Sheldon v. Ruggiero, 2017-387

• Decision Date: 09 November 2018
• Docket Number: No. 2017-387,2017-387
• Citation: 2018 VT 125
• Court: Vermont Supreme Court
• Parties: Willis S. Sheldon, Individually and as Administrator of the Estate of Dezirae Sheldon v. Nicholas Ruggiero

2018 VT 125

Willis S. Sheldon, Individually and as Administrator of the Estate of Dezirae Sheldon v. Nicholas Ruggiero

No. 2017-387

Supreme Court of Vermont

March Term, 2018

November 9, 2018

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Rutland Unit, Civil Division

Helen M. Toor, J.

Thomas W. Costello, Sharon J. Gentry, and Adam W. Waite of Costello, Valente & Gentry, P.C., Brattleboro, for Plaintiff-Appellant.

Sandra A. Strempel and Kendall Hoechst of Dinse, Knapp & McAndrew, P.C., Burlington, for Defendant-Appellee.

PRESENT: Reiber, C.J.,¹ Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. ROBINSON, J. Plaintiffs Willis S. Sheldon, individually as the father of Dezirae Sheldon, and as administrator of the Estate of Dezirae Sheldon, appeal from the grant of summary judgment to defendant Nicholas Ruggiero, an administrative reviewer with the Vermont Department for Children and Families (DCF). Plaintiffs argue that defendant negligently failed to report an allegation that Dezirae's stepfather Dennis Duby (Duby) had abused Dezirae, eventually leading to Dezirae's murder at Duby's hands. Plaintiffs present alternative theories for defendant's liability under: (1) Vermont's mandated-reporter statute, which they argue creates a private rightof action; (2) common-law negligence; or (3) negligent undertaking. We conclude that even if the mandated-reporter statute creates a private right of action, or alternatively, even if defendant had a common-law duty to report suspected abuse, plaintiffs' negligent-undertaking claim fails because defendant acted reasonably and prudently in his role as a DCF administrative reviewer. In addition, we conclude that plaintiffs' claim fails because defendant never undertook DCF's statutory obligation to investigate all potential sources of Dezirae's injuries. Accordingly, we affirm.

¶ 2. The undisputed evidence in the summary-judgment record reflects the following. In February 2013, Dezirae, then a one-year-old infant, was brought to the hospital with blunt-force fractures to both of her legs. DCF investigated for suspected child abuse. See 33 V.S.A. § 4915 (mandating DCF assessment and investigation "[u]pon receipt of a report of abuse or neglect"); id. § 4915b (outlining procedures for investigation). During the course of its investigation, mother offered various explanations to the DCF investigator, including that in the days preceding the injuries she was the only caregiver to Dezirae; mother "did not do this and she never saw anyone do anything to [Dezirae]"; mother had accidentally dropped Dezirae into a crib while changing her; Dezirae had fallen off of a chair and a couch on two separate occasions; on one occasion, Dezirae began to crawl toward a stairwell and mother "grabb[ed] her and yank[ed] her back" by her legs and one arm, which caused Dezirae's legs to hit a doorframe; and mother had not slept in two days and "had to do it," without providing further explanation for this statement.

¶ 3. Dezirae's paternal aunt reported to DCF that mother had said that she fabricated the story to DCF regarding pulling Dezirae away from the stairs "because [mother] felt like she needed to come up with a story" and "that actually [mother believed] the demons had thrown Dezirae down the stairs." DCF spoke to mother's then-boyfriend Duby, who noted that a month previously he had dropped Dezirae from a height of approximately one foot into her crib. He reported that she did not cry or seem bothered at all. DCF additionally interviewed the father of mother's otherchild; he had noticed bruising on Dezirae's face and was told by mother that Duby had dropped Dezirae into a portable crib about two weeks earlier. This allegation was consistent with a report from his wife—a legal guardian of Dezirae's—that reflects the same information.

¶ 4. The doctors who treated Dezirae reported that the leg fractures were not consistent with an accidental event, were caused by different types of force at different times, and were at least a week old before Dezirae was brought to the hospital. Based on this information and that noted above, DCF gained temporary custody of Dezirae in February 2013 and placed her in a home outside of mother's care.

