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E.K. v. West Virginia Department of Health and Human Resources

Supreme Court of West Virginia

November 7, 2017

E.K., Plaintiff Below, Petitioner

         (Monongalia County 16-C-106)


         Petitioner E.K. suffered years of sexual abuse while in foster care. He filed suit against Respondent West Virginia Department of Health and Human Resources (the "DHHR") alleging negligent placement/monitoring. The circuit court dismissed, with prejudice, his claim as time-barred because E.K. filed the lawsuit more than two years after he turned eighteen. Considering matters outside the complaint, the court further determined that it "could not in good faith" allow amendment of the complaint.

         On appeal to this Court, E.K., by counsel Bruce E. Stanley, contends the circuit court committed reversible error by dismissing his complaint with prejudice. If allowed to amend his complaint, E.K. argues that factual development will show that his claim was timely. Moreover, he will allege that the DHHR fraudulently concealed information which prevented him from discovering or pursing his claims, thus tolling the statute of limitations. The DHHR by counsel, Kelly C. Morgan and Kristen V. Hammond, counters that the circuit court did not err in finding that the applicable statute of limitations could not be tolled beyond E.K.'s twentieth birthday. The DHHR argues that any amendment to the complaint would ultimately prove futile.

         Finding merit to E.K.'s arguments, we reverse and remand with instructions to allow E.K. to file an amended complaint. Whether the statute of limitations is tolled depends on unresolved questions of fact that would benefit from discovery. Inasmuch as this case does not present a new or significant question of law, this matter satisfies the "limited circumstances" requirement and a memorandum decision reversing the decision of the circuit court is appropriate in accordance with Rule 21(d) of the West Virginia Rules of Appellate Procedure.

         I. Facts and Procedural History

         In 2011, the DHHR removed fifteen-year-old E.K., and his brothers, from their home due to allegations of physical abuse by their biological father. The DHHR placed the children under the foster care of Ms. J.W.L., without providing foster-parent training to her prior to this placement. For several years thereafter, J.W.L. sexually abused E.K. on a regular basis.

         E.K. reported the sexual abuse to authorities in June of 2014, when he was nineteen years old. In August of 2014, forty-year-old J.W.L. was arrested and charged with sexual abuse by a parent. The outcome of J.W.L.'s criminal proceeding is not in the record before us.

         E.K. initiated the present action in February of 2016 by filing a one-count complaint against the DHHR alleging negligent placement/monitoring. Specifically, he stated that the DHHR breached its duty to "adequately investigate the prospective foster home placement, and to regularly monitor the home after any such placement to assure that [he] was not being further abused, particularly after 'other referrals were being made because . . . a lot of people in the community . . . knew [what] was going on.'" E.K. asserted that at no time did anyone with the DHHR advise him "regarding his legal rights or discuss with him the advisability of him consulting legal counsel regarding his situation." E.K. alleged that the DHHR's breach of its duty resulted in his long-term physical sexual abuse at the hands of his foster mother, and this abuse caused severe emotional trauma and psychological injuries.[1]

         E.K. admitted that he never told anyone with the DHHR that his foster mother was abusing him sexually; he was afraid that the DHHR would separate him and his brothers if they were removed from her home. Nevertheless, E.K. alleged that the DHHR "had been advised of the situation over the entirety of the three years[.]" He claimed that his sibling, L.K.-who was removed from the foster home for having run away-informed the DHHR of the abuse taking place in J.W.L.'s household as early as 2012. He further alleged that J.W.L.'s conduct "was not news in the surrounding community," and that the DHHR responded to the home following referrals on several occasions but did nothing to protect him.

         The DHHR has not answered E.K.'s complaint. Instead, in April of 2016, the DHHR filed a motion to dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. The DHHR raised an affirmative defense and asserted E.K.'s claim was time-barred based on the applicable two-year statute of limitations.[2] Although the statute of limitations was tolled until E.K. reached the age of majority, E.K. turned eighteen on March 2, 2013. Thus, the DHHR argued he would have two years, until March 2, 2015, to file his lawsuit and still be in conformity with the statute. Here, E.K. waited nearly three years after he turned the age of eighteen to file this lawsuit.

