Opinion
No. CV-02-0124891
June 15, 2006
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
PROCEDURAL AND FACTUAL BACKGROUND A. Procedural History
This is a tort action for monetary damages and injunctive relief brought by Billie Jo Zaks (hereinafter "plaintiff Zaks") and Michael Manifold (hereinafter "plaintiff Manifold") in their individual capacity. Plaintiff Zaks also brought this action on behalf of her minor children, Kaylee Manifold and Matthew Manifold (hereinafter "the children"), as their mother and next friend. The remaining defendants in this transaction are officials of various ranking employed by the Department of Children and Families (hereinafter "DCF") Eastern Regional Office at Norwich. The defendants were originally sued in both their official and individual capacities. The "official capacity" claims for monetary damages have been dismissed.
The original complaint also named the William W. Backus Hospital (hereinafter "Hospital") and Dr. Robert Creutz of said hospital as co-defendants. Judgment entered on behalf of the hospital and Dr. Creutz when their motion for summary judgment was granted. That judgment was affirmed by the Connecticut Supreme Court. Manifold v. Ragaglia, 272 Conn. 410, 862 A.2d 292 (2004). On April 19, 2006, the plaintiffs, through counsel, in open court withdrew all claims against Kristine Ragaglia who is no longer DCF commissioner. This leaves four DCF employees as defendants (state defendants): Antonio Donis, a program supervisor, Nancy Liebenson-Davis, social work supervisor, Richard Days, social worker, and Daphne Knight, social worker. The suit is against all of them both in their official (with respect to the claims for declaratory and injunctive relief) and individual capacities (with respect to claims for monetary relief).
The state defendants filed their motion for summary judgment on March 8, 2004. The trial court denied summary judgment, applying the standards for a motion to dismiss rather than those for a summary judgment. The Appellate Court reversed the denial of the motion for summary judgment and remanded the case to have the defendants' motion heard with the proper application of summary judgment rules. In its opinion, the Appellate Court held that ". . . the appropriate remedy is to remand this case to the trial court with direction to treat the defendants' motion as a motion for summary judgment and, accordingly, to review all of the defendants' and plaintiffs' supporting material." Manifold v. Ragaglia, 94 Conn.App. 103, 123, 891 A.2d 106 (2006). At the hearing on remand in this court the plaintiffs' request for leave to amend complaint was granted. The revised complaint, dated March 24, 2006, alleges two counts against all defendants. In the first count, the plaintiffs appear to allege facts to claim a cause of action of intentional infliction of emotional distress. The second count claims the defendants' conduct constituted negligent infliction of emotional distress. The state defendants, in a filing on April 17, 2006, have requested the court to apply the original motion for summary judgment to the allegations of the amended complaint since the facts alleged are substantially the same. The court, without objection, has granted that request. In their motion for summary judgment dated March 5, 2004, the defendants move for summary judgment on three separate grounds: (1) The court lacks subject matter jurisdiction; (2) The undisputed facts establish that the defendants were acting consistent with their statutory duties and authority and there is no factual evidence of any wanton, malicious, or reckless conduct or intent to cause emotional distress on the part of any of the defendants toward the plaintiffs; and, (3) The defendants are entitled to immunity under Section 4-165 of the General Statutes. The defendants filed with their motion voluminous supporting material, Exhibits A through V. The plaintiffs, in response, filed their objection to the motion for summary judgment together with 104 pages of supporting material consisting of various depositions, reports, court filings and decisions (Exhibits "A" through "N"). Following the mandate of the Appellate Court, these matters have been completely reviewed and considered by this court.
B. Statement of Facts The following is a statement of such facts as the court considers appropriate to explain the ruling and is supported by the exhibits, affidavits and depositions presented by the parties, but does not purport to include all the factual material submitted by the parties. On or about April 21, 2002, DCF received a report of suspected neglect and abuse from an employee of the children's pediatric office. The caller based the report on a statement of a speech therapist, Kathleen Welch, from the Birth to Three Program. At that time the caller said the speech therapist expressed concerns of possible physical abuse, reportedly seeing bruising on both children. At the time of the call the pediatric office had not currently seen the children, but the caller nevertheless stated that the pediatric office had "no concerns with the family." This recital of events is in the DCF Investigation Protocol report (Pl's Exh. A).Ms. Welch testified under oath in her deposition to the following: that during her visit to the Manifold home on April 20, 2001, she had concerns about "the fact that Matthew had multiple bruises and in places that you wouldn't necessarily expect a bruise in soft parts . . . and multiple blue spots on his head . . . and he had a healing bruise, I guess you'd say it was yellowish, on his forehead."
