Ga. Dep't of Human Servs. v. Spruill

• Citation: 751 S.E.2d 315,294 Ga. 100
• Decision Date: 18 November 2013
• Docket Number: No. S12G2002.,S12G2002.
• Parties: GEORGIA DEPARTMENT OF HUMAN SERVICES et al. v. SPRUILL et al.
• Court: Georgia Supreme Court

294 Ga. 100
751 S.E.2d 315

GEORGIA DEPARTMENT OF HUMAN SERVICES et al.
v.
SPRUILL et al.

No. S12G2002.

Supreme Court of Georgia.

Nov. 18, 2013.

[751 S.E.2d 316]

Samuel S. Olens, Atty. Gen., Kathleen M. Pacious, Deputy Atty. Gen., Loretta L. Pinkston, Jennifer L. Dalton, Sr. Asst. Attys. Gen., Robert L. Bunner, Ronald S. Boyter, Jr., Asst. Attys. Gen., appellants.

James A. Attwood, for appellees.

BLACKWELL, Justice.

As a general rule, the sovereign immunity of the State and its departments is waived by the Georgia Tort Claims Act for “the torts of state officers and employees ... acting within the scope of their official duties or employment,” OCGA § 50–21–23(a), but there are exceptions to the general rule. See OCGA § 50–21–24(1)–(13). This case concerns one of these exceptions, commonly known as the “discretionary function” exception. See OCGA § 50–21–24(2). Here, the guardians of two infant boys sued the Department of Human Services (DHS), alleging that the Clayton County Department of Family and Children Services (DFCS) was negligent in several respects in its investigation of a report that the boys were neglected by their parents. ¹ On the motion of DHS, the trial court dismissed the lawsuit, finding that the “discretionary function” exception properly applied, but the Court of Appeals disagreed, and it reversed the dismissal. Spruill v. Ga. Dept. of Human Svcs., 317 Ga.App. 226, 228, 729 S.E.2d 654 (2012). We issued a writ of certiorari to consider whether the “discretionary function” exception applies in this case, and concluding that it does, we reverse the judgment of the Court of Appeals.

[751 S.E.2d 317]

1. The record shows that twin boys—As. M. and Av. M.—were born premature to Jay McCart and Tessa Zelek on November 6, 2006. Almost a year later, on October 17, 2007, McCart and Zelek took the boys to their pediatrician for a routine examination. The pediatrician found that the boys were severely underweight,² but he saw no sign that they were in acute distress, and he did not think it necessary at that point to contact DFCS about the boys. Instead, the pediatrician ordered some diagnostic tests to ascertain any medical causes of the failure of the boys to gain weight, and he explained to McCart and Zelek that, if these tests failed to explain the failure to thrive, the boys would have to be admitted to a hospital for further testing and observation.

On November 4, a grandfather of the boys visited the mobile home that McCart and Zelek shared. The grandfather observed that one of the boys “didn't look right,” and it appeared to the grandfather that both McCart and Zelek were under the influence of alcohol or drugs.³ Following his visit, the grandfather reported some of what he had seen to the grandmother of the boys. On November 6, the grandmother telephoned the pediatrician and told him “about [her] concern that [McCart and Zelek] could be using drugs in the house.”

The same day, the pediatrician made a report about the boys to Henry County DFCS.⁴ In that report, the pediatrician disclosed that the boys recently had been seen in his office, that they had failed to gain much weight, and that they were failing to thrive. The pediatrician also reported that the boys had special medical needs as a result of their premature birth, but McCart and Zelek sometimes failed to keep medical appointments for the boys. In addition, the pediatrician said that there was some reason to think that both parents might be abusing alcohol or drugs, and he added that McCart appeared to have “some type of brain damage.” ⁵ Henry County DFCS dispatched a social services worker to the McCart–Zelek home, but the worker was unable to locate the home and determined later that the home was situated just across the Clayton County line in any event.⁶ On the afternoon of November 7, Henry County DFCS referred the report to Clayton County DFCS.

