This is a tort claim for wrongful institution of civil proceedings against the State Department of Child Safety. The case was decided on a motion to dismiss. The underlying custody dispute involved two children and the juvenile and family courts. DCS removed the children after each accused the other of wrongdoing. The dad absconded with the kids, and DCS tracked them down in Florida. The children were brought back. Eventually, after new information came to light, the juvenile court dismissed the dependency case against mom and returned the children to their mother. Feeling vindicated, mom then filed a lawsuit against DCS. Not so fast. The initial judgment of dependency established probable cause. Unless mom had facts showing the adjudication was procured by fraud, perjury, or other corrupt means, the claim failed. Mom alleged omissions are not enough. “Probable cause does not require DCS to disclose every fact that might undermine its position or to present a perfectly balanced narrative; it requires only an honest and objectively reasonable belief that removal and dependency can be established.”

Justice Montgomery and Justice Bolick disagreed. Montgomery would have the trial court not decide this on a motion to dismiss, but rather wait for a motion for summary judgment after the parties have gathered their evidence. He questioned the adequacy of DCS’s investigation after they were picked up in Florida. Justice Bolick believed the DCS worker’s report to the court was misleading and incomplete, and that the case should move forward. He ended his dissent: “The majority knits the façade of a just result but not the reality. I believe Stephens’s claim against DCS, no matter how uphill the climb it faces, should be allowed to proceed; and, therefore, with great respect to my colleagues, I dissent.”  Justice Bolick’s dissent is an Aristotelian performative stage: logos, ethos, and pathos. But unconvincing to the majority of his colleagues.

link to opinion