Opinion
2015 CA 1002
04-15-2016
JACOB SALLEY AND SCARLET BURKART v. THE STATE OF LOUISIANA DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND JOE WAITZ, DISTRICT ATTORNEY FOR TERREBONNE PARISH
Shelley E. Aucoin New Orleans, Louisiana Counsel for Defendant/Appellee State of Louisiana Department of Children and Family Services C.E. Bourg, II Morgan City, Louisiana Counsel for Plaintiff/Appellant Jacob Salley
NOT DESIGNATED FOR PUBLICATION On Appeal from the Thirty-Second Judicial District Court
In and for the Parish of Terrebonne State of Louisiana
No. 169911 Honorable George J. Larke, Jr., Judge Presiding Shelley E. Aucoin
New Orleans, Louisiana Counsel for Defendant/Appellee
State of Louisiana Department of
Children and Family Services C.E. Bourg, II
Morgan City, Louisiana Counsel for Plaintiff/Appellant
Jacob Salley BEFORE: McDONALD, McCLENDON, AND THERIOT, JJ. McCLENDON, J.
In this appeal, the father of a minor child appeals a judgment granting the defendant's motion for summary judgment and dismissing the defendant from the suit with prejudice. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Jacob Salley and Scarlet Burkart are the parents of T.S., born on April 7, 2011, at Terrebonne General Medical Center (TGMC). The medical records for TGMC indicate that shortly after birth, T.S. began exhibiting signs of respiratory distress, possible meconium aspiration, and possible sepsis. He was transferred to the neonatal intensive care unit (NICU), where he began experiencing symptoms of drug withdrawal, prompting the NICU staff to request a social services consultation.
In the interests of privacy, we have used the initials of the minor child involved in this matter. See Uniform Rules, Courts of Appeal, Rules 5-1 and 5-2. The minor child has been referred to as T.S. and T.B. in the record. For consistency, we will refer to him as T.S.
On April 14, 2011, a TGMC social worker filed a written report of child abuse/neglect with the State of Louisiana through the Department of Children and Family Services (DCFS) identifying T.S. as a suspected victim of neglect based on his "withdrawal from prescription [medications]." In response to the report, DCFS Child Welfare Specialist Cardella Mayho commenced an investigation. Ms. Mayho's initial investigation revealed that T.S.'s mother, Ms. Burkart, admitted to taking prescription medication during her pregnancy, resulting in a diagnosis of "antepartum drug dependence." Additionally, interviews with TGMC staff revealed that Mr. Salley and Ms. Burkart had missed CPR classes for the child's home safety, and hospital staff stated that Mr. Salley and Ms. Burkart appeared to be under the influence of marijuana on multiple occasions at the hospital, including during a CPR class.
Based on her preliminary findings and in accordance with LSA-Ch.C. art. 620, Ms. Mayho obtained from the trial court an oral instanter custody order for T.S. on April 14, 2011. The trial court ordered that T.S. be placed in the temporary custody of the State, finding reasonable grounds to believe that he was abused or neglected. A custody hearing was held on April 19, 2011, at which time the trial court deemed that it was in the best interest of the child to remain in state custody through DCFS. The trial court signed a judgment to that effect on April 21, 2011.
In the months following the custody hearing, T.S. was placed with relatives in close proximity to his parents' home. DCFS developed a case plan, wherein the primary goal was reunification of T.S. with his parents. In connection with the case plan, DCFS submitted progress reports, maintained monthly contact with T.S. and his caretakers, maintained weekly family visits with T.S. and the plaintiffs, and made referrals for professional services as needed.
T.S. was briefly moved to a non-relative certified foster home on December 29, 2011, because his aunt failed to meet the requirements to become a certified foster parent.
On January 4, 2012, DCFS issued a report to the trial court in advance of a status review hearing, detailing the progress of both Mr. Salley and Ms. Burkart and their compliance with the case plan. On January 17, 2012, the trial court determined that reunification with Mr. Salley was the most appropriate course of action and in T.S.'s best interest. The trial court signed a judgment on January 24, 2012, ordering that T.S. be placed in the custody of Mr. Salley with three months' supervision by DCFS. Ms. Burkart was not awarded custody of T.S.
On April 12, 2012, Mr. Salley and Ms. Burkart filed suit against DCFS and Terrebonne Parish District Attorney Joe Waitz, alleging that their son was "illegally taken" from them as a result of "gross incompetence and misconduct" by DCFS employees. They also contended that the trial court was "deceived" by "inaccurate and insufficient documents" filed by DCFS in support of the instanter custody order. On December 8, 2014, DCFS filed a motion for summary judgment contending that under the facts and circumstances DCFS and its employees acted reasonably to protect the health and well-being of T.S. and did not exhibit the willful or intentional misconduct or gross negligence required to be held liable for damages. Therefore, according to DCFS, there was no genuine issue of material fact precluding its dismissal from this suit.
