Arizona Court of Appeals Division One holds that the Department of Child Safety owes no civil duty of care to grandparents who wish to have dependent grandchildren placed in their care.

This civil action was brought by the paternal grandparents of a child placed in the custody of the Department of Child Safety (“DCS”).  As a result of confusion over the child’s paternity, DCS placed the child with non-relative foster parents who later successfully petitioned for adoption of the child over the grandparents’ objections.  The grandparents then sued DCS and several of its employees alleging negligence and constitutional claims.  The case was removed to federal court where the constitutional claims were dismissed.  The negligence claim was remanded and was then dismissed by the superior court.

The Court of Appeals affirmed.  Negligence claims require a plaintiff to establish (1) a duty, (2) breach of duty, (3) causation, and (4) damages.  The existence of a duty is a threshold issue.  The grandparents argued that DCS owed a “nondelegable duty to provide for appropriate and lawful placement of dependent children with grandparents if adoption is contemplated,” and cited various statutes and regulations governing juvenile dependency and severance proceedings.  Statutes or regulations give rise to “a tort duty premised on public policy” only where the relevant statute or regulation is “designed to protect the class of persons in which the plaintiff is included, against the risk of the type of harm which has in fact occurred as a result of its violation.”

The Court rejected the grandparents’ argument, reasoning that each of the authorities cited by the grandparents “makes clear that the intent is to protect dependent children, not the interests of potential foster or adoptive placements.”  For example, although some authorities indicated that the DCS should “promote the placement of the child with the child’s relative,” the purpose of that policy is to protect the interests of the dependent child, not the relative.  Accordingly, the Court concluded that the grandparents had failed to establish the existence of a legal duty owed to them by DCS and therefore affirmed the dismissal of the grandparents’ negligence claim. 

Presiding Judge Downie authored the opinion of the Court in which Judges Orozco and Portley joined.