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Parental Rights

Father's Tort Claim Based on Alleged Falsification of Drug Test Results Can Go Forward


From Avendano v. Shaw, decided Friday by a five-Justice division of the Alabama Supreme Court (in an opinion by Justice James Mitchell, joined by Chief Justice Tom Parker; Justices Greg Shaw, Tommy Bryan, and Brady Mendheim concurred in the result, but without a separate opinion):

This case stems from the serial fraud of Brandy Murrah, the former owner of a drug-screening laboratory who is now in prison for falsifying test results. The plaintiffs, Angel Avendano and Sandy Knowles, claim to be victims of Murrah's fraud and allege that social worker Victoria Shaw conspired with Murrah to falsify the results of their drug tests…. {For purposes of this appeal, we view the record in the light most favorable to Avendano and Knowles, and we resolve factual disputes and ambiguities in their favor to the greatest reasonable extent.}

Angel Avendano is the father of two children who, during the time frame relevant to this case, had been placed in foster care. Though the children's foster parents were their primary caregivers, Avendano retained visitation rights and would regularly host the children at his home. Avendano's employer, Sandy Knowles, was close with Avendano and would help care for the children while they were staying with him.

During the children's time in foster care, one of the foster parents came to believe that the children's biological mother (Avendano's ex-wife) had been using illegal drugs around the children. The foster parent decided to give the children an at-home drug test, which allegedly turned up positive. The Dale County Department of Human Resources ("DHR")—the agency charged with providing child-protective services and overseeing the county's foster-care system—soon launched an investigation. As part of that investigation, DHR social worker Victoria Shaw (who all parties agree is an employee of the State of Alabama for purposes of this appeal) went to Avendano's house, accompanied by Brandy Murrah, and asked Avendano and Knowles to submit to drug tests administered by Murrah. Believing that the tests were legitimate, Avendano and Knowles agreed.

Murrah administered the tests and then reported that both Avendano and Knowles were positive for "amphetamines or methamphetamines." Avendano and Knowles insisted that the test results must be wrong. To prove it, they procured their own drug tests from an independent laboratory, which showed that they were drug-free. Avendano and Knowles presented the negative test results to Shaw, but to no avail—Shaw relied on Murrah's test results to restrict Avendano's and Knowles's ability to see the children….

It eventually came to light that Murrah was a serial fraudster who had, on multiple occasions, falsified the results of tests submitted to her lab. In 2020, Murrah confessed her crimes and was sentenced to several years in prison….

The court held that plaintiffs' intentional infliction of emotional distress tort could go forward:

Shaw argues that even if she is not entitled to the jurisdictional protection of State immunity with respect to the individual-capacity claims against her, she is nonetheless entitled to the more limited, nonjurisdictional affirmative defense of State-agent immunity, which protects State employees from personal liability for certain actions undertaken in the performance of their official duties. There is an exception to State-agent immunity, however, for actions or conduct undertaken "willfully, maliciously, fraudulently, in bad faith, beyond [the agent's] authority, or under a mistaken interpretation of the law." …

Here, the complaint alleges that Shaw worked closely with Murrah, personally directed Murrah in the performance of her job duties, was physically present while Murrah performed the drug tests on Avendano and Knowles, and ignored independent lab results showing that Murrah's tests were inaccurate. Nothing about these allegations affirmatively rules out the possibility that Shaw acted maliciously, fraudulently, in bad faith, beyond her authority, or under a mistaken interpretation of the law. Thus, State-agent immunity cannot be an appropriate basis for dismissal [as a matter of law]….

Shaw also points to … § 26-14-9, Ala. Code 1975, which shields from liability persons who participate in "the making of a good faith report" in child-abuse removals, investigations, or judicial proceedings. Even if the drug-test report at issue here qualifies as a report related to child-abuse proceedings (a conclusion that Avendano and Knowles dispute and about which we express no opinion), we have just explained that the complaint leaves room for the possibility that Shaw's actions related to that report were not undertaken in "good faith." …

A plaintiff can satisfy [the] rigorous standard [for intentional infliction of emotional distress, known under Alabama law as "outrage,"] by plausibly alleging that the defendant's conduct (1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused severe emotional distress that a reasonable person could not be expected to endure.

In our view, Avendano and Knowles's allegations clear this high hurdle, because the complaint alleges that Shaw: (1) "intentional[ly] and malicious[ly]" colluded with Murrah (2) to fabricate positive drug-test results and to use those fabricated results to falsely smear Avendano and Knowles as drug addicts unfit to be around children, and that (3) this conduct caused severe and unbearable emotional distress by stripping Avendano and Knowles of their parental and caretaking rights, respectively, and by clouding their reputations within their community….

[Likewise as to fraud, which] requires (1) a false representation (2) of a material fact (3) relied upon by the plaintiff (4) who was damaged as a proximate result of the misrepresentation…. The complaint alleges that "Shaw represented … that the [drug] tests were legitimate tests that would be properly processed to determine the results" and that this representation was "false." The complaint further alleges that Avendano and Knowles relied on Shaw's false representation to their detriment. Those allegations, taken together, satisfy all the elements of a fraud claim….

Finally, Shaw argues that the outrage, fraud, and conspiracy claims against her must fail because, she says, Avendano's and Knowles's injuries were caused solely by the criminal conduct of a third party, Murrah, who acted without Shaw's knowledge or approval. Again, this assertion flatly contradicts the complaint, which alleges that Shaw was Murrah's coconspirator. A defendant's bare assertion of innocence cannot justify dismissal when that assertion conflicts with the plaintiffs' well-pleaded factual allegations….