Maternal Grandmother v. Hamilton Cty. Job & Family Servs. , 2020 Ohio 1580 ( 2020 )

[Cite as Maternal Grandmother v. Hamilton Cty. Job & Family Servs., 2020-Ohio-1580.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
MATERNAL GRANDMOTHER, as : APPEAL NO. C-180662
Administrator of the Estate of G.B., a TRIAL NO. A-1701739
deceased minor, :
O P I N I O N.
and :
MATERNAL GRANDMOTHER, :
Individually,
:
Plaintiffs-Appellants,
:
vs.
:
HAMILTON COUNTY DEPARTMENT
OF JOB AND FAMILY SERVICES, :
HAMILTON COUNTY, OHIO, :
DENISE DRIEHAUS, :
CHRIS MONZEL, :
TODD PORTUNE, :
SHAMARA STEPHENS a.k.a. :
SHAMARA HOOKS-WARE,
:
KASSIE SETTY,
:
and
:
LUMADI LAVUSA,
:
Defendants-Appellees,
:
and
:
FATHER OF G.B.,
:
and
:
MOTHER OF G.B.,
Defendants. :
O HIO F IRST D ISTRICT C OURT OF A PPEALS
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 22, 2020
Law Offices of Blake R. Maislin, Randy A. Byrd and Blake R. Maislin, for Plaintiffs-
Appellants,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Pamela J. Sears,
Michael Florez and Andrea B. Neuwirth, Assistant Prosecuting Attorneys, for
Defendants-Appellees Hamilton County Department of Job and Family Services,
Hamilton County, Ohio, Denise Driehaus, Chris Monzel, Todd Portune and Lumadi
Lavusa,
Michael L. Tranter, and Laufman & Napolitano, LLC, and Paul M. Laufman, for
Defendant-Appellee Shamara Stephens, a.k.a. Shamara Hooks-Ware,
Stephen J. Wenke, for Defendant-Appellee Kassie Setty.
2
O HIO F IRST D ISTRICT C OURT OF A PPEALS
M OCK , Presiding Judge.
{¶1} The trial court did not err when it granted the motions of Hamilton
County, the Hamilton County Commissioners, the Hamilton County Department of
Job and Family Services (“HCJFS”) and its employees for judgment on the pleadings
for the claims of wrongful death and related claims brought on behalf of the estate of
a child who died in the custody of her parents.
Child’s Murder by Parents
Leads to Litigation
{¶2} G.B. was born in January 2013. She was immediately taken into the
custody of the defendant-appellee HCJFS because of previous issues with defendant
mother and defendant father. Mother participated in services and the Hamilton
County Juvenile Court granted temporary custody of G.B. to mother in September
2013, while HCJFS retained protective custody of G.B. HCJFS’s protective custody
was terminated two months later as mother continued to comply with court orders.
{¶3} In December 2014, mother brought G.B. to Cincinnati Children’s
Hospital Medical Center (“CCHMC”). As a result of that visit, officials from CCHMC
reported to HCJFS that they suspected that G.B. was being abused. HCJFS sent a
caseworker to investigate the home on March 4, 2015. On March 25, mother again
brought G.B. to CCHMC, where she was pronounced dead. After a police
investigation and subsequent prosecutions, G.B.’s father was convicted of aggravated
murder for causing her death and was sentenced to the death penalty. G.B.’s mother
was also convicted of murder and sentenced to 15 years to life in prison. At the time
of her death, G.B. was in the custody of her mother, and HCJFS was not actively
involved with the family.
{¶4} Plaintiff-appellant maternal grandmother filed a wrongful-death
complaint and related survivorship claims on behalf of the estate of G.B. and herself
3
O HIO F IRST D ISTRICT C OURT OF A PPEALS
personally (collectively “the appellants”). The suit named HCJFS, defendant-
appellee Hamilton County, Ohio, and defendants-appellees Hamilton County
Commissioners Denise Dreihaus, Chris Monzel, and Todd Portune. Additionally, the
suit named defendants-appellees Shamara Stephens a.k.a. Shamara Hooks-Ware,
Kassie Setty, and Lumadi Lavusa as individuals employed by HCJFS as caseworkers.
{¶5} That complaint was subsequently amended, naming the same parties.
The amended complaint set forth a number of allegations relating to the culpability
of the defendants-appellees and defendants in the death of G.B. The document
alleged that G.B. had been returned to mother by the juvenile court because “upon
information and belief, the information provided by the Defendant Caseworkers was
unreliable and was a product of the Caseworkers; own neglect, reckless misconduct
and/or wanton misconduct.” It further stated that protective supervision had been
improperly terminated by HCJFS and that G.B. had been allowed to return to the
home of mother, where father had been also residing. Father, the amended
complaint alleges, had not complied with the requirements placed upon him by the
agency. The termination of the protective order had been “done in bad faith, in a
willful and wanton manner, and resulted in the deprivation of the civil rights of the
infant G.B. and ultimately in her wrongful death.”
