Greenfield v. DFS Director Miles , 211 A.3d 1087 ( 2019 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
TIFFANY GREENFIELD, §
as Next Friend and Guardian ad litem §
for ETHAN FORD, a minor, § No. 143, 2018
§
Plaintiff Below, § Court Below—Superior Court
Appellant, § of the State of Delaware
§
v. §
§ C.A. No. N16C-07-115
DFS DIRECTOR LAURA MILES, §
individually and in her official capacity; §
DFS DIRECTOR VICTORIA KELLY §
PSY.D, individually and in her official §
capacity; FAMILY CRISIS §
THERAPIST TRINA N. SMITH, §
individually and in her official capacity; §
JAMIE ZEBROSKI M.S.W., §
individually and in her official capacity §
as a Supervisor for DFS; CRYSTAL §
BRADLEY, M.S., individually and in §
her official capacity as a Senior Family §
Services Specialist for DFS; NANCY §
CRAIGHTON, individually and in her §
official capacity as a Supervisor for §
DFS, §
§
Defendants Below, §
Appellees. §
Submitted: March 6, 2019
Decided: May 30, 2019
Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR,
Justices, constituting the Court en Banc.
Upon appeal from the Superior Court. AFFIRMED.
Andrew C. Dalton, Esquire (argued) and Bartholomew J. Dalton, Esquire; DALTON
& ASSOCIATES, P.A., Wilmington, Delaware; Attorneys for Plaintiff Below,
Appellant.
Joseph C. Handlon, Esquire (argued) and Wilson B. Davis, Esquire, DELAWARE
DEPARTMENT OF JUSTICE, Wilmington, Delaware; Attorneys for Defendants
Below, Appellees.
TRAYNOR, Justice, for the Majority:
2
This is an appeal from the Superior Court’s dismissal of a lawsuit brought on
behalf of a minor, Ethan Ford, by his guardian, Tiffany Greenfield, 1 against three
child-welfare workers and their supervisors.2 Greenfield alleged that the defendants,
who worked for the Delaware Division of Family Services (“DFS”),3 contributed in
one fashion or another—some as case workers, others as managers and
supervisors—to four faulty investigations of reports that Ford and his half-sister,
Autumn Milligan, were being abused and neglected by their mother, Tanasia
Milligan. According to Greenfield’s complaint, the defendants’ dereliction of duty
resulted in the tragic death of Autumn and permanent and irreversible damage to
Ford—damage that necessitates long-term physical care and psychological services.
But what was once a sprawling complaint against two former DFS Directors,
three DFS supervisors, and three DFS caseworkers that included claims of negligent
hiring, retention, and supervision of the caseworkers by their supervisors is now a
case against just two of the caseworkers, Trina Smith and Crystal Bradley, and their
direct supervisors focused solely on their direct involvement in their investigations.
In 2009, Smith was assigned to investigate Tanasia’s care of the new-born Ford when
1
Greenfield is Ford’s maternal aunt.
2
Greenfield has not challenged the Superior Court’s dismissal of her claims against Javonne Rich,
another DFS case worker.
3
DFS is a division of the State of Delaware’s Department of Services for Children, Youth and
their Families.
3
a hospital test detected marijuana in his system. After a visit to the home where
Tanasia lived with Ford, Smith concluded that Ford appeared to be “well-cared for”4
and closed her investigation. Five years later, Bradley was the designated
caseworker charged with investigating Tanasia after she and her boyfriend—both
apparently under the influence of drugs—appeared at Greenfield’s house to pick up
Ford and Autumn. After a seven-week-long investigation, during which Bradley met
with Tanasia and her children “multiple times” and spoke with Tanasia by phone on
six additional occasions, Bradley and her supervisor “moved [the case] into
treatment.”5
Because Smith, Bradley, and their supervisors were public employees,
Greenfield’s claims are subject to the Delaware State Tort Claims Act, 6 which
immunizes public officers and employees against claims based on the performance
of official duties that involve the exercise of discretion unless the act or failure to act
causing the alleged harm was not done in good faith or was performed in a grossly
negligent manner. Greenfield has not alleged bad faith, and the Superior Court
determined that the investigations conducted by Smith and Bradley involved the
exercise of discretion and that Greenfield had not alleged facts supporting an
4
First Amended Complaint (“Complaint”) ¶ 13, Greenfield, et al. v. Budget of Delaware, Inc., et
al., N16C-07-115 (Del. Super. Mar. 24, 2017), Dkt. No. 20, available at Second Am. App. to
Opening Br. A73–94.
5
Complaint, supra note 4, at ¶ 20.
6
10 Del. C. § 4001 et seq.
4
inference of gross negligence. Accordingly, the court ruled that Greenfield failed to
state a claim for relief under Superior Court Civil Rule 12(b)(6) and entered an order
of dismissal. The Superior Court also dismissed related civil-rights claims that were
based on the same allegedly inadequate investigations.
Preliminarily, we state the obvious. The DFS caseworkers’ efforts to ensure
the safety of Tanasia’s children, Autumn and Ford, failed with doleful consequences.
And in cases such as this, the same humanity that causes our hearts to break when
we hear of the mistreatment of a child also cries out and demands that those who are
responsible for the needless suffering be held to account. But it is worth stressing
that the claims we are called upon to assess in this case have not been made against
the person at whose hands Autumn and Ford suffered. Instead and for reasons that
we do not fault, Ford’s guardian seeks redress from individuals who were charged
with protecting him but who were unable to do so. Those same individuals, however,
are also required to preserve and foster the family unit, which creates an obvious
tension between their duties that requires the exercise of judgment.
Under such circumstances, our law requires that complaints against such
individuals be written to a higher standard. We agree with the Superior Court that
Greenfield’s complaint did not satisfy that standard and therefore affirm.
5
I. BACKGROUND7
Tanasia Milligan was the custodial parent of Ethan Ford and his younger half-
sister, Autumn Milligan. During the five-and-a-half years between Ford’s birth and
Autumn’s tragic death, 8 DFS conducted four separate investigations of reports that
Tanasia was abusing and neglecting Ford and Autumn.
A. January 2009
DFS conducted its first investigation following Ford’s birth in January 2009
when hospital tests detected marijuana in Ford’s system. Tanasia admitted that she
had smoked marijuana during her pregnancy because it helped with her nausea.
Trina Smith was the caseworker assigned to this investigation. Smith’s supervisor
was Nancy Craighton. At that time, Laura Miles was the Director of DFS.
According to Greenfield’s Amended Complaint (“Complaint”), “Smith and
Craighton identified the following concerns and risk factors: (1) possible substance
abuse; and (2) lack of cooperation with recommended services.” 9 Smith attempted
to schedule a meeting with Tanasia “for a drug evaluation.”10 It is unclear from the
Complaint whether an evaluation was completed, but it is alleged that “a drug screen
7
These facts are drawn from the Complaint, supra note 4.
