Jensen v. Conrad
| Decision Date | 24 August 1983 |
| Docket Number | Civ. A. No. 82-2059-14. |
| Citation | 570 F. Supp. 114 |
| Court | U.S. District Court — District of South Carolina |
| Parties | Karole K. JENSEN, as Administratrix of the Estate of Michael Clark, Deceased, Plaintiff, v. Virgil L. CONRAD, in his individual and official capacity as Commissioner of the Department of Social Services; Mary D. Dusenberry, George D. Hamilton, Oscar P. Butler, Ph.D., John C. Williams, Jr., Lucy C. Thrower, Agnes Wilson, Ph.D., and W. Jerry Fedder, individually and in their official capacities as members of the State Board of the Department of Social Services; Jerry Herd, Harold E. Simpson, Ophelia W. Smith, J. Furman Gerrard, and Odell Short, individually and in their official capacities as members of the Anderson County Board of the Department of Social Services; Kenneth Pryor, individually and in his official capacity as Director of the Anderson County Department of Social Services; Dawn Hawkins, individually and in her official capacity as Program Director for Human Services of the Anderson County Department of Social Services; and Susan Straup, individually and in her official capacity as Protective Services Supervisor of the Anderson County Department of Social Services, Defendants. |
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O. Fayrell Furr, Jr. and Charles L. Henshaw, Jr., Columbia, S.C., for plaintiff.
Joel H. Smith, William C. Hubbard, John L. Choate, Henry S. Knight, Jr., Nelson, Mullins, Grier & Scarborough, Columbia, S.C., for Virgil L. Conrad, in his individual and official capacity as Commissioner of the Department of Social Services; Mary D. Dusenberry, George D. Hamilton, Oscar P. Butler, Ph.D., John C. Williams, Jr., Lucy C. Thrower, Agnes Wilson, Ph.D., and W. Jerry Fedder, individually and in their official capacities as members of the State Board of the Dept. of Social Services.
Wilburn Brewer, Jr., James Lynn Werner, Nexsen, Pruet, Jacobs & Pollard, Columbia, S.C., for Jerry Herd, Harold E. Simpson, Ophelia W. Smith, J. Furman Gerrard, and Odell Short, individually and in their official capacities as members of the Anderson County Board of the Department of Social Services; Kenneth Pryor, individually and in his official capacity as Director of the Anderson County Dept. of Social Services.
H. Grady Kirven, Steven C. Kirven, Watkins, Vandiver, Kirven, Gable & Gray, Anderson, S.C., for Dawn Hawkins, individually and in her official capacity as Program Director for Human Services of the Anderson County Dept. of Social Services.
George C. Beighley, Richardson, Plowden, Grier & Howser, Columbia, S.C., for Susan Straup, individually and in her official capacity as Protective Services Supervisor of the Anderson County Dept. of Social Services.
This matter is before the Court on motions to dismiss filed pursuant to Fed.R. Civ.P. 12(b)(6) by members of the Boards of the State Department of Social Services and Anderson County Department of Social Services. On January 24, 1983, a hearing was held on these motions. Shortly thereafter, affidavits were filed by movants reaching the merits of Plaintiff's claim. Consequently, the Court notified the parties that the pending motions to dismiss would be viewed as motions for summary judgment under Fed.R.Civ.P. 56(b) and provided Plaintiff an opportunity to file responsive affidavits. Having now fully considered the additional affidavits and legal briefs offered by both parties, the Court is of the opinion that summary judgment should be entered in favor of movants.