Ms. Welch testified in her deposition that she decided to address her concerns by advising the parents that she was a mandated reporter and that "with the bruises, I'm required to inform someone about that, but that I felt concerned that Matthew may have a medical condition . . . that it was absolutely necessary that they take Matthew to their pediatrician the following morning. They had to. It had to be done. And that I would check with the pediatrician to make sure that Matthew had been seen . . . And they understood completely." The plaintiff, Michael Manifold, also testified in his deposition that Ms. Welch specifically mentioned the possibility that the bruises were caused by a blood disorder and that the child should be seen by the pediatrician.
Ms. Welch further testified in her deposition that she contacted the pediatrician's office, Norwich Pediatric Group, on Saturday, April 21, 2001, to advise the office of her concerns and requested that it follow-up with her regarding whether Matthew was seen.
As a result of Ms. Welch's call to the pediatrician and the failure of the plaintiffs to make an appointment that day, an LPN from the Norwich Pediatric Group, called in a referral to DCF on April 21, 2001 at 12:27 p.m.
Ms. Welch also testified that when she learned on Tuesday, April 24, 2001, that the parents had not taken Matthew to the pediatrician and that the pediatrician's office had made a referral, she called the DCF Hotline in order to provide more information.
During that telephone call, Ms. Welch advised the Hotline worker that the plaintiff, Michael Manifold, had attempted to cancel her April 20, 2001 evaluation of Matthew because his child had a rash and he did not want anyone to think there was something wrong with his child. Plaintiff Manifold confirmed at his deposition that because his son had a rash and was all banged up from playing, he tried to cancel the appointment with Birth to Three because he did not want his son's appearance to be misconstrued as caused by abuse.
The defendant, Richard Days, a DCF investigation social worker, who was assigned on April 24, 2001, to investigate both of these reports, went to the plaintiffs' home and as the complaint states, "observed bruising of the Plaintiff Matthew Manifold." The bruises and marks concerned the defendant Days because they were quite extensive and severe.
The Plaintiff Zaks stated that she thought the rash was caused by Matthew eating $50.00 worth of chocolate after Easter, the bruises on his back were from being knocked down the front steps by their dog and the other bruises were due to the children fighting a lot. Plaintiff Zaks confirmed at her deposition that this was the history she provided to defendant Days. The plaintiff Zaks told defendant Days that the reasons for not taking her son to the pediatrician were that they did not have a car and she felt these were normal childhood bruises. Plaintiff Manifold testified at his deposition that he had access to his brother-in-law's car and that he drove his own new truck around all that weekend of April 21 and 22, 2001. Plaintiff Zaks also testified that at the time defendant Days was at their home, plaintiff Manifold had her brother's car.
Defendant Days asked the plaintiffs to bring the children to their pediatrician to be examined. Plaintiff Manifold indicated that he was unable to transport his children because he needed to pick his brother-in-law up from work, because the family had borrowed his brother-in-law's car. Plaintiff Manifold testified at his deposition that after the DCF worker took his children to their pediatrician to be examined he spent three hours "doing guy things" with his brother-in-law.
As a result of plaintiff Manifold indicating that he could not take his children to the pediatrician, defendant Days offered to transport Plaintiff Zaks and the children to the pediatric office. While plaintiff Zaks fully cooperated with the request and went with him, the physician was unwilling or unable to examine the children because of a "heavy patient load" at that time and referred defendant Days to the Emergency Room if he wanted the child seen immediately. Before he left, defendant Days made an appointment to have Matthew examined the following day by the pediatrician's office.
According to the plaintiffs in their depositions, they understood that defendant Days was just doing his job when he conducted the investigation, that he was cordial and appropriate, that they were not forced or intimidated into bringing the children to the pediatrician or to Backus Hospital. Consequently, plaintiff Zaks agreed to bring the children to the emergency room of Backus Hospital where Dr. Cruetz examined the children.
At the time that Dr. Cruetz performed his examination, he was aware of the following facts: (1) On April 20, 2001, the Birth to Three Therapist had advised the plaintiffs to bring Matthew to the pediatrician the next day because she was concerned about the bruising; and (2) between receiving that advice on April 20, 2001 and DCF bringing the children to the Hospital on the evening of April 24, 2001, the parents had not sought medical attention for Matthew's bruising.
After examining the child, Dr. Cruetz advised the defendants Days and Knight that in his professional opinion the minor child, Matthew Manifold's bruises were assumed to be inflicted until proven otherwise and inconsistent with the explanation offered by the plaintiff Zaks. Plaintiff Zaks confirmed in her deposition that this was the information given to defendants Days and Knight by Dr. Cruetz.
Dr. Cruetz advised DCF that the children would not be safe if returned home and explained to the parents that an investigation would "be necessary to find out the source of these bruises." Dr. Creutz noted in Matthew's discharge summary that he discussed his findings with the DCF workers and the plaintiffs: "It was pointed out to them that these bruises were too large in number and too wide in area and at various stages and therefore were assumed to be inflicted injuries until proven otherwise. It was explained to the parents that these bruises were not typical of any two year old regardless of exposure to pets and siblings."
