DOE BY FEIN v. Dist. of Columbia, 96-SP-1242.

• Decision Date: 19 June 1997
• Docket Number: No. 96-SP-1242.,96-SP-1242.
• Citation: 697 A.2d 23
• Parties: Jane DOE, A Minor Child, By Her Next Friend, Leslie G. FEIN, Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees.
• Court: D.C. Court of Appeals

697 A.2d 23

Jane DOE, A Minor Child, By Her Next Friend, Leslie G. FEIN, Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees.

No. 96-SP-1242.

District of Columbia Court of Appeals.

Argued February 4, 1997.

Decided June 19, 1997.

Richard A. Seligman, with whom Jonathan Zucker, Washington, DC, was on the brief, for appellant.

Donna M. Murasky, Assistant Corporation Counsel, with whom Charles F.C. Ruff, Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellees.

David M. Becker, Katherine H. Gibson, and Arthur B. Spitzer, Washington, DC, filed a brief for the American Civil Liberties Union of the National Capital Area as Amicus Curiae.

Before TERRY and STEADMAN, Associate Judges, and BELSON, Senior Judge.

TERRY, Associate Judge:

We are presented here with a question of law certified to us under D.C.Code § 11-723 (1995) by the United States Court of Appeals for the District of Columbia Circuit.¹ The issue is whether the plaintiff's claims for negligence against the District of Columbia and two of its employees are barred because of her failure to give the requisite notice to the District under D.C.Code § 12-309 (1995).² The precise question that has been certified for review is:

Are Jane Doe's claims for negligence, based on the District of Columbia Prevention of Child Abuse and Neglect Act of 1977, D.C.Code §§ 2-1351 to -1357, 6-2101 to -2127, against the District of Columbia and two of its employees barred under D.C.Code § 12-309?

Doe ex rel. Fein v. District of Columbia, 320 U.S.App. D.C. 198, 213, 93 F.3d 861, 876 (1996). We hold that appellant, Jane Doe, has failed to satisfy the requirements of section 12-309, and that her claims against the District of Columbia and its employees are therefore barred.

I. PROCEDURAL HISTORY

Jane Doe, a minor, filed suit in the United States District Court against the District of Columbia and two of its employees, alleging that she had been injured as a result of the District's failure to investigate her case and protect her from abuse and neglect. Her complaint was based on the District of Columbia Prevention of Child Abuse and Neglect Act, D.C.Code §§ 6-2101 et seq. (1995), the federal Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5106a (1994), and the Due Process Clause of the Fifth Amendment.

The District Court dismissed Doe's federal and constitutional claims under Fed.R.Civ.P. 12(b)(6) and dismissed her local law claim as barred by D.C.Code § 12-309. The court concluded that a letter from Doe's attorney to the Mayor of the District of Columbia in January 1990 did not satisfy the notice requirement of section 12-309, and that the relevant police reports were also insufficient to provide the requisite notice.³ The United States Court of Appeals affirmed the dismissal of Doe's federal and constitutional claims, but held that it could not determine whether or not Doe's local law claim was barred by D.C.Code § 12-309. Accordingly, the court reserved ruling on that claim and certified the matter to us.

II. THE FACTS⁴

In August 1988 the District determined that Jane Doe's mother might be unable to house and feed her three minor children, who were living with her. Because the mother had not paid the rent on her apartment since January, a social worker in the Department of Human Services (DHS) concluded after a home visit that the mother and her children were in imminent danger of being evicted and would need counseling and assistance in finding another place to live. The social worker recommended that the family be referred to the Continuing Services Branch. The mother was later evicted from her apartment, and, according to the complaint filed in the District Court, "no further efforts were made by the Continuing Services Branch to provide services necessary to protect Jane Doe."

In the early part of January 1989 the mother left the three children, including Jane Doe, in the care of a friend, who was Jane Doe's godmother. The godmother lived in a public housing apartment with her four children, her sister, and her sister's three children. The apartment was infested with roaches and rodents and had substantial housing code violations which endangered Jane's health and safety. Shortly thereafter, on January 20, Jane Doe's maternal grandmother found Jane's two siblings abandoned on her front porch. Unable to care for them herself, the grandmother called the police, and DHS placed both children in a shelter care facility. Jane Doe, however, remained in the care of her godmother.

