Griggs v. Oasis Adoption Services, 749 Ariz. Adv. Rep. 16 (App. Div. I, October 6, 2016) (J. Downie)

ADOPTION AGENCY HAS NO JUDICIAL IMMUNITY FOR EX PARTE COMMUNICATION WITH COURT

Plaintiffs initiated adoption proceedings in Superior Court and hired defendant to process the certification process and prepare the statutorily required “Home Study” addressing the suitability of the petitioning prospective parents to be parents of the child up for adoption.  Plaintiffs later fired defendant, hired a new agency and proceeded to seek certification.

The baby was born and placed temporarily with the plaintiffs pending the adoption.  Meanwhile defendant sent an ex parte letter to the court questioning the plaintiffs' suitability as parents. The court without explanation denied the adoption request and had the baby removed from the plaintiffs' home. Upon rehearing both the defendant and new adoption agency offered testimony as did the plaintiffs. The court then granted plaintiffs petition to adopt. However, by the time this order was issued the baby had been placed with another family.

Plaintiffs sued defendant under various tort theories including, abuse of process, negligence and infliction of emotional distress. The defendant's motion for summary judgment based upon judicial immunity was granted and plaintiffs' motion for new trial denied. The plaintiffs appealed and the Arizona Court of Appeals vacated the superior court ruling and remanded.

Arizona Revised Statutes §8-105 specifically sets for the requirements for an adoption agency in completing and submitting a Home Study and makes the agency an arm of the court in so doing. Clearly in performing that function the agency is cloaked with judicial immunity.  Here, however, the communication was not a Home Study but rather an ex parte communication that did not comply with the statute.  Judicial immunity is a common law doctrine that should only be extended so far as necessary “to avoid a severe hampering of a governmental function or thwarting of established public policy.”

An important aspect of A.R.S. §8-105 is notice to the prospective parents; when the Home Study is filed with the court the prospective parents are required to get a copy. If the Agency wanted judicial immunity it needed only send its comments in the form of a Home Study and serve a copy on the plaintiffs. The failure to give notice was fatal to the immunity claim.