Summary
In Gersper v. Ashtabula County Children Services Bd., 570 N.E.2d 1120 (Ohio 1991), the Ohio Supreme Court resolved the exact question presented here: "whether a children services board and a caseworker with the board are immune from civil liability pursuant to former R.C. 2151.421(G), when they have taken affirmative steps to investigate the report of alleged abuse or neglect and have actively participated in a judicial proceeding to secure the safety of the child suspected of being abused or neglected."
Summary of this case from McCabe v. Mahoning County Children Services BoardOpinion
No. 90-936
Submitted March 5, 1991 —
Decided May 1, 1991.
Juvenile court — Former R.C. 2151.421(G) confers immunity upon those who, as a result of a report of child abuse or neglect, participate in a judicial proceeding.
O.Jur 3d Family Law § 563.
Former R.C. 2151.421(G) confers immunity upon those who, as a result of a report of a known or suspected incident of child abuse and/or neglect, participate in a judicial proceeding.
APPEAL from the Court of Appeals for Ashtabula County, No. 88-A-1420.
Appellants, Garry and Mary Gersper, filed a complaint in the Court of Common Pleas of Ashtabula County against appellees, Ashtabula County Children Services Board ("ACS") and Mattie Dramis, a caseworker with ACS. In their complaint, appellants alleged that appellees negligently performed their duty to investigate and examine the report of child abuse or neglect of Evan Gersper, appellants' son. Appellants further alleged that Dramis knowingly, willfully and maliciously misrepresented the facts of the alleged child abuse or neglect in order to enhance the position of ACS.
In May 1986, Mary Gersper noticed a "spongy" soft spot located on Evan's head behind his left ear. Appellants took Evan to Geneva Memorial Hospital where it was determined that Evan had a small fracture on his left parietal scalp. Evan was then admitted to Rainbow Babies and Children's Hospital in Cleveland. Evan was determined to be a "failure to thrive" child. A status report of Evan was compiled, in part, by Dramis. The report indicated that prior to Evan's head injury, he also suffered a broken humerus (upper arm). This incident had also been reported to ACS. Evan was approximately three months old when his arm was injured and seven months old when he suffered the head injury.
On May 21, 1986, Sue McMannes from Geneva Hospital reported to ACS that Evan had been hospitalized with a skull fracture. On June 2, 1986, appellees filed a complaint in the Ashtabula County Juvenile Court. On the same date, ACS obtained temporary custody of Evan. On June 4, 1986, following a hearing, the court ordered that custody should continue with ACS and that Evan be placed with his maternal grandmother. Appellants were permitted supervised visitation. This custody arrangement continued for approximately six months to ensure Evan's safety. Subsequently, in accordance with an agreement between the parties, Evan was returned to appellants and ACS's custody was terminated.
Appellees moved for dismissal of appellants' complaint, or alternatively summary judgment, contending that former R.C. 2151.421(G) entitled them to immunity. The trial court sustained appellee's motion.
It appears that the trial court found in favor of the appellees under both Civ. R. 12(B)(6) and 56. Attached to appellees' motion was the affidavit of Robert C. Buck, Jr., appellees' trial counsel, and a status report of Evan compiled by caseworkers for ACS. The trial court, upon consideration of these supporting memoranda, sustained appellees' motion. The court also held that "the complaint fails to state facts or a claim upon which any judgment can be granted and the * * * [appellant's] complaint is, therefore, dismissed."
Upon appeal, the court of appeals affirmed the judgment of the trial court. The court determined that "the complaint indicates that there is no set of facts, provable by appellants, which would have abrogated the immunity provided in R.C. 2151.421."
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Patrick M. Maniscalco, for appellants.
Quandt, Siffels, Buck Rodgers Co., L.P.A., and Hunter S. Havens, for appellees.
R.C. 2151.421 sets forth who is required to report and investigate incidents of child abuse and/or neglect. Health care professionals, among others, who know or suspect that a child has suffered abuse or neglect have a duty to report the incident to the children services board, the county department of human services, or a municipal or county peace officer. Any person who is required to make such a report and fails to do so is guilty of a fourth-degree misdemeanor. R.C. 2151.99(A); Ohio Adm. Code 5101:2-34-04. A board or department, pursuant to division (F) of R.C. 2151.421, is required to investigate, within twenty-four hours, each report of a known or suspected incident of abuse or neglect determining the cause and circumstances surrounding the incident and the person(s) responsible. The investigation must also be conducted in cooperation with law enforcement agencies. The board or department must report each case to a central registry and submit a written report of its investigation to the law enforcement agency.