Although DHS had assigned a social worker to the children's case, the grandmother's complaints about the care that Jane was allegedly receiving in the godmother's home were unavailing. No DHS employee investigated Jane Doe's living conditions or responded to requests that she be removed from the godmother's care. At that time Jane Doe was two and a half years old.

On February 23, 1989, Jane Doe suffered severe burns on more than one-third of her body, causing permanent disfigurement, from scalding water in a bathtub in the godmother's home. When Jane's grandmother saw the burns on March 2, she immediately called an ambulance, and Jane was taken to Children's Hospital. The police interviewed the godmother, who admitted that she had not obtained any medical treatment for the child's injuries. She was arrested on a charge of mayhem, to which she eventually pleaded guilty. In the course of their investigation, the police prepared and filed certain reports which are at issue in this case.

On March 3 Jane Doe was placed in the shelter care custody of DHS. A neglect petition, signed by the social worker, was filed in the Superior Court, which stated inter alia that Jane Doe remained in the legal custody of her mother. Jane stayed in the hospital for more than five months, remaining in the custody of DHS, until she was conditionally released by the court on August 11 to her grandmother. On December 11, 1989, a judge of the Superior Court found, as a result of Jane's injuries, that she was an abused and neglected child.

On January 9, 1990, ten and a half months after Jane Doe was injured but less than five months after she was released from the hospital, counsel representing her in the neglect proceeding wrote to the Mayor of the District of Columbia. His letter said, in part:

I am writing this letter on behalf of my client, Jane Doe, as well as members of her immediate family who may bring actions based on damages they have incurred due to Jane's suffering permanent disability.

This letter constitutes notice to the District of Columbia, pursuant to 12 D.C.Code Section 309, of injuries suffered by Ms. Jane Doe.

The letter went on to describe those injuries and asserted that DHS had failed to investigate the matter and failed to take adequate steps to protect Jane Doe. It concluded, "The agency DHS breached a special duty of care owed to Jane Doe."⁵

In May 1991 the Superior Court committed Jane Doe to the care and custody of the District of Columbia pursuant to D.C.Code § 16-2320 (1989). Nearly one year later, in April 1992, the Superior Court appointed Leslie Fein, an attorney, as guardian ad litem for Doe to investigate her legal claims. On January 13, 1993, the guardian ad litem filed this suit on Jane Doe's behalf in federal court. The complaint alleged that if District of Columbia authorities had responded properly to the grandmother's reports of abuse and neglect by investigating Jane Doe's case, they would have removed Jane from the home of her godmother before she was injured. Jane's District of Columbia claim was based on the alleged deprivation of "a panoply of rights" conferred by the District of Columbia Prevention of Child Abuse and Neglect Act.

III. SECTION 12-309

A. The police reports

Appellant contends that the police reports filed in the wake of her physical injuries provided the District of Columbia with adequate notice, under section 12-309, of her claims against the District. We cannot agree.

Although section 12-309 expressly provides that a written police report can be "a sufficient notice," the police report must contain the same information that is required in any other notice given under the statute. Campbell v. District of Columbia, 568 A.2d 1076, 1078-1079 (D.C.1990). Thus, in order to be considered a sufficient notice, a police report must include, in the words of the statute, "the approximate time, place, cause, and circumstances of the injury or damage." See, e.g., Miller v. Spencer, 330 A.2d 250, 252 (D.C.1974).

A notice is sufficient "if it recites facts from which it could be reasonably anticipated that a claim against the District might arise." Pitts v. District of Columbia, 391 A.2d 803, 809 (D.C.1978). "Such notice would suffice, therefore, if it . . . described the injuring event with sufficient detail to reveal, in itself, a basis for the District's potential liability." Washington v. District of Columbia, 429 A.2d 1362, 1366 (D.C.1981) (en banc). The specificity requirement applicable to any form of notice, including police reports, is rooted in the notion that "to require any less would place an intolerable investigative burden on the District." Miller v. Spencer, supra, 330 A.2d at 252.

Although the police reports in this case recite the time, place, cause, and circumstances of Jane Doe's injuries,⁶ they fail to disclose or suggest any basis for liability on the part of the District of Columbia. The relevant injury for purposes of this case is not the physical harm that Jane suffered from her burns; rather, it is the District's alleged failure to intervene and take custody of Jane before she received those burns. Because the police reports do not suggest any failure by DHS to intervene and take Jane out of what it suspected was an abusive or neglectful home environment, we conclude that they failed to meet the requirements of section 12-309.

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