Turner v. District of Columbia

• Citation: 532 A.2d 662
• Decision Date: 28 October 1987
• Docket Number: No. 85-634.,85-634.
• Parties: Clara Louise TURNER, et al., Appellants, v. DISTRICT OF COLUMBIA, et al., Appellees.
• Court: Court of Appeals of Columbia District

532 A.2d 662

Clara Louise TURNER, et al., Appellants, v. DISTRICT OF COLUMBIA, et al., Appellees.

No. 85-634.

District of Columbia Court of Appeals.

Argued June 4, 1986.

Decided October 28, 1987.

Joel M. Finkelstein, with whom Gray A. Stein, Washington, D.C., was on brief, for appellants.

Beverly J. Burke, Asst. Corp. Counsel, Washington, D.C., for appellees. John H. Suda, Acting Corp. Counsel at the time the brief was filed, Charles L. Reischel, Deputy Corp. Counsel, Lutz Alexander Prager, Asst. Corp. Counsel, and Richard B. Nettler, Asst. Corp. Counsel, Washington, D.C., at the time the brief was filed, were on brief, for appellees. Karen S. Dworkin, Asst. Corp. Counsel, also entered an appearance for appellees.

Before NEWMAN, TERRY, and STEADMAN, Associate Judges.

TERRY, Associate Judge:

This is an appeal from an order granting summary judgment for appellees, the District of Columbia and certain of its officials and agencies. The primary issue on appeal is whether the District of Columbia and its officials and agencies may be held liable for the death by starvation of an abused and neglected child and the malnutrition of another child which resulted, in part, from the alleged negligence of an agency of the District of Columbia government. In particular, we must determine whether there was a special relationship between the District of Columbia and appellants so that the District owed appellants more than the general duty of care it owes to the public at large. In the circumstances of this case, we hold that such a special relationship came into being, under a statute enacted in 1977, when a child abuse report was filed with the government agency established by that statute for the protection of abused children. We therefore reverse the trial court's grant of summary judgment for the District and remand the case for trial.

I

The facts of this case are largely undisputed.¹ In December 1982 Clara Turner was living with Keith Lynn Roddy and their two sons, Keith and Lynn, along with three of Turner's older daughters, in an apartment on Benning Road, N.E. Keith, the youngest child, was four months old; Lynn was approaching his second birthday. Roddy had no job or income; Turner, however, received public assistance and paid the rent.

On December 10, after being sentenced to probation for a narcotics conviction in the Superior Court, Roddy returned to the apartment and began to argue with Turner. She ran outside to a nearby barber shop which was operated by their landlord, John Muse. Roddy ran after her and followed her into the barber shop. Grabbing her by the arm, he took her around the corner to an area behind an elementary school. There he knocked her to the ground and began to kick and beat her. Taking her back to the apartment, Roddy started to hit her again and continued to do so until the police were summoned, apparently by one of Turner's daughters.

When the police came, Turner left the apartment under their protection. According to her deposition testimony, she attempted to take the two youngest boys with her but was prevented from doing so by Roddy, who insisted that they stay with him. One of the police officers told her, "Miss, he's the father, we can't take those kids. He's the father, he has just as much right."

Turner and two of her daughters took a cab to a friend's house in another part of the city. About a week later, Turner sent her daughters back to the Benning Road apartment to check on the two boys, Keith and Lynn, and to take them something to eat. When the daughters returned to their mother, they reported that the apartment was filthy, that Keith's diapers had not been changed, that the toilet was stopped up, and that there was no food in the apartment.

On December 20 Roddy called Turner and asked her to come back, threatening to kill himself, the children, and her if she did not return. Apparently, Turner did not take his threats seriously, at least with respect to the children. Roddy did own a gun, however, and he had a history of assaultive behavior, having beaten Turner and the children on prior occasions.

One week later, on December 27, at approximately 11:05 p.m., Turner went with one of her daughters and a clergyman to the Child Protective Services (CPS)² intake branch at 1700 Rhode Island Avenue, N.E., to seek assistance for the two boys living with Roddy. There she spoke with Kitty Dawson, the social worker on duty. Turner reported that Roddy was not feeding the children or taking proper care of them, that there was no food in the apartment, that the children had rashes because their diapers were not being changed very often, if at all, and that Roddy would abuse the children "for any reason." She also told Dawson that Roddy was on probation for a heroin offense and that he was still using drugs, that he had no job or income, and that he faced possible eviction. Turner gave Dawson the name and telephone number of John Muse, the apartment manager, and said that he could be contacted for further information.