8
Although not described in the Complaint, Autumn’s death was evidently the result of physical
trauma at the hands of Tanasia.
9
Complaint, supra note 4, at ¶ 13.
10
Id.
6
was never completed.” 11 Smith visited Tanasia’s home and determined that Ford
“was well-cared for.”12 This investigation was closed—allegedly by Smith and
Craighton—after forty-one days as “unsubstantiated with concern.” 13 Neither Smith
nor Craighton had any further interaction with Tanasia or her children.
B. September 2012
Three-and-a-half years later, DFS opened its second investigation after
receiving a report that Ford and Autumn were “found outside after midnight in
diapers.”14 The investigation disclosed that Tanasia’s 16-year old brother was
babysitting the children and had fallen asleep. The caseworker, who is not identified
in the Complaint, assigned the case a low priority. The caseworker met with Tanasia
on two occasions, during one of which Ford and Autumn were present. Although
the caseworker determined that the children were developmentally delayed and
referred Tanasia to programs, Tanasia did not follow through or have Ford and
Autumn evaluated. According to the Complaint, “[a]fter six (6) failed attempts to
follow-up with [Tanasia], the caseworker closed the case within 55 days as
11
Id.
12
Id.
13
Id. The root cause analysis that Greenfield included in her appendix on appeal but did not
incorporate into her complaint states that “unsubstantiated with concern” is undefined. A300. We
note, however, that the Delaware Code of Regulations defines the appellation “unsubstantiated
with concern” as a term applied to cases where DFS determines that “substantiation proceedings
for that incident of abuse or neglect are not warranted or justified, but that there are reasons for
concern.” 7 Del. Reg. 340 (Sept. 2003), codified at 9 Del. Admin. C. § 300-11.3.
14
Complaint, supra note 4, at ¶ 14.
7
‘unsubstantiated with concern.’”15 The Complaint does not identify the caseworker
or allege that any of the defendants were involved in any capacity in this second
investigation.
C. Spring 2013
In the spring of 2013, DFS opened a third investigation following a report
from an unidentified source that “the children were locked in a room for long periods
of time and could not communicate appropriately.” 16 The Complaint does not
disclose the identity of the caseworker assigned to this investigation or state whether
any evidence tending to support the report was uncovered. The investigating
caseworker who is alleged to have been working under the supervision of DFS
Director Kelly, “met with [Tanasia], twice with [Ford] and Autumn present, and
determined that the children were clean and well fed, but developmentally
delayed.”17 The case was closed as unsubstantiated after forty-six days. The
Complaint alleges that a caseworker failed to fill out a risk assessment form in
accordance with DFS policy, which led to the case being closed prematurely.
Before moving on to the fourth and final investigation, we pause to observe
that, up to this point, contrary to the Complaint’s labeling of the first three cases as
showing a “pattern of neglect and abuse,” with the exception of Ford’s positive
15
Id.
16
Id. at ¶ 15.
17
Id.
8
marijuana test at birth, the Complaint does not affirmatively allege that any of these
investigations had substantiated that abuse or neglect had occurred.
D. Fall 2013
By the fall of 2013, Tanasia and her children were living at the Budget Motor
Lodge (“Budget”) with Willie Reeder, whom the Complaint describes as Tanasia’s
“boyfriend and ‘pimp.’”18 The Complaint says that other residents of the motel later
reported that Tanasia “often hit her children for misbehaving and that both children
were often locked in the motel room alone.” 19 The Complaint does not allege,
however, that DFS knew of those conditions until later.
E. April 2014
The fourth and final DFS investigation was opened in early April 2014 after
Tanasia and Reeder appeared at Greenfield’s house to pick up the children while
under the influence of drugs. Greenfield resisted but Reeder “barged in the home
and took the children.” 20 Greenfield and Tanasia’s other sisters called the child-
protection hotline, which prompted the opening of an investigation.
This time, Crystal Bradley, a senior family services specialist, was assigned
to the case under the supervision of Jamie Zebroski. Over a period of fifty-two days,
Bradley met with Tanasia and her children “multiple times” 21 and spoke with Tanasia
18
Id. at ¶ 17.
19
Id.
20
Id. at ¶ 18.
21
Id. at ¶ 19.
9
by phone six additional times. The Complaint notes, however, that on four
occasions, Tanasia could not be reached by phone. Additionally, the Complaint
alleges that “caseworkers failed to interview motel residents or other collateral
contacts that could have been helpful in providing the information needed to
adequately investigate the claims by [Tanasia]’s sisters that she was neglecting and
abusing [Ford] and Autumn.”22 The Complaint also notes that “the sisters mentioned
marks on the children’s bodies” 23 and that the caseworkers’ notes did not indicate
that an examination was ever completed.
Unlike the three previous investigations, this case was moved into treatment
to address numerous concerns and risk factors, including the possibility of drug and
alcohol abuse; mental health factors; appropriate parenting/discipline; housing
conditions; the children’s developmental delay; and the children’s medical and
educational needs. According to the Complaint, Tanasia permitted DFS to send the
children to a pediatrician and agreed to undergo drug screening but “later failed in
many respects to comply with the caseworker’s prescribed, mandatory treatment
plan for her and the children.” 24
F. Autumn’s death
The Complaint alleges that:
22
Id.
23
Id. at ¶ 18.
24
Id. at ¶ 17.
10
[l]ess than three months after [Tanasia]’s fourth DFS so-called
“investigation,” and as a direct and proximate result of the gross
negligence, dereliction of duty, and recklessness by the individual
caseworkers and their respective supervisors, directors and agents,
acting under the color of state law, by and through the extraordinary
grant of authority to DFS and its staff, Autumn Milligan is dead, and
Ethan Ford was permanently and irrevocably damaged in ways that are
impossible to know the full scope of at the present time, certainly will
result in the need for, at the very least, long-term care and psychological
services throughout his life. 25
The Complaint itself does not allege any further details about Autumn’s death
such as the direct cause of death26 nor does it draw any connection between
Autumn’s death and Ford’s alleged damages, though Greenfield’s opening brief on
appeal does provide a brief description of how Autumn died. In any event, after
Autumn’s death, Ford was removed from Tanasia’s custody and placed under the
legal guardianship of the State and the physical custody of Greenfield. 27 Greenfield
received permanent legal guardianship on January 21, 2016 after a proceeding in
Family Court.28
G. Greenfield’s pleadings in the Superior Court
Although Greenfield was now Ford’s guardian and entitled to some access to
DFS’s files on the four cases in which Ford was involved, Greenfield did not seek to
25
Id. at ¶ 22 (emphasis in original).
26
Although the Complaint characterizes Autumn’s death as the “direct and proximate result” of
the caseworkers’ actions and inactions, we do not understand the Complaint to suggest that DFS
directly mistreated Autumn in a way that led to her death.
