Ex Parte Sumerlin

Citation26 So.3d 1178
Decision Date26 June 2009
Docket Number1080520.
PartiesEx parte Yvonne SUMERLIN. (In re Doris Williford, as the personal representative of the estate of Austin Taylor Terry, deceased v. Susan Toole et al.).
CourtSupreme Court of Alabama

Sharon E. Ficquette, gen. counsel, and Felicia M. Brooks, staff atty., Department of Human Resources, for petitioner.

Ted Taylor, Leah O. Taylor, and Rhonda P. Chambers of Taylor & Taylor, Birmingham; J. Gusty Yearout of Yearout & Traylor, P.C., Birmingham; and William A. Short, Bessemer, for respondent.

On Application for Rehearing

STUART, Justice.

This Court's opinion of April 24, 2009, is withdrawn, and the following is substituted therefor.

Yvonne Sumerlin petitioned this Court for a writ of mandamus directing the Jefferson Circuit Court to enter a summary judgment in her favor on the ground that she is entitled to State-agent immunity in a wrongful-death action pending against her and others. We grant the petition and issue the writ.

Facts

On Friday, September 6, 2002, the mother of Austin Taylor Terry1 admitted 12-month-old Terry, who had bruises on both sides of his face, both ears, his neck, and his clavicle area, to the Children's Hospital of Alabama. Wanda Hawkins, a medical social worker at Children's Hospital, notified the Jefferson County Department of Human Resources ("DHR") of Terry's injuries and reported to the intake worker that Terry had suffered "suspicious non-accidental injuries"; as part of the initial-intake information, the intake worker designated the case as one requiring an "immediate" response. Hawkins also spoke with Sumerlin, a service supervisor at DHR. According to Hawkins, she told Sumerlin that Terry should not be allowed to go home with his mother until DHR could conduct an investigation because she suspected child abuse and neglect based on the nature of Terry's injuries and his mother's "flat affect," i.e., her nonresponsive attitude.

Sumerlin did not have an investigator available on September 6, 2002, to immediately investigate the suspected abuse. Sumerlin, however, confirmed that Terry could remain at Children's Hospital, a protective environment, until Monday, September 9, when the situation could be investigated. Sumerlin requested that the hospital contact DHR before discharging Terry.

That same day, Terry's father learned of Terry's hospitalization and contacted DHR. Because he telephoned the DHR office after office hours, his call was forwarded to an on-call DHR service worker, Tammie Godfrey. After speaking with Terry's father, Godfrey went to Children's Hospital. At the hospital, Godfrey met with Terry's father and helped police officers take photographs of Terry. Godfrey also talked with Terry's mother. Godfrey learned that Terry's mother and Chris Wesson, her boyfriend, had been in the house with Terry on the day Terry was injured. According to Terry's mother, Terry had fallen out of his crib. Godfrey concluded that Terry should not go home with his mother upon his discharge from Children's Hospital, and she informed the police of her conclusion. She summarized her findings in a report and submitted it to an administrative assistant at DHR.

On Monday, September 9, 2002, Sumerlin assigned the investigation of Terry's suspected abuse to Joann Hood. During Sumerlin's deposition, she was asked why she did not assign a caseworker to Terry's case immediately on Friday, September 6. She responded:

"Because I had handled it over the phone that Friday. When I spoke with Ms. Hawkins she told me that—because it came in that Friday as an emergency, and I talked with her, she said the baby would be in the hospital and the baby would be there through Monday and [it] was not a life-threatening situation, I was told the baby was in a stable situation, if the baby could stay there because my emergency person for that day [Friday, September 6] was currently working an emergency. She agreed that the baby would stay there until my worker saw him on Monday."

That same day, Monday, September 9, Cindy Deerman, a medical social worker at Children's Hospital, telephoned DHR and spoke with Sumerlin to find out DHR's plan for Terry. Sumerlin, who had not received Godfrey's report, informed Deerman that Terry could go home with his mother at discharge and that Hood would meet Terry and Terry's mother at their house. The materials indicate that Terry was discharged from Children's Hospital at 1:30 p.m. on Monday, September 9.

On September 10, 2002, at approximately 10:00 a.m., Hood visited Terry and his mother at their house. Wesson was in the house at the time of Hood's visit. Hood interviewed Terry's mother and Wesson. She also telephoned Martha Musso, Terry's great-grandmother. During the visit, Wesson and Terry's mother showed Hood Terry's crib. Wesson and Terry's mother explained that something was wrong with the rail on the crib because it would come off track and fall down. They stated that Terry had been injured when he fell out of the crib. Hood observed the bruise on the right side of Terry's face and the blotches on his jaw area. She concluded that Terry's injuries were consistent with his having fallen out of the crib. Hood told Terry's mother to acquire another crib, and she had Terry's mother and Wesson place the side of the crib with the broken rail against the wall to prevent future falls until they could acquire another crib. Hood determined, based on her initial investigation, that it was safe to leave Terry in his mother's care.

On November 3, 2002, Terry died from brain injuries caused by punches to his head inflicted by Wesson. Wesson is currently serving a 20-year sentence for manslaughter as a result of Terry's death.