{¶6} As it relates to G.B.’s visit to CCHMC, the amended complaint alleged
that the caseworkers had been called to the hospital as a result of concerns expressed
by hospital staff. It claimed that “during that time, [HCJFS] took no action and
allowed [mother] to take [G.B.] home * * * [d]espite these obvious and egregious
signs of abuse and neglect.” It further stated that, though HCJFS had made a follow-
up visit to the home, the visit “should have resulted in a report of abuse.”
{¶7} The amended complaint also alleged that certain county employees
made statements that could be attributed to the county. It alleged that the Hamilton
4
O HIO F IRST D ISTRICT C OURT OF A PPEALS
County coroner had stated that G.B. had been beaten, tortured, and starved “her
entire pathetic, pathetically short life.” The amended complaint further claimed that
the head of HCJFS had admitted that the caseworkers “did not follow procedures,”
and that the Hamilton County prosecuting attorney had stated that mother “should
never had had kids, let along gotten this poor girl back.”
{¶8} The amended complaint further alleged that the caseworkers had
“failed to inspect the home of [mother and father], which was unsuitable for a
placement of [G.B.].” It claimed that the caseworkers “provided false and fraudulent
reports to persuade the Juvenile Court to order the infant [G.B.] be placed back with
the parents on or about September 20, 2013, after having previously removed the
infant from the home and placed her in foster care where she was doing well.” It
stated that the caseworkers had failed to report signs of abuse or follow up with
CCHMC personnel “regarding clear and obvious signs of abuse and neglect.” The
amended complaint finally alleged that the caseworkers had engaged in “gross
misconduct and egregious mishandling of the infant’s placement and care.”
{¶9} While the amended complaint makes allegations in different ways
throughout the pleading, the claims can be summarized as asserting that the
caseworkers had: (1) failed to properly inspect the home of G.B.’s parents; (2)
provided false and fraudulent reports to persuade the juvenile court to place G.B.
back with her parents; (3) failed to properly report signs of abuse; (4) failed to follow
up with CCHMC’s personnel regarding clear and obvious signs of abuse and neglect
and failed to take action before G.B. was released home; and (5) failed to report
abuse to G.B. and to have the child removed from the parents’ home.
{¶10} Hamilton County, the county commissioners, HCJFS, Lavusa,
Stephens, and Setty filed motions for judgment on the pleadings claiming that they
were entitled to immunity for the claims in the amended complaint. The trial court
5
O HIO F IRST D ISTRICT C OURT OF A PPEALS
granted the motions and dismissed the claims against all defendants except G.B’s
parents. The appellants have appealed that decision in one assignment of error.
Motion for Judgment on the Pleadings
{¶11} In one assignment of error, the appellants claim that the trial court
erred in granting the motions for judgment on the pleadings of the county, the
county commissioners, HCJFS, Lavusa, Stephens, and Setty. This court has recently
set forth the standard of review for cases in which a trial court has dismissed claims
based on sovereign immunity pursuant to Civ.R. 12(C).
We review de novo a trial court’s ruling on a Civ.R. 12(C)
motion for judgment on the pleadings. Waldman v. Pitcher, 2016-
Ohio-5909, 70 N.E.3d 1025, ¶ 15 (1st Dist.). We must accept all
material allegations in the nonmoving party’s complaint as true and
must construe all reasonable inferences in that party’s favor. Id. The
motion should only be granted if it appears beyond doubt that the
nonmoving party cannot prove any set of facts entitling her to relief.
Id.
A trial court may grant a motion for judgment on the pleadings
on the basis of an affirmative defense such as immunity where the
complaint bears conclusive evidence that the action is barred by the
defense. Bucey v. Carlisle, 1st Dist. Hamilton No. C-090252, 2010-
Ohio-2262, ¶ 9. So “unless the pleadings ‘obviously or conclusively
establish[ ] the affirmative defense,’ a court may not grant a motion for
judgment on the pleadings.” Harris Farms, LLC v. Madison Twp.
Trustees, 4th Dist. Scioto No. 17CA3817, 2018-Ohio-4123, ¶ 18,
6
O HIO F IRST D ISTRICT C OURT OF A PPEALS
quoting Cristino v. Bur. of Workers’ Comp., 2012-Ohio-4420, 977
N.E.2d 742, ¶ 21 (10th Dist.).
Steele v. City of Cincinnati, 1st Dist. Hamilton No. C-180593, 2019-Ohio-4853, ¶ 14-
15.