Dr. Creutz's report of his physical exam of Matthew states as follows: "He made no verbalizations during my exam. There were contusions and an abrasion on the upper part of the occiput to the right of the midline. There were some bruises on the forehead . . . The chest had bruises anteriorly and posteriorly. There were three large bruises up and down the spine, involving the upper thoracic, lower thoracic and upper lumbar spine. These were the largest of all his bruises and measured roughly 2 to 3 inches in diameter. He had a petechial rash that was limited to the thoracic cage, more prominent over the left anterior and left lateral ribcage, but actually on both sides . . . There were multiple bruises on the shins and on both knees and on both thighs. Most of these bruises were either blue or in the blue/brown stage of discoloration. There was a crusted lesion on the tip of the right third toe. There was a sliver on the base of the left foot . . ." Plaintiff Zaks, in her deposition stated that she wanted a blood test taken at the Backus Hospital because she did not abuse Matthew, but none was done at that time.
On April 24, 2001 at 7:13 p.m., DCF Hot Line Program Supervisor Jorge Osorio invoked a ninety-six hour hold of both children pursuant to Conn. Gen. Stat. § 17a-101(g)(c) over the objections of the plaintiffs who had repeatedly denied child abuse or neglect.
Dr. John Leventhal, Medical Director of the Child Abuse Committee at Yale-New Haven Hospital and an expert in the field of child abuse, has opined in an affidavit filed by the defendants, that: "DCF acted properly in invoking a 96 hour hold. If a treating physician indicates that a young child's bruises are due to abuse, then DCF has to ensure the child's safety. Given the delay in seeking care, the obvious bruises, and the physician's clear statement, DCF's response appears to have been appropriate." Defendant Days obtained a criminal record history of plaintiff Manifold that included convictions for breach of peace, disorderly conduct, burglary and criminal mischief. Days consulted with his supervisors and then filed neglect petitions with the Superior Court for Juvenile Matters in Waterford, along with an order of temporary custody (OTC). The judge of that court granted an Order of Temporary Custody on April 25, 2001 placing the children in the custody of DCF.
The plaintiff Zaks, in her deposition filed with the court by the defendants, testified that she knew defendant Days was just doing his job when he was investigating the report, that defendant Days was cordial throughout his visit at her home, the visit to the pediatrician's office and during his interview of her at Backus Hospital. She also testified that she agreed to go to the pediatrician's office and to Backus Hospital, voluntarily. She also testified in her deposition that neither Defendants Days or Knight yelled or swore at her and that no one touched or restrained her during the investigation. She also testified in her deposition that she was permitted to leave the hospital for fresh air and go in and out of the examining room to make phone calls from a hospital phone, and that her mother, and later plaintiff Manifold, eventually joined her in the examining room.
Plaintiff Manifold testified in a deposition filed by the defendants that after Dr. Creutz told him this was abuse, there was "yelling and swearing" between himself, Dr. Creutz and defendant Days. He further testified that defendants Days and Knight questioned him for "5 minutes tops" before he refused to answer any more questions.
On April 25, 2001, defendant Days made arrangements to take Matthew for the medical examination by Dr. Nancy Cusmano at the pediatric office, which he had arranged the previous day when at the pediatric office. Dr. Cusmano, at that time, asked defendant Days if blood work had been ordered. However, defendant Days was unaware of whether blood tests had been ordered at Backus Hospital. Dr. Cusmano ordered blood work on Matthew. Defendant Days immediately took Matthew to have the tests done at the Hospital. The blood work revealed a low platelet count and Dr. Cusmano referred Matthew to a hematologist specialist at Yale-New Haven Hospital for further examination to determine whether the child suffered from a blood disorder.
In her deposition filed by the defendants, Dr. Cusmano indicated that there were problems with the child's blood, but she could not rule out child abuse. Dr. Cruetz also indicated in her deposition that the existence of a blood disorder does not necessarily rule out abuse. Dr. Leventhal, in his affidavit, also states that a blood disorder does not rule out abuse. Dr. Cusmano, after examining Matthew and ordering blood work to rule out a blood disorder, proceeded to forward a Report of Suspected Child Abuse or Neglect (DCF Form 136) with the notes from her examination of Matthew attached. In this report, which was filed by the defendants in support of their motion, she detailed her findings after examining Matthew. In the report she indicated: "new bruise behind Lt ear; multiple (3 large) old large bruises over thoracic spin; 3 large old bruises top of buttocks; numerous old bruises lower extremities; numerous brown/green bruises Rt forehead and head; medium brown/green bruise . . .; red hyperpigmented area lateral Rt eye; multiple bruises over chest; scattered petechia over entire trunk."
