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Mississippi Department of Human Services v. D.C.

Supreme Court of Mississippi

August 15, 2019

MISSISSIPPI DEPARTMENT OF HUMAN SERVICES AND RICHARD BERRY, IN HIS CAPACITY OF EXECUTIVE DIRECTOR OF MDHS
v.
D.C., BY AND THROUGH HIS NEXT FRIEND AND NATURAL MOTHER, GEORGIA MORIN

          DATE OF JUDGMENT: 04/02/2018

          LINCOLN COUNTY CIRCUIT COURT HON. MICHAEL M. TAYLOR TRIAL JUDGE:

          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

          BEFORE RANDOLPH, C.J., COLEMAN AND CHAMBERLIN, JJ.

          CHAMBERLIN, JUSTICE

         ¶1. This appeal arises from D.C.'s[1] civil suit against Jason Case, the Mississippi Department of Human Services (DHS) and Richard Berry, in his capacity as executive director of DHS.[2] 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.

         ¶2. 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 judgment.

         FACTS AND PROCEDURAL HISTORY

         ¶3. Jason Case applied with DHS[3] 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.

         ¶4. 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.

         ¶5. 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.

         ¶6. 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.

         ¶7. 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.

         ¶8. 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.

         ¶9. 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).

         ¶10. D.C. responded to DHS's motion for summary judgment.[4] 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.[5]

         ¶11. 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.

         ¶12. 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.

         ¶13. 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.[6]

         STANDARD ...


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