¶ 5. In April 2013, based on the recommendation of the DCF investigator who had done the interviews described above, DCF substantiated physical abuse and medical neglect against mother. Regarding physical abuse, the case determination report explained that the medical evidence showed that the injuries were not accidental and that mother "stated that she ha[d] been the only caregiver for Dezirae." Regarding medical neglect, the report noted that mother had admitted that "she knew Dezirae was injured for several days" but "did not seek medical treatment because she was afraid she would get into trouble."²

¶ 6. In May 2013, mother sought administrative review of the substantiation of the report that she engaged in physical abuse and medical neglect. See 33 V.S.A. § 4916a(c)(1). Defendant, an independent contractor with DCF, was the administrative reviewer assigned to the case. An administrative reviewer is "a neutral and independent arbiter who has no prior involvement in the original investigation of the allegation," id. § 4916a(f), and is tasked with determining whether to reject or accept DCF's substantiation or "place the substantiation determination on hold and direct [DCF] to further investigate the case based upon therecommendations of the reviewer." Id. § 4916a(g)(1)-(3). The parties do not dispute that a DCF administrative reviewer is statutorily mandated to report suspected child abuse. Id. § 4913.

¶ 7. DCF placed Dezirae back into mother's care in early October 2013. Subsequently, also in October 2013, defendant met with mother for her administrative-review conference. See Id. § 4916a(d)-(e). During this interview, and in a similar fashion to her earlier interview with DCF, mother offered various, conflicting accounts for Dezirae's injuries—including that mother originally did not know what happened and made up a story because she felt obligated to provide one, that the injuries could have happened while Dezirae was at her maternal grandmother's home, and that her then-boyfriend Duby had caused the injuries.

¶ 8. After the interview, defendant spoke with the DCF investigator who had recommended substantiating the abuse claims against mother. His goals in speaking to her were to learn more about Duby and whether he had been substantiated for abuse, and to give the investigator a chance to weigh in on which of mother's versions was accurate.³ In thisconversation, he indicated to the investigator that mother had claimed that Duby had caused the injuries. The caseworker explained that she felt mother was the culprit due to the differing accounts she had provided to DCF. Defendant, who had read the DCF investigation intake report, agreed with the caseworker's assessment and thought that mother was lying because both during DCF's investigation and during mother's interview with defendant she gave varying, inconsistent explanations—one of which involved Duby—that were not consistent with how the injuries actually occurred.⁴

¶ 9. In a written decision issued on December 5, 2013, and copied to the Commissioner of DCF, defendant upheld DCF's substantiation of abuse and medical neglect against mother. The decision noted mother's position that she "did not know what happened to [Dezirae]," and "[pled] guilty to the medical neglect," but, "[a]s far as the broken bones it was [her] boyfriend that dropped her not [mother]." In support of upholding the substantiation, the decision cited mother's admission during her administrative-review conference to purposely lying to detectives; the medical evidence that the fractures were not accidental and occurred at different times; mother's knowledge of Dezirae's injuries for several days before seeking treatment; mother's role as "sole caretaker" to Dezirae; and her "inconsistent explanations regarding how [Dezirae] received two fractured legs."

¶ 10. DCF relinquished custody of Dezirae to mother in early February 2014. Within a matter of weeks, Dezirae was brought to the hospital with skull fractures to both sides of her head.These injuries ultimately proved fatal. Duby, who by this time was Dezirae's stepfather, was charged with her murder. He was ultimately convicted after pleading guilty.

¶ 11. In February 2016, plaintiffs sued defendant, arguing that he had negligently failed his statutory obligations as a mandated reporter to report to DCF mother's allegation that Duby had caused Dezirae's leg injuries, which she made during the administrative-review conference. This failure to report, plaintiffs alleged, denied DCF the ability to adequately evaluate Dezirae's placement back into mother's care. In addition, plaintiffs contend that defendant undertook a duty to Dezirae—which he breached—when he decided to follow up with the DCF caseworker and "informally report and investigate" mother's allegation against Duby.

¶ 12. Defendant moved for summary judgment in March 2017, arguing that he was not liable because the mandated-reporter statute does not create a private right of action; defendant was not obligated in 2013 to make a new report of abuse because Duby was not a new suspect; defendant's report complied with the statute; and DCF's failure to act on mother's allegation about Duby was an intervening event. Defendant additionally contended that plaintiffs' negligent-undertaking claim failed because he "did not 'undertake' to 'render services' "...