Sherin v. Department of Human Resources

• Citation: 494 S.E.2d 518,229 Ga.App. 621
• Decision Date: 04 November 1997
• Docket Number: No. A97A1091,A97A1091
• Parties: , 97 FCDR 4091 SHERIN et al. v. DEPARTMENT OF HUMAN RESOURCES et al.
• Court: United States Court of Appeals (Georgia)

Page 518

494 S.E.2d 518

229 Ga.App. 621, 97 FCDR 4091

SHERIN et al. v. DEPARTMENT OF HUMAN RESOURCES et al.

No. A97A1091.

Court of Appeals of Georgia.

Nov. 4, 1997.

Reconsideration Denied Dec. 3, 1997.

Certiorari Denied March 6, 1998.

Cathey & Strain, Dennis T. Cathey, james E. Staples, Jr., Cornelia, John M. Brown, Augusta, for appellants.

Thurbert E. Baker, Attorney General, George P. Shingler, Deputy Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellees.

ANDREWS, Chief Judge.

This action against the Department of Human Resources (Department) and its employee, Reid, ¹ a Division of Family & Children Services (DFACS) caseworker, alleging negligence, a claim under 42 USC § 1983 for violation of federal substantive and procedural due process rights, and breach of contract was initiated by Mr. and Mrs. Sherin, foster parents for Rabun County DFACS, individually and on behalf of their daughter, T.L.S., and by Mr. and Mrs. Hogan, on behalf of their daughter, L.L.H. Mrs. Hogan is the Sherins' daughter and L.L.H. is their granddaughter. Summary judgment was granted to the Department and Reid on all claims and plaintiffs appeal.

1. In reviewing grant or denial of summary judgment, this Court conducts a de novo review of the evidence. Goring v. Martinez, 224 Ga.App. 137, 138(2), 479 S.E.2d 432 (1996); Gaskins v. Hand, 219 Ga.App. 823, 466 S.E.2d 688 (1996). The grant of summary judgment will be affirmed on appeal if it is right for any reason. Deese v. NationsBank of Ga., 222 Ga.App. 275, 277(1), 474 S.E.2d 18 (1996).

"To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue." Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

Viewed under the standard of Lau's Corp., supra, with all inferences in favor of the plaintiffs, opponents of summary judgment, Eiberger v. West, 247 Ga. 767, 769, 281 S.E.2d 148 (1981), the evidence was that the Sherins had been under contract with DFACS as foster parents since 1979 and, at the time of the incident involved here, were foster parents for T.L.S., who was adopted by them thereafter. B.J.J., a 13-year-old male, was placed in the Sherins' home as a foster child on July 13, 1990, due to his father's alcoholism and continuing physical abuse of him and his siblings.

The Sherins were not told at the time of the placement that on June 13, 1990, Reid had been asked by a worker at the group home where B.J.J. was then living whether there had been any previously reported incidents of sexual misbehavior by him, because he had been found "masturbating uncovered in his bedroom on several occasions in front of other boys ... [and] did not stop when caught." At that time, Reid knew of no such prior incidents, but she did not inform the Sherins of this masturbation.

On April 12, 1991, Mrs. Sherin reported that she had allowed L.L.H., who was visiting her grandparents and was then five years old, B.J.J., T.L.S., and other children to go into a bedroom by themselves and watch a movie. When she went to check on them, she found them all in bed without clothing and B.J.J. had an erection. The children reported to her that B.J.J. had licked L.L.H.'s private parts. B.J.J.'s younger brother, who was also the Sherins' foster child, then told Mrs. Sherin that B.J.J. had tried to bother him sexually in the past, although there is no indication that any DFACS representative had previously been aware of this.