         In opposing the motion to dismiss, E.K. asserted in his response that he was still under the control of the DHHR until March of 2015 (because he was living in a group home operated by the DHHR), less than a year before he filed his complaint. E.K. further alleged, for the first time, that the DHHR breached a duty created by its own internal policy manual regarding the need to instruct a child in the foster care system that he/she has generally up to two years after reaching eighteen years of age to file a cause of action in a personal injury lawsuit. E.K. argued that it was undisputed that the DHHR failed to carry out its affirmative duty to explain to him the time limits regarding his right to pursue any claims, "including claims he might have against DHHR while still under DHHR's control." Thus, he argued there was "the question of whether 'the statute of limitation period was arrested by some other tolling doctrine.'"

         The DHHR replied that E.K. was "mixing apples and oranges" because any alleged breach of the DHHR's internal policy would have nothing to do with the negligent placement/monitoring claim E.K. pled in his complaint. Because these are separate and distinct causes of action, the DHHR reasoned that one cannot be used to toll the statute of limitations of the other. Moreover, because E.K. did not allege in his complaint that he remained under the custody and control of the DHHR for two years after he turned the age of eighteen, the DHHR urged the circuit court to disregard that claim as somehow tolling the statute of limitations.

         Following a hearing on the DHHR's motion to dismiss, the circuit court found that E.K.'s complaint was time-barred. The circuit court emphasized that "its analysis of both the negligent placement claim and the failure to advise claim yielded a March 2, 2015 expiration date." It reasoned that despite knowing "the nature of his injuries" and "the identity" of the DHHR, E.K. failed to bring his cause of action until February 19, 2016, nearly three years after the DHHR's "alleged breached duties terminated." The circuit court further stated that it failed to see how any of E.K.'s additional allegations raised at argument could ultimately serve to invoke a tolling doctrine, and it "could not in good faith" allow E.K. to amend his complaint.

         II. Standard of Review

         Inasmuch as this case was decided on the DHHR's motion to dismiss under West Virginia Rule of Civil Procedure 12(b)(6), we review this matter de novo, and follow our long-established rule that "[f]or purposes of the motion to dismiss, the complaint is construed in the light most favorable to plaintiff, and its allegations are to be taken as true." Cantley v. Lincoln Cty. Comm'n, 221 W.Va. 468, 470, 655 S.E.2d 490, 492 (2007) (citing John W. Lodge Distrib. Co. v. Texaco, Inc., 161 W.Va. 603, 605, 245 S.E.2d 157, 158 (1978)).

         "The purpose of a motion under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure is to test the sufficiency of the complaint." Cantley, 221 W.Va. at 470, 655 S.E.2d at 492. This Court has held that

[t]he trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

Syl. Pt. 3, Chapman v. Kane Transfer Co., 160 W.Va. 530, 236 S.E.2d 207 (1977).

         III. Discussion

         On appeal to this Court, E.K. argues that the circuit court committed reversible error when it dismissed his complaint with prejudice. He seeks the opportunity to file an amended complaint and proceed with discovery. The DHHR responds that the circuit court properly dismissed the complaint with prejudice because any amendments would be futile considering the fact E.K. admits that the only disability which would toll the statute of limitations was his infancy when the sexual abuse began. Therefore, if E.K.'s cause of action accrued when he was a minor, he had two years after turning eighteen to file his lawsuit.[3]

         As explained below, the circuit court committed reversible error when it dismissed the cause of action with prejudice rather than giving E.K. the opportunity to amend his complaint, especially when it considered matters beyond the complaint. Moreover, the issue of whether the statute of limitations is tolled turns on questions of fact that would benefit from discovery.

         A. Justice Requires Leave to File an Amended Complaint

         Rule 15(a) of the West Virginia Rules of Civil Procedure, which governs the amendment of pleadings, provides in relevant part that "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." This Court held in syllabus ...

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