Watkins ex rel. Wrongful Death Heirs of Watkins v. Miss. Dep't of Human Servs.

• Citation: 132 So.3d 1037
• Decision Date: 27 February 2014
• Docket Number: No. 2012–CA–01567–SCT.,2012–CA–01567–SCT.
• Court: United States State Supreme Court of Mississippi
• Parties: Tammy WATKINS, On Behalf of the Wrongful Death Heirs of Austin James WATKINS v. MISSISSIPPI DEPARTMENT OF HUMAN SERVICES.

132 So.3d 1037

Tammy WATKINS, On Behalf of the Wrongful Death Heirs of Austin James WATKINS

v.MISSISSIPPI DEPARTMENT OF HUMAN SERVICES.

No. 2012–CA–01567–SCT.

Supreme Court of Mississippi.

Feb. 27, 2014.

Joseph E. Roberts, Jr., Jackson, Eugene Coursey Tullos, Raleigh, attorneys for appellant.

Robert E. Sanders, Jackson, attorney for appellee.

Before RANDOLPH, P.J., KING and COLEMAN, JJ.

KING, Justice, for the Court:

¶ 1. In this wrongful-death suit against the Mississippi Department of Human Services (DHS), a mother sued DHS after the death of her son in the home in which DHS placed him. The trial court granted DHS's motion for summary judgment, determining that DHS enjoyed sovereign immunity from liability for the acts alleged in the complaint. Because summary judgment was improvidently granted, this Court reverses the trial court and remands the case for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2. This case involves a child, Austin Watkins, whom DHS removed from the home of his mother, Tammy Watkins, and placed in the home of his paternal grandmother, Janice Mowdy. Approximately a year and a half after Mowdy was awarded durable legal custody of Austin, Austin died from starvation. This wrongful-death lawsuit followed.

¶ 3. On July 26, 2005, DHS removed Tammy Watkins's children, Austin and his siblings Tom and Abby,¹ from her home. That same day, the Youth Court of Scott County entered a custody order granting DHS custody of Austin. In August 2005, DHS conducted a home study for Mowdy to determine whether Austin and Tom, her grandsons, could be placed with her.² In the home study form, the section for references for Mowdy was left blank.³ Ultimately, in late August 2005, DHS placed all three children with Mowdy, who lived with her fourth husband and her adult daughter, Stephanie Bell. On April 24, 2007, Mowdy was awarded durable legal custody of Austin, Tom, and Abby. DHS did a final home visit on April 27, 2007, and did a closing summary in the case on May 10, 2007.

¶ 4. Mowdy brought Austin to the University of Mississippi Medical Center (UMC) on June 10, 2007. He was three-and-one-half years old at the time and weighed just twenty-four pounds. He was experiencing extreme swelling. It was determined upon admission to the hospital that Austin suffered from severe dehydration and malnutrition. During his hospital stay, UMC ran countless tests on Austin. Ultimately, “no organic cause could be found” for Austin's malnourishment, so “inorganic/social reasons were then investigated.” Thus, “his placement with his paternal [grandmother] [was] questioned to DHS.”

¶ 5. On June 25, 2007, Dr. Johnny Byrnes, a resident assigned to Austin's case, called UMC social worker Kathy Dennis because Mowdy was attempting to take Austin from the hospital against medical advice. Dennis and Byrnes called Scott County DHS and spoke to Heather Russell, the social worker who had closed out Austin's case. In his deposition, Dr. Byrnes testified that he told Russell that “the medical staff felt that the family either was not feeding him or did not know how to properly feed him.” According to Dennis's notes, Russell told them that she felt Mowdy was an appropriate caregiver and that she would follow up with Austin once he got home. Dennis noted that she and Dr. Byrnes thought that Russell did not fully appreciate Austin's medical condition and why he should not go home.

¶ 6. On June 27, 2007, UMC social worker Gayden Carpenter received a call from Austin's nurses because they were concerned that he was being abused at home. Austin was evaluated by a child psychologist, who determined that Austin displayed no evidence of ongoing abuse. Nonetheless, Carpenter contacted Russell, who denied concerns of abuse. Austin was discharged in July 2007, having greatly improved and weighing twenty-eight pounds, simply from being properly fed. He had a follow-up on July 17, 2007, at which it was noted that he was much improved. He had another follow-up appointment in August of 2007, which he missed. He missed all subsequent follow-up appointments, as well.

¶ 7. On November 9, 2008, Austin passed away, just six days before his fifth birthday, weighing a mere nineteen pounds. His official cause of death was starvation and dehydration, and the manner of death was homicide. Mowdy and Bell ultimately pled guilty to capital murder for murdering Austin while engaged in felonious child abuse.