2. This case was originally filed in the Supreme Court which transferred it to this Court sua sponte, because the trial court's order "does not show that it ruled upon a constitutional question." Therefore, we do not consider enumerations 3 and 4, which allege the trial court unconstitutionally construed OCGA § 50-21-24. Atlanta Independent School System v. City of Atlanta, 266 Ga. 657, 658(1), 469 S.E.2d 22 (1996); Raskin v. Wallace, 215 Ga.App. 603, 604(1), 451 S.E.2d 485 (1994). ²

3. The first two enumerations deal with the summary judgment granted to Reid on the § 1983 claims and are considered together. They are that the trial court erred in "failing to find that the Sherins had clearly established rights" which were implicated by Reid's actions and in determining the "factual question of whether BJJ's history provided Defendant Reid with notice of the danger he presented to other children in the Sherins' home."

The court's order regarding summary judgment to Reid states that "the plaintiffs have not met their burden of proof in establishing that defendant Reid possessed any information prior to the date of the incident indicating that B.J.J. posed a threat to the plaintiffs based on a history of sexual abuse of or by B.J.J.... Whatever the legal validity of the plaintiffs' constitutional claims, they all require that defendant Reid have knowledge that B.J.J. posed a threat to the foster family or other foster children which the worker did not convey to the family."

(a) "Government officials performing discretionary functions are granted a qualified immunity shielding them from imposition of personal liability pursuant to 42 USC § 1983 'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Forney v. Purvis, 190 Ga.App. 192, 195-196, 378 S.E.2d 470 (1989). Thus, the test is applied by considering the objective reasonableness of the official's actions (irrespective of his subjective beliefs) in light of legal rules which were clearly established at the time the action was taken. Harlow, supra, 457 U.S. at 818-819 . 'The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. That is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful ... but it is to say that in the light of pre-existing law the unlawfulness must be apparent.' (Citations and punctuation omitted.) Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034 [3039], 97 L.Ed.2d 523 (1987)." Bell v. City of Albany, 210 Ga.App. 371, 374, 436 S.E.2d 87 (1993).

Therefore, in the context of Reid's action or inaction, the issue becomes, even if the Sherins' constitutional rights in this situation are recognized, if a reasonable DFACS worker under the same circumstances would have acted similarly, i.e., in placing B.J.J. with the Sherins without necessarily telling them all of his history, including the masturbation, Reid is entitled to qualified immunity. Id. This question is a matter of law for the court. Id. at 376, n. 4, 436 S.E.2d 87.

"Under a two-part analysis applied by the Eleventh Circuit, a defendant public official asserting immunity must show that ' "he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred." ... Once the defendant public official satisfies [her] burden[,] ... the burden shifts to the plaintiff to show lack of good faith on the defendant's part. The burden is met by proof demonstrating that the defendant public official's actions "violated clearly established constitutional laws." [Cit.]' Stough v. Gallagher, 967 F.2d 1523, 1526 (11th Cir.1992)." Maxwell v. Mayor, etc., of the City of Savannah, 226 Ga.App. 705, 707-708(1), 487 S.E.2d 478 (1997). This burden requires that the plaintiff demonstrate that the official's actions are so obviously wrong in light of pre-existing law that "only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing...." Id. at 707, 487 S.E.2d 478. Thomas v. Holt, 221 Ga.App. 345, 348(1), 471 S.E.2d 300 (1996). Maxwell, supra.

(b) Reid and the Department presented the affidavits of Reid; Gragg, the caseworker supervisor for Rabun County DFACS; Manus, the Director of Rabun County DFACS; and Day, the foster care specialist in the Department's Division of Family & Children Services in support of the motion for summary judgment. All of these affidavits stated that the decision to place a child in any given foster home and the amount and type of information to give the foster parents is a matter of professional discretion, left to each caseworker and her supervisor. Although the Foster Care Manual relied upon by plaintiffs states that the foster family will be given "pertinent information," what is pertinent information appropriate to share with the foster parent is also left to the caseworker's discretion. Day, who was responsible for program and policy development and writing for the Department, stated that the Foster Care Manual did not require the caseworker to tell the foster parent about any particular problems the child might...