27
Second Am. Opening Br. 10.
28
Second Am. App. to Opening Br. A234–35.
11
obtain any of those files.29 Instead, Greenfield, acting as Ford’s next friend and
guardian ad litem, filed a complaint without the benefit of those files in Superior
Court in July 2017, naming as defendants two former DFS directors (Miles and
Kelly); three caseworkers (Smith, Bradley, and Javonne Rich); one DFS supervisor,
(Zebroski); and Budget of Delaware, Inc., the holding company for Budget. The
original complaint purported to state claims against these individuals for (1)
negligence, gross negligence and recklessness; (2) civil rights violations under the
United States and Delaware Constitutions; (3) a “state-created danger” claim; (4)
negligent, grossly negligent, and reckless hiring, retention and supervision; (5)
intentional infliction of emotional distress; and (6) negligent infliction of emotional
distress.30
The DFS employees moved to dismiss arguing that Greenfield’s claims were
time-barred under 10 Del. C. § 8119; that the DSTCA required her to plead gross
negligence as to her tort claims and she had failed to plead particularized facts
supporting her gross negligence allegations as required by Superior Court Civil Rule
9; that she had failed to identify particular defendants who performed the
investigations to permit her § 1983 claims to go forward; and that her claims against
the DFS employees in their official capacities were barred by sovereign immunity.
29
Oral Arg. 42:00–45 (Mar. 6, 2019).
30
Count VI, negligent infliction of emotion distress, was brought solely against Budget.
12
In February of 2017, the Superior Court granted the motion to dismiss, finding
merit in all grounds asserted in the motion, save the statute-of-limitations ground,
the resolution of which the court found was unnecessary. The court, however,
granted Greenfield leave to file an amended complaint to cure the pleading
deficiencies.
Greenfield filed her amended complaint a month later, alleging the same
claims that were in the original complaint but also providing additional factual detail
and allegations that, in some instances, identified the specific DFS worker who
performed—or failed to perform—the acts that formed the bases of her claims. The
amended complaint also added Craighton as a defendant. Once again, the DFS
employees moved to dismiss.
H. The Superior Court’s dismissal
The Superior Court again dismissed Greenfield’s complaint, this time parsing
the claims one-by-one against the DFS caseworkers (Smith and Bradley) 31 and their
supervisors (Kelly, Miles, Craighton, and Zebroski).
i. Smith and Bradley
The court first examined and dismissed the allegation that Smith and Bradley
were negligent, grossly negligent, and reckless in the performance of their duties
31
At oral argument in the Superior Court, Greenfield conceded that she had failed to make any
factual allegations to support her claims against Rich. Therefore, the Superior Court dismissed all
claims against Rich. As mentioned, Greenfield has not appealed that dismissal.
13
during the 2009 and 2014 investigations. As mentioned, because Smith and Bradley
were public employees, the court first addressed whether the DSTCA precluded this
claim. It determined that the tortious actions of Smith and Bradley alleged in the
Complaint involved the exercise of discretion and therefore claims based on those
actions were barred unless performed in a grossly negligent or reckless manner.
Finding that Smith’s and Bradley’s “single and limited investigations [] [were] too
far removed from the end result, either temporally, qualitatively, or causally to rise
to the level of gross negligence,”32 the Superior Court dismissed the claims of
negligence, gross negligence, and recklessness against them. In a similar vein, the
Superior Court concluded that the Complaint did not come close to pleading facts
that supported the claims against Smith and Bradley for the intentional infliction of
emotional distress.
The Superior Court also dismissed Greenfield’s state-created-danger claim,
finding that Greenfield had failed to plead any of the four elements of that claim.
The Superior Court also found that Greenfield waived her other § 1983 claims
because she had failed to address them in her briefing. Accordingly, it dismissed all
claims against Smith and Bradley.
32
Greenfield for Ford v. Budget of Delaware, Inc. et al., 2017 WL 5075372, at *3 (Del. Super.
Oct. 31, 2017).
14
ii. Kelly, Craighton, Miles, and Zebroski
The Superior Court also dismissed all claims against the supervisors Kelly,
Craighton, Miles, and Zebroski. First, the Superior Court found that none of them
had a duty to Ford to supervise, hire, or train DFS employees. Second, because the
line workers had not been performing ministerial acts and were not grossly
negligent, the Superior Court reasoned that their supervisors could not have been
performing ministerial acts or acting with gross negligence either. Third, as with
Smith and Bradley, the Superior Court found that the alleged conduct “does not
remotely meet the pleading standard for [intentional infliction of emotional
distress].”33
iii. 10 Del. C. § 8119
After concluding that the above reasons sufficed for dismissal, the Superior
Court also found that the statute of limitations applicable to this case,
10 Del. C. § 8119, would have barred Greenfield’s claims. Section 8119 provides
for a two-year time limit on personal injury actions and begins to run when “such
alleged injuries were sustained.” 34 The Superior Court determined that § 8119 began
to run with the closing of DFS’s last investigation on May 29, 2014. According to
33
Id. at *4.
34
10 Del. C. § 8119.
15
the Superior Court, the statute of limitations thus had run by the time Greenfield
filed this action on July 15, 2016.
I. Greenfield’s claims on appeal
On appeal, Greenfield presses four arguments relating to her gross negligence
and state-created-danger claims.35 First, she asserts that the individual defendants
are not entitled to immunity because they repeatedly failed to perform non-
discretionary, i.e., ministerial duties. Second, Greenfield claims that the Complaint
alleged particular facts that give rise to an inference of gross negligence that would
overcome the defendants’ immunity defense even for discretionary acts. Third,
Greenfield contends that the Superior Court erred when it held that she had not
adequately pleaded a claim under the state-created-danger doctrine. Finally,
Greenfield asks us to reject the Superior Court’s ruling that her claims were time-
barred under 10 Del. C. § 8119 and not subject to tolling under 10 Del. C. § 8116.
We will address Greenfield’s first three arguments in turn. Because we agree with
the Superior Court that Greenfield has failed to state a claim in her Complaint upon
which relief can be granted, we need not address her statute-of-limitations argument.
35
Greenfield has not challenged the dismissal of her intentional-infliction-of-emotional-distress
claim or the dismissal of her non-state-created-danger civil-rights claim.
16
II. STANDARD AND SCOPE OF REVIEW
This Court reviews the granting of a motion to dismiss for failure to state a
claim de novo.36 “[A] complaint sufficiently states a cause of action when a plaintiff
can recover under any reasonably conceivable set of circumstances susceptible of
proof under the complaint.”37 When considering the motion, we accept all well-
pleaded allegations as true, 38 and we “draw all reasonable factual inferences in favor
of the party opposing the motion.” 39 Dismissal is warranted “only if it appears with
reasonable certainty that the plaintiff could not prove any set of facts that would
entitle him to relief.” 40 That said, while a complaint usually “need only give general
notice of the claim asserted,”41 “circumstances constituting . . . negligence . . . shall
be stated with particularity.”42
Questions of statutory interpretation are questions of law, which we review de
novo.43
36
RBC Capital Mkts., LLC v. Educ.s Loan Trust IV, 87 A.3d 632, 639 (Del. 2014).
