Crouch v. Gillispie

809 S.E.2d 699

Bill J. CROUCH, in his capacity as Secretary of the West Virginia Department of Health and Human Resources, Defendant Below, Petitioner

v.Eric GILLISPIE, Administrator of the Estate of Raynna Rea Boggs, Plaintiff Below, Respondent

No. 17-0025

Supreme Court of Appeals of West Virginia.

Submitted: January 9, 2018

Filed: January 31, 2018

Ancil G. Ramey, Esq., Hannah C. Ramey, Esq., Steptoe & Johnson PLLC, Huntington, West Virginia, Counsel for the Petitioner

Charles M. Johnstone, II, Esq., Johnson W. Gabhart, Esq., Johnstone & Gabhart, LLP, Charleston, West Virginia, Counsel for the Respondent

WALKER, Justice:

Eric Gillispie, administrator of his daughter's estate, filed a wrongful death action against the West Virginia Department of Health and Human Resources (DHHR). Mr. Gillispie contends that DHHR's investigation of allegations made about the care of his daughter was not sufficiently thorough. DHHR contends, among other things, that the circuit court should have granted its motion for summary judgment on the basis of qualified immunity because the complained-of conduct involved discretionary functions and there was no violation of a clearly established statutory or constitutional law. We agree with DHHR's position and reverse the order of the Circuit Court of Kanawha County and remand with instructions to enter summary judgment in favor of DHHR.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 19, 2010, Child Protective Services (CPS) received an anonymous call alleging that Leslie Boggs, who was involved in a dispute with Mr. Gillispie regarding their daughter, Raynna, was unable to care for the child as needed because she was a recovering addict and alcoholic and continued to abuse substances. The anonymous reporter, later identified as Eric Gillispie, also generally alleged that Leslie Boggs's current boyfriend, Andrew Myers, was a convicted felon who had a history of domestic violence issues concerning Leslie but nonetheless was allowed in the home with Raynna. Mr. Gillispie did not allege that Raynna was the subject of any domestic violence. Mr. Gillispie also reported that a fire had broken out in the home while Leslie Boggs was intoxicated. During this call, when asked to identify individuals who could corroborate the allegations, Mr. Gillispie offered no names. Rather, he stated that the last time he had seen the child she was "fine," and that the child was currently staying with her mother, Leslie, at the home of her grandmother, Donna Boggs. Mr. Gillispie also identified the caretakers of the child as himself, Leslie Boggs, and Donna Boggs, and he provided Donna Boggs's address.

CPS accepted the referral of Mr. Gillispie's phone call the same day. The Interim Child Protective Services Policy for West Virginia Safety Assessment and Management System Pilot Counties (CPS Guidelines)¹ required the Assessment Worker, Erica Garcia, to make face-to-face contact with Leslie Boggs within 72 hours of the April 19, 2010 report. Likewise, Ms. Garcia was to consult with her supervisor within 24 hours of the face-to-face visit. Jenny Pace was immediately assigned as the case supervisor, but was disqualified from serving in that capacity because she knew Eric Gillispie. Pamela Ingram later replaced Ms. Pace as the case supervisor.

The next day, on April 20, 2010, Ms. Garcia attempted face-to-face contact with Leslie Boggs and Raynna at the home of Donna Boggs. Ms. Garcia testified that she knocked on Donna Boggs's door and heard people inside the house, then saw two women leaving the house by car. Ms. Garcia prompted the car to stop, after which she asked if either of the two women were Leslie Boggs. Both denied being Leslie Boggs. Lacking particular information to identify them as the subjects of the referral, Ms. Garcia gave them her card and the two women left. Ninety minutes later, Donna Boggs called Ms. Garcia and told her that they had lied about their identities because they wanted to confirm that she was a CPS worker and not someone attempting to serve papers. During the call, the Boggses set up an interview with Ms. Garcia and another CPS worker, Sarah Flowers, for April 22, 2010. At the April 22, 2010 face-to-face interview, Ms. Garcia and Ms. Flowers completed a Present Dangers and Family Functioning Assessment (Assessment) to determine, based on certain criteria outlined by CPS Guidelines,² whether Raynna was in present or imminent danger. As Ms. Garcia testified, upon a finding of present or imminent danger based on the guidelines, the CPS worker must remain in the home with the child until alternate caretakers are arranged.