DCF made the necessary arrangements and transported Matthew to Yale-New Haven Hospital (YNHH). On April 25, 2001, the child was admitted for treatment by a hematologist. On April 26, 2001, Dr. McNamara, a hematologist from YNHH, advised DCF that Matthew's bruising and marks were consistent with a rare blood disorder known as Idiopathic Thrombocytopenic Purpura (ITP). According to an affidavit of Dr. Leventhal, filed by the defendants, "ITP is a blood disorder that results in a substantially decreased number of platelets in the blood. Since platelets are important for clotting, children with this disease present with easy bruising and multiple bruises and petechiae . . . The failure to seek care could have serious consequences. A platelet count of 6,000 is very low and increases the risk of bleeding from minor injuries. The most worrisome kind of bleeding would be bleeding in or around the brain because of a head injury."
On April 26, 2001, the children were returned to the custody of the plaintiff's pursuant to DCF filing a motion to vacate orders of temporary custody on April 26, 2001. According to the affidavits and depositions filed by the defendants, the neglect petitions remained pending before the Superior Court for Juvenile Matters due to concerns over the supervision provided which had allowed Matthew to receive so many bruises, the parents' failure to bring Matthew to the pediatrician and the need to ensure that the children received the necessary treatment and services.
The children were away from the plaintiffs for two nights: one of those nights Matthew was at Yale-New Haven Hospital receiving treatment for the ITP. A motion to amend the neglect petition to remove the allegation of physical abuse and to include more factual information regarding medical neglect was filed by DCF in the court on May 15, 2001. In the amended statement of facts submitted to the court at that time, in paragraph numbered 11, DCF alleged that Dr. Cusmano ". . . stated that parents have been medically neglectful . . ." This was listed along with many other facts contained in the document which was filed with this court by the defendants in support of their motion. Dr. Cusmano, in a filing submitted by the plaintiffs, has denied ever telling that to a DCF representative. This information, about which there is a disagreement, was given almost a month after the children were returned to the plaintiffs, but before the neglect petition was withdrawn.
The defendants' factual submissions indicates that the petitions remained pending in juvenile court awaiting DCF's ability to confirm that Matthew's medical needs were being properly met. On May 25, 2001, at a case status conference in Juvenile Court, DCF offered to withdraw the pending neglect proceedings, if the parents would sign releases of information so that DCF could get medical reports to monitor compliance with the programs serving the children and family. During the time that the neglect petitions were pending, no DCF referred service providers were allowed in the plaintiffs' home and the social worker did not make the normal home visits pursuant to the specific instructions of the plaintiffs' attorney.
The plaintiffs refused to sign releases of information that would allow DCF to receive medical information from the children's health care providers to ensure that they were receiving appropriate care and that Matthew's ITP had been treated. The plaintiffs would not even allow the attorney, appointed by the court to represent the children, to see the children or obtain the requested releases. Months went by while this status of the case remained awaiting the releases for medical information about the care of the children.
An affidavit filed by the defendant indicates that DCF treatment worker, Colleen Lenney, finally received releases of information from the plaintiffs on October 1, 2001. On that same day she faxed the releases to each of the providers. By October 29, 2001, she had contact from all the providers and learned that Matthew was receiving Birth to Three services, that the plaintiffs had complied with the treatment and monitoring for Matthew's ITP and that the children had recently been seen by the pediatrician's office. The following day, on October 30, 2001, Colleen Lenney submitted a social study to the Juvenile Court as required by Connecticut Practice Book § 35a-9, recommending that the neglect petitions be withdrawn. At a docket matter held by the court without the presence of the parties on October 30, 2001, the court granted the DCF's request for withdrawal of the petitions.
Although counsel for the plaintiffs makes an argument, there is no factual evidence that a release of civil liability was ever requested by the defendants or anyone acting on behalf of DCF. Plaintiff Manifold stated at his deposition filed with the court by the defendants that such an allegation in the complaint was not accurate.
THE LAW A. Summary Judgment
The law with regard to summary judgment is not in dispute. A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "[S]ummary judgment procedure is . . . an attempt to dispose of cases involving sham or frivolous issues in a manner which is speedier and less expensive for all concerned than a full-dress trial." (Citations omitted; internal quotation marks omitted.) Mac's Car City, Inc. v. American National Bank, 205 Conn. 255, 261, 532 A.2d 1302 (1987).
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case . . ." (Internal quotation marks omitted.) Ace Equipment Sales, Inc. v. Buccino, 273 Conn. 217, 226-27, 869 A.2d (2005); Hurley v. Heart Physicians. P.C., 278 Conn. 305, 314 (2006).
"[S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings . . ." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).