37
Browne v. Robb, 583 A.2d 949, 950 (Del. 1990) (quoting Spence v. Funk, 396 A.2d 967, 968
(Del. 1978)).
38
Browne, 583 A.2d at 950.
39
Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005).
40
Id.41
Id.42
Super. Ct. Civ. R. 9(b); see also Rattner v. Bidzos, 2003 WL 22284323, at *13 (Del. Ch. Sept.
30, 2003) (for a gross negligence claim to survive a motion to dismiss, allegations must be
particularly pled and sufficient to sustain an inference of gross negligence).
43
Dambro v. Meyer, 974 A.2d 121, 129 (Del. 2009).
17
III. ANALYSIS
During briefing in this Court, Greenfield narrowed the scope of her claims on
Ford’s behalf. In her complaint, Greenfield alleged a number of supervisory
oversights by Kelly, Craighton, Miles, and Zebroski. 44 But on appeal, Greenfield
has waived her claims of negligent hiring, retention, and supervision claims against
Kelly, Craighton, Miles, and Zebroski in their official and individual capacities.45
Nevertheless, Greenfield stated at oral argument that, despite the abandonment of
her claims against the DFS supervisors for negligent hiring, retention, and
supervision, she continued to press gross negligence claims against the DFS
supervisors based on their “direct involvement” with the case.46 We note that these
allegations of “direct involvement” appear to consist of joint actions that Craighton
and Zebroski supposedly took with their supervisee case workers to “identif[y] . . .
concerns and risk factors” and to close the cases.47 In contrast, there appear to be no
allegations in the Complaint of “direct involvement” against Kelly and Miles—the
44
Complaint, supra note 4, at ¶¶ 13, 14, 15, 19, 20, 21.
45
Reply Br. 9 n.6 (“Appellant concedes any argument as to the dismissal of her negligent hiring,
retention, and supervision claims against the individual Defendants in their individual
capacities.”). This concession was followed by Greenfield’s counsel’s acknowledgement at oral
argument that she believed that sovereign immunity precluded such claims made against the
supervisors in their official capacities and that her only remaining claims against supervisors are
those of “direct involvement” as discussed below.
46
Oral Arg. 19:40–19:57 (Mar. 6, 2019).
47
Complaint, supra note 4, at ¶¶ 13, 20.
18
allegations against them appear to exclusively relate to supervisory acts.48 We
therefore focus on the two DFS cases that Smith, Bradley, Craighton, and Zebroski
(“the DFS Defendants”) handled in their nonsupervisory capacities.
A. Delaware State Tort Claims Act
Greenfield challenges the Superior Court’s conclusion that the DFS
Defendants were immune from suit under the Delaware Tort Claims Act.49
Under the DSTCA, public employees are immune from suit when
(1) The act or omission complained of arose out of and in connection
with the performance of an official duty requiring a determination of
policy, the interpretation or enforcement of statutes, rules or
regulations, the granting or withholding of publicly created or regulated
entitlement or privilege or any other official duty involving the exercise
of discretion on the part of the public officer, employee or member, or
anyone over whom the public officer, employee or member shall have
supervisory authority;
. . . and
(3) The act or omission complained of was done without gross or
wanton negligence.50
Thus, immunity under § 4001 applies to discretionary acts or omissions “done
without gross or wanton negligence.”51
Greenfield challenges the Superior Court’s application of the DSTCA in two
ways. First, she claims that the Superior Court erred when it determined that the
48
See supra note 44.
49
10 Del. C. § 4001 et seq.
50
10 Del. C. § 4001 (emphasis added).
51
Id.
19
duties the DFS Defendants are alleged to have breached involved the exercise of
discretion. Second, Greenfield argues that, even if that determination was correct,
the Complaint pleads facts susceptible to proof that the DFS Defendants’ conduct
was grossly negligent, 52 and that therefore immunity is not available under the
DSTCA. Greenfield is incorrect on both counts.
i. Discretionary vs. Ministerial Acts
Greenfield argues that at least some of the DFS Defendants’ acts causing
Ford’s injuries were ministerial by claiming that the Delaware statute that mandates
52
In her briefs and at oral argument, Greenfield inserted facts and legal claims that are absent from
her Complaint. For instance, in her opening brief, Greenfield asserts that the DFS Defendants had
a duty to remove the children from the mother’s home, Second Am. Opening Br. 6, but there is no
such allegation in the Complaint. Greenfield’s opening brief also cites testimony about the
conditions at the Budget Motel Lodge from a deposition in Greenfield’s companion case against
the motel taken more than a year after the Complaint was filed. Id. at 27. Likewise, at oral
argument, Greenfield’s counsel attempted to support his legal argument by citing the contents of
a February 12, 2015 root cause analysis prepared by the Department of Services for Children,
Youth and Their Families even though that analysis was not incorporated into the Complaint by
reference. Greenfield also integrated facts in her briefs and at oral argument that do not bear upon
her underlying claims of gross negligence by the caseworkers. For example, Greenfield’s opening
brief asserts that Ford’s mother “beat his sister to death before his eyes.” Id. at 10. Ultimately,
we must take complaints as they are written. “Matters extrinsic to a complaint may not be
considered in a ruling on a motion to dismiss . . . [D]ocuments outside the pleadings may be
considered only in ‘particular instances and for carefully limited purposes.’” Wal-Mart Stores,
Inc. v. AIG Life Ins. Co., 860 A.2d 312, 320 (Del. 2004) (quoting In re Santa Fe Pac. Corp.
S’holder Litig, 669 A.2d 59, 69 (Del. 1995)). Greenfield had an opportunity to amend her
complaint, and it would be inappropriate for courts in an adversarial justice system such as ours to
consider unincorporated documents without justification. Greenfield has not provided such
justification; even so, the conclusions the Majority reaches in this opinion would not be altered by
our consideration of them.
20
the reporting and investigation of child abuse and neglect, 16 Del. C. § 906,53 assigns
nondiscretionary duties to the DFS Defendants. Before addressing this contention,
we would do well to explain the distinction our law draws between ministerial and
discretionary acts in this context.
In Sussex County v. Morris,54 after noting that courts have struggled to
distinguish discretionary acts, which are subject to qualified immunity under
10 Del. C. § 4001, from ministerial acts, which are not subject to immunity, we
adopted the definition of ministerial act set forth in the Restatement (Second) of
Torts. Under that definition, acts are called “ministerial” or “operational” if the act
“involves less in the way of personal decision or judgment or the matter for which
judgment is required has little bearing of importance upon the validity of the act.” 55
An act is discretionary if it is not ministerial.
