Mississippi Dept. of Human Services v. S.W.

• Decision Date: 07 August 2007
• Docket Number: No. 2005-CA-00227-COA.,2005-CA-00227-COA.
• Citation: 974 So.2d 253
• Parties: MISSISSIPPI DEPARTMENT OF HUMAN SERVICES, Appellant v. S.W., Appellee.
• Court: Mississippi Court of Appeals

974 So.2d 253

MISSISSIPPI DEPARTMENT OF HUMAN SERVICES, Appellant v. S.W., Appellee.

No. 2005-CA-00227-COA.

Court of Appeals of Mississippi.

August 7, 2007.

Rehearing Denied November 27, 2007.

James P. Streetman, David Lee Gladden, attorneys for appellant.

Carlton W. Reeves, J. Douglas Minor, Jackson, attorneys for appellee.

Before CHANDLER, P.J., BARNES and CARLTON, JJ.

CARLTON, J., for the Court.

¶ 1. This is a negligence suit brought by a minor against the Mississippi Department of Human Services (DHS) alleging that DHS breached its statutory duties to him while he was in its care and custody, allowing him to be sexually abused by employees of the child care facilities in which he was placed. The trial judge, sitting without a jury, entered judgment against DHS in the amount of $750,000. DHS filed a motion for new trial, remittitur or, in the alternative, motion to amend judgment. The trial judge denied the motion. DHS appeals. We affirm as to liability and reverse and remand for a new trial on damages only.

FACTS

¶ 2. On October 4, 1996, fourteen-year-old S. W.¹ was placed in the care and custody of DHS after substantiated reports that his mother, T. W., beat him with an extension cord. Later that month, DHS placed S.W. in the Region VII Chemical Dependency Unit (CDU) in Ackerman, Mississippi. Upon his arrival at CDU, S.W. met Larenzo Williams, a "youth care specialist" employed by CDU to assist the residents of the facility. S.W. alleged that shortly after his arrival at CDU, Williams engaged in sexual acts with him. Specifically, S.W. stated that he awoke to Williams inappropriately touching him under the covers. S.W. testified that this conduct went on twice a week for the entire time he was in CDU and that he never reported these instances of abuse because he feared reprisal from Williams in the form of punishment or a decrease in privileges and activities.

¶ 3. S.W. was later transferred by DHS to the Special Needs in State Placement (SNIPS) facility in Starkville, Mississippi, where he remained until he returned to the physical custody of T.W. on June 6, 1997. Shortly after S. W.'s transfer to the SNIPS facility, Williams was also transferred to the SNIPS facility. S.W. alleged that, upon his placement at SNIPS, Williams continued to engage in sexual acts with him such as, rubbing, touching and performing oral sex on him. S.W. stated that Williams would sometimes leave letters for him containing as much as sixty dollars. S.W. further stated that Rick Howard, another employee of SNIPS, regularly engaged in sexual acts with him including anal sex, which S.W. performed on Howard. S.W. testified that the sexual activity occurred frequently — up to two or three times a week, S.W. stated that things got "out of control" at SNIPS because Williams had more power over him. Williams had authority to impose various punishments on S.W. such as early bedtime, time-out and confinement to his room. Williams also had authority to take away various recreational activities such as watching television, playing with the other children, listening to the radio and using the telephone. S.W. testified that when he would resist Williams' sexual advances, he would sometimes lose his privileges or be bumped to a lower level of progression which made it more difficult for him to achieve the level which would allow him to return home.

¶ 4. On June 6, 1997, S.W. was released from SNIPS and returned to his mother's home; however, S.W. remained in DHS custody until December 1997. Williams sent numerous romantic cards and letters to S.W. at his mother's home. The cards and letters expressed Williams' love for S. W., his desire to have a "continuing relationship," and his frustration with S. W.'s failure to reciprocate.² Williams also mailed pre-paid phone cards to S.W. to enable S.W. to call him inconspicuously. Despite S. W.'s effort to hide these items, T.W. eventually found them and contacted DHS to express her concern. Shortly thereafter a meeting was held with S. W., his mother, his grandmother, DHS social worker, Elsie Roarke, DHS regional director, Billie Sims, and DHS supervisor, Beth Leggett. In the presence of this group, S.W. was asked if he had been sexually abused by workers at SNIPS or CDU; he replied that he had not. DHS summarily determined that S.W. had not been abused. This meeting was the extent of DHS's investigation.

