Mississippi Dep't of Human Servs. v. S.W.

MISSISSIPPI DEPARTMENT OF HUMAN SERVICES APPELLANT

v.S.W. APPELLEE

NO. 2010-SA-01036-COA

COURT OF APPEALS OF THE STATE OF MISSISSIPPI

Dated: May 29, 2012

DATE OF JUDGMENT:

TRIAL JUDGE:

COURT FROM WHICH APPEALED:

ATTORNEYS FOR APPELLANT:

ATTORNEYS FOR APPELLEE:

NATURE OF THE CASE:

TRIAL COURT DISPOSITION:

DISPOSITION:

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

05/25/2010

HON. WINSTON L. KIDD

HINDS COUNTY CIRCUIT COURT

JAMES P. STREETMAN III

WADE G. MANOR

DAVID LEE GLADDEN JR.

JAMIE LEIGH HEARD

J. BRAD PIGOTT

CARLTON W. REEVES

J. CLIFTON JOHNSON II

CIVIL - PERSONAL INJURY

JUDGMENT FOR PLAINTIFF FOR $500,000

AFFIRMED - 05/29/2012

EN BANC.

CARLTON, J., FOR THE COURT:

¶1. S.W.¹ filed a complaint against the Mississippi Department of Human Services (DHS) seeking damages he suffered resulting from DHS's negligence while he was placed in the legal custody of DHS as a minor. In Mississippi Department of Human Services v. S.W., 974So. 2d 253, 264 (¶35) (Miss. Ct. App. 2007), this Court affirmed the circuit court's finding of liability based upon the breach of ministerial, nondiscretionary governmental duties by DHS, and this court reversed and remanded the case for a new trial on damages. The Mississippi Supreme Court subsequently denied certiorari. Miss. Dep't of Human Servs. v. S.W., 973 So. 2d 244 (Miss. 2008).²

¶2. Upon remand, in lieu of a second trial, the parties allowed the circuit court to decide damages without submission of new evidence. DHS filed no motion in accordance with Mississippi Rule of Civil Procedure 52. The circuit court entered a $500,000 judgment in favor of S.W. DHS then filed a post-trial motion for reconsideration and amendment of judgment, requesting that the trial court reconsider S.W.'s entitlement to damages, which provided the court an opportunity to amend the judgment on that basis. However, DHS filed no motion seeking any additional findings of fact or conclusions of law pursuant to Mississippi Rule of Civil Procedure 52. The circuit court denied DHS's post-trial motion to reconsider and amend the judgment.

¶3. DHS appeals, claiming: (1) the circuit court erred in awarding anything more than nominal damages; (2) the circuit court's factual findings with regard to the alleged "occurrences" were contrary to the overwhelming weight of the evidence; (3) the circuit court's award of damages was without factual support, excessive, and based upon pure speculation; and (4) the circuit court's award of damages exceeded the statutory limitationsof liability found in Mississippi Code Annotated section 11-46-15 (Rev. 2002). "Where a trial court sits without a jury, its findings of fact will not be disturbed so long as there is substantial evidence in the record to support them." Callahan v. Ledbetter, 992 So. 2d 1220, 1224 (¶8) (Miss. Ct. App. 2008); see also Jordan v. McAdams, No. 2010-CA-01333-COA, 2012 WL 1174468, at *4 (¶23) (Miss. Ct. App. Apr. 10, 2012) (Where no post-trial motion is filed requesting additional findings of fact and conclusions of law as allowed by Mississippi Rule of Civil Procedure 52, no deficiency will be found in the trial court's findings of fact for lack of more detail.). Since we find that the record reflects substantial evidence to support the award of damages and judgment of the trial court, we affirm.

FACTS

¶4. In the prior opinion of this Court, we affirmed the circuit court's findings of liability

upon ascertaining that the record reflected that DHS breached nondiscretionary, ministerial, and affirmative duties to act as required by DHS policy and regulations and to fulfill its statutory duty to protect and care for S.W. while in the custody of DHS.³ The underlying facts and the determination of liability were resolved in this Court's previous opinion.⁴ This Court stated the facts as follows:

On October 4, 1996, fourteen-year-old S.W. was placed in the care and custody of DHS after substantiated reports that his mother, T.W., beat him with an extension cord. Later that month, DHS placed S.W. in the Region VII Chemical Dependency Unit (CDU) in Ackerman, Mississippi. Upon hisarrival at CDU, S.W. met Larenzo Williams, a "youth care specialist" employed by CDU to assist the residents of the facility. S.W. alleged that shortly after his arrival at CDU, Williams engaged in sexual acts with him. Specifically, S.W. stated that he awoke to Williams inappropriately touching him under the covers. S.W. testified that this conduct went on twice a week for the entire time he was in CDU and that he never reported these instances of abuse because he feared reprisal from Williams in the form of punishment or a decrease in privileges and activities.

