                                 IN THE
             ARIZONA COURT OF APPEALS
                             DIVISION ONE


         THOMAS and JENNIFER GRIGGS, husband and wife,
                      Plaintiffs/Appellants,

                                    v.

     OASIS ADOPTION SERVICES, INC.; CATHERINE BRAMAN;
                   SARAH L. PEDRAZZA,
                     Defendants/Appellees.

                          No. 1 CA-CV 15-0289
                            FILED 10-6-2016


          Appeal from the Superior Court in Maricopa County
                         No. CV 2012-014904
                 The Honorable Mark H. Brain, Judge

                     VACATED AND REMANDED


                               COUNSEL

Debus, Kazan & Westerhausen, LTD, Phoenix
By Larry L. Debus, Tracey Westerhausen
Counsel for Plaintiffs/Appellants

Renaud Cook Drury Mesaros, PA, Phoenix
By Denise J. Wachholz, Charles S. Hover, III
Counsel for Defendants/Appellees
                         GRIGGS v. OASIS et al.
                          Opinion of the Court



                                OPINION

Judge Margaret H. Downie delivered the opinion of the Court, in which
Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined.


D O W N I E, Judge:

¶1           Thomas and Jennifer Griggs appeal from the entry of
summary judgment in favor of Oasis Adoption Services, Inc., Catherine
Braman, and Sarah L. Pedrazza (collectively, “Oasis”) on the grounds of
judicial immunity.1 For the following reasons, we vacate that judgment
and remand for further proceedings.

                FACTS AND PROCEDURAL HISTORY2

¶2           The Griggses met D.R. through their church and agreed to
adopt her unborn child. The Griggses retained Oasis to “provide
adoption services,” including the statutorily required investigation and
report (also called a “home study”) that prospective adoptive parents
must obtain to be certified to adopt. See Ariz. Rev. Stat. (“A.R.S.”) § 8-
105(A).

¶3             After retaining Oasis, the Griggses filed an adoption
certification application, whereupon the juvenile court issued a July 8,
2011 minute entry that provided, in pertinent part:

      IT IS ORDERED pursuant to ARS 8-104, that Oasis Adoption
      Services shall complete the investigation and file an
      Adoptive Home Study with the Court by 10/06/2011.3


1   During the relevant time period, Braman was the adoption agency’s
executive director, and Pedrazza served as assistant director.

2    We consider the facts and reasonable inferences therefrom in the light
most favorable to the non-moving party — the Griggses. See Hill-Shafer
P’ship v. Chilson Family Tr., 165 Ariz. 469, 472 (1990).
3    We agree with the superior court that the reference to A.R.S. § 8-104,
instead of § 8-105, appears to be a typographical error.



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                          GRIGGS v. OASIS et al.
                           Opinion of the Court

¶4          Disagreements arose between Oasis and the Griggses about
the scope of the certification investigation, causing the Griggses to
terminate Oasis’s services in a July 27, 2011 letter, stating:

      [We] have consulted with legal counsel and other adoption
      agencies regarding the adoption process and your
      recommendations. We have made a decision to respectfully
      withdraw our application for adoption through the Oasis
      Adoption Agency.

Thereafter, the Griggses worked with Olos Adoption and Child Welfare
Agency (“Olos”) to complete the certification process.

¶5             Unbeknownst to the Griggses, on July 28, 2011, Braman sent
an ex parte letter to the juvenile court detailing concerns Oasis had about
Thomas Griggs and advising the court that the Griggses were
“withdrawing from the home study process” with Oasis.

¶6            D.R. gave birth to a baby girl in August 2011. The Griggses
took the child home the next day, and the juvenile court awarded them
temporary custody of her. See A.R.S. § 8-108 (delineating procedure for
uncertified persons to obtain temporary custody pending certification).
Meanwhile, Olos submitted a home study recommending that the court
certify the Griggses as acceptable to adopt.

¶7             In late September 2011, the juvenile court denied the
Griggses’ certification application without explanation. The Griggses
timely requested reconsideration. See Ariz. R. P. Juv. Ct. 77(C) (if denied
certification to adopt, applicant may request evidentiary hearing).

¶8              During an October status conference, the juvenile court
discussed the ex parte letter received from Oasis, which the Griggses had
not seen. The court ordered the Griggses to appear at an order to show
cause hearing three days later. The court also vacated the temporary
custody order and directed Child Protective Services to take custody of
the child. The court further ordered Oasis to disclose its July 28, 2011
letter to the Griggses, as well as “all relevant and discoverable information
in [their] file.”4 The court set an evidentiary hearing in December on the
Griggses’ motion for reconsideration.


