Georgia Department of Human Services v. Spruill

751 S.E.2d 315, 294 Ga. 100, 2013 Fulton County D. Rep. 3522, 2013 WL 6050609, 2013 Ga. LEXIS 948
CourtSupreme Court of Georgia
DecidedNovember 18, 2013
DocketS12G2002
StatusPublished
Cited by11 cases

This text of 751 S.E.2d 315 (Georgia Department of Human Services v. Spruill) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Georgia Department of Human Services v. Spruill, 751 S.E.2d 315, 294 Ga. 100, 2013 Fulton County D. Rep. 3522, 2013 WL 6050609, 2013 Ga. LEXIS 948 (Ga. 2013).

Opinion

Blackwell, Justice.

As a general rule, the sovereign immunity of the State and its departments is waived by the Georgia Tort Claims Act for “the torts of state officers and employees . . . acting within the scope of their official duties or employment,” OCGA § 50-21-23 (a), but there are exceptions to the general rule. See OCGA § 50-21-24 (1)-(13). This [101]*101case concerns one of these exceptions, commonly known as the “discretionary function” exception. See OCGA § 50-21-24 (2). Here, the guardians of two infant boys sued the Department of Human Services (DHS), alleging that the Clayton County Department of Family and Children Services (DFCS) was negligent in several respects in its investigation of a report that the boys were neglected by their parents.1 On the motion of DHS, the trial court dismissed the lawsuit, finding that the “discretionary function” exception properly applied, but the Court of Appeals disagreed, and it reversed the dismissal. Spruill v. Ga. Dept. of Human Svcs., 317 Ga. App. 226, 228 (729 SE2d 654) (2012). We issued a writ of certiorari to consider whether the “discretionary function” exception applies in this case, and concluding that it does, we reverse the judgment of the Court of Appeals.

1. The record shows that twin boys ■—As. M. and Av. M. — were born premature to Jay McCart and Tessa Zelek on November 6,2006. Almost a year later, on October 17, 2007, McCart and Zelek took the boys to their pediatrician for a routine examination. The pediatrician found that the boys were severely underweight,2 but he saw no sign that they were in acute distress, and he did not think it necessary at that point to contact DFCS about the boys. Instead, the pediatrician ordered some diagnostic tests to ascertain any medical causes of the failure of the boys to gain weight, and he explained to McCart and Zelek that, if these tests failed to explain the failure to thrive, the boys would have to be admitted to a hospital for further testing and observation.

On November 4, a grandfather of the boys visited the mobile home that McCart and Zelek shared. The grandfather observed that one of the boys “didn’t look right,” and it appeared to the grandfather that both McCart and Zelek were under the influence of alcohol or drugs.3 Following his visit, the grandfather reported some of what he had seen to the grandmother of the boys. On November 6, the grandmother telephoned the pediatrician and told him “about [her] concern that [McCart and Zelek] could be using drugs in the house.”

[102]*102The same day, the pediatrician made á report about the boys to Henry County DFCS.4 In that report, the pediatrician disclosed that the boys recently had been seen in his office, that they had failed to gain much weight, and that they were failing to thrive. The pediatrician also reported that the boys had special medical needs as a result of their premature birth, but McCart and Zelek sometimes failed to keep medical appointments for the boys. In addition, the pediatrician said that there was some reason to think that both parents might be abusing alcohol or drugs, and he added that McCart appeared to have “some type of brain damage.”5 Henry County DFCS dispatched a social services worker to the McCart-Zelek home, but the worker was unable to locate the home and determined later that the home was situated just across the Clayton County line in any event.6 On the afternoon of November 7, Henry County DFCS referred the report to Clayton County DFCS.

When it received the referral, Clayton County DFCS assigned the report to Eric Jackson for investigation. Jackson, a field program specialist, had 17 years of experience with DFCS, including 12 years as a case manager. To begin, Jackson telephoned Henry County DFCS to confirm that he had received all available information about the case, and he telephoned the office of the pediatrician, only to learn that it was closed for the day. Jackson then arranged for an on-call DFCS social services worker to make an unannounced visit to the McCart-Zelek home that evening. The on-call worker went to the home, but no one responded when he knocked on the door and telephoned the home.7

The next morning, Jackson spoke with his supervisor about the case, reviewed the report of the on-call worker, and twice telephoned the office of the pediatrician. On the first call, Jackson spoke with an assistant of the pediatrician, who told Jackson that the boys had been [103]*103diagnosed as failing to thrive, and who shared the weights of the boys as of their October examination. On the second call, Jackson spoke with the pediatrician, who warned that the boys were “going to be very small,” and who advised Jackson that he ought not be “alarmed and panic” when he saw them. The pediatrician also informed Jackson that he had scheduled testing and another appointment with the boys, that the boys were not in acute distress, and that his “main concern was for the parents to be drug tested and their parenting skill [to] be assessed.”

The same day — November 8 — Jackson made an unannounced visit to the McCart-Zelek home, knocked several times on the door, and heard no response. Jackson then telephoned Zelek, but he got no answer and left a voicemail message for her. Jackson also telephoned his supervisor to report on the status of the investigation. As Jackson was returning to his office, Zelek returned his call, explaining that the family was “at the family cabin” in North Carolina and would return home on November 12. According to Jackson, Zelek was “very articulate,” and he had no concern that she was trying to avoid him. Jackson and Zelek made arrangements for Jackson to visit the family after they returned.8

On the morning of November 13, Jackson visited the McCart-Zelek home, where he was greeted by McCart and found Zelek and the boys on a sofa. Zelek was seated, with one boy in her lap, and the other sleeping to her side, both wearing sleepers. Zelek said that she had just fed the boys, and Jackson saw two empty bottles on a nearby table. Jackson sat next to Zelek, and he watched as Zelek burped the boy in her lap and then rocked him to sleep. At that point, Zelek asked Jackson if McCart could put the boys to bed, and Jackson agreed. As McCart carried the boys to their bedroom, Jackson followed, and he inspected their bedroom, as well as most of the other rooms in the mobile home.9

J ackson then discussed the concerns reported by the pediatrician with McCart and Zelek. When he asked about the small size of the boys, Zelek said that As. M. weighed approximately 11 pounds, 4 ounces, and she said that Av. M. weighed about 11 pounds. She added that she had her own concerns about their pediatrician, who had [104]*104failed, she said, to get the boys enrolled in a State program known as “Babies Can’t Wait.”10 She truthfully informed Jackson that the children were being treated not only by the pediatrician, but also by a neurologist, a physical therapist at Children’s Healthcare of Atlanta, and a chiropractor.

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Bluebook (online)
751 S.E.2d 315, 294 Ga. 100, 2013 Fulton County D. Rep. 3522, 2013 WL 6050609, 2013 Ga. LEXIS 948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/georgia-department-of-human-services-v-spruill-ga-2013.