Dep't of Human Servs. v. Duncan

• Decision Date: 02 July 2019
• Docket Number: A19A0292
• Citation: 831 S.E.2d 4,351 Ga.App. 332
• Court: Georgia Court of Appeals
• Parties: DEPARTMENT OF HUMAN SERVICES v. DUNCAN et al.

351 Ga.App. 332

831 S.E.2d 4

DEPARTMENT OF HUMAN SERVICES

v.DUNCAN et al.

A19A0292

Court of Appeals of Georgia.

July 2, 2019

Certiorari Denied March 13, 2020

Christopher M. Carr, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston-Pope, Robert L. Bunner, Shalen S. Nelson, Senior Assistant Attorneys General, for appellant.

Harris Lowry Manton, Jed D. Manton, Madeline E. McNeeley; Beisswenger & Thomson, Thomas H. Beisswenger, David S. Thomson ; Swift Currie McGhee & Hiers, Roger E. Harris, Ashley D. Alfonso ; Mozley Finlayson & Loggins, Andrew M. Capobianco, Richard S. Bruno, for appellees.

Hodges, Judge.

In this wrongful death action, we must decide whether a party may sue the Georgia Department of Human Services (the "DHS"), following the death of child in its custody, when the child died in the care of a foster parent employed by a private child-placing agency¹ under contract with the DHS. Celeste Morales and Ryan Duncan, the birth parents of Alexia Nevaeh Duncan (the "Parents"), sued the DHS, child-placing agency Lutheran Services of Georgia, Inc. ("Lutheran"), and Joyce and John Anderson (the "Andersons") after Alexia died in the Andersons’ foster care. Relevant to this appeal, the DHS moved to dismiss the Parents’ case, contending that the Andersons were foster parents employed by Lutheran and that, as a result, they were not "state officers or employees" as defined by the Georgia Tort Claims Act ( OCGA § 50-21-20 et seq. ) or entitled to sovereign immunity.

The Superior Court of Jackson County denied the DHS’s motion to dismiss.² The trial court entered a certificate of immediate review, and we granted the DHS’s application for interlocutory appeal. After careful review, we conclude that the Andersons were acting as "foster parents" as that term is defined in our law and that parents who meet that statutory definition act on the DHS’s behalf in caring for a child in its legal custody. Consequently, "foster parents" are "state officers or employees" under the Tort Claims Act, and the Andersons are personally entitled to sovereign immunity. In view of the Tort Claims Act’s waiver of sovereign immunity as to the DHS, however, the Parents’ claims against the DHS are not precluded. Therefore, we affirm the judgment of the trial court denying the DHS’s motion to dismiss.

As a threshold matter, "[t]he trial court’s ruling on [a] motion to dismiss on sovereign immunity grounds is reviewed de novo, while factual findings are sustained if there is evidence supporting them." (Citation and punctuation omitted.) Ambati v. Bd. of Regents of the Univ. System of Ga. , 313 Ga. App. 282, n. 3, 721 S.E.2d 148 (2011) ; see also OCGA § 9-11-12 (b) (1). So viewed, the evidence revealed that the Parents’ daughter, Alexia, was born two months prematurely and suffered from multiple health issues, including apnea, which required constant monitoring. Due to her health issues, hospital staff designated Alexia as a "medically fragile" infant. Alexia remained in the hospital for over six weeks and, following training for the Parents by nursing staff, the hospital released her to the Parents on December 6, 2012.

On December 13, 2012, the Parents returned to the hospital with Alexia after she stopped breathing during a medical examination, and she was readmitted. The DHS, acting through the Athens-Clarke County Department of Family and Children Services ("DFCS"), obtained an order from the Juvenile Court of Athens-Clarke County awarding custody of Alexia to the DFCS, which began to look for qualified foster parents.³ Lutheran, a private child-placing agency with experience in placing medically fragile children with suitable foster parents, contracted with the DHS to provide foster care and indicated that it would be able to place Alexia with qualified foster parents. The Andersons have previously served as foster parents for medically fragile children, and Mrs. Anderson had experience as a nurse. After rejecting another potential foster parent, the DHS ultimately approved the Andersons to serve as Alexia’s foster parents, and the hospital released Alexia to the Andersons on December 22, 2012.