When it received the referral, Clayton County DFCS assigned the report to Eric Jackson for investigation. Jackson, a field program specialist, had 17 years of experience with DFCS, including 12 years as a case manager. To begin, Jackson telephoned Henry County DFCS to confirm that he had received all available information about the case, and he telephoned the office of the pediatrician, only to learn that it was closed for the day. Jackson then arranged for an on-call DFCS social services worker to make an unannounced visit to the McCart–Zelek home that evening. The on-call worker went to the home, but no one responded when he knocked on the door and telephoned the home. ⁷

[751 S.E.2d 318]

The next morning, Jackson spoke with his supervisor about the case, reviewed the report of the on-call worker, and twice telephoned the office of the pediatrician. On the first call, Jackson spoke with an assistant of the pediatrician, who told Jackson that the boys had been diagnosed as failing to thrive, and who shared the weights of the boys as of their October examination. On the second call, Jackson spoke with the pediatrician, who warned that the boys were “going to be very small,” and who advised Jackson that he ought not be “alarmed and panic” when he saw them. The pediatrician also informed Jackson that he had scheduled testing and another appointment with the boys, that the boys were not in acute distress, and that his “main concern was for the parents to be drug tested and their parenting skill [to] be assessed.”

The same day—November 8—Jackson made an unannounced visit to the McCart–Zelek home, knocked several times on the door, and heard no response. Jackson then telephoned Zelek, but he got no answer and left a voicemail message for her. Jackson also telephoned his supervisor to report on the status of the investigation. As Jackson was returning to his office, Zelek returned his call, explaining that the family was “at the family cabin” in North Carolina and would return home on November 12. According to Jackson, Zelek was “very articulate,” and he had no concern that she was trying to avoid him. Jackson and Zelek made arrangements for Jackson to visit the family after they returned.⁸

On the morning of November 13, Jackson visited the McCart–Zelek home, where he was greeted by McCart and found Zelek and the boys on a sofa. Zelek was seated, with one boy in her lap, and the other sleeping to her side, both wearing sleepers. Zelek said that she had just fed the boys, and Jackson saw two empty bottles on a nearby table. Jackson sat next to Zelek, and he watched as Zelek burped the boy in her lap and then rocked him to sleep. At that point, Zelek asked Jackson if McCart could put the boys to bed, and Jackson agreed. As McCart carried the boys to their bedroom, Jackson followed, and he inspected their bedroom, as well as most of the other rooms in the mobile home. ⁹

Jackson then discussed the concerns reported by the pediatrician with McCart and Zelek. When he asked about the small size of the boys, Zelek said that As. M. weighed approximately 11 pounds, 4 ounces, and she said that Av. M. weighed about 11 pounds. She added that she had her own concerns about their pediatrician, who had failed, she said, to get the boys enrolled in a State program known as “Babies Can't Wait.” ¹⁰ She truthfully informed Jackson that the children were being treated not only by the pediatrician, but also by a neurologist, a physical therapist at Children's Healthcare of Atlanta, and a chiropractor. About McCart, Jackson was told that he had been in an automobile accident and had a brain tumor. After the boys were taken to their bedroom, Jackson spoke with McCart and Zelek for at least 45 minutes.

At the end of his visit, Jackson prepared a safety plan, which identified the areas of concern for the boys, as well as the steps that McCart and Zelek promised to take to address those concerns, and McCart and Zelek both signed the plan. Jackson also told them that DFCS would work with them to address the needs of the boys, including by helping them to enroll in “Babies Can't Wait.” Jackson also told them that DFCS would work with them to address McCart's medical needs. In the days that followed his

[751 S.E.2d 319]

visit, Jackson worked to secure additional support for the family, including from “Babies Can't Wait.” In addition, Jackson arranged for a DFCS contractor to screen McCart and Zelek the next day for recent drug use. Jackson received the results of the drug screen on November 15, and they did not indicate recent drug use by either parent.

There is some dispute about what happened in the McCart–Zelek home in the days that followed the drug screen. According to Zelek, she became sick, and she took medications for her sickness, but, she says, only medications that had been prescribed for her. McCart, on the other hand, has acknowledged that he abused alcohol and drugs during that time. Both McCart and Zelek have admitted that they did not feed the boys between November 15 and November 20, and both have attempted to offer excuses for their neglect. McCart has claimed, for instance, that he believed that their grandmother fed the boys on November 16. The grandmother, however, has said that she did not feed the boys—she visited the McCart–Zelek home on November 16, but she says that she did not go inside—but she recalls McCart feeding one of the boys that day. McCart also has claimed that a friend—described by Zelek as a “drug friend” of McCart—fed the boys during this period. Zelek has said that she believed that McCart was feeding the boys. In any event, it is undisputed that the boys were neglected between November 15 and November 20, and that is all we really need to know for purposes of this appeal.¹¹

On November 20, several relatives arrived at the McCart–Zelek home, where they found McCart and Zelek in a state that they described as “semi-conscious” or “unconscious.” These relatives called an ambulance for McCart and Zelek, and they delivered the boys to their aunt, who agreed to care for them. After taking...