Kitty Dawson stated in her deposition that, in cases of alleged child abuse, she is required to send the complaint to the Youth Division of the Metropolitan Police. This case, however, she considered to be one of neglect, not abuse, so she did not notify the Youth Division. Instead, she referred Turner to Michael Cobb, an Assistant Corporation Counsel, so that he might arrange for her to obtain legal custody through a court proceeding. Dawson told Turner that although CPS could not return her children to her, the agency would "see if they are adequately taken care of and if they are all right."

The next morning, acting on Dawson's instructions, Turner met with Cobb at the Office of the Corporation Counsel. She told Cobb essentially the same things she had told Dawson. Additionally, Turner reported that Roddy was selling the household furniture in order to obtain drugs, and that Roddy had threatened to kill her and the children. On Turner's behalf, Cobb prepared a petition for a civil protection order,³ with a supporting affidavit, and an application for temporary custody of the children⁴ He then arranged a meeting between Turner and representatives of the daytime unit of the CPS intake branch in order "to make sure we were all talking about the same thing." Cobb specifically recalled in his deposition that he telephoned Kitty Dawson "to make sure that the report and the information got through."

Meanwhile, the complaint that Turner had filed with Dawson the night before was routed to Dawson's supervisor, Virginia Scott, who signed a form at 6:20 p.m. on December 28 assigning the case to Elijah Mickel, a social worker on the CPS staff. Dawson testified in her deposition that she spoke with Mickel on or about the same day. Mickel, who had been with CPS for about two months, was responsible for investigating child abuse and neglect cases. On the night of December 28 he attempted to call Turner, but was unable to reach her. Turner eventually called him, but Mickel was not sure whether he took notes of her phone call.

Mickel read the intake report, which was captioned "Report of Alleged Child Neglect/Abuse," and spoke with Turner about Roddy's abusive behavior and the fact that he was on probation. Mickel could not remember whether Turner told him that Roddy was a drug user or whether he asked Turner about how Roddy mistreated the children. According to Turner, Mickel merely reviewed the contents of the report and told her, "If I find neglect, I will return your children. He said don't call me, I'll call you."

On December 29, sometime between 2:00 and 10:00 p.m., Mickel went to the apartment building on Benning Road where Roddy was living with the children. When he found the outer door of the building locked, he knocked on the door; receiving no response, he left. He never attempted to get a key from Turner, nor did he seek access to the apartment from anyone else, including the apartment manager whose name and telephone number were contained in the intake report. On January 5, 1983, Mickel went back to the apartment building and again found the outer door locked. As before, he left without making any effort to find someone who could let him in.

On January 11 Turner called Virginia Scott to report that Roddy "had been feeding their children water only." Scott said that she "would have Mr. Mickel check on the situation." On January 12 Mickel for the first time gained entry to the apartment building when Mr. Muse, the apartment manager, approached him on the street outside the building and let him in. He went to the Roddy apartment and knocked on the door, but no one answered. Although he heard loud music inside, he concluded that no one was home, so he left. He did not check with any neighbors to find out whether they knew anything about the children. Mickel said that he left a note under the door asking Roddy to call him, but Roddy never called.

Mickel did nothing further. He never contacted Turner again, nor did he make any effort to gain access to the apartment. He made no report to his supervisor or anyone else in CPS, nor did he ever seek the assistance of the police.

On January 26 Roddy called his probation officer, Mary Cross. He was "hysterical" cal" and threatened to kill himself. Roddy told Cross that Keith had died and urged her "to go out and get the other child before he died." Cross described what she found when she arrived at the apartment:

The two-year-old [Lynn] was standing in the middle of the floor, very malnutritioned. His little ribs and everything [were] sticking out, and his head was bigger than the rest of his body. He had defecated on himself. His pants . . . were down around his knees, and he was reaching up for me to pick him up, and he was calling, Keith, Keith, Keith. . . . I just couldn't believe what I saw when I got in the room. The whole place was in shambles. The sink was stopped up. The water was backed up, and it was...