The motion for summary judgment was heard on March 6, 2015. The plaintiffs' attorney was not allowed to make an argument for failure to file an opposition to the motion. The trial court granted the motion for summary judgment adopting "all of the reasons of the State" and dismissing DCFS with prejudice. A judgment was signed that day, and Mr. Salley timely appealed.
DISCUSSION
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show there is no genuine issue as to material fact and that the movant is entitled to judgment as a matter of law. LSA-C.C.P. art. 966B(2); Tomaso v. Home Depot, U.S.A., Inc., 14-1467 (La.App. 1 Or. 6/5/15), 174 So.3d 679, 681. The burden of proof remains with the movant. LSA-C.C.P. art. 966C(2). However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require that he negate all essential elements of the adverse party's claim, action, or defense. Instead, the movant must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If he fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment. Id.
The summary judgment law was amended by 2015 La. Acts No. 422, but the provisions of Act 422 do "not apply to any motion for summary judgment pending adjudication or appeal on [January 1, 2016]."
In determining whether summary judgment is appropriate, an appellate court reviews a trial court's grant of summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law. Janney v. Pearce, 09-2103 (La.App. 1 Cir. 5/7/10), 40 So.3d 285, 289, writ denied, 10-1356 (La. 9/24/10), 45 So.3d 1078.
In Todd v. State Through Dept. of Social Services, Office of Community Services, 96-3090 (La. 9/9/97), 699 So.2d 35, 39, the Louisiana Supreme Court held that the duty of a child protection caseworker and DCFS is delineated by LSA-Ch.C. arts. 611 and 612 and LSA-R.S. 9:2798.1. These statutes provide, in pertinent part, as follows:
Art. 611. Immunity from civil or criminal liability
A. (1) No cause of action shall exist against any:
(a) Person who in good faith makes a report, cooperates in any investigation arising as a result of such report, or participates in judicial proceedings authorized under the provisions of this Chapter.
(b) Caseworker who in good faith conducts an investigation, makes an investigative judgment or disposition, or releases or uses information contained in the central registry for the purpose of protecting a child.
(2) Such individuals shall have immunity from civil or criminal liability that otherwise might be incurred or imposed.
B. This immunity shall not be extended to:
(1) Any alleged principal, conspirator, or accessory to an offense involving the abuse or neglect of the child.
(2) Any person who makes a report known to be false or with reckless disregard for the truth of the report.
Art. 612. Assignment of reports for investigation and assessment
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G. The Department of Children and Family Services shall set priorities for case response and allocate staff resources to cases identified by reporters as presenting immediate substantial risk of harm to children. Absent evidence of willful or intentional misconduct or gross negligence in carrying out the investigative functions of the state child protection program, caseworkers, supervisors, program managers, and agency heads shall be immune from civil and criminal liability in any legal action arising from the department's decisions made relative to the setting of priorities for cases and targeting of staff resources. (Emphasis added.)
La. R.S. 9:2798.1. Policymaking or discretionary acts or omissions of public entities or their officers or employees
Thus, although DCFS and its employees may be entitled to the qualified immunity set forth in LSA-Ch.C. arts. 611 and 612 and LSA-R.S. 9:2798.1, there is no such immunity if gross negligence is alleged and proven. M.D. v. State, Dept. of Social Services, 05-1044 (La.App. 1 Cir. 9/1/06), 943 So.2d 471, 481, writ denied. 06-2386 (La. 12/21/06), 944 So.2d 1289.
* * *
B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.
Gross negligence has been defined as the want of even slight care and diligence, the want of that diligence that even careless men are accustomed to exercise, the entire absence of care and the utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others, the extreme departure from ordinary care, or the want of even scant care. Anderson v. Anderson, 07-805 (La.App. 5 Cir. 2/6/08), 980 So.2d 15, 18, writ denied, 08-0558 (La. 5/2/08), 979 So.2d 1285. See also Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099, 93-3110, 93-3112 (La. 7/5/94), 639 So.2d 216, 219-20. Willful, wanton, or reckless conduct has taken on the same meaning as gross negligence. Anderson, 980 So.2d at 19.
In his first three assignments of error, Mr. Salley contends that the trial court erred in failing to consider his affidavit and opposition to the motion for summary judgment faxed to the court on March 5, 2015, and filed on March 6, 2015, the day of the hearing.
