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Oliveaux v. St. Francis Medical Center12/15/2004
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B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or their failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties. (Emphasis added.)
The wrongful death action in Todd arose from the suicide of an 11-year-old boy two days after he had been removed from his mother's custody because of a report of child abuse. The mother contended that the state agency was negligent for failing to properly investigate the unsubstantiated allegations of abuse and the boy's history of mental difficulties, and in failing to personally interview the mother within 24 hours of the report. The supreme court stated that in order for the plaintiff to recover, she must show the caseworker and the state agency "breached their duty to investigate, and thereby caused" the boy's death, and "there must be a proximate relation between the alleged negligence and the injury ." 669 So. 2d at 39. The court closely reviewed the caseworker's conduct and the agency's manual. Regarding the agency's duty, the court stated:
Decisions involving the removal of a child from his home clearly lie within the scope of the duty and authority of social workers. Susan Abbott, Liability of the State and its Employees for the Negligent Investigation of Child Abuse Reports, 10 Alaska L. Rev. 401 (1993). Such decisions require personal deliberation and judgment. Although provided with guidelines, social workers are not merely performing a duty in which they are given no latitude for action. Id. The manner in which the investigation is conducted is one of discretion, unless the investigation is so incomplete that it could not be found to be thorough. Jensen v. Anderson County DSS, 304 S.C. 195, 403 S.E. 2d 615, 620 (1991).
Oliveaux contends the supreme court ultimately held that the plaintiff in Todd "failed to establish the legally causative link" between the caseworker's actions and the death. Id., at 44. Because the issue was cause, Oliveaux argues that the court's reference to "deliberation and judgment" was obiter dictum and does not mandate a finding of discretionary act immunity under the statutes.
We disagree. The supreme court's discussion of the caseworker's duty is cogent and integral to the case. Notably, the court expressly found that the caseworker's actions were not unreasonable, as she had no evidence on which to find that the boy was suicidal. 699 So. 2d at 43. This finding of deliberation and judgment, and the citation of Ch. C. arts. 611, 612 and R.S. 9:2798.1, were critical to the finding that the state agency was not liable for the caseworker's allegedly negligent acts.
Similarly, the instant record supports a finding that the conduct of the CPS workers met the criteria of the statutes and was not grossly negligent.
Ms. Foster, the case supervisor, testified that CPS's goal is to protect children and observe the family's right to privacy. Interfering with a family's privacy, and the potential trauma to a child from removal, are major concerns for caseworkers. She further testified that although this case was mistakenly designated as "Level III," Ms. Pace actually performed a "Level I" investigation by beginning the required interviews within 24 hours. In these interviews, neither Dr. Perkins nor Sr. June expressed any suspicion of abuse; the police detective felt Haley's injuries were consistent with the accident reported by Duncan; and family members voiced concerns about Duncan other than possible child abuse.
Although they were bound by the guidelines of the Program Policy Manual, M
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