As we have observed, the “distinction between discretionary and ministerial
acts is always one of degree,”56 but our case law helps to illustrate the distinction.
53
The Complaint also refers to 29 Del. C. § 9003, which is the section of the Delaware Code
generally setting forth the “powers, duties and functions” of the Department of Services for
Children, Youth and Their Families, and 16 Del C. §§ 901 and 902, the general purpose and
definitional sections that introduce Title 16’s subchapter covering reports and investigations of
child abuse and neglect. But the complaint’s only particularized negligence allegations are tied to
16 Del. C. § 906. Likewise, Greenfield’s briefs on appeal focus on the purported duties created
by § 906.
54
610 A.2d 1354, 1359 (Del. 1992)
55
Restatement (Second) of Torts § 895D cmt. h (1979).
56
Sussex Cty., 610 A.2d at 1359.
21
In Sadler v. New Castle County,57 we held that state rescuers’ decision to carry the
plaintiff across a river rather than up the riverbank after the plaintiff suffered a fall
was discretionary. 58 In Sussex County,59 a Sussex constable was transporting a
mental patient in the back seat of constable’s family car when the patient jumped out
of the car and was seriously injured. This Court held that the constable’s “selection
and equipment of the car,”60 which was “indisputably ill-equipped for the
transportation of mentally ill passengers,”61 was effectively a ministerial act because
it had “little bearing of importance upon the validity of his official conduct,” i.e.,
transporting the passenger.62 In Hughes ex rel. Hughes v. Christiana School
District,63 this Court held that a teacher’s decision to allow a sick student to go to
the nurse unescorted was a discretionary decision, noting that “no facts support” that
the teacher should have necessarily engaged in another particular course of action. 64
Rather, the Hughes teacher had a number of apparently reasonable options and chose
among them. 65 As these cases show, a duty is discretionary if and only if the state
actor faced a range of reasonable choices while performing those duties.
57
565 A.2d 917 (Del. 1989).
58
Id. at 922.
59
610 A.2d 1354 (Del. 1992).
60
Id. at 1359.
61
Id.62
Id.63
2008 WL 2083150, 950 A.2d 659 (Del. 2008) (Table).
64
Id. at *3.
65
Id. at *2–3.
22
Keeping this distinction in mind, we turn back to Greenfield’s claim that § 906
imposes ministerial duties on the DFS Defendants. Greenfield directs our attention
to three of § 906’s subsections, but none of them are ultimately availing.
Greenfield first directs our attention to subsection (b) of § 906,66 which, in
relevant part, states that “[i]t is the policy of this State that the investigation and
disposition of cases involving child abuse or neglect shall be conducted in a
comprehensive, integrated, [and] multidisciplinary manner[.]” By its very terms,
this subsection is a statement of policy written at such a high level of generality that
discretion is unavoidably part of the execution of its provisions. We do not see—
and Greenfield does not tell us—how this portion of § 906 could be carried out
except through a considered exercise of professional judgement. Simply put,
§ 906(b) does not prescribe any ministerial duties relevant to Greenfield’s
negligence claims.
66
16 Del. C. § 906(b) provides that
[i]t is the policy of this State that the investigation and disposition of cases involving child
abuse or neglect shall be conducted in a comprehensive, integrated, multidisciplinary
manner that does all of the following:
(1) Provides civil and criminal protections to the child and the community.
(2) Encourages the use of collaborative decision-making and case management to
reduce the number of times a child is interviewed and examined to minimize further
trauma to the child.
(3) Provides safety and treatment for a child and his or her family by coordinating
a therapeutic services system.
(4) Requires a multidisciplinary team response for all multidisciplinary cases. The
State, with assistance from the Child Protection Accountability Commission, shall
implement a memorandum of understanding among agencies and entities to ensure
implementation of the multidisciplinary response to such cases.
23
Next, in her opening brief on appeal, Greenfield argues that “[a]nother
important non-discretionary duty is found in § 906(c)(1)(c),”67 which requires “the
Investigation Coordinator . . . [w]ithin 5 days of the receipt of a report concerning
allegations of child abuse or neglect by a person known to be licensed or certified
by a Delaware agency or professional regulatory organization, forward a report of
such allegations to the appropriate Delaware agency or professional regulatory
organization.” But Greenfield did not mention § 906(c)(1)(c) in her Complaint.
What is much more, the Complaint does not name any individual performing the
role of Investigation Coordinator as that term is defined in the statute, 68 nor does it
allege that a report of abuse or neglect of the type described in this subsection was
ever received. Therefore, regardless of whether § 906(c)(1)(c) creates a ministerial
duty, Greenfield’s reliance on it is unavailing.
Finally, Greenfield relies on § 906(e), which lists numerous duties that may
fairly be characterized as ministerial. For instance, § 906(e) requires that DFS must
“[r]eceive and maintain reports” of abuse and neglect, conduct investigations of
those reports, and conform to various reporting requirements within DFS and to
67
Second Am. Opening Br. 15.
68
According to 16 Del. C. § 902(20), “‘Investigation Coordinator’ means an attorney licensed to
practice law in this State employed by the Office of the Child Advocate, who is authorized to
independently track each reported case of alleged child abuse or neglect within the Department’s
internal information system and who is responsible for monitoring each reported case involving
the death of, serious physical injury to, or allegations of sexual abuse of a child from inception to
final criminal and civil disposition.”
24
other state agencies. For her part, Greenfield focuses on subsection (e)(8), which
instructs DFS to:
At a minimum, investigate the nature, extent, and cause of the abuse or
neglect; collect evidence; identify the alleged perpetrator; determine the
names and condition of other children and adults in the home; . . . assess
the home environment, the relationship of the subject child to the
parents or other persons responsible for the child’s care, and any
indication of incidents of physical violence against any other household
or family member; perform background checks on all adults in the
home; and gather other pertinent information.
Greenfield places special emphasis on § 906(e)(8)’s requirement that DFS
caseworkers assess the home environment during any child abuse investigation. And
we agree that, if DFS caseworkers simply did not conduct such an assessment, they
would have failed to perform a ministerial duty. But according to the Complaint, the
DFS Defendants discharged all of the duties in § 906(e)(8) that might legitimately
be characterized as ministerial. As the DFS Defendants point out, Greenfield’s own
complaint alleges that Smith and Bradley met with Tanasia, Ford, and Autumn at the
family’s home during their respective investigations. After those investigations,
Smith thought Ford was “well-cared for,”69 while Bradley concluded that the
children’s housing was a risk.70 It is true that Smith might ultimately have performed
that home assessment poorly and that Bradley might have failed to properly follow
69
Complaint, supra note 4, at ¶ 13.
70
Id. at ¶ 20.