Immunity for the Agency Defendants
{¶12} We will first address the question of the immunity of the county, the
county commissioners, and HCJFS. Immunity for government agencies is
determined in a three-step process. The first tier of the analysis in R.C. Chapter 2744
establishes the defense of sovereign immunity for political subdivisions. The next
carves out certain exceptions to immunity where liability may still be imposed.
Finally, if the claim satisfies one of the exceptions, the third tier delineates those
defenses that may be asserted against liability. See Franks v. Lopez, 64 Ohio St. 3d
345, 347, 632 N.E.2d 502 (1994).
{¶13} First, “[t]he general rule is that * * * immunity applies to shield the
exercise of governmental or proprietary functions [by a political subdivision] unless
the injured party is entitled to rely on one of the exceptions specifically recognized by
statute.” Nungester v. Cincinnati, 100 Ohio App. 3d 561, 565, 654 N.E.2d 423 (1st
Dist.1995). The parties concede that Hamilton County is a political subdivision and
that engaging in the protection of children through HCJFS is a governmental
function. See R.C. 2744.01(C)(2)(m); Rankin v. Cuyahoga Cty. Dept. of Children
and Family Servs., 118 Ohio St. 3d 392, 2008-Ohio-2567, 889 N.E.2d 521, ¶ 16.
{¶14} Once immunity has been established, the next step is to determine
whether there is an exception that would reimpose liability. R.C. 2744.02(B) lists
five express exceptions to the general grant of immunity:
(1) the negligent operation of a motor vehicle by an employee;
7
O HIO F IRST D ISTRICT C OURT OF A PPEALS
(2) the negligent performance of proprietary functions;
(3) the failure to keep public roads open and in repair;
(4) the negligence of employees occurring within or on the
grounds of certain buildings used in connection with the
performance of governmental functions; and
(5) the express imposition of liability by statute.
{¶15} None of these exceptions apply in this case. In fact, in their brief, the
appellants only argue that HCJFS is liable to the extent their employees are liable.
The appellants claim that the agency defendants therefore cannot be dismissed from
the action, citing Elliott v. Cuyahoga Cty. Executive & Council, 8th Dist. Cuyahoga
No. 105773, 2018-Ohio-1088. But that decision does not stand for this proposition.
In that case, the county of Cuyahoga admitted that it would remain a party even if
the county itself was not liable, as long as its employees remained in the suit in their
official capacities. Id. at ¶ 27. Thus, the court concluded that “we need not reach the
question of whether the county must be retained as a party to an action for purposes
of R.C. 2744.07 where the immunity of the codefendant employees is in question.”
Id. And the case that Elliott cited, Lambert v. Hartman, 517 F.3d 433 (6th
Cir.2008), did not even address immunity claims. See Lambert at 428 (because the
case was dismissed on the merits, the court saw “no need to address the Defendants’
immunity arguments.”).
{¶16} There is no provision within R.C. 2744.01 et seq. that would allow a
governmental entity to be retained in a lawsuit, absent a cognizable cause of action
for which no immunity applies. The trial court properly determined that the agency
defendants were entitled to immunity and that their motions for judgments on the
pleadings were properly granted. We therefore turn to the analysis of the claimed
immunity of Lavusa, Stephens, and Setty.
8
O HIO F IRST D ISTRICT C OURT OF A PPEALS
Immunity for HCJFS Caseworkers
{¶17} The determination of immunity for government employees is
governed by R.C. 2744.03(A)(6). That sections states that
In addition to any immunity or defense referred to in division (A)(7) of
this section and in circumstances not covered by that division or
sections 3314.07 and 3746.24 of the Revised Code, the employee is
immune from liability unless one of the following applies:
(a) The employee’s acts or omissions were manifestly outside
the scope of the employee’s employment or official
responsibilities;
(b) The employee’s acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a
section of the Revised Code. Civil liability shall not be construed
to exist under another section of the Revised Code merely
because that section imposes a responsibility or mandatory
duty upon an employee, because that section provides for a
criminal penalty, because of a general authorization in that
section that an employee may sue and be sued, or because the
section uses the term “shall” in a provision pertaining to an
employee.
{¶18} On appeal, the appellants claim that the trial court erred in granting
the motion for three reasons: (1) the caseworkers owed G.B. a duty to protect her
while she was in the custody of HCJFS, (2) the caseworkers breached their duty to
investigate the circumstances surrounding abuse or suspected abuse reported by
9
O HIO F IRST D ISTRICT C OURT OF A PPEALS
CCHMC, and (3) the caseworkers acted recklessly, wantonly, maliciously, or in bad
faith. We will discuss each argument in turn.
