MISSISSIPPI DEPARTMENT OF HUMAN SERVICES AND RICHARD BERRY, IN HIS CAPACITY OF EXECUTIVE DIRECTOR OF MDHS
D.C., BY AND THROUGH HIS NEXT FRIEND AND NATURAL MOTHER, GEORGIA MORIN
OF JUDGMENT: 04/02/2018
LINCOLN COUNTY CIRCUIT COURT HON. MICHAEL M. TAYLOR TRIAL
COURT ATTORNEYS: JOSEPH P. DURR C. STEPHEN STACK, JR.
ATTORNEY FOR APPELLANTS: C. STEPHEN STACK, JR.
ATTORNEYS FOR APPELLEES: JOSEPH P. DURR W. BRADY KELLEMS
CHELI K. DURR
RANDOLPH, C.J., COLEMAN AND CHAMBERLIN, JJ.
This appeal arises from D.C.'s civil suit against Jason
Case, the Mississippi Department of Human Services (DHS) and
Richard Berry, in his capacity as executive director of
D.C., a minor foster child, alleged that Case, his foster
parent, sexually abused him. DHS removed D.C. from Case's
home and a subsequent investigation substantiated the alleged
abuse. DHS does not contest that Case abused D.C. In his
complaint, D.C. alleged negligence and gross negligence on
behalf of DHS and Berry in the licensing of the foster home
and the lack of care and treatment to D.C., both during his
placement and after DHS removed D.C. from the foster home.
After a period of discovery, DHS filed a motion for summary
judgment. It maintained that it was entitled to immunity
under Mississippi Code Section 43-15-125 (Rev. 2015) and
Mississippi Code Section 11-46-9(1)(d) (Rev. 2012). Without
any noted reference to Section 43-15-125, the circuit court
denied DHS's motion for summary judgement. DHS filed a
petition for interlocutory appeal, which a panel of this
Court granted. After review of the record, we affirm in part
and reverse in part the circuit court's denial of summary
AND PROCEDURAL HISTORY
Jason Case applied with DHS to be a foster parent. DHS
approved his application after Case passed the statutorily
required background checks. DHS placed B.W.-a foster
child-with Case before it placed D.C. in Case's home. DHS
received allegations of physical abuse by Case against B.W.
and his brother D.W. DHS determined that the allegations of
physical abuse were unsubstantiated.
DHS then placed D.C., a minor child, in the home of Jason
Case on November 4, 2011. A DHS caseworker visited D.C. in
Case's home on November 17, 2011, and December 7, 2011.
DHS also held a conference that D.C.'s family members
attended to discuss permanent plans for D.C.
On January 1, 2012, D.C. called Lastangela Thomas, a DHS
caseworker, and informed her that Case had sexually abused
him the previous night. According to D.C., Case had provided
D.C. alcohol on December 31, 2011, and had proceeded to
sexually assault him. Allegedly, Case encouraged D.C. to
drink to the point of intoxication. Once D.C. was drunk, D.C.
maintained that Case placed him in a recliner in the living
room, fondled him and performed oral sex on him.
Upon hearing from D.C., Thomas immediately met with D.C. and
his mother. The sheriff's department was contacted, and
D.C. was taken to the hospital. DHS also contacted a judge
and sought to have D.C. removed from Case's home. The
judge authorized the placement of D.C. with his mother.
Next, DHS conducted an investigation into D.C.'s
allegations. During the investigation, DHS interviewed B.W.
and D.W. They reported (for the first time, according to DHS)
that Case had sexually abused them as well.
On March 18, 2013, D.C. (by and through his next friend and
natural mother, Georgia Morin) sued Case, DHS, Richard Berry
(in his capacity as executive director of DHS) and John Does
One through Five. D.C. alleged that DHS failed to properly
monitor D.C.'s care and treatment and failed to
adequately investigate Case's "prior conduct and
propensities." D.C. also claimed that DHS had failed to
take reasonable steps to protect him by placing him in a safe
home and removing him from Case's home when DHS knew of
Case's sexual abuse of D.C. and others.
DHS and Berry answered the complaint, jointly, and, after a
period of discovery, DHS moved for summary judgment. It
attached the affidavit of Dr. Kim Shackelford who was the
deputy administrator for the Division of Family and Children
Services with DHS. DHS maintained that it had complied with
all of the statutorily required background checks of Case and
had conducted a thorough home study of Case's home.
Further, DHS noted that a caseworker had visited D.C. twice
in Case's home. While DHS admitted that there were prior
allegations of physical abuse by Case, it noted that the
allegations had been determined to be unsubstantiated and
that there had been no report of sexual misconduct by Case
until after D.C. had reported his allegations to DHS. DHS
argued that it was entitled to immunity from civil liability
in connection with formulating its licensing policies and
procedures under Mississippi Code Section 43-15-125 (Rev.
2015). It also argued that the facts of the case demonstrated
that DHS was entitled to immunity under Mississippi Code
Section 11-46-9(1)(d) (Rev. 2012) of the Mississippi Tort
Claims Act (MTCA).
D.C. responded to DHS's motion for summary
judgment. He detailed the abuse against him and
alleged that DHS "made no effort to provide psychiatric
care or counseling" to him after Case's abuse of
him. D.C. also alleged that DHS ignored Case's abuse of
B.W. and D.W. D.C. argued that three genuine issues of
material fact precluded summary judgment. First, D.C.
maintained that DHS had prior knowledge of the acts of Case.
Second, D.C. alleged that he would have been in danger had he
been left in the care of Case after January 1, 2012. Third,
D.C. pointed to Case's criminal conviction after
D.C.'s allegations of abuse.
Next, DHS moved to strike each of D.C.'s exhibits to his
motion for summary judgment except the sentencing order. DHS
argued that D.C.'s exhibits two through six and eight
were hearsay and lacked authentication. DHS also maintained
that exhibit seven, Littleton's affidavit, was hearsay.
D.C. did not respond to DHS's motion to strike.
Two years later, DHS renewed its motion for summary judgment
and its motion to strike. The circuit court held a hearing
and found that Littleton's affidavit-while it contained
hearsay-created a genuine issue of material fact with regard
to actual knowledge of DHS. The circuit court also ruled that
it could not determine at that stage in the litigation
whether DHS was entitled to immunity under the
discretionary-function exception of Section 11-46-9(1). The
circuit court denied DHS's renewed motion or summary
judgment as well as its motion to strike.
Aggrieved, DHS filed a petition for interlocutory appeal,
which a panel of this Court granted. On appeal, DHS asks us
to determine whether the circuit court erred in denying its
motion for summary judgment. After review, we reverse in part
the circuit court's denial of summary judgment to DHS
under Section 43-15-125, and we affirm in part the circuit
court's denial of summary judgment under Section
11-46-9(1)(d), because DHS did not meet its burden under
Mississippi Rule of Civil Procedure 56.