"[E]ven with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact." Wadia Enterprises, Inc. v. Hirschfield, 224 Conn. 240, 250, 618 A.2d 506 (1992).
In order to surmount a motion for summary judgment, a party must demonstrate that there exists a genuine issue of material fact . . . Demonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred . . . A material fact is one that will make a difference in the result of the case . . . To establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact . . . The issue must be one which the party opposing the motion is entitled to litigate under [its] pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment. (Citations omitted; internal quotation marks omitted.) Trotta v. Branford 26 Conn.App. 407, 412-13, 601 A.2d 1036 (1992).
"[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Marlowe v. Norgren, Superior Court, judicial district of New Haven, Docket No. CV 98-0409958 (March 22, 2001, Munro, J.). If the undisputed facts reveal that there is an absence of proof as to any essential element on which the opponent of summary judgment has the burden of proof, any factual dispute as to the other elements becomes immaterial and cannot defeat the motion. Gottlieb v. County of Orange, 84 F.3d 511, 519 (2nd Cir. 1996).
B. Child Protection Law
The defendants in this case were operating under statutory mandates to investigate reports of abuse and to protect the safety of children pending disposition of any pending neglect petitions. Conn. Gen. Stat. § 17a-101 provides that it is the public policy of the State of Connecticut "[t]o protect children whose health and welfare may be adversely affected through injury and neglect . . ."
The state defendants, in their brief, have reviewed in some detail the statutes and cases in this state which define in considerable specificity the duties and responsibilities of the DCF and its employees and agents with respect to child welfare.
In addition, the state defendants have, in their brief, cited this court for the statutory responsibility of the Superior Court for Juvenile Matters with respect to the welfare of children when a neglect petition has been filed. See General Statutes §§ 46b-121 and 46b-129. This analysis will not be repeated here.
C. Intentional Infliction of Emotional Distress
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society." (Citation omitted; internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, supra, 92 Conn.App. 835, 846, 888 A.2d 104 (2006).
"Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Internal quotation marks omitted.) Little v. Yale University, 92 Conn.App. 232, 239-40, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006).
D. Negligent Infliction of Emotional Distress
"[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm . . . This . . . test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 446-47, 815 A.2d 119 (2003).
DISCUSSION AND CONCLUSION A. Section 4-165 Immunity Claim
The state defendants first claim that the court lacks subject matter jurisdiction because of their claim of statutory immunity and, further, that a claim of lack of jurisdiction must be taken up whenever it is raised.
"[S]tate employees may not be held personally liable for their negligent actions performed within the scope of their employment." Miller v. Egan, 265 Conn. 301, 319, 828 A.2d 549 (2003). "This provision of statutory immunity to state employees has a twofold purpose. First, the legislature sought to avoid placing a burden upon state employment. Second, § 4-165 makes clear that the remedy available to plaintiffs who have suffered harm from the negligent actions of a state employee who acted in the scope of his or her employment must bring a claim against the state `under the provisions of this chapter,' namely, chapter 53 of the General Statutes, which governs the office of the claims commissioner." Id. at 319. General Statutes § 4-165 provides in relevant part:
No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.
The first count of the plaintiffs' complaint alleges intentional infliction of emotional distress. The plaintiffs' second count alleges negligent infliction of emotional distress.
As to the first count, the defendants claim to be protected by § 4-165 immunity because the undisputed material facts demonstrate that they did not act in a wanton or reckless manner.
"[Section] 4-165 provides state officers and employees with qualified immunity." Manifold v. Ragaglia, 94 Conn.App. 103, 112, 891 A.2d 106 (2006). It "provides state employees protection from liability, as well as suit" and implicates the court's subject matter jurisdiction. Id. at 113. The doctrines of sovereign and statutory immunity protect "state officials and employees from lawsuits resulting from the performance of their duty." Hultman v. Blumenthal, 67 Conn.App. 613, 620, 787 A.2d 666 (2002).
"[I]n order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must provide, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Manifold, supra 94 Conn.App. 115-16.
As pointed out in the defendants' brief, the facts which the plaintiffs allege to support their cause of action for intentional infliction of emotional distress are that:
a) They were caused severe emotional distress and anxiety by the state defendants, Richard Days' and Daphne Knight's, abusive, insulting, and threatening behavior towards the plaintiff, Billie Jo Zaks, during the investigation at the hospital. (Amended Complaint ¶ 13);
b) The plaintiffs also allege that the state defendant, Richard Days, filed a false affidavit with the juvenile court causing the removal of the children from their home. (Amended Complaint ¶ 20);
c) The defendants improperly initiated an investigation based upon an anonymous caller and in spite of the pediatric office reporting "no concerns of abuse." (Amended Complaint ¶¶ 3, 6 7);
d) The defendants had no information implicating either plaintiff in perpetrating any abuse. (Amended Complaint ¶ 14);
e) The defendants failed to obtain a blood test prior to finding that there was reasonable cause to suspect abuse and probable cause to remove the children for their protection. (Amended Complaint ¶¶ 18, 19, 21, 22 24);
f) The defendants sought a release of civil liability in exchange for withdrawing the neglect petitions. (Amended Complaint ¶ 29);
g) After the blood disorder was diagnosed and the children returned to the plaintiffs' care, the defendants maintained a neglect petition in juvenile court thereby causing them great mental anguish and expense and that the defendants' sole motivation for the neglect petition was "to justify their own prior unjustified conduct." (Amended Complaint ¶ 29, 30, 31 32.)