Duty to Protect While in Custody
{¶19} In the first portion of their argument, the appellants claim that the
caseworkers breached their duty “in the context of the reports and information that
the County and individual caseworkers provided to the juvenile court that resulted in
the juvenile court ordering G.B.’s return to her mother.” The appellants claimed that
the reports were “unreliable” and that they were “the product of the caseworkers’
neglect, reckless misconduct, willful misconduct, and/or wanton misconduct.”
Further, in the amended complaint, plaintiffs-appellants averred that the reports
were false or fraudulent.
{¶20} When a caseworker provides information to a juvenile court for the
purpose of assisting the juvenile court in making a child-custody decision, that
conduct is entitled to immunity. As the Sixth Circuit set forth,
“[U]nder certain circumstances, social workers are entitled to absolute
immunity.” The scope of this immunity is akin to the scope of absolute
prosecutorial immunity, which applies to conduct “intimately
associated with the judicial phase of the criminal process,” As this
Court previously has described:
The analytical key to prosecutorial immunity * * * is
advocacy—whether the actions in question are those of
an advocate. By analogy, social workers are absolutely
immune only when they are acting in their capacity as
legal advocates—initiating court actions or testifying
under oath—not when they are performing
10
O HIO F IRST D ISTRICT C OURT OF A PPEALS
administrative, investigative, or other functions. The
case before us turns on whether the actions of which
[the plaintiff] complains were taken by [the defendant
social worker] in her capacity as a legal advocate.
(Citations omitted.) Pittman v. Cuyahoga Cty. Dept. of Children & Family Servs.,
640 F.3d 716, 724 (6th Cir.2011). And this immunity remains in place even if, as the
appellants alleged in the amended complaint, intentional misrepresentations are
made. The Pittman court went on to conclude that
[P]rosecutors do not forfeit their absolute immunity when they
knowingly make false statements while advocating before the court:
“Like witnesses, prosecutors and other lawyers were absolutely
immune from damages liability at common law for making false or
defamatory statements in judicial proceedings (at least so long as the
statements were related to the proceeding), and also for eliciting false
and defamatory testimony from witnesses.” Because absolute
immunity for social workers is akin to absolute immunity for
prosecutors, the same protection must apply here, no matter how
undesirable the results. In the words of Chief Judge Learned Hand,
absolute immunity represents “a balance between ... evils”; “[I]t has
been thought in the end better to leave unredressed the wrongs done
by dishonest officers than to subject those who try to do their duty to
the constant dread of retaliation.”
(Emphasis added.) Id. at 724-725. Because the statements made to the juvenile
court by the caseworkers had been made while acting in their capacity as legal
advocates, they are entitled to absolute immunity. See Bauch v. Richland Cty.
Children Servs., 6th Cir. No. 17-3435, 2018 WL 2338906 (May 23, 2018) (social
11
O HIO F IRST D ISTRICT C OURT OF A PPEALS
worker entitled to absolute immunity for statements made in document submitted to
juvenile court for purposes of triggering child-removal proceedings).
{¶21} But even if the caseworkers were not entitled to immunity for
communications made to the juvenile court in the aid of a child-custody
determination, the allegations in the complaint are insufficient to establish that
plaintiffs-appellants are entitled to relief. Unsupported conclusions of a complaint
are not sufficient to survive a motion to dismiss. State ex rel. Hickman v. Capots, 45
Ohio St. 3d 324, 544 N.E.2d 639 (1989). As the Eighth District reasoned:
While a complaint attacked by a * * * motion to dismiss does not need
detailed factual allegations, the [plaintiffs’] obligation to provide the
grounds for their entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of
action will not do. Factual allegations must be enough to raise a right
to relief above the speculative level. Conclusory statements in a
complaint that are not supported by facts are not afforded the
presumption of veracity and are insufficient to withstand a motion to
dismiss. While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations to survive a
motion to dismiss.
(Citations omitted.) DiGiorgio v. Cleveland, 8th Dist. Cuyahoga No. 95945, 2011-
Ohio-5878, ¶ 41.
{¶22} The mere assertion that the caseworkers made unreliable or false and
fraudulent statements to the juvenile court, without more, is insufficient to establish
that the caseworkers acted with malicious purpose, in bad faith, or in a wanton or
reckless manner. The content of the statements made to the juvenile court were
available to the appellants, as some of those reports exist in the record of this case
12
O HIO F IRST D ISTRICT C OURT OF A PPEALS
(though we cannot consider their substance in the determination of this motion).
The appellants had a duty to say something more than that the statements were
unreliable or false. The amended complaint does not set forth what this unreliable or
fraudulent information was and it was required to do so on some level.