During the completion of the Assessment, Ms. Garcia and Ms. Flowers interviewed Leslie and Donna Boggs separately. Because Leslie indicated that she would be living with her mother for some time, the CPS workers interviewed them both and observed their care of Raynna, as well as that of J.B.,³ Leslie's older son, who also lived in the home. Ms. Garcia and Ms. Flowers reported that Donna Boggs had been J.B.'s caretaker for many years, and appeared to be very protective of him. They additionally concluded that Donna enhanced the protection of Raynna because it appeared that Donna understood the importance of putting J.B.'s needs before her own and provided a loving and nurturing environment. Leslie reportedly had abdicated all responsibility for parenting J.B. in favor of her mother and had more of a sibling relationship with him. They reported that Leslie attended to Raynna during the visit, acted appropriately with her and had the basic knowledge of how to care for her.

As to reports of drug and alcohol abuse, Leslie denied abusing any substances. She stated that she only drank socially and not while her children were present. Donna likewise reported that Leslie did not abuse drugs or alcohol, and the CPS workers did not find any evidence of alcohol or drug abuse during the home visit. Leslie admitted that she had had some domestic violence issues in the past with J.B.'s father. She also reported to Ms. Garcia that she currently had a restraining order and domestic violence petition against Mr. Gillispie because he had threatened her and had set her apartment on fire. The domestic violence petitions were confirmed by the CPS workers. Based on Ms. Garcia's and Ms. Flowers's interviews and observations in the face-to-face interview, as well as the context of Mr. Gillispie and Leslie's apparently volatile relationship, Ms. Garcia determined that none of the present danger conditions existed to justify removing Raynna from the home at that time.

CPS policy establishes a thirty-day window from the time it accepts a referral to complete a family functioning assessment to determine whether to open a case for ongoing CPS intervention. To aid in CPS's investigation, the Boggses gave the CPS workers the names and contact information for Noble Young and Mary Ellis, a church friend and cousin, respectively, who could speak to the Boggses' home situation. CPS Guidelines refer to such individuals as "collaterals," meaning that they are "[a] third party (e.g., friends, neighbors, relatives, or professionals) with information about the alleged abuse/neglect and risk of serious harm to the children."

The day following the face-to-face interview, April 23, 2010, Ms. Garcia unsuccessfully attempted to contact both of the collaterals offered by the Boggses and left messages for them. That same day Ms. Garcia also called Mr. Gillispie and informed him of the face-to-face visit with the Boggses. Mr. Gillispie again did not provide contact information for any collaterals able to corroborate his allegations regarding Leslie Boggs's parenting abilities or substance abuse.

On May 6, 2010, Ms. Garcia met with her supervisor, Ms. Ingram, to report on the face-to-face visit and her conclusion that no present danger existed. Ms. Ingram concurred in Ms. Garcia's findings that no present danger existed. Ms. Garcia continued the investigation into whether continued CPS intervention was necessary. Before the conclusion of the thirty-day investigative window, however, Ms. Garcia received information that Raynna had died under suspicious circumstances on May 10, 2010. Leslie Boggs is currently incarcerated for the death of Raynna that apparently resulted from Ms. Boggs rolling onto Raynna while sleeping after having consumed alcohol.

Mr. Gillispie, as administrator of Raynna's estate, filed this wrongful death suit, alleging that DHHR's investigation was not sufficiently thorough and resulted in the death of Raynna. DHHR moved for summary judgment arguing that Mr. Gillispie's claims sounded in negligence for failure to thoroughly investigate Mr. Gillispie's allegations against Leslie Boggs prior to the death of Raynna. DHHR argued that because DHHR has discretion in the performance of its investigations, even if performed negligently, it is entitled to qualified immunity. DHHR also raised statutory immunity pursuant to West Virginia Code § 49-2-802(h),⁴ which provides that "[n]o child protective services caseworker may be held personally liable for any professional decision or action taken pursuant to that decision in the performance of his or her official duties as set forth in this section or agency rules promulgated thereupon." Conversely, Mr. Gillispie argued that DHHR had a duty to conduct a thorough investigation and had violated certain requirements contained in CPS Guidelines.

The circuit court examined the factual circumstances in light of the CPS Guidelines and determined that

[t]here is no question that the CPS policy gives workers substantial discretion when they conduct investigations ... [a]nd ultimately, the CPS worker and supervisor will make a decision at the end of the investigation as to whether the case should be closed or further action should be taken. These decisions and actions fall within the CPS workers' discretionary functions and they have qualified immunity against any alleged negligence in

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