¶ 8. On January 5, 2009, the Attorney General appointed special assistant attorneys general to review the circumstances surrounding Austin's death. The review “was conducted to determine what improvements the State could make to prevent the next child from dying of starvation, or other forms of abuse and neglect.” Included in the “Social Autopsy” produced from the review were notes from an interview with Jennifer Watkins, a paternal aunt of Austin's. Jennifer claimed that she anonymously called DHS in June 2007 and reported to Heather Russell that Austin looked gray, weak, and skinny. She reported that Russell told her they would look into it. This “report” was included in the factual “Timeline” in the Social Autopsy.

¶ 9. On April 30, 2010, Tammy, on behalf of the wrongful-death heirs of Austin, filed suit against DHS alleging that DHS's negligence caused Austin's death. DHS answered, and discovery began. During discovery, the parties deposed multiple people involved with Austin, including DHS personnel, Mowdy, several of the UMC doctors who treated Austin, and the two UMC social workers who had contact with Austin. The UMC doctors were under the impression that a complaint or report for abuse/neglect had been made to DHS. In his deposition, Dr. Byrnes testified repeatedly that, given their extensive work-ups of Austin that revealed no organic cause for his malnutrition, he reported to DHS that it was most likely that Austin's family either was intentionally not feeding him properly, or did not understand how to feed him properly. In her affidavit, Dr. Sara Weisenberger, one of Austin's treating physicians during his time at UMC, attested that

[r]egardless of whether the communication on behalf of the University of Mississippi Medical Center personnel to the Scott County Department of Human Services' worker used the words “abuse” or “neglect”, such communications were in fact oral reports to the Mississippi Department of Human Services that Austin Watkins was either being abused or neglected, in that his failure to thrive was medically caused either by being intentionally starved or by his family not knowing how to properly feed him.

The UMC social workers, Dennis and Carpenter, both testified that, to their knowledge, no report of abuse/neglect was made to DHS. Carpenter specifically testified that the doctors must initiate the report process and to her knowledge, no such report was made. Dennis stated that she did not make a report of abuse or neglect. However, both were under the impression that Russell and/or DHS were going to follow up with Austin after his discharge.

¶ 10. In her deposition, Heather Russell testified that she did not recall most of UMC's calls to her, although she remembered some of them. She indicated that UMC did not make a “report” of child abuse or neglect on Austin. She testified that if someone calls in a report, and if it's “screened in,” the report is investigated.⁴ Lori Woodruff, the deputy administrator for the Division of Family and Children Services, testified that, if what UMC's personnel said is taken as true, DHS should have investigated the allegations concerning Austin. Valerie Grisele, another DHS supervisor, also testified that if what UMC said it reported was correct, DHS should have documented and investigated it.

¶ 11. On October 28, 2011, DHS moved for summary judgment. DHS argued that all DHS's actions were based upon discretionary functions or duties, thus sovereign immunity barred the action. Attached to the motion was an affidavit executed by Jimmy Gatewood, the associate director of social work for UMC. The affidavit described UMC's policy for reporting suspected child abuse or neglect, and stated that “[a]fter review of records available to me and to the best of my knowledge, UMC inpatient division made no report of suspected abuse or neglect regarding Austin Watkins to any DHS office or any other entity specified in the policy during, or after, his treatment at UMC in 2007.” Watkins responded to the motion for summary judgment and also moved to strike the Gatewood affidavit, and DHS replied. The central arguments surrounding the motion for summary judgment were two-fold: 1) whether DHS received reports (either from Jennifer Watkins, UMC, or both) regarding suspected abuse or neglect in June 2007, triggering a nondiscretionary duty to investigate, ⁵ and 2) whether DHS performed its nondiscretionary duty to obtain references for Mowdy prior to placing Austin with her.

¶ 12. The trial court granted DHS's summary judgment on September 18, 2012. It held that no report of suspected abuse or neglect was made to DHS. Specifically, it found that Russell had to make an initial determination or interpretation as to whether a report was made, rendering her actions discretionary and subject to sovereign immunity. It also found that the plaintiff “offered no positive proof that DHS had failed to obtain references” because DHS personnel testified that references were obtained, but that the computer system had malfunctioned, leaving the form blank, and because Mowdy testified as to who her references were. Thus, it concluded that “DHS breached no duty of care and can have no liability herein.” The trial court also denied Watkins's motion to strike the Gatewood affidavit, but noted that “even if the Motion to Strike was granted, the outcome would not change the Court's ruling regarding summary judgment.”

¶ 13. Watkins appeals the trial court's judgment to this Court, arguing that the trial court erred 1)...