The record shows that DCFS's motion for summary judgment was filed on December 8, 2014, and the hearing was set for March 6, 2015, almost three months later. Although Mr. Salley alleges that his affidavit and opposition were filed into the record on March 6, 2015, the record does not include these filings. Notably, our review of the record and the transcript of the hearing on DCFS's motion for summary judgment also shows that the documents were not admitted into evidence at the hearing.
Counsel for Mr. Salley admitted that the affidavit and opposition were faxed to the court and DCFS one day before the hearing, clearly in violation of then applicable Rule 9.9 of the Louisiana District Court Rules that required Mr. Salley to file his opposition "at least eight calendar days before the scheduled hearing." As a result, Mr. Salley forfeited the privilege of oral argument. See District Court Rule 9.9.
We note that on August 6, 2015, Mr. Salley filed a motion in this court to supplement the record with these documents. On October 19, 2015, we denied the motion, stating that "[a] request to supplement the appellate record is more properly directed to the district court." On November 4, 2015, Mr. Salley again filed a motion to supplement the record in this court. On December 11, 2015, we denied the second motion stating that we were "advised that appellant's motion to supplement is currently pending before the district court and awaiting action on appellant's part to set the matter for hearing." As of this date, the record has not been supplemented.
Mr. Salley, as appellant, was charged with the responsibility of completeness of the record for appellate review, and the inadequacy of the record is imputable to him. See Niemann v. Crosby Development Co., L.L.C., 11-1337 (La.App. 1 Cir. 5/3/12), 92 So.3d 1039, 1044. As an appellate court, we have no jurisdiction to review evidence that is not in the record on appeal, and we cannot receive new evidence. Id. Moreover, the supreme court has held that evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Denoux v. Vessel Management Services, Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88; Niemann, 92 So.3d at 1045.
Having reviewed the record, we conclude that the documents referenced by Mr. Salley were not filed in any trial court proceedings and therefore were not part of the trial court record or the record on appeal. Accordingly, those documents are outside the appellate record will not be considered by this court, and we find no merit in Mr. Salley's first three assignments of error.
In Mr. Salley's remaining assignments of error, he alleges that the trial court erred in finding the immunity provisions applicable to DCFS and in granting summary judgment.
Decisions involving the removal of a child from his home lie within the scope of the duty and authority of social workers. Todd, 699 So.2d at 42. Since social workers must use personal deliberation and judgment as to the manner in which the investigation is conducted, their decisions are discretionary. Id. Thus, because the investigative and placement decisions made by DCFS were discretionary, the qualified immunity statute applies absent evidence of gross negligence. See Anderson, 980 So.2d at 18.
In support of its motion for summary judgment, DCFS introduced into evidence the affidavit of Myra Borne, the DCFS Child Welfare Supervisor of Ms. Mayho, its investigatory file in this matter, the amended affidavit in support of the instanter custody order, the original and the amended instanter custody order, the DCFS case plan, status reports, and the custody judgments. DCFS urges that there is no genuine issue of material fact as it acted in accordance with its statutory obligation to investigate reports of suspected child endangerment and took the necessary steps to protect T.S.'s health and well-being. Thus, DCFS argues, neither DCFS nor its employees committed willful or intentional misconduct or gross negligence in carrying out its investigative functions in protecting T.S.
However, Mr. Salley asserts that the instanter custody order was defective because incorrect names were on the pleadings. He asserts that when the amended instanter custody order was submitted, that is when "the bad faith and reckless disregard for the truth" arose, since the first order was not correct and was based on "misrepresentations and falsehoods." Mr. Salley contends that the amended order was a "cover up" to the "illegal taking" of T.S.
Our de novo review of the record shows that, although the original instanter custody order correctly identified Mr. Salley and Ms. Burkart as T.S.'s parents on the first two pages of the order, the parents were incorrectly identified on the last page of the order as Megan Trahan and Derrick Celestine. These names are found nowhere else in the record. This was an obvious clerical mistake, and DCFS filed an amended affidavit in support of the order and an amended instanter custody order, stating the corrected names of Mr. Salley and Ms. Burkart.
We find that DCFS supported its motion for summary judgment pointing out an absence of factual support for Mr. Salley's claims. The burden then shifted to Mr. Salley to present sufficient evidence to prove that DCFS's actions rose to the level of gross negligence. Mr. Salley failed to meet this burden, and we find no error in the trial court's conclusion that DCFS was entitled to the discretionary immunity afforded to it by LSA-Ch.C. arts. 611 and 612 and LSA-R.S. 9:2798.1. Accordingly, we find no genuine issue of material fact, and DCFS was entitled to summary judgment.
CONCLUSION
For the foregoing reasons, the March 6, 2015 judgment of the trial court is affirmed. Costs of this appeal are assessed to the appellant, Jacob Salley.
AFFIRMED.