It is found by the court after careful review of the submissions of the parties that the undisputed facts do not support these allegations and do not support a finding of wilful, wanton conduct on the part of the defendants.
The plaintiff Zaks, during her deposition, testified that she knew defendant Days was just doing his job when he was investigating the report, that Defendant Days was cordial throughout his visit at her home, the visit to the pediatrician's office and during his interview of her at Backus Hospital. She also testified that she agreed to go to the pediatrician's office and to Backus Hospital, voluntarily. As indicated above, she also testified that no one used abusive language towards her, no one touched or restrained her during the investigation, she was permitted to leave the hospital for fresh air and go in and out of the examining room to make phone calls from a hospital phone, and that her mother and plaintiff Manifold eventually joined her in the examining room.
The only evidence provided by the plaintiffs to support the allegations of threatening and insulting behavior was that some of the defendants were in a circle around her, that they moved when she moved, that they asked her on more than one occasion if she or her husband had abused Matthew, which she found harassing, and that defendant Knight had stated she did not know if the children would be alive the next day if they went home. Plaintiff Zaks indicated in her deposition that she was upset because the defendants asked her the same questions more than once and they stated they believed that Matthew was abused. (Def Exh. I, p. 129). These facts do not support a finding of wilful, wanton conduct. Conduct that is "merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." Appleton v. Board of Education, 254 Conn. 205, 211, 757 A.2d 1059 (2000).
With regard to the allegation of a false affidavit, even if true, it is found that defendant Days is protected by absolute immunity. "[C]ommunications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy." CT Page 11031 Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 787, 865 A.2d 1163 (2005). This absolute immunity applies to affidavits submitted to court in a proceeding. Id. at 788.
In connection with that claim, plaintiff Zaks admits in her deposition that everything that defendant Days indicated in his affidavit was an accurate recitation of the events and information he had gathered during his investigation (except for the number of years the plaintiffs claimed to be together). A review of Dr. Cruetz's deposition about what his conclusions were and what he communicated to defendant Days; the emergency room report regarding Dr. Cruetz's conclusions, and of the plaintiff Zaks' own testimony about what Dr. Cruetz had stated; and her admission that all the information relayed in the affidavit was true, establishes that defendant Days did not submit a false affidavit to the juvenile court in order to obtain the OTC.
The allegations by the plaintiffs that the investigation was improperly commenced and that there was no basis to suspect abuse, specifically because the pediatrician's office reported "no concerns" on their part and there was no direct evidence that either plaintiff had abused anyone, are not found to be either accurate or material. First, the undisputed facts establish that no one from the pediatrician's office had observed Matthew's bruising at the time of that statement and the existence of the bruising is not in dispute in this case. In addition, on this point it has to be considered that the plaintiff's own pediatrician's office actually made the subsequent suspicion-of-abuse report to DCF. Furthermore, defendant Days commenced the investigation not only based upon the report from the pediatrician's office, but also upon the report by the Birth to Three therapist, who had seen the bruises and who had advised the plaintiffs that they needed to seek medical attention. Therefore, that factual allegation is not supported by the undisputed facts submitted by the parties.
The plaintiffs' claim that the lack of any direct evidence against either of them individually as perpetrators of abuse constitutes evidence of wanton, malicious and intentional conduct is not consistent with the child protection law on the subject. Abuse is defined as "injuries that are at variance with the history given" or as a "condition that is the result of maltreatment, such as . . . deprivation of necessities." General Statutes § 46b-120(4)(B) and (C). Dr. Cruetz expressed an opinion that the injuries he saw on Matthew were inconsistent with the explanation offered by the parents. This alone would have given the defendants sufficient grounds to make out a prima facie case of abuse. Moreover, the plaintiffs' failure to seek medical attention for their son's excessive bruising could be considered a "deprivation of necessities." Dr. Leventhal, the child abuse expert whose deposition was submitted by the defendants, testified that in his opinion it was neglect for the parents not to have taken a child with such extensive bruising to the doctor.