The question at issue deals with the potential civil liability of a board and its employees. More specifically, we are asked to determine whether a children services board and a caseworker with the board are immune from civil liability pursuant to former R.C. 2151.421(G), when they have taken affirmative steps to investigate the report of alleged abuse or neglect and have actively participated in a judicial proceeding to secure the safety of the child suspected of being abused or neglected. For the reasons expressed infra, we answer the question in the affirmative and, accordingly, affirm the judgment of the court of appeals.
R.C. 2151.421(G) provided, in part, that:
R.C. 2151.421(G) has been amended effective July 24, 1990 and April 11, 1991, primarily to require good faith participation in the judicial proceeding and in the making of reports. R.C. 2151.421(G)(1).
"Anyone or any hospital, institution, school, health department, or agency participating in the making of reports under this section, or anyone participating in a judicial proceeding resulting from the reports, shall be immune from any civil or criminal liability that otherwise might be incurred or imposed as a result of such actions. * * *" (Emphasis added.)
Appellants take a constricted view of R.C. 2151.421(G) and argue that the General Assembly enacted the statute to provide immunity for those persons who have reported to the proper authorities known or suspected incidents of child abuse or neglect. Therefore, urge appellants, because R.C. 2151.421(G) does not explicitly address investigations, the statute should not be construed to confer immunity upon a children services board and its employees who are accused of negligently investigating a report of suspected child abuse or neglect. Appellants further argue that our recent decision in Brodie v. Summit Cty. Children Services Bd. (1990), 51 Ohio St.3d 112, 554 N.E.2d 1301, is dispositive of this issue and refutes appellees' claim of immunity. We do not agree. Neither the language of R.C. 2151.421(G) as applied to this case nor appellants' reading of Brodie warrants such a conclusion.
In Brodie, a guardian ad litem for a minor sued, among others, a children services board and its officers alleging, inter alia, that the defendants negligently failed or refused to investigate or file dependency and neglect proceedings on behalf of the minor. The evidence disclosed that despite receiving reports of abuse and neglect, the board and its officers failed to take action to secure the safety of the child until she was admitted to a hospital in a comatose condition. We refused to shield the board and officers from liability and held, in paragraph four of the syllabus, that: "[d]ivision (G) of R.C. 2151.421 does not confer immunity upon those who fail to carry out the mandate of * * * [R.C. 2151.421(F)]."
In reaching our conclusion, we reasoned that:
"* * * The court of appeals correctly reversed, concluding that the statute confers immunity on employees of CSB only when they participate in the making of reports or in judicial proceedings resulting from reports prepared pursuant to the statute. The basis of the action here is not the making of reports or participation in judicial proceedings arising from reports of child abuse or neglect but, instead, the agency's failure to report, initiate and proceed with judicial proceedings on behalf of Tara Cook." (Emphasis added.) Id. at 120, 554 N.E.2d at 1309.
There exists a clear distinction between Brodie, supra, and the case before this court. Brodie concerned a board and officers who received reports of suspected child abuse and neglect but failed to respond, an omission clearly in violation of a statute. In the instant case, we are confronted with an entirely different situation. Here, we have a children services board and a caseworker who have taken affirmative steps, commensurate with a report from a health care professional, to investigate and "initiate and proceed with judicial proceedings" in order to secure the safety of a child suspected of being abused or neglected. Hence, it would be incorrect to maintain that the defendants' omissions in Brodie, which violated a clear statutory duty, can be equated with appellees' actions in the case now before us. Thus, Brodie, being factually inapposite to this case, does not apply.
The purpose of R.C. 2151.421(G) is clear. The General Assembly enacted division (G) to encourage those who know or suspect that a child has fallen victim to abuse or neglect to report the incident to the proper authorities and/or participate in the judicial proceedings to secure the child's safety without fear of being exposed to civil or criminal liability. It is obvious to us that appellees, recipients of a report of suspected abuse or neglect, do not fall within the protected class of those "participating in the making of reports." However, it is equally clear that appellees do, indeed, fall within that portion of the statute that grants immunity to those who have participated "in a judicial proceeding resulting from the reports."
See fn. 3, supra.
Appellees, upon learning of a potential problem from Sue McMannes of Geneva Hospital, took affirmative action to investigate the report. Appellees filed a complaint with the juvenile court and, on the same day, secured temporary custody of Evan. Two days later, following a hearing, custody in ACS was continued and Evan was placed with his grandmother. To ensure his safety, Evan remained in appellees' custody for approximately six months. Clearly, appellees were, as contemplated by the General Assembly, participants in a judicial proceeding resulting from a report of suspected child abuse or neglect. Therefore, appellees, pursuant to R.C. 2151.421(G), are immune from liability.
Accordingly, we conclude that former R.C. 2151.421(G) confers immunity upon those who, as a result of a report of a known or suspected incident of child abuse and/or neglect, participate in a judicial proceeding.
The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, WRIGHT, H. BROWN and RESNICK, JJ., concur.