4      The Griggses had previously asked Oasis to provide a copy of its
July 28 letter, but Oasis refused.



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                         GRIGGS v. OASIS et al.
                          Opinion of the Court

¶9           At the evidentiary hearing, the juvenile court heard
testimony from Braman, Pedrazza, Thomas Griggs, Jennifer Griggs, and a
representative of Olos. On January 31, 2012, the court certified the
Griggses as acceptable to adopt. By that time, though, D.R.’s child had
been placed with another family.

¶10           The Griggses filed a civil complaint against Oasis, alleging
abuse of process, negligence, and infliction of emotional distress. Among
other things, the Griggses alleged that Oasis’s ex parte letter to the court
contained “untruths and misstatements” that caused them to lose custody
of D.R.’s baby. Oasis moved for summary judgment on the basis of
judicial immunity. After briefing and oral argument, the superior court
granted Oasis’s motion. The Griggses filed a timely notice of appeal from
a final judgment entered after the superior court denied their motion for
new trial. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

                              DISCUSSION

¶11            We review both the grant of summary judgment and the
application of judicial immunity de novo. See Emmett McLoughlin Realty,
Inc. v. Pima Cty., 212 Ariz. 351, 353, ¶ 2 (App. 2006) (summary judgment);
Lavit v. Superior Court, 173 Ariz. 96, 99 (App. 1992) (judicial immunity).

I.    Adoption Certification Process

¶12           In determining whether Oasis is entitled to judicial
immunity for the challenged conduct, we first examine the role adoption
agencies fulfill in the certification process — a role that is
comprehensively defined by statutes and regulations. See In re Webb’s
Adoption, 65 Ariz. 176, 179 (1947) (adoption is a purely statutory right
unknown at common law); Sargent v. Superior Court, 28 Ariz. 605, 607
(1925) (“An adoption proceeding is a statutory one, and is governed by
the terms of the statute providing for it.”).

¶13            The Department of Child Safety (“DCS”) licenses adoption
agencies. A.R.S. § 8-126. DCS also oversees licensed agencies, assists “the
staffs of all agencies by giving advice on methods and procedures,” and
establishes rules for “[t]he form and content of investigations, reports and
studies concerning adoption placement.” A.R.S. § 8-126(3), (4)(c). DCS
has promulgated extensive rules governing adoption-related activities,
including certification investigations and reports. See Ariz. Admin. Code
(“A.A.C.”) R21-5-301, et seq.




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                          GRIGGS v. OASIS et al.
                           Opinion of the Court

¶14            The version of A.R.S. § 8-105(A) in effect when the
certification proceedings at issue here occurred stated, in pertinent part:5

       Before any prospective adoptive parent may petition to
       adopt a child the person shall be certified by the court as
       acceptable to adopt children. A certificate shall be issued
       only after an investigation conducted by an officer of the
       court, by an agency or by the division.

The legislature has defined the scope of certification investigations, as well
as the content of home study reports that agencies must submit to the
court:

       This investigation and report to the court shall consider all
       relevant and material facts dealing with the prospective
       adoptive parents’ fitness to adopt children and shall include:

          1. A complete social history.

          2. The financial condition of the applicant.

          3. The moral fitness of the applicant.

          4. The religious background of the applicant.

          5. The physical and mental health condition of the
             applicants.

          6. Any court action for or adjudication of child abuse,
             abandonment of children, dependency or termination
             of parent-child relationship in which the applicant
             had control, care or custody of the child who was the
             subject of the action.

          7. Whether the person or persons wish to be placed on
             the central registry established in subsection M of this
             section.

          8. All other facts bearing on the issue of the fitness of the
             prospective adoptive parents that the court, agency or
             division may deem relevant.

5      We rely on statutory provisions in effect at the time of the juvenile
court proceedings — 2011 — some of which have since been amended.



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                           GRIGGS v. OASIS et al.
                            Opinion of the Court

A.R.S. § 8-105(F).6

¶15            The legislature      has       also   mandated   timeframes   for
certification-related activities:

       Within ninety days after the original application . . . has been
       accepted, the division or the agency or a person or agency
       designated by the court to conduct an investigation shall
       present to the juvenile court the written report required by
       subsection F of this section, which shall include a definite
       recommendation for certifying the applicant as being
       acceptable or nonacceptable to adopt children and the
       reasons for the recommendation.