It is part of a DCF investigator's job to determine who might have caused a child's injuries if abuse is suspected. General Statutes § 17a-101g(b) ("The investigation shall include . . . a determination of the person or persons suspected to be responsible for such abuse or neglect . . .") Therefore, defendant Days' questions to plaintiff Zaks as to whether plaintiff Manifold had abused the kids were appropriate. However, it is not necessary to establish the guilt or innocence of a particular perpetrator. The parents are responsible for the condition of the child and it is the condition of the child that neglect petitions address. See In re David L. 54 Conn.App. 185, 733 A.2d 897 (1999); see also In re Cheyenne A., 59 Conn.App. 151, 756 A.2d 303 cert. denied, 254 Conn. 940 (2000); In re Elisabeth H., 45 Conn.App. 508, 511, 696 A.2d 1291, cert. denied, 243 Conn. 903 (1997); In re Jessica S., 51 Conn.App. 667, 672, 723 A.2d 356, cert. denied 251 Conn. 901 (1999).
The crux of the plaintiffs' claim revolves around holding defendants Days and Knight responsible for the fact that a blood test was not taken by Dr. Creutz on the evening of April 24, 2001 at the emergency room to determine at that time if the bruising was caused by a blood disorder. However, a state child protection social worker does not have the authority to require medical professionals to perform any testing for purposes of investigating child abuse, absent parental consent or a court order.
Social workers are not permitted to initiate or require medical procedures for purposes of investigating child abuse. The defendants had obtained the expertise of the emergency room doctor, Dr. Creutz. On appeal from granting a motion for summary judgment filed by Dr. Creutz and the hospital, the Supreme Court discussed "the legislature's recognition of the important roles of medical professionals in the investigation of child abuse." Manifold v. Ragaglia, 272 Conn. at 424 ("A construction of § 17a-101e(b) that affords immunity to physicians aiding the department in the investigation process encourages medical professionals to help with this highly sensitive task, rather than avoid a role in this process out of fear of liability when the department arrives at the hospital with a child who potentially has been abused.") Id. at 426.
It would be illogical to grant immunity to the physician who told DCF that there was a high suspicion of abuse, but to hold the DCF worker who relied on that opinion liable. The fact that Dr. Cruetz offered his opinion without conducting blood tests and that the plaintiffs' claim to have requested further testing does not make the defendants' actions reckless, wanton or malicious.
Defendant Days did bring Matthew to the regular pediatrician's office the very next day for further evaluation. The blood testing was initiated the next day by Dr. Cusmano. DCF thereafter returned the children to their home within the time frame permitted by General Statutes § 17a-101g.
With respect to the claim in the amended complaint, there is no factual evidence submitted by any party that a release of civil liability was ever requested by the defendants or anyone acting on behalf of DCF. Plaintiff Manifold testified at his deposition that such allegation in the complaint was not accurate.
Once the ITP was discovered, DCF vacated the OTC and returned the children to the plaintiffs. DCF and the defendants, never sought custody of the children once they were returned to the plaintiffs and DCF withdrew the neglect petitions once they were able to confirm that the children's medical needs were being met. The claim that maintaining the neglect petition constituted wanton, reckless or malicious and unauthorized behavior on the part of the state defendants because it was done for unjust reasons and resulted in severe emotional distress, anxiety and harm to all the plaintiffs is not supported by any factual evidence submitted by the plaintiffs. The plaintiffs' allegation that no efforts were made to correct the allegation of abuse is not consistent with the undisputed evidence, in light of the fact that DCF filed an amended petition removing the allegation of abuse.
Where the plaintiffs' own pediatrician and the state defendants' expert have stated under oath that the plaintiffs' failure to address Matthew's condition of excessive bruising was neglectful, it cannot be found by the court that filing and maintaining the petitions of neglect intended to accomplish anything other than the safety and well-being of the children. Moreover, the defendants never sought custody of the children during the pendency of the neglect petition. It is found that any delay in the withdrawal of the neglect petition was because of the plaintiffs' own conduct with respect to the delay in providing the release for information.
Based upon this analysis it is found that no defendants' conduct in this case, as established by the undisputed factual evidence, was wanton, reckless or malicious conduct and that their actions were conducted in discharge of their duties and within the scope of their employment with DCF. For that reason, all of the state defendants are entitled to immunity from liability for monetary damages under the provisions of section 4-165 of the General Statutes.
B. Emotional Distress
Assuming, arguendo, that the court did not find that the defendants are entitled to immunity under § 4-165, the motion for summary judgment would have to be granted as to claims for monetary damages because the evidence submitted by the parties does not raise a genuine issue of material fact as to the necessary elements of a cause of action for either intentional or negligent infliction of emotional distress.