25
up on their home assessments, but analyzing whether social workers conducted
home assessments or follow-ups poorly entails analyzing the exercise of discretion
of those social workers.71 In brief, we agree with the Superior Court’s conclusion
that the DFS Defendants’ investigative activities and response were quintessentially
discretionary. 72
ii. Gross Negligence
As mentioned, the DTCA will also permit a plaintiff to recover against a
public-employee tortfeasor even where her actions were discretionary if the plaintiff
can show that the tortfeasor acted with gross or wanton negligence. 73 Greenfield
argues that she has pleaded sufficient facts supporting a pleading-stage inference that
Smith and Bradley were grossly negligent.
71
See Gutierrez v. Advanced Student Transp., Inc., 2015 WL 4460342, at *4 (Del. Super. July 14,
2015) (“[T]he duty to supervise students is ministerial; however, the manner
and particular methods of supervision are discretionary”) (internal quotations and footnotes
omitted).
72
This conclusion finds support in cases from other jurisdictions. See, e.g., James ex rel. James v.
Friend, 458 F.3d 726, 731–32 (8th Cir. 2006) (applying Missouri law to determine that a
requirement for social workers to keep team members “informed of significant changes in status
of the case” required the exercise of discretion in order to determine what constituted significant
changes and the urgency of giving notice); Georgia Dep’t of Human Servs. v. Spruill, 751 S.E.2d
315, 321 (Ga. 2013) (despite social services department policy requiring “an immediate to 24–
hour response” to certain abuse allegations, social worker’s responses to family’s unavailability at
their home required the exercise of discretion); Ortega v. Sacramento Cty. Dep’t of Health &
Human Servs., Cal. Rptr. 3d 390, 399 (Cal. App. 4th 2008) (notwithstanding the rule of Johnson
v. State, 447 P.2d 352, 361 (Cal. 1968), social worker was entitled to discretionary acts immunity
because investigation required exercise of discretion). But see Johnson, 447 P.2d at 361 (ordinarily
discretionary decisions receive no immunity “if, in a given case, the employee did not render a
considered decision”).
73
Supra note 50.
26
Gross negligence is an “extreme departure from the ordinary standard of
care.”74 In assessing whether a defendant’s acts were grossly negligent, courts look
to the reasonableness of a defendant’s actions given the conditions at that time and
not whether hindsight would shed more light upon whether any conditions could
have served as red flags.75 Gross negligence claims must be pleaded with
particularity. 76 Judging the conduct of the DFS Defendants against this yardstick,
the particular facts as pleaded do not support an inference that they acted with gross
negligence.
For her part, Smith began investigating Tanasia and Ford because Ford tested
positive for marijuana at birth. Her investigation disclosed the reason for the positive
test—Tanasia had smoked marijuana during her pregnancy to combat her
accompanying nausea. Presumably, the balance of her investigation focused on the
quality of care provided to Ford and, relatedly, on whether Tanasia continued to use
marijuana, possession of which was at the time still unlawful. According to the
Complaint, “Smith attempted twice to schedule a meeting with [Tanasia] for a drug
74
Browne v. Robb, 583 A.2d 949, 953 (Del. 1990). We have noted the functional equivalence of
gross negligence to criminal negligence as defined in 11 Del. C. § 231. Jardel Co. v. Hughes, 523
A.2d 518, 530 (Del. 1987). Under § 231, “[a] person acts with criminal negligence with respect
to an element of an offense when the person fails to perceive a risk that the element exists or will
result from the conduct. The risk must be of such a nature and degree that failure to perceive it
constitutes a gross deviation from the standard of conduct that a reasonable person would observe
in the situation.”
75
McCaffrey v. City of Wilmington, 133 A.3d 536, 550 (Del. 2016).
76
Super. Ct. Civ. R. 9.
27
evaluation; however, a drug screen was never completed.” 77 The Complaint does
not tell us, even on information and belief, why the drug screen was not completed.
But more to the point, after conducting a home visit, Smith concluded that Ford “was
well-cared for” in the home.78 Perhaps Smith should have been more persistent in
her efforts to schedule a drug screen, but we do not think her bare failure to do so in
the absence of allegations of other troubling behavior on her part represents an
extreme departure from the ordinary standard of care.
Likewise, the allegations of gross negligence on Bradley’s part are lacking.
Bradley, it should be recalled, met with Tanasia and the children “multiple times”
during the course of the fourth and final investigation of the family and
supplemented those meetings with ten telephone calls. 79 Moreover, our reading of
the Complaint leads us to conclude that Bradley succeeded in securing at least some
medical treatment for the children. 80 To be sure, the Complaint alleges that Bradley
did not interview residents of the motel or “other collateral contacts” 81 and did not
record any examination of the bodily marks that Tanisha’s sisters had reported. But
those alleged deficiencies—admittedly indicative of ordinary negligence—must be
viewed against the backdrop of Bradley’s multiple contacts with Tanasia and the
77
Complaint, supra note 4, at ¶ 13.
78
Id.
79
See id. at ¶ 19 (“Defendant Bradley reportedly spoke with [Tanasia] by phone six (6) additional
times, but four (4) subsequent attempts to reach her by phone were unsuccessful.”).
80
Id. at ¶ 20.
81
Id. at ¶ 19.
28
children and her referral of the case to treatment based on her concerns. Despite
Greenfield’s pleading to the contrary, the specific factual allegations relating to
Bradley’s role in this sad case, even when viewed in a light favorable to Greenfield,
do not give rise to a pleading-stage inference of gross negligence.
As for Craighton and Zebroski, the allegations of their “direct involvement”
mirror those alleged against their subordinates, Smith and Bradley. Accordingly, we
likewise find that the allegations that Craighton and Zebroski were directly involved
in the identification of risk factors and in the closing the cases are insufficient to
support a claim of gross negligence.
Our conclusion that the acts that form the predicate of Greenfield’s tort claims
against Smith, Bradley, Craighton, and Zebroski were discretionary acts and that the
Complaint’s description of those acts does not support a pleading-stage inference of
gross negligence mandates the dismissal of those claims under 10 Del. C. § 4001.
In reaching this result, the Majority adheres to this Court’s view that because
“[q]ualified immunity is ‘an immunity from suit rather than a mere defense to
liability,’”82 “it is important to resolve immunity issues at the earliest possible stage
of the litigation. Otherwise, the benefits of such immunity [including the avoidance
of burdensome discovery] are lost.”83
82
Pearson v. Callahan, 555 U.S. 223, 237 (2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526
(1985)).
83
McCaffrey v. City of Wilmington, 133 A.3d 536, 546–47 n. 43 (Del. 2016).
29
B. State-created danger
Greenfield also argues on appeal that the Superior Court erred when it ruled
that she had failed to make a prima facie state-created danger claim, a theory of
recovery that this Court has not previously considered. 84 Although most of the
federal Circuit Courts of Appeal have adopted some variation of the state-created
danger doctrine,85 the United States Supreme Court has never ruled on its merits,
and some circuits have rejected it outright. 86 Even though Greenfield waived her
other due process claims from Count II of her Complaint, Greenfield briefed and
preserved her state-created danger claim from Count III of her Complaint.