Failure to Act on CCHMC
Concerns
{¶23} The appellants next argue that the caseworkers breached their duty to
investigate allegations of abuse that arose from G.B.’s hospitalization at CCHMC. As
it related to the claims of G.B.’s condition while at the hospital, the amended
complaint stated that caseworkers “were called to the hospital to meet with G.B. and
her parents.” During the time of her hospitalization, HCJFS “took no action and
allowed [mother] to take G.B. home.” The caseworkers “made the indefensible
decision to return G.B. to the depraved custody of her parents.” Finally, the
amended complaint stated that the caseworkers “made a follow-up visit to G.B.’s
home on March 4, 2015 and allegedly found everything was fine and that G.B. was
happy and healthy.”
{¶24} Within these allegations, the amended complaint makes a number of
assertions. They can be reduced to two basic claims: the caseworkers failed to report
abuse, and the caseworkers failed to perform an adequate investigation. We will
discuss each in turn.
{¶25} First, we conclude that HCJFS through its caseworkers does not have
a duty to report child abuse. First, HCJFS is the agency to which abuse is reported.
See R.C. 2151.421(A)(1)(a). And there is no duty on the part of a children’s services
agency to report suspected abuse to other agencies such as law enforcement. See
O’Toole v. Denihan, 118 Ohio St. 3d 378, 2008-Ohio-2574, 889 N.E.2d 505, ¶ 2.
13
O HIO F IRST D ISTRICT C OURT OF A PPEALS
{¶26} We next turn to the claim that the agency, through its caseworkers,
failed to perform an adequate investigation. We begin by noting that the amended
complaint concedes that some form of investigation took place, with both a hospital
and a home visit. The amended complaint claims that the agency, through its
caseworkers, should have sought removal of G.B. But the observations made by
CCHMC related to poor parental care: malnourishment, low weight, and other
related issues which were related to “lack of medical care, financially disadvantaged
[sic], poor family support.”
{¶27} The amended complaint then goes on to conclude that the
investigation must have been inadequate because of the extent of G.B.’s post-
hospitalization mistreatment that was uncovered after G.B.’s death. But there are no
allegations about what the investigation should have uncovered or how it was
inadequate. The assertion that since the injuries to G.B. had been ongoing and
substantial they must have been obvious at the time of the investigation is pure
speculation.
{¶28} There is no liability in Ohio for a children’s services agency or its
caseworkers for failing to investigate allegations of abuse. Marshall v. Montgomery
Cty. Children Serv. Bd., 92 Ohio St. 3d 348, 351-352, 750 N.E.2d 549 (2001). But
HCJFS, through its caseworkers, did conduct an investigation into G.B.’s care as a
result of her stay at CCHMC. At the time, the concerns were malnourishment and
poor family support. There were no expressed concerns about physical abuse, which
was the cause of G.B.’s death. The speculation that evidence of physical abuse should
have been apparent during the March 4 home visit is not enough to establish that the
caseworkers engaged in “reckless, willful, wanton or bad faith actions/inactions.”
14
O HIO F IRST D ISTRICT C OURT OF A PPEALS
Claim That Caseworkers Acted Recklessly,
Wantonly, Maliciously, or in Bad Faith
{¶29} The appellants next claim that the trial court improperly granted the
motion for judgment on the pleadings because the amended complaint had made
sufficient allegations that the caseworkers had engaged in “reckless, willful, wanton
or bad faith actions/inactions.”
{¶30} In their brief, the appellants summarize the allegations against the
caseworkers, in which they claim:
that they were the [HCJFS] caseworkers who worked on G.B.’s case;
that they provided to the Juvenile Court unreliable information and/or
information that was the result of their reckless conduct, willful
misconduct, and/or wanton misconduct; that the information they
provided ultimately led to G.B. being placed back with her parents;
that Children’s Hospital reported G.B.’s starvation and abuse to them;
that they breached their statutory duty to fully investigate the reported
starvation and abuse, including a failure to properly and adequately
conduct home visits to check in on G.B.; that they allowed G.B. to
return home with her parents after being released from the hospital;
and that they had a role in creating the circumstances that ultimately
led to G.B.’s death, despite being on notice that she was being starved
and abused. The Estate’s amended complaint contains all the
foregoing specific material allegations of reckless, willful, wanton, or
bad faith actions/inactions against the individual caseworkers and
clearly alleges the acts or omissions were at least reckless, thereby
exempting them from immunity.
15
O HIO F IRST D ISTRICT C OURT OF A PPEALS
Much of this is a restatement of arguments previously made, but it goes no farther to
establishing that the amended complaint set forth cognizable claims.