With regard to the first count of the amended complaint claiming intentional infliction of emotional distress, the undisputed factual evidence discussed above, for the reasons given above, does not support any of the four elements required. It cannot be found by a review of such evidence that any of the state defendants actually intended to inflict emotional distress or that they knew or should have known emotional distress was the likely result of their conduct. Such a review does not reveal any extreme or outrageous conduct on the part of any defendant. Whatever the response of the plaintiff parents to the temporary removal of their children, no doubt there was one, in this case, from the submitted factual evidence it cannot be found to have been "severe." The conduct here not only does not exceed all bounds usually tolerated by decent society, but it appears the defendants were duty bound to proceed as they did.
Also, concerning the allegations of the second count of the amended complaint, sounding in negligent infliction of emotional distress, for the reasons outlined above the court finds that the evidence submitted by the parties does not raise a genuine issue of material fact, that the defendants should have realized that their conduct involved an unreasonable risk of causing emotional distress or, that such distress if it were caused, might result in illness or harm. It perhaps should not be disputed that parents will be distressed at being involved in an investigation into child abuse or neglect. But as the plaintiff Zaks stated during her deposition, the defendants were only doing their job.
The plaintiffs place great reliance on the case of Shay v. Rossi, 253 Conn. 134, 749 A.2d 1147 (2000). Such reliance is misplaced as that case is based upon a factual basis considerably different from the undisputed factual evidence in this case.
In the Shay case, the court determined that the allegations sufficiently made out a claim of conduct and statements that evinced improper motives and intent. Shay v. Rossi, supra, 253 at 168-82. In Shay, a ninety-six hour hold had been issued even after the doctor who initially reported the suspected abuse changed his statement. When abuse was ultimately unconfirmed, the defendants did not remove the allegation from the neglect petition. The defendants insisted that service providers remain in the home, even after they opined their services were unnecessary. All four physicians involved with the family had indicated there was no concern regarding abuse or neglect in the past or currently; and significantly some of the defendants had made statements evincing motives other than protection of the children. Id. at 175-182. The Shay court refused to grant the defendants' motion to dismiss finding there were sufficient allegations which, if proven, could warrant a finding that the defendants' conduct was wanton, reckless or malicious. Id. at 182.
That factual situation is considerably different from the undisputed factual evidence submitted by the parties in this case in so many ways that need not be set forth.
C. Injunctive Relief
Finally, the plaintiffs have requested injunctive relief ordering the defendants to expunge all DCF records concerning this case and requiring DCF to conduct specific training.
To be entitled to injunctive relief the plaintiffs must plead and prove that they would suffer irreparable harm absent an injunction and that there is no adequate remedy at law. Harvey v. Daddona, 29 Conn.App. 369, 377, 615 A.2d 177 (1992).
In relation to the request for an order expunging their DCF record, the plaintiffs had a remedy at law; an administrative substantiation hearing and, if necessary, an appeal to Superior Court. See Uniform Administrative Procedure Act, General Statutes §§ 4-177 through 4-181.
"The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law . . . The doctrine provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted . . . Where a statutory requirement of exhaustion is not explicit, courts are guided by [legislative] intent in determining whether application of the doctrine would be consistent with the statutory scheme . . . Consequently, [t]he requirement of exhaustion may arise from explicit statutory language or from an administrative scheme providing for agency relief." (Citations omitted; internal quotation marks omitted.) Waterbury v. Washington, 260 Conn. 506, 529-30, 800 A.2d 1102 (2002).
If the available administrative procedure . . . provide[s] the plaintiffs with a mechanism for attaining the remedy that they seek . . . they must exhaust that remedy. Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 629-30 n. 9, 577 A.2d 1017 (1990).
The plaintiffs here have not availed themselves of the administrative hearing process provided to them under the Uniform Administrative Procedure Act, which is expressly designed to address the issues of substantiations and the child abuse registry. The plaintiffs are, therefore, not entitled to have this court order DCF to expunge the record. See Stocker v. Waterbury, 154 Conn. 446, 450-53, 226 A.2d 514 (1967).
The plaintiffs' second request, which appears to relate to mandatory training, is not supported by the allegations of the complaint in that there are no allegations or factual evidence submitted to support a conclusion that DCF does not provide training regarding the appropriate means to conduct an investigation and render a risk assessment. The plaintiffs have not pled and there is no factual evidence submitted, to support a finding that there is a compelling need for such an order and that these plaintiffs will suffer irreparable harm if the injunction is not granted. Furthermore, there are no pleadings or factual evidence suggesting that any of the remaining defendants have the authority to effectuate such requested activity. Consequently, the evidence submitted does not raise a genuine issue of material fact that would entitle the plaintiffs to the injunctive relief sought.
The defendants have sustained the burden of showing the absence of any genuine issue of material facts which entitle them to a judgment as a matter of law. The plaintiffs have failed to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact relating to either of the requests for injunctive relief.
The defendants' motion for summary judgment is granted as to all remaining claims of all plaintiffs and judgment may enter accordingly.