On January 5, 2013, after feeding Alexia and giving her a bath, Mrs. Anderson placed Alexia in her car seat without her breathing machine and began to perform household chores throughout the house. While performing her chores, Mrs. Anderson checked on Alexia and noted that she showed "no sign of distress" and that her respiration and skin "looked good." Mrs. Anderson went to the restroom, washed her hands, and then heard Alexia making a gurgling sound. Mrs. Anderson rushed to Alexia’s car seat and found Alexia’s lips "blue" with no breathing or pulse. She attempted mouth-to-mouth resuscitation without success and telephoned 911.

An ambulance arrived some time later, but before the paramedics transported Alexia to a local hospital, one of them declared Alexia dead. Once at the hospital, medical staff were unable to revive Alexia.

The Parents filed suit against the DHS, the DFCS, Lutheran, and the Andersons for, among other things, negligence and professional negligence. The DHS moved to dismiss the Parents’ case, asserting that the Andersons were foster parents employed by Lutheran rather than the DHS and that, as a result, they were not acting on behalf of the DHS or protected by sovereign immunity. The trial court denied the DHS’s motion to dismiss, finding that the Andersons were " ‘state officers or employees’ as defined by the [Tort Claims Act] and ... are immune from suit as they were acting within the scope of their official duties at all times relevant to [the Parents’] Complaint." The trial court entered a certificate of immediate review, and we granted the DHS’s application for interlocutory appeal. This appeal followed.

In a single enumeration of error, the DHS contends that "the trial court erred by denying [the] DHS’s motion to dismiss because the Andersons were not state officers or employees who were acting on behalf of [the] DHS" at the time of Alexia’s death. In its simplest form, the DHS’s argument may be summarized thusly: the DHS contracted with Lutheran for foster care services, and Lutheran contracted with the Andersons to serve as foster parents; therefore, the Andersons were acting on behalf of Lutheran rather than the DHS when Alexia died and, as a result, the DHS is entitled to sovereign immunity. We do not agree.

Under Georgia law, "[t]he doctrine of sovereign immunity shields the state from suits seeking to recover damages [because] ... the primary purpose of sovereign immunity is to protect state coffers." In the Interest of A. V. B. , 267 Ga. 728 (1), 482 S.E.2d 275 (1997). Therefore, "[t]he sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver." Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). Enacted by the General Assembly in 1992, the Tort Claims Act supplies such a waiver, providing:

The state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances; provided, however, that the state’s sovereign immunity is waived subject to all exceptions and limitations set forth in this article. The state shall have no liability for losses resulting from conduct on the part of state officers or employees which was not within the scope of their official duties or employment.⁴

(Punctuation omitted; emphasis supplied.) OCGA § 50-21-23 (a) ; see also Dept. of Human Resources v. Johnson , 264 Ga. App. 730, 732, 592 S.E.2d 124 (2003).

"State officer or employee" is defined as "an officer or employee of the state ... acting on behalf or in service of the state in any official capacity, whether with or without compensation, but the term does not include an independent contractor doing business with the state."⁵ OCGA § 50-21-22 (7). The definition of "state officer or employee" also specifically includes "foster parents and foster children." Id. Although "foster parent" is not separately defined in the Tort Claims Act, our Supreme Court has determined that it means "the person or persons who provide care, lodging, supervision, and maintenance in a foster care home used by a child-placing agency ." (Punctuation omitted; emphasis supplied.) Johnson v. Ga. Dept. of Human Resources , 278 Ga. 714, 717 (3), 606 S.E.2d 270 (2004) (quoting OCGA § 49-5-60 (11) ).⁶

As a result, "[a] state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor." OCGA § 50-21-25 (a). Instead, "[a] person bringing an action against the state under the provisions of this article must name as a party defendant only the state government entity for which the state officer or employee was acting and shall not name the state officer or employee individually." OCGA § 50-21-25 (b).

In this case, the DHS obtained legal custody of Alexia resulting from a juvenile court proceeding.⁷ Thereafter, Lutheran informed the DHS that it could care for Alexia and suggested the Andersons as foster parents. The DHS approved the Andersons to serve as Alexia’s foster parents, and Alexia resided in the Andersons’ home. Under these facts, Lutheran satisfied the definition of a "child-placing agency," the Andersons’ residence qualified as a "foster care home," and the Andersons themselves met the definition of "foster parents." Accordingly, the Andersons were "state officers or employees" under the Tort Claims Act and are therefore entitled to sovereign immunity. It follows that the DHS, rather than the Andersons individually, is the proper party defendant in the Parents’ action under...