{¶31} The Ohio Supreme Court has set forth the definitions of reckless,
willful, and wanton misconduct as it relates to immunity. Anderson v. Massillon,
134 Ohio St. 3d 380, 2012-Ohio-5711, 983 N.E.2d 266. The court said:
Willful misconduct implies an intentional deviation from a
clear duty or from a definite rule of conduct, a deliberate purpose not
to discharge some duty necessary to safety, or purposefully doing
wrongful acts with knowledge or appreciation of the likelihood of
resulting injury. [Tighe v. Diamond, 149 Ohio St. 520, 527, 80 N.E.2d
122 (1948)]; see also Black’s Law Dictionary 1630 (8th Ed.2004)
(describing willful conduct as the voluntary or intentional violation or
disregard of a known legal duty).
Wanton misconduct is the failure to exercise any care toward
those to whom a duty of care is owed in circumstances in which there
is great probability that harm will result. [Hawkins v. Ivy, 50 Ohio
St.2d 114, 117-118, 363 N.E.2d 367 (1977)]; see also Black’s Law
Dictionary 1613-1614 (8th Ed.2004) (explaining that one acting in a
wanton manner is aware of the risk of the conduct but is not trying to
avoid it and is indifferent to whether harm results).
Reckless conduct is characterized by the conscious disregard of
or indifference to a known or obvious risk of harm to another that is
unreasonable under the circumstances and is substantially greater
than negligent conduct. Thompson v. McNeill, 53 Ohio St. 3d 102, 104-
105, 559 N.E.2d 705 (1990), adopting 2 Restatement of the Law 2d,
Torts, Section 500, at 587 (1965); see also Black’s Law Dictionary
16
O HIO F IRST D ISTRICT C OURT OF A PPEALS
1298-1299 (8th Ed.2004) (explaining that reckless conduct is
characterized by a substantial and unjustifiable risk of harm to others
and a conscious disregard of or indifference to the risk, but the actor
does not desire harm).
Id. at ¶ 32-34. Further, bad faith involves a dishonest purpose, conscious
wrongdoing, the breach of a known duty through some ulterior motive or ill will, as
in the nature of fraud, or an actual intent to mislead or deceive another. Cook v.
Cincinnati, 103 Ohio App. 3d 80, 91, 658 N.E.2d 814 (1st Dist.1995), citing Jackson v.
Butler Cty. Bd. of Commrs., 76 Ohio App. 3d 448, 602 N.E.2d 363 (12th Dist.1991).
{¶32} The amended complaint does not specify how the conduct of the
caseworkers constituted willful misconduct. It does not specify how the conduct
constituted wanton misconduct. It does not specify how the conduct constituted
reckless misconduct. And it does not specify how the caseworkers acted in bad faith.
In essence, what the amended complaint has alleged is that G.B. had suffered from a
period of abuse for some period of time prior to her death. HCJFS was involved with
G.B. as a result of the report from CCHMC for neglect and malnutrition. During the
course of that investigation, HCJFS, through its caseworkers, should have discovered
the signs of physical abuse. Because they did not, they must have been acting in a
willful, wanton, or reckless manner or they must have been acting in bad faith. But
merely saying that they had acted in one of those ways (the amended complaint
cannot even identify which) is insufficient. Unsupported legal conclusions are not
accepted as true for purposes of a motion to dismiss and are insufficient to withstand
such a motion. Mitchell v. Lawson Milk Co., 40 Ohio St. 3d 190, 193, 532 N.E.2d 753
(1988). “A complaint must be more than bare assertions of legal conclusions.”
Vagas v. Hudson, 9th Dist. Summit No. 24713, 2009-Ohio-6794, ¶ 10.
17
O HIO F IRST D ISTRICT C OURT OF A PPEALS
{¶33} The amended complaint in this case did not set forth sufficient facts
to survive the motions for judgment on the pleadings. The trial court correctly
granted those motions.
Conclusion
{¶34} As the United States Supreme Court has held, the “state does not
become the permanent guarantor of an individual’s safety by having once offered
him shelter.” DeShaney v. Winnebago Cty. Dept. of Social Serv., 489 U.S. 189, 201,
109 S. Ct. 998, 103 L. Ed. 2d 249 (1989). What happened to G.B. is unspeakably
tragic, but the fault for her misfortune lies with her parents. We overrule the
appellants’ sole assignment of error and affirm the judgment of the trial court.
Judgment affirmed.
WINKLER, J., concurs.
CROUSE, J., concurs in part and dissents in part.
CROUSE, J., concurring in part and dissenting in part.