The materials before us indicate that Sumerlin admitted that intake information relevant to Terry's suspected abuse "fell through the cracks." She stated that Hood reported her initial investigation findings to Sumerlin and that based on the information she had she agreed with Hood's recommendation that Terry stay in the home with his mother.

Doris Williford, as personal representative of Terry's estate, filed a wrongful-death action against Sumerlin, in her individual capacity, and others, including Susan Toole, the child-welfare administrator for DHR. In the complaint, Williford alleged that Sumerlin negligently and wantonly violated duties she owed Terry, who, as a victim of child abuse, was in need of the State's protection. Specifically, Williford alleged that Sumerlin negligently and/or wantonly violated applicable standards of care in child welfare:

"(a) by failing to comply with applicable rules, standards, regulations policies and/or procedures regarding the proper care, investigations and reporting of a suspected child abuse and/or neglect case in Jefferson County, Alabama;

"(b) by failing to ensure that [Hood] complied with mandatory rules and regulations pertaining to child abuse investigations;

"(c) by failing to timely and adequately gather and communicate to [Hood] all pertinent information regarding Austin Taylor Terry;

"(d) by failing to dispatch [Hood] or another child abuse and neglect investigator to Children's Hospital within 12 hours after receipt of the report of alleged abuse to Austin Taylor Terry;

"(e) by failing to implement safety measures for the protection of Austin Taylor Terry prior to his release from Children's Hospital "(f) by failing to implement a safety plan for the protection of Austin Taylor Terry;

"(g) by failing to comply with the requirements of the R.C. Consent Order[2] by assigning the Austin Taylor Terry investigation to a case worker, [Hood], whose case load exceeded the R.C. case load mandate; and,

"(h) by failing to require timely completion of the investigation and reporting of said investigation by [Hood]."

Sumerlin answered, denying the material allegations of the complaint and asserting the defense of State-agent immunity. After some discovery was conducted, Sumerlin moved for a summary judgment, arguing that she was entitled to State-agent immunity because, she said, her duties were supervisory in nature and she had not acted beyond her authority by violating any DHR policies. She maintained that Williford could not provide any evidence indicating that Sumerlin had "failed to follow applicable law or departmental rules, practices, or procedures or that [she] acted outside her authority as an employee of [DHR]." Additionally, she asserted that Williford could not provide any evidence indicating that Sumerlin had "acted willfully, maliciously, fraudulently, in bad faith, beyond her authority, or under a mistaken interpretation of law."

Williford responded, arguing that Sumerlin was not entitled to State-agent immunity because, she said, Sumerlin had acted "beyond her authority" or "under a mistaken interpretation of the law" by failing to follow established policies in the Child Protective Services Policies and Procedures Manual (hereinafter "the DHR manual") and to ensure that Hood followed those requirements. Specifically, she alleged that Sumerlin failed to follow the following two policies regarding intake and initial assessment in cases of suspected child abuse or neglect:

"CA/N [child abuse/neglect] Intake

"IV. Analysis and Decision-Making

". . . .

"D. DHR Response Times

"DHR's response time is the time frame within which in-person initial contact shall be made with (1) the children who are allegedly at risk of serious harm and (2) all other children in the home.

"Designated response times are `immediate' and `within five (5) calendar days.' `Immediate' is defined as `as soon as possible after a report is received, but no later than twelve (12) hours from receipt of the intake information.'

". . . .

"CA/N [child abuse/neglect] Initial Assessment

"VI. Review, Approval, and Assignment for On-going Services

"1. Supervisory Review

"Supervisors shall review all initial assessments to determine that:

"—child welfare staff have complied with the general...

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5 cases
  • Hood v. McElroy
    • United States
    • Alabama Supreme Court
    • May 24, 2013
    ... ... The claims against all the defendants except Wesson and Hood were disposed of before trial. See Ex parte Children's Hosp. of Alabama, 931 So.2d 1 (Ala.2005), and Ex parte Sumerlin, 26 So.3d 1178 (Ala.2009), for additional factual background ... ...
  • Hood v. McElroy, 1091075
    • United States
    • Alabama Supreme Court
    • September 30, 2011
    ...and Hood were disposed of before trial. See Ex parte Children's Hosp. of Alabama, 931 So. 2d 1 (Ala. 2005), and Ex parte Summerlin, 26 So. 3d 1178 (Ala. 2009), for additional factual background. The estate proceeded to trial against Wesson, who is currently serving a 20-year prison sentence......
  • Curry v. Kelley (Ex parte Kelley), 1170988
    • United States
    • Alabama Supreme Court
    • November 15, 2019
    ...to a summary judgment on the basis of the doctrines of parental immunity, State immunity, and State-agent immunity); Ex parte Sumerlin, 26 So. 3d 1178, 1183 (Ala. 2009) (considering a petition for a writ of mandamus filed by a DHR employee arguing that a summary judgment should have been en......
  • L.L. v. Sterling (Ex parte Ingram)
    • United States
    • Alabama Supreme Court
    • February 24, 2017
  • Request a trial to view additional results

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