¶ 5. S.W. later brought a negligence action against DHS under the Mississippi Tort Claims Act (MTCA). The complaint sought compensatory and punitive damages as well as damages for mental and emotional distress. S.W. alleged that DHS neglected to carry out its duties to him while he was in their custody, which allowed him to be sexually abused. He alleged further that DHS failed to fully investigate the reported abuse and failed to ensure that he received medical treatment in the form of psychological counseling.

¶ 6. At trial, both Williams and Howard denied the allegations of sexual abuse. Williams testified that although he never engaged in any sexual activities with S. W., it probably would have happened because he had feelings for S.W. Williams admitted that he liked S.W. in the wrong way, as in love for another man. He stated that he had a desire for S.W. and had dreams of being with him. Williams' cards and letters were also introduced at trial.

¶ 7. The trial court found that DHS breached its duty to protect and care for S.W. in three respects: (1) that DHS failed to make required monthly face-to-face contacts with S. W., (2) that DHS failed to sufficiently investigate the report of sexual abuse, and (3) that DHS failed to provide much needed counseling upon S. W.'s return home. The trial court determined that DHS's negligent conduct subjected S.W. to sexual abuse thereby causing him damages. Accordingly, judgment was entered in favor for S.W. awarding $750,000 in damages.

STANDARD OF REVIEW

¶ 8. Claims brought under the MTCA are tried before the appropriate court without a jury. Miss.Code Ann. § 11-46-13(1) (Rev.2002). The standard of review for a judgment entered following a bench trial is well settled. We review questions of law de novo. Miss. Dep't of Mental Health v. Hall, 936 So.2d 917, 922(6) (Miss.2006). The proper application of the MTCA is a question of law. City of Newton v. Lofton, 840 So.2d 833, 836(¶ 7) (Miss.Ct.App.2003). A trial judge is accorded the same deference regarding his findings as is a chancellor and his findings will not be disturbed where they are support by substantial, credible and reasonable evidence. Jones v. Mississippi Transp. Comm'n, 920 So.2d 516, 518(¶ 11) (Miss.2003). We will only disturb the trial judge's findings if the trial judge abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard. Id. As the trier of fact, the trial judge "[Was the sole authority for determining the credibility of the witness." Thompson ex rel. Thompson v. Lee County Sch. Dist., 925 So.2d 57, 62(7) (Miss. 2006) (citations omitted).

DISCUSSION

I. WHETHER DHS WAS IMMUNE FROM LIABILITY UNDER THE MISSISSIPPI TORT CLAIMS ACT.

¶ 9. Under this assignment of error, DHS argues that the alleged negligent conduct was discretionary in nature and, therefore, immune from suit under Mississippi Code Annotated Section 11-46-9(1)(d). S.W. argues that the challenged conduct was ministerial in nature and not subject to the discretionary function exception.

¶ 10. The MTCA authorizes suits against the State and its political subdivisions for damages "[a]rising out of the torts of such governmental entities and the torts of their employees while acting within the scope of their employment. . . ." Miss.Code Ann. § 11-46-5(1). However, the act provides certain enumerated exceptions to this waiver of immunity. The exception relevant to this assignment of error provides that the State and its employees are not liable for any claim "[b]ased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused[.]" Miss.Code Ann. § 11-46-9(1)(d).

¶ 11. "In determining whether governmental conduct is discretionary the Court must answer two questions: (1) whether the activity involved an element of choice or judgment; and if so, (2) whether the choice or judgment in supervision involves social, economic or political policy alternatives." Bridges v. Pearl River Valley Water Supply Dist., 793 So.2d 584, 588(15) (Miss.2001) (citing Jones v. Miss. Dep't of Transp., 744 So.2d 256, 260(10) (Miss.1999)). A duty is discretionary if the government actor is required to exercise his or her judgment or discretion in performing the duty. Dancy v. East Miss. State Hosp., 944 So.2d 10, 17-18(19) (Miss. 2006) (citing T.M. v. Noblitt, 650 So.2d 1340, 1343 (Miss.1995)). On the other hand, "[a] duty is ministerial and not discretionary if it is imposed by law and its performance is not dependent on the employee's judgment." Mississippi Dep't of Transp. v. Cargile, 847 So.2d 258, 267(¶ 35) (Miss.2003) (citing Mohundro v. Alcorn County, 675 So.2d 848, 853 (Miss.1996)). The United States Supreme Court has explained that "[t]he requirement of judgment or choice is not satisfied if a `federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,' because the employee has no rightful option but to adhere to the directive.'" United, States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). Our inquiry thus turns on whether the challenged governmental conduct required the DHS actors to exercise their own policy-based judgment, or whether the actors were instead bound to perform their duties in accordance with mandatory directives imposed by law. We now examine DHS's duties.

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