{¶35} I concur with the majority that HCJFS is entitled to political
subdivision immunity under R.C. 2744.02. I further agree with the majority that the
complaint offers only unsupported conclusions concerning the reports submitted by
the caseworkers to the juvenile court and is therefore insufficient to establish that the
HCJFS caseworkers acted in a wanton or reckless manner in that regard. However, I
disagree with the majority’s conclusion that the complaint does not sufficiently plead
facts that demonstrate wanton or reckless conduct1 by the individual caseworkers on
the claim of failure to adequately investigate the report of abuse/neglect by CCHMC.
1While the complaint also alleges that the caseworkers acted maliciously and in bad faith, I do not
believe the complaint alleges sufficient facts to support those allegations.
18
O HIO F IRST D ISTRICT C OURT OF A PPEALS
{¶36} In ruling on a motion for judgment on the pleadings, “a court must
construe the material allegations in the complaint, along with all reasonable
inferences to be drawn therefrom, in favor of the nonmoving party[.]” Ohio
Manufacturers’ Assn. v. Ohioans for Drug Price Relief Act, 147 Ohio St. 3d 42, 2016-
Ohio-3038, 59 N.E.3d 1274, ¶ 10. The court may grant the motion “only if it appears
beyond doubt that the nonmoving party can prove no set of facts entitling it to
relief.” Id. Thus, the nonmoving party is not required to affirmatively dispose of the
immunity question at the pleading stage. Scott v. Columbus Dept. of Pub. Utils., 192
Ohio App. 3d 465, 2011-Ohio-677, 949 N.E.2d 552, ¶ 8 (10th Dist.). “Requiring a
plaintiff to affirmatively demonstrate an exception to immunity at this stage would
be tantamount to requiring the plaintiff to overcome a motion for summary
judgment at the pleading stage. Instead, a plaintiff must merely allege a set of facts
that, if proven, would plausibly allow for recovery.” Id.
{¶37} R.C. 2744.03(A)(6)(b) abolishes an individual employee’s grant of
immunity when “[t]he employee’s acts or omissions were with malicious purpose, in
bad faith, or in a wanton or reckless manner.”2 In the context of R.C.
2744.03(A)(6)(b), wanton misconduct “is the failure to exercise any care toward
those to whom a duty of care is owed in circumstances in which there is great
probability that harm will result.” Anderson v. Massillon, 134 Ohio St. 3d 380, 2012-
Ohio-5711, 983 N.E.2d 266, ¶ 33. Reckless conduct “is a perverse disregard of a
known risk.” O’Toole v. Denihan, 118 Ohio St. 3d 374, 2008-Ohio-2574, 889 N.E.2d
505, ¶ 73.
2I note that the trial court analyzed the individual employees’ immunity under R.C. 2744.02. But
that standard applies only to HCJFS.
19
O HIO F IRST D ISTRICT C OURT OF A PPEALS
{¶38} In concluding that the appellants failed to allege wanton or reckless
misconduct by the HCJFS employees, the trial court and the majority heavily rely on
the complaint’s “concession” that a home visit took place. Contrary to what the trial
court and the majority claim, however, the complaint does not concede that the
caseworkers actually inspected the home. Rather, it alleges that the caseworkers
contended that they inspected the home. Specifically, the complaint states that the
caseworkers “allegedly made a follow-up visit to [G.B.’s] home on March 4, 2015 and
allegedly found everything was fine and that [G.B.] was happy and healthy.”
Nevertheless, even if the complaint can be read to allege that the caseworkers did
perform some sort of follow-up home visit, a wrongful-death claim can still be made
against the individual caseworkers if they breached their duty to investigate the
child-abuse report pursuant to R.C. 2151.421 by “acting recklessly within or in
response to that investigation.” See Gomez v. Noble Cty. Children Servs., 7th Dist.
Noble No. 09 NO 361, 2010-Ohio-1538, ¶ 56-57, citing O’Toole at ¶ 72-91.
{¶39} A review of the complaint reveals sufficient underlying facts relating
to the HCJFS employees’ omissions and states of mind, as well as the risk or
probability of harm. With regard to the risk or probability of harm, the complaint
initially details mother’s extensive history with HCJFS. It states that, at G.B.’s birth,
HCJFS immediately removed G.B. from mother’s custody because mother had
abused her other children, who were also removed from the home. According to the
complaint, G.B. remained in HCJFS temporary custody for eight months and under
the protective supervision of HCJFS for an additional three months.