Without passing on the validity of state-created danger claims in general, we
reject Greenfield’s claim as alleged here. The state-created danger claim as alleged
84
We examine this matter as an issue of federal law because Greenfield brought her state-created
danger claim under 42 U.S.C. § 1983, Complaint, supra note 4, at ¶¶ 29–30 (Count III), and §
1983 is a federal statute that only provides redress for violation of federal law, see Maine v.
Thiboutot, 448 U.S. 1, 5 (1980); Slawik v. State, 480 A.2d 636, 640 (Del. 1984). In contrast, Count
II of Greenfield’s Complaint alleged civil rights violations under the United States and Delaware
Constitutions, but the Superior Court found that Greenfield waived that claim, and she did not
appeal that ruling.
85
See Pena v. DePrisco, 432 F.3d 98, 107–10 (2d Cir. 2005); Sanford v. Stiles, 456 F.3d 298, 304
(3d Cir. 2006); Robinson v. Lioi, 536 F. App’x 340, 343 (4th Cir. 2013); Kallstrom v. City of
Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998); Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir.
1993); Forrester v. Bass, 397 F.3d 1047, 1057–59 (8th Cir. 2005); Kennedy v. City of Ridgefield,
439 F.3d 1055, 1061 (9th Cir. 2006); Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995); Butera
v. District of Columbia, 235 F.3d 637, 648–51 (D.C. Cir. 2001); see also Doe v. Rosa, 795 F.3d
429, 439 (4th Cir. 2015).
86
See J.R. v. Gloria, 593 F.3d 73, 79 n.3 (1st Cir. 2010); Estate of Lance v. Lewisville Indep. Sch.
Dist., 743 F.3d 982, 1001 (5th Cir. 2014); Vaughn v. City of Athens, 176 F. App’x 974, 976 n.1
(11th Cir. 2006).
30
in Greenfield’s complaint is a subset of federal due process claims. 87 But there can
be no state-created danger claim where the United States Supreme Court has stated
that there is no due process violation. And because the United States Supreme Court
has explicitly stated that no due process claim lies under facts that are nearly
identical to the alleged facts in this case, Greenfield can have no state-created danger
claim, at least under federal law, 88 whatever the contours of those claims may be.
In DeShaney v. Winnebago County Department of Social Services,89 the
United States Supreme Court rejected a plaintiff’s due process claim where social
workers did not permanently remove a child from his abusive father’s custody even
though social workers were repeatedly notified of injuries indicative of abuse and
the father eventually beat the child so severely he fell into a coma. 90 The United
States Supreme Court held that “[a]s a general matter . . . a State’s failure to protect
an individual against private violence simply does not constitute a violation of the
Due Process Clause.”91 The Court held that there was no violation even though
social workers had “actually undertaken to protect [the child] from [the] danger”
posed by the child’s father. 92
87
Bright v. Westmoreland Cty., 443 F.3d 276, 282 (3d Cir. 2006).
88
We need not decide and do not decide whether a state-created danger claim may be available
under the Delaware Constitution as such a claim was not raised.
89
489 U.S. 189 (1989).
90
Id. at 191–193.
91
Id. at 197.
92
Id.31
We see no relevant distinction between DeShaney and this case. This case
involves an abusive parent and social workers who allegedly knew or should have
known that the parent was abusive, just like in DeShaney. Greenfield has alleged
that an abusive parent injured Ford after the social workers’ inaction, just like in
DeShaney. And the Complaint does not allege any affirmative action by DFS to
prevent others from acting on behalf of the child, just like in DeShaney. Even though
DeShaney did not address state-created danger claims in particular, it clearly
foreclosed state-created danger claims in those circumstances given that state-
created danger claims are a subset of due process claims, which DeShaney explicitly
held did not exist under that case’s circumstances.
Greenfield argues that DFS’s assertions that they would protect Ford induced
her to “refrain from taking further steps to protect [Ford] herself,”93 thus creating
liability when Ford was injured after DFS did not in fact protect Ford. But that is
exactly the sort of argument that DeShaney rejected: “The affirmative duty to protect
arises not from . . . [the state’s] expressions of intent to help him, but from the
limitation which it has imposed on his freedom to act on his own behalf.” 94 Simply
because Greenfield relied on DFS to protect Ford does not mean DFS limited
93
Second Am. Opening Br. 33.
94
DeShaney, 489 U.S. at 201.
32
Greenfield’s freedom to act on her own. And because there is no contention here
that DFS limited Greenfield’s freedom to act,95 we cannot accept her claim.
IV. CONCLUSION
The Majority recognizes that, to many, the dismissal of Greenfield’s
complaint on Ford’s behalf will be an unfitting conclusion to this tragic case. After
all, who among us does not wish to help Ethan Ford? But under our law, which
places a value on relieving public employees from private liability for acts involving
the exercise of discretion that are performed in good faith and without gross
negligence, we require that legal complaints based on those acts state particularized
allegations leading to an inference of gross negligence. Unfortunately, such
allegations are absent from the Complaint here, and accordingly, we AFFIRM the
decision of the Superior Court.
95
We reject Greenfield’s attempt at oral argument to recharacterize the Complaint to suggest that
she had alleged such action. See Oral Arg. 21:07–19:57 (Mar. 6, 2019) (“[DFS said], ‘hey, we got
this; we’re looking into this; we’re gonna take care of this; you back off, aunt.’” (emphasis added)).
33
STRINE, Chief Justice, concurring in part, dissenting in part:
This is a sad and difficult case. I respect the decision of the trial court, and
my colleagues in the majority, that Greenfield, as next friend and guardian ad litem
of Ethan Ford, did not meet the understandably stringent pleading standard that
applies when a plaintiff seeks to hold public servants doing the difficult job of child
protection liable for making misjudgments. Facing burdensome caseloads, complex
human dynamics, and the requirement to balance the sometimes competing interests
of assuring the protection of children but not erroneously depriving them of the care
and love of a parent, the professionals who go to work every day doing these jobs
rightly deserve not to fear that some slip up in situational judgment will expose them
to liability. Not only that, I also agree with the majority that the trial judge was
required to address the complaint as it was pled, and not consider information that
was not properly incorporated into the complaint.96
Acknowledging that, I respectfully dissent in part from the majority’s
excellent decision. Given the high bar that must be pled to state a claim against the
DFS Defendants,97 it is difficult, I suppose, to conclude that the caseworker who
conducted the initial Department of Family Services (“DFS”) investigation of
96
I also concur in the majority’s determination that the defendants’ obligations under 16 Del. C.
§ 906 were discretionary, not mandatory or ministerial, and that Greenfield has failed to state a
state-created danger claim.
97
I collectively refer to all of the individual defendants as the DFS Defendants.
