpose of these statutes is to protect children from child
       abuse, which includes protection from an abusing parent. Iowa
       Code § 232.67. On the other hand, the department has to use


2
  “Because the State, as parens patriae, has the duty to assure that every child within its
borders receives proper care and treatment, it must intercede when parents abdicate
that responsibility.” In Re Dameron, 306 N.W.2d 743, 745 (Iowa 1981).
                                          7



      reasonable efforts to help prevent or eliminate the need for
      removing the child from his or her home. Id. If the department
      determines the best interest of the child requires juvenile court
      action, it shall initiate such action. § 232.71(9) (1983). Even after
      the dispositional hearing, the juvenile court shall, whenever
      possible, permit the child to remain at home with the child’s parent.
      § 232.102(3). Consequently, the department and its employees
      receive divergent instructions—to protect the child but make a
      reasonable effort to keep him or her in the home. Such a decision
      requires department employees to engage in a delicate balancing
      of interests. Of course, the best interest of the child is the
      overriding concern. § 232.1.

Id. at 536–37.

      The district court relied on Rittscher and Callanan in granting the State’s

motion for summary judgment. The district court concluded:

              The Court concludes that the supreme court’s failure to
      recognize the tort of social services malpractice in Rittscher and
      Callahan is precisely the type of exceptional case in which “an
      articulated countervailing principle or policy warrants denying or
      limiting liability . . . .” [Thompson, 774 N.W.2d] at 835. If the liability
      of social workers and DHS for damages based upon negligence is
      to be expanded in light of Thompson [(adopting Restatement
      (Third) of Torts Liability for Physical Harm §7(a))], thereby
      overruling Rittscher and Callahan, this decision should be made by
      our supreme court.
              In summary, both stare decisis and public policy dictate the
      result. The plaintiff’s petition fails to state a claim under existing
      precedents. The State’s motion for summary judgment is granted
      on this ground.

      Cummings admits Rittscher and Callanan have not been overruled by the

Iowa Supreme Court or abrogated by legislative act. Cummings urges us to

revisit and (ostensibly) overrule this precedent. Because this court’s role is to

apply existing legal principals, we decline Cumming’s request to extend the

doctrine. See Iowa R. App. P. 6.1101(3). Holding otherwise would contravene

our supreme court’s long-standing application of the Rittscher principle.           See
                                         8



Healy v. Carr, 449 N.W.2d 883, 885 (Iowa Ct. App. 1989) (recognizing our

supreme court’s statement that “[i]f our previous holdings are to be overruled, we

should ordinarily prefer to do it ourselves”). We find the district court did not err

in granting the State’s motion for summary judgment for Cumming’s failure to

state a claim.

       Since the above issue is dispositive of this appeal, we decline to reach the

discretionary function immunity issue.

       AFFIRMED.
