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B.R. v. West Virginia Department of Health and Human Resources

Supreme Court of West Virginia

May 14, 2018

B.R., Plaintiff Below, Petitioner
v.
West Virginia Department of Health and Human Resources, Bureau for Children and Families, Child Protective Services, Defendants Below, Respondents

          (Kanawha County 16-C-1540)

          MEMORANDUM DECISION

         Petitioner B.R., by counsel Christopher T. Pritt, appeals the May 22, 2017, order of the Circuit Court of Kanawha County granting respondents' motion to dismiss her complaint alleging negligence.[1] Respondents West Virginia Department of Health and Human Resources ("DHHR"), the Bureau for Children and Families, and Child Protective Services, by counsel Julie Meeks Greco and Katie L. Hicklin, filed a response in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner alleges that the circuit court erred in granting respondents' motion to dismiss based on qualified immunity and failing to follow this Court's requirements set forth in Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996).

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, this Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In October of 2016, petitioner filed a civil complaint against the West Virginia DHHR, the Bureau for Children and Families, and Child Protective Services that alleged negligence against those entities. Specifically, petitioner alleged that, upon her removal from her parents' home in 1998 due to abuse and neglect, respondents subsequently placed her in the home of her aunt and uncle. Petitioner's complaint further alleged that between 2010 and 2013, respondents "received a plethora of reports that [she] was in imminent danger and endured abuse" while in this placement and that she self-reported her aunt and uncle's abuse to the DHHR, yet that agency took no action. According to the complaint, as a result of respondents' inaction, petitioner "endured years of sexual assault, molestation, rape, and further beatings in the home of her aunt and uncle."

         In February of 2017, respondents filed a motion to dismiss the complaint on the basis that they were entitled to qualified immunity. Thereafter, petitioner filed a response to the motion to dismiss. Ultimately, the circuit court granted the same, finding that petitioner's suit was barred based on respondents' qualified immunity. It is from that order that petitioner appeals.

         "Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995). Moreover, we have held that

"[t]he ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine. Therefore, unless there is a bona fide dispute as to the foundational or historical facts that underlie the immunity determination, the ultimate questions of statutory or qualified immunity are ripe for summary disposition." Syl. Pt. 1, Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996).

Syl. Pt. 3, W.Va. Reg'l Jail and Correctional Facility Auth. v. A.B., 234 W.Va. 492, 766 S.E.2d 751 (2014). Upon our review, we find no error in the circuit court's granting of respondents' motion to dismiss.

         On appeal, petitioner argues that the circuit court erred in granting respondents' motion to dismiss because she stated a claim upon which relief could be granted and sufficient to withstand respondents' claim of qualified immunity. We do not agree. Importantly, this Court has held that

"[i]f a public officer is either authorized or required, in the exercise of his judgment and discretion, to make a decision and to perform acts in the making of that decision, and the decision and acts are within the scope of his duty, authority, and jurisdiction, he is not liable for negligence or other error in the making of that decision, at the suit of a private individual claiming to have been damaged thereby." Syl. Pt. 4, Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995).

W.Va. Reg'l Jail and Correctional Facility Auth., 234 W.Va. at 497, 766 S.E.2d at 756, Syl. Pt. 6 (emphasis added). Indeed, in addressing the issue of qualified immunity in that case, we held that "[i]t is critical to note that respondent pled only simple negligence against the WVRJCFA; she did not plead a violation of her civil rights by the WVRJCFA or any of its officials." Id. at 515, 766 S.E.2d at 774. Similarly, petitioner herein pled only one cause of action against respondents; negligence.

         On appeal, petitioner argues that she "did not just plead simple negligence." Instead, she argues that she pled that "the acts and omissions of defendant DHHR's employees and/or agents were within the scope of the employee and/or agent's duties, authority, and/or employment." She further argues that she pled that "as a direct and proximate result of the wrongful acts and omissions of the defendant, plaintiff was repeatedly molested, raped, and otherwise abused." Finally, she argues that she generally pled that the alleged acts or omissions "were in violation of clearly established West Virginia constitutional, statutory, and legal rights . . . ."

         Petitioner's complaint alleged only one cause of action. Specifically, all of the allegations petitioner levies against respondents are included under the heading "COUNT 1: NEGLIGENCE[.]" In support of her claim of negligence, petitioner alleged that respondents failed to act in the face of "independent, credible" reports of abuse and failed to protect her from this abuse. She further alleged that the DHHR had a duty to (1) keep her safe and secure, (2) timely and adequately respond to all complaints, (3) adequately train and supervise its employees, and (4) adequately staff Child Protective Service's workforce. Because petitioner argued that the DHHR breached these alleged duties, she argues that this constitutes prima facie negligence. That petitioner additionally included the broad assertion that respondents' alleged acts or omissions were in violation of "clearly established West Virginia constitutional, statutory, and legal rights" does not extend her cause of action beyond that which is ...


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