A.R.S. § 8-105(H). Within 60 days of receiving a home study, the juvenile
court “shall certify the applicant as being acceptable or nonacceptable to
adopt children based on the investigation report and recommendations of
the report.” A.R.S. § 8-105(I). The court may require additional
investigation necessary to “make an appropriate decision regarding
certification.” A.R.S. § 8-105(J).

II.    Judicial Immunity

¶16            In Arizona, judicial immunity is a common law exception to
the general rule of tort liability. See Adams v. State, 185 Ariz. 440, 447
(App. 1995) (“Judicial immunity is a creature of common law and the
courts are responsible for shaping and monitoring the course of the
common law.”). “There is perhaps no doctrine more firmly established
than the principle that liability follows tortious wrongdoing; that where
negligence is the proximate cause of injury, the rule is liability and
immunity is the exception.” Stone v. Ariz. Highway Comm’n, 93 Ariz. 384,
392 (1963).       “[I]mmunity deprives individuals of a remedy for
wrongdoing and should be bestowed only when and at the level
necessary.” Grimm v. Ariz. Bd. of Pardons and Paroles, 115 Ariz. 260, 265–66
(1977) (rejecting absolute immunity for parole board members in favor of
qualified immunity).



6      DCS has prescribed additional information agencies must obtain as
part of their certification investigations. See A.A.C. R21-5-404. DCS also
dictates substantive requirements for certification investigations and
reports. See A.A.C. R21-5-405.



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                           GRIGGS v. OASIS et al.
                            Opinion of the Court

¶17             Judicial officers are absolutely immune “from damages
lawsuits for their judicial acts.” Burk v. State, 215 Ariz. 6, 9, ¶ 7 (App.
2007). Over the years, judicial immunity has been extended to “[c]ourt
officers, employees, and agents who perform functions intimately related
to or . . . an integral part of the judicial process.” Id. See, e.g., Acevedo v.
Pima Cty. Adult Prob. Dep’t, 142 Ariz. 319, 321–22 (1984) (probation officers
submitting presentence investigation reports); Lavit, 173 Ariz. at 98–99
(psychologist acting under court directive to evaluate family court
litigants); Burk, 215 Ariz. at 12–13, ¶ 19 (court employee making child
custody recommendation); Widoff v. Wiens, 202 Ariz. 383, 386, ¶ 11 (App.
2002) (court-appointed guardian ad litem in family court proceeding);
Desilva v. Baker, 208 Ariz. 597, 599, ¶ 1 (App. 2004) (probation officers
filing revocation petitions).

¶18           “The nature and scope of judicial immunity raise perplexing
and somewhat amorphous issues, which are not susceptible to easy
resolution in some cases.” Adams, 185 Ariz. at 443. As in Adams, “[t]his is
such a case.” Id. For purposes of our analysis, we assume, without
deciding, that adoption agencies are entitled to judicial immunity for
home studies they submit to the court pursuant to A.R.S. § 8-105. Indeed,
this Court relied on a similar assumption in Adams, when considering
whether Arizona Department of Economic Security adoption caseworkers
were entitled to immunity for certain conduct. 185 Ariz. at 445.

¶19            Oasis, though, did not submit a home study report pursuant
to A.R.S. § 8-105. It instead sent an ex parte letter to the court after its
services were terminated. Other than expressing concerns about Thomas
Griggs, Oasis did not provide the statutory detail required of an
investigative report and made no “definite recommendation” regarding
certification, as required for home study reports. See A.R.S. § 8-105(H).
Nor did Oasis’s letter address topics that adoption agencies must consider
in making certification recommendations. See A.A.C. R21-5-406. Had the
submission been a home study, the Griggses would have been entitled by
law (and by their contract with Oasis) to receive a copy of the report
before it was filed with the court. See A.A.C. R21-5-406(D) (adoption
agency recommending against certification “shall send the applicant
written notice of the unfavorable recommendation, the reason for the
denial, and an explanation of the applicant’s right under A.R.S. § 8-105, to
petition the court for review” at least five days before filing report with
the court).

¶20        “To determine when a non-judge is cloaked with judicial
immunity, we examine the nature of the function entrusted to that person


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                          GRIGGS v. OASIS et al.
                           Opinion of the Court

and the relationship of that function to the judicial process.” Burk, 215
Ariz. at 9, ¶ 8. A generalized connection to the judicial process does not
confer immunity for all activities. In Acevedo, for example, the court held
that probation officers are entitled to judicial immunity for presentence
reports submitted to the court, but rejected as over-broad the proposition
that judicial immunity attaches to the supervision of probationers
“because the task arises out of a judicial proceeding and is a continuation
of that proceeding.” 142 Ariz. at 321–22. And in Adams, we rejected the
notion that “because DES [adoption] caseworkers work closely with the
court and are expected to comply with its guidelines as well as the
statutory and regulatory requirements, these nonjudicial employees are
absolutely immune from liability for all adoption-related acts or
omissions.” 185 Ariz. at 446.