{¶40} The complaint then states that mother took G.B. to CCHMC
approximately one year after regaining custody. The complaint claims that the
hospital personnel documented significant indicia of abuse. Specifically, it claims
that the personnel observed gait problems, joint swelling, and weight below the third
20
O HIO F IRST D ISTRICT C OURT OF A PPEALS
percentile for G.B.’s age. G.B.’s medical records, attached to the complaint, note a
complex social history, severe protein malnutrition, and a differential diagnosis of
child neglect. The exhibit further reads: “Often, [G.B.] would look to mom * * *
prior to placing [food] in her mouth, as if waiting for an ok. If mom said ‘eat it’ or ‘go
ahead’ she then put it in her mouth and started to chew.” The complaint alleges this
behavior is indicative of long-standing abuse by mother. In their final assessment,
the hospital personnel concluded that G.B.’s failure to thrive was “most likely social”
and HCJFS would be consulted.
{¶41} According to the complaint, G.B.’s death occurred three months after
her discharge from CCHMC and three weeks after an alleged visit of mother and
father’s home. The complaint states that, at her death, two-year-old G.B. weighed
only 13 pounds and lived in a bathtub full of feces and blood. The Hamilton County
coroner’s report, attached to the complaint, certified that G.B. had been subjected to
“Battered Child Syndrome with Acute and Chronic Intracranial Hemorrhages and
Starvation” and listed the onset of such treatment as “months.” The coroner also
observed over 100 injuries, including bite marks, whip marks, and a gash in G.B.’s
forehead that was hand-stitched with needle and thread. The coroner opined that
these injuries did not happen immediately prior to her death. In fact, based on the
wounds, the coroner opined that G.B. was beaten, tortured, and starved “her entire
pathetic, pathetically short life.”
{¶42} With regard to the employees’ omissions, the complaint claims that
the HCJFS employees failed to properly investigate the CCHMC personnel’s report
regarding the clear and obvious signs of abuse and neglect exhibited by G.B.
Specifically, it alleges that the hospital personnel called HCJFS regarding their
observations and that the HCJFS employees went to the hospital to meet with G.B.
and mother. It further states that the employees “took no action” in response to the
21
O HIO F IRST D ISTRICT C OURT OF A PPEALS
personnel’s report of abuse, despite meeting with a severely-undernourished G.B. at
the hospital.
{¶43} The complaint also claims that the HCJFS employees failed to
properly inspect the home of mother and father, which was an unsuitable placement
for G.B. It alleges that, based on G.B.’s condition leading up to her death and the
home’s condition at the time of her death, the employees either never performed a
home visit or performed the visit in a wanton or reckless manner. Furthermore, the
complaint states that the head of HCJFS admitted that the employees did not adhere
to HCJFS procedures during their work on G.B.’s case. Based on the foregoing, the
complaint alleged sufficient underlying facts to support the appellants’ claim that the
HCJFS employees failed to act despite their knowledge of a known risk or probable
harm.
{¶44} Early resolution of whether employees of political subdivisions are
immune from liability is an important consideration. See Riscatti v. Prime
Properties Ltd. Partnership, 137 Ohio St. 3d 123, 2013-Ohio-4530, 998 N.E.2d 437, ¶
17 (discussing the importance of determining R.C. Chapter 2744 immunity before
trial). However, the immunity question cannot always be determined at the earliest
stage of litigation.
Very often, the evidence necessary for a plaintiff to prevail is not
obtained until the plaintiff is able to discover materials in the
defendant’s possession. If the plaintiff were required to prove his or
her case in the complaint, many valid claims would be dismissed
because of the plaintiff’s lack of access to relevant evidence.
Consequently, as long as there is a set of facts, consistent with the
plaintiff’s complaint, which would allow the plaintiff to recover, the
court may not grant a defendant’s motion to dismiss.
22
O HIO F IRST D ISTRICT C OURT OF A PPEALS
York v. Ohio State Hwy. Patrol, 60 Ohio St. 3d 143, 145, 573 N.E.2d 1063 (1991)
(expressly refusing to hold plaintiffs who bring reckless-conduct claims against the
state to a heightened pleading standard).
{¶45} As described above, the complaint discusses in excruciating detail the
severe indicia of abuse and neglect observed by CCHMC; the hospital personnel’s
suspicion that defendant mother was involved in the abuse and neglect; the hospital
personnel’s report of abuse and neglect to the HCJFS employees; the HCJFS
employees’ failure to investigate; G.B.’s return to the home of mother and father; the
HCJFS employees’ “alleged” home visit; G.B.’s tragic death three weeks later; and the
coroner’s finding that the cause of death was “Battered Child Syndrome with Acute
and Chronic Intracranial Hemorrhages and Starvation” with an onset of months.
Based on these statements, and construing all allegations most strongly in their
favor, I find that the appellants have alleged sufficient facts which, if proven, could
plausibly establish an exception to the individual caseworkers’ immunity under R.C.
2744.03(A)(6)(b).
{¶46} For these reasons, I respectfully dissent from that portion of the
majority’s opinion that holds otherwise.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
23