S.W. was later transferred by DHS to the Special Needs in State Placement (SNIPS) facility in Starkville, Mississippi, where he remained until he returned to the physical custody of T.W. on June 6, 1997. Shortly after S.W.'s transfer to the SNIPS facility, Williams was also transferred to the SNIPS facility. S.W. alleged that, upon his placement at SNIPS, Williams continued to engage in sexual acts with him such as, rubbing, touching and performing oral sex on him. S.W. stated that Williams would sometimes leave letters for him containing as much as sixty dollars. S.W. further stated that Rick Howard, another employee of SNIPS, regularly engaged in sexual acts with him including anal sex, which S.W. performed on Howard. S.W. testified that the sexual activity occurred frequently - up to two or three times a week. S.W. stated that things got "out of control" at SNIPS because Williams had more power over him. Williams had authority to impose various punishments on S.W. such as early bedtime, time-out and confinement to his room. Williams also had authority to take away various recreational activities such as watching television, playing with the other children, listening to the radio and using the telephone. S.W. testified that when he would resist Williams' sexual advances, he would sometimes lose his privileges or be bumped to a lower level of progression which made it more difficult for him to achieve the level which would allow him to return home.

On June 6, 1997, S.W. was released from SNIPS and returned to his mother's home; however, S.W. remained in DHS custody until December 1997. Williams sent numerous romantic cards and letters to S.W. at his mother's home. The cards and letters expressed Williams' love for S.W., his desire to have a "continuing relationship," and his frustration with S.W.'s failure to reciprocate. Williams also mailed pre-paid phone cards to S.W. to enable S.W. to call him inconspicuously. Despite S.W.'s effort to hide these items, T.W. eventually found them and contacted DHS to express her concern. Shortly thereafter a meeting was held with S.W., his mother, his grandmother, DHS social worker, Elsie Roarke, DHS regional director, Billie Sims, andDHS supervisor, Beth Leggett. In the presence of this group, S.W. was asked if he had been sexually abused by workers at SNIPS or CDU; he replied that he had not. DHS summarily determined that S.W. had not been abused. This meeting was the extent of DHS's investigation.

S.W. later brought a negligence action against DHS under the Mississippi Tort Claims Act (MTCA). The complaint sought compensatory and punitive damages as well as damages for mental and emotional distress. S.W. alleged that DHS neglected to carry out its duties to him while he was in their custody, which allowed him to be sexually abused. He alleged further that DHS failed to fully investigate the reported abuse and failed to ensure that he received medical treatment in the form of psychological counseling.

At trial, both Williams and Howard denied the allegations of sexual abuse. Williams testified that although he never engaged in any sexual activities with S.W., it probably would have happened because he had feelings for S.W. Williams admitted that he liked S.W. in the wrong way, as in love for another man. He stated that he had a desire for S.W. and had dreams of being with him. Williams' cards and letters were also introduced at trial.

The trial court found that DHS breached its duty to protect and care for S.W. in three respects: (1) that DHS failed to make required monthly face-to-face contacts with S.W., (2) that DHS failed to sufficiently investigate the report of sexual abuse, and (3) that DHS failed to provide much needed counseling upon S.W.'s return home. The trial court determined that DHS's negligent conduct subjected S.W. to sexual abuse thereby causing him damages. Accordingly, judgment was entered in favor for S.W. awarding $750,000 in damages.

S.W., 974 So. 2d at 256-57 (¶¶2-7) (footnotes omitted).

¶5. In our prior opinion in this case, this Court evaluated whether the challenged governmental conduct was discretionary and, if so, whether the choice or judgment at issue involved social, economic, or political policy. Id. at 258-59 (¶11). After evaluation of the evidence in the record, the applicable statutes, DHS regulations and policy directives, this Court found the following challenged DHS governmental functions mandatory and notdiscretionary: monitoring S.W.'s care and placement; investigating allegations of sexual abuse; and providing medical care to S.W. in the form of counseling. Id. at 259-260 (¶¶13-21). The record reflected substantial evidence showing that DHS possessed affirmative governmental duties to act to protect and care for S.W.,⁵ a minor in its custody by court order. This Court stated:

We find that the challenged governmental functions were mandatory in nature and the discretionary function exemption does not shield DHS from suit in this case.

. . . .

We affirm the findings of the trial judge that DHS breached each of the three duties identified in the order. Therefore, we affirm the trial judge's finding as to liability. However we reverse and remand the case for a new trial on damages and instruct the trial judge to include in his or her order findings of fact

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