34
Ethan’s mother (the “Mother”) and closed her case as “unsubstantiated with
concern,” can be determined to have breached her duty to investigate in a grossly
negligent manner, even as a pleading stage matter. 98 Gross negligence is a high
standard,99 and although it is troubling that a case would be closed without
compliance with the conditions DFS requested, 100 the Mother’s initial warning
signals did not involve any act by her of physical abuse of Ethan, but was based on
Ethan being born with marijuana in his system.101
Where I depart from the majority is as to the DFS Defendants who were
involved in the Mother’s case after that. After the Mother was referred to DFS a
second time because both Ethan and his half-sister were found at 1:00 a.m.
wandering around outside in their diapers,102 the caseworker was in my view duty
bound to take account of the first investigation and the Mother’s failure to take
actions assuring DFS that the concerns that justified the first investigation were
addressed. Instead, the case worker noted that the children were developmentally
delayed and recommended that the Mother have the children evaluated. 103 But the
Mother failed to do so, and DFS never followed up. 104 Fifty-five days after the
98
App. to Opening Br. at A80–81 (First Amended Complaint (March 24, 2017)).
99
See Browne v. Robb, 583 A.2d 949, 954 (Del. 1990).
100
See, e.g., App. to Opening Br. at A80–81 (First Amended Complaint (March 24, 2017)).
101
Id.102
Id. at A81.
103
Id. at A81–82.
104
Id.35
investigation was opened, DFS closed the second case as “unsubstantiated with
concern.”105
This pattern repeated itself during the next two investigations. Reports would
come into DFS—that “the children were locked in a room for long periods of time
and could not communicate appropriately” 106 or that the children had marks on their
bodies107—the DFS investigators would speak to only the Mother and her children
and not interview any collateral sources, recommend some remedial actions, fail to
follow up when the Mother did not complete this follow up, and close the case as
“unsubstantiated with concern” less than two months after each investigation was
opened. 108 In the final investigation, which closed less than ten weeks before the
Mother beat her daughter to death in front of Ethan, the DFS investigators failed to
even investigate reports of marks on the children’s bodies. 109
DFS employees have an affirmative duty to investigate potential “cases
involving child abuse or neglect.” 110 And those investigations “shall be conducted
in a comprehensive, integrated, multidisciplinary manner.” 111 A DFS employee
performs those duties in a grossly negligent manner when conducted with a
105
Id. at A82.
106
Id.107
Id. at A83–84.
108
Id.109
Id.110
16 Del. C. § 906(b).
111
Id. (emphasis added).
36
“conscious indifference” or “I-don’t-care” attitude,112 which can include failing to
investigate allegations of neglect or abuse or disregarding red flags, patterns of
abuse, and evidence of danger to the child.113 And that is, effectively, what the
complaint alleges occurred here.
When the subject of a child protection investigation is directed to take
remedial actions that provide assurance that she is not a danger to her children and
then fails to comply, that is the opposite of reassuring. To close the case then is
concerning, which makes even the termination of the first case a close call for
dismissal. You close a case because your concerns have been sufficiently addressed
and alleviated. You don’t close a case when the conditions you’ve imposed to ensure
the child’s safety have been flouted. When the subject engages in subsequent
conduct triggering successive investigations and DFS repeatedly closed those
investigations when the subject had not complied with the conditions the DFS
Defendants themselves imposed, that behavior involves, at the pleading stage, a
disregard of known risks so substantial as to support an inference of gross
negligence.
112
McCaffrey v. City of Wilmington, 133 A.3d 536, 547 (Del. 2016).
113
See Bass v. S.C. Dep’t of Social Servs., 780 S.E.2d 252, 260 (S.C. 2015) (finding that the
“failure to conduct a post-EPC investigation into the stated reason for the children’s removal from
the home” and the failure “to interview the children’s doctors, other medical staff at the hospital,
or their family doctor who initially treated the children, and the fail[ure] to investigate the
medication after being told that the children fell ill shortfall after [the Mother] administered the
[medicine] to them” constituted gross negligence).
37
Most of all, Greenfield has stated a claim as to the Director of DFS during the
final three investigations. Although Greenfield has confusingly addressed the claims
against the Director of DFS and other DFS Supervisors,114 Greenfield has
consistently argued that the Director of DFS and the other DFS Supervisors
committed gross negligence by “repeated[ly] fail[ing] to use the tools available to
them to take meaningful action.” 115 To my mind, Greenfield is correct because one
of the jobs of a DFS director is to put in place systems to address situations like this,
where an individual is repeatedly investigated by DFS and where that individual,
rather than complying with DFS’s conditions and acting in a way that assures DFS
that the parent can safely remain in custody of her child, instead fails to comply with
the reasonable requirements set forth by the manager’s line caseworkers. Here,
nothing in the record of the Mother’s repeated contacts with DFS provides
114
In her reply brief in this Court, Greenfield “concedes any argument as to the dismissal of her
negligent hiring, retention, and supervision claims against the individual Defendants in their
individual capacities.” Reply Br. at 9 n.6. But I read that concession, in the context of the DFS
Defendant’s answering brief and the Superior Court’s decision below, as a modest concession that
a negligent supervision claim can be maintained against only an employer—here DFS—and not
individual employees. Oral Argument at 44:00–44:45 (“We have not conceded that her [the DFS
director’s] direct involvement in this case in anyway is not being pressed. We solely concede that
we are unable to maintain a claim as to negligent hiring, retention, and supervision in solely in the
supervisory capacity because that implicates the State as employer. And so we are simply whittling
away the claims to those that can make it through the screen of immunity.”). Here, I thus
concentrate on what Greenfield has not dropped, which is her argument that the DFS director and
other supervisors were grossly negligent in addressing the Mother’s case because they undertook
no actions to assure that repeat cases involving investigated subjects who did not comply with
DFS’s recommended remedial actions were not repeatedly closed without any assurance that the
known risks justifying the investigation’s initiation were addressed.
115
App. to Opening Br. at A87 (First Amended Complaint (March 24, 2017)).
38
reassurance that she was on the right path. Instead, there is a pattern of
noncompliance with DFS’s reasonable requests for the Mother to get a drug
screening or get the children evaluated,116 and a pattern of DFS line workers reacting
to that, not by taking remedial action to address the Mother’s non-compliance, but
by closing the case.117
For these reasons, I would reverse as to the claims against the DFS Defendants
involved in the last three investigations. I do so without enthusiasm, precisely
because I acknowledge how difficult the work that these defendants were required
to do is. In dissenting, I also underscore the reality that, as in any case, the fact that
a complaint states a claim is a far cry from a determination that the defendants in
fact fell short of the mark after all the evidence is heard. For present purposes,
however, I think that Greenfield should have the chance to seek discovery in aid of
proving out her claims against these defendants.
116
See id. at A80–85.
117
Id.39