¶21            In submitting its ex parte letter, Oasis was not acting
pursuant to delegated judicial authority or any mandate from the
legislative or executive branch. Oasis’s suggestion that adoption agencies
are immune for anything they do in furtherance of or in connection with a
certification investigation finds no support in our appellate jurisprudence.
See Lavit, 173 Ariz. at 101 (“Narrow parameters . . . apply to the activities
to which absolute immunity applies.”). Even probation officers, “a well-
recognized part of the judicial department,” Desilva, 208 Ariz. at 603, ¶ 23,
do not enjoy immunity for all of their probation-related activities.

¶22           In evaluating whether conduct is protected by judicial
immunity, some courts consider whether due process protections exist for
individuals potentially aggrieved by the underlying conduct – a
consideration we also deem relevant. See, e.g., Demoran v. Witt, 781 F.2d
155, 158 (9th Cir. 1985) (probation officers filing presentence reports are
immune, in part because “a plethora of procedural safeguards surround
the filing of a presentencing report”); cf. Adams, 185 Ariz. at 446 (“We
cannot say there are sufficient accountability safeguards inherent to or
routinely used . . . to warrant the granting of absolute immunity in this
context.”). Although due process considerations were not specifically
discussed in Lavit or Widoff, the aggrieved parties in those cases received
notice and an opportunity to be heard about the conduct later deemed
immunized. See Lavit, 173 Ariz. at 98 (court order entitled parties to copy
of evaluator’s report); Widoff, 202 Ariz. at 385, ¶ 4 (guardian ad litem
recommendations presented at evidentiary hearing attended by the
parties).

¶23          Protections exist for prospective adoptive parents who are
facing adverse certification recommendations. See A.A.C. R21-5-406(D)


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                          GRIGGS v. OASIS et al.
                           Opinion of the Court

(agency recommending against certification must give written notice of
recommendation and reasons therefor at least five days before report is
filed with court). The same is not true for the ex parte letter at issue here.
Moreover, the record reflects that Oasis refused to give the Griggses a
copy of the July 28 letter after they learned of its existence, depriving them
of the right to notice and an opportunity to be heard before the court took
adverse action against them. See Curtis v. Richardson, 212 Ariz. 308, 312, ¶
16 (App. 2006) (Due process rights include “notice and an opportunity to
be heard at a meaningful time and in a meaningful manner.”). Oasis
shared the letter with the Griggses only after being ordered to do so by the
court.

¶24          Oasis contends that, as a matter of public policy, its conduct
should be insulated from liability because the best interests of potential
adoptive children are at stake. But that argument sweeps too broadly, in
contravention of the tenet that immunity “should be bestowed only when
and at the level necessary.” Grimm, 115 Ariz. at 265–66; see also Ryan v.
State, 134 Ariz. 308, 311 (1982) (“[W]e propose to endorse the use of
governmental immunity as a defense only when its application is
necessary to avoid a severe hampering of a governmental function or
thwarting of established public policy.”). To the extent Oasis had qualms
about the Griggses’ suitability as adoptive parents, it could have
communicated those concerns in a court filing that afforded the Griggses
notice and an opportunity to be heard regarding information submitted to
(and relied on by) the court in making a decision about their ability to
adopt children.

                              CONCLUSION7

¶25          We vacate the judgment in favor of Oasis and remand for
further proceedings regarding the Griggses’ complaint.8 The Griggses are



7       We do not address Oasis’s alternative argument — urged for the
first time on appeal — that the Griggses cannot establish the necessary
elements of negligence. See In re MH 2008-002659, 224 Ariz. 25, 27, ¶ 9
(App. 2010) (“We do not consider arguments raised for the first time on
appeal except under exceptional circumstances.”).

8      Our decision to vacate the judgment in its entirety obviates the
need to separately address the Griggses’ challenge to the award of taxable
costs.



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                       GRIGGS v. OASIS et al.
                        Opinion of the Court

entitled to recover their taxable costs on appeal upon compliance with
Arizona Rule of Civil Appellate Procedure 21.




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




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