This action arises out of the death by beating of Michael Clark, a three-year-old child, apparently by the live-in boyfriend of Michael's mother.1 The Anderson County Department of Social Services became involved prior to Michael's death when it received a report on February 28, 1980 from the Principal of New Prospect Elementary School concerning the possible abuse of Michael's older brother. A protective service caseworker was subsequently sent to the school to investigate the matter. Based on the caseworker's interview with the child and his teacher, she apparently decided that the family should be officially contacted. However, after repeated attempts, she failed to locate the home. Consequently, after the expiration of 60 days, the case was classified as "unfounded" and officially closed. No further action was taken by the Anderson County Department of Social Services prior to Michael's death on June 23, 1980.2
The essence of Plaintiff's resulting Complaint against movants seems to be that the Board of the State Department of Social Services failed to provide proper training for protective service caseworkers in violation of state law and that the Board of the Anderson County Department of Social Services hired caseworkers who were inadequately trained.3 The claim that protective service caseworkers were inadequately trained arises primarily from the allegation that Michael's home was never located even though his correct address was readily available through several sources in the community, including the School District Headquarters and the County Food Stamp Office. Plaintiff specifically maintains that Michael's death was not prevented, as it could have been through proper protective service intervention, because caseworkers were not taught essential investigatory techniques necessary to locate the parents or guardians of children who are suspected to be victims of abuse. In support of this contention, Plaintiff has submitted the affidavits of three former certified protective service caseworkers stating that the necessary skill and knowledge to locate transitory or evasive families is not taught in the current training curriculum.4
Plaintiff alleges further that this failure to properly train protective service caseworkers has resulted in "a pattern of cases throughout the state"5 in which the Department of Social Services has failed to properly and timely intervene to prevent child abuse. In an attempt to support this contention, Plaintiff has submitted a document entitled "Report of Investigations of Circumstances Surrounding the Deaths of Certain Children in South Carolina Directly Resulting from Physical Abuse and Neglect or Abandonment." This document is primarily a report of an investigation conducted by the South Carolina Attorney General's Office into the deaths of ten children due to abuse or neglect occurring in the state between February, 1978 and June, 1980. In each case, the protective actions undertaken by various county social services officials were critically examined.
In support of its training program, movants have submitted the affidavits of Wayne Holder, an expert in protective services training; Ramona L. Foley, the State Project Administrator for Child Protective Services and Permanency Planning; and Shirley H. Fitz-Ritzon, the State Director of Child Protective Services. Mr. Holder is the Director of the Children's Division of the American Humane Association (AHA) which was hired by the state in 1977 to develop a comprehensive training program for protective service caseworkers. Mr. Holder states that a comprehensive training program was developed by the AHA and put into operation in 1978.6 Based on his personal experience in protective service training in every region of the nation, he states that as a result of this program South Carolina clearly provides greater training in this area than is currently being provided on the national average.7 Moreover, in his words, the state is "perceived as a pioneer in the area of child protection staff development."8 Finally, Mr. Holder also states that, in his opinion, current training in South Carolina is adequate to provide protective service caseworkers with the necessary knowledge and skill to properly perform their jobs.9
Both Ms. Foley and Ms. Fitz-Ritzon appear to share Mr. Holder's opinion concerning the adequacy of current protective service training in the state. Each, as a result of their jobs with the State Department of Social Services, is familiar with the specific details of the training program. In describing the program, both state in their respective affidavits that it is a two-week broad-based training course covering topics including but not limited to "identifying good parenting characteristics; identifying proper child development; identifying characteristics of abusive and neglectful families; necessary information gathering; initial family contact; location of the family; assessment of risk; basic interviewing skills; identifying abuse injuries as opposed to accidental injuries; basic fact gathering; and proper use of foster care systems." (Emphasis added.)10 All protective service caseworkers are required to complete this course and must pass a knowledge exam on the information presented in order to receive certification.11 Moreover, regulations prohibit caseworkers from investigating cases involving suspected child abuse prior to receiving certification. Lastly, the program also requires annual recertification of protective service caseworkers based on continuing educational requirements.12
When an individual, particularly a child, is placed under the care, custody or supervision of a state governmental agency charged with a duty under state law to provide for his welfare, the failure of his governmental custodians to undertake reasonable action to protect him from obvious dangers may constitute a cause of action under 42 U.S.C. § 1983. Doe v. New York City Department of Social Services, 649 F.2d 134, 141 (2d Cir.1981); see generally, Orpiano v. Johnson, 632 F.2d 1096, 1101 (4th Cir.1980); Withers v. Levine, 615 F.2d 158 (4th Cir.1980). Of course, a Section 1983 claim may not be based simply on the allegation that governmental officials violated state law in failing to take appropriate protective measures....
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...to a conscious lack of concern for the individual's safety, the official did not act with deliberate indifference." Jensen v. Conrad, 570 F.Supp. 114, 122 (D.S.C.1983) (footnote omitted). As the Second Circuit noted in Doe v. New York City Dept. of Social Services, 649 F.2d 134, 143 (2d Cir......
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