Maternal Grandmother v. Hamilton Cty. Job & Family Servs.

2020 Ohio 1580, 154 N.E.3d 225

• Court: Ohio Court of Appeals
• Decided: April 22, 2020
• Docket: C-180662
• Status: Published

Opinion

[Cite as Maternal Grandmother v. Hamilton Cty. Job & Family Servs., 2020-Ohio-1580.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

MATERNAL GRANDMOTHER, as : APPEAL NO. C-180662 Administrator of the Estate of G.B., a TRIAL NO. A-1701739 deceased minor, : O P I N I O N. and :

MATERNAL GRANDMOTHER, : Individually, : Plaintiffs-Appellants, : vs. : HAMILTON COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES, :

HAMILTON COUNTY, OHIO, :

DENISE DRIEHAUS, :

CHRIS MONZEL, :

TODD PORTUNE, :

SHAMARA STEPHENS a.k.a. : SHAMARA HOOKS-WARE, : KASSIE SETTY, : and : LUMADI LAVUSA, : Defendants-Appellees, : and : FATHER OF G.B., : and : MOTHER OF G.B.,

Defendants. : O HIO F IRST D ISTRICT C OURT OF A PPEALS

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 22, 2020

Law Offices of Blake R. Maislin, Randy A. Byrd and Blake R. Maislin, for Plaintiffs- Appellants,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Pamela J. Sears, Michael Florez and Andrea B. Neuwirth, Assistant Prosecuting Attorneys, for Defendants-Appellees Hamilton County Department of Job and Family Services, Hamilton County, Ohio, Denise Driehaus, Chris Monzel, Todd Portune and Lumadi Lavusa,

Michael L. Tranter, and Laufman & Napolitano, LLC, and Paul M. Laufman, for Defendant-Appellee Shamara Stephens, a.k.a. Shamara Hooks-Ware,

Stephen J. Wenke, for Defendant-Appellee Kassie Setty.

2 O HIO F IRST D ISTRICT C OURT OF A PPEALS

M OCK , Presiding Judge.

{¶1} The trial court did not err when it granted the motions of Hamilton

County, the Hamilton County Commissioners, the Hamilton County Department of

Job and Family Services (“HCJFS”) and its employees for judgment on the pleadings

for the claims of wrongful death and related claims brought on behalf of the estate of

a child who died in the custody of her parents.

Child’s Murder by Parents Leads to Litigation

{¶2} G.B. was born in January 2013. She was immediately taken into the

custody of the defendant-appellee HCJFS because of previous issues with defendant

mother and defendant father. Mother participated in services and the Hamilton

County Juvenile Court granted temporary custody of G.B. to mother in September

2013, while HCJFS retained protective custody of G.B. HCJFS’s protective custody

was terminated two months later as mother continued to comply with court orders.

{¶3} In December 2014, mother brought G.B. to Cincinnati Children’s

Hospital Medical Center (“CCHMC”). As a result of that visit, officials from CCHMC

reported to HCJFS that they suspected that G.B. was being abused. HCJFS sent a

caseworker to investigate the home on March 4, 2015. On March 25, mother again

brought G.B. to CCHMC, where she was pronounced dead. After a police

investigation and subsequent prosecutions, G.B.’s father was convicted of aggravated

murder for causing her death and was sentenced to the death penalty. G.B.’s mother

was also convicted of murder and sentenced to 15 years to life in prison. At the time

of her death, G.B. was in the custody of her mother, and HCJFS was not actively

involved with the family.

{¶4} Plaintiff-appellant maternal grandmother filed a wrongful-death

complaint and related survivorship claims on behalf of the estate of G.B. and herself

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personally (collectively “the appellants”). The suit named HCJFS, defendant-

appellee Hamilton County, Ohio, and defendants-appellees Hamilton County

Commissioners Denise Dreihaus, Chris Monzel, and Todd Portune. Additionally, the

suit named defendants-appellees Shamara Stephens a.k.a. Shamara Hooks-Ware,

Kassie Setty, and Lumadi Lavusa as individuals employed by HCJFS as caseworkers.

{¶5} That complaint was subsequently amended, naming the same parties.

The amended complaint set forth a number of allegations relating to the culpability

of the defendants-appellees and defendants in the death of G.B. The document

alleged that G.B. had been returned to mother by the juvenile court because “upon

information and belief, the information provided by the Defendant Caseworkers was

unreliable and was a product of the Caseworkers; own neglect, reckless misconduct

and/or wanton misconduct.” It further stated that protective supervision had been

improperly terminated by HCJFS and that G.B. had been allowed to return to the

home of mother, where father had been also residing. Father, the amended

complaint alleges, had not complied with the requirements placed upon him by the

agency. The termination of the protective order had been “done in bad faith, in a

willful and wanton manner, and resulted in the deprivation of the civil rights of the

infant G.B. and ultimately in her wrongful death.”

{¶6} As it relates to G.B.’s visit to CCHMC, the amended complaint alleged

that the caseworkers had been called to the hospital as a result of concerns expressed

by hospital staff. It claimed that “during that time, [HCJFS] took no action and

allowed [mother] to take [G.B.] home * * * [d]espite these obvious and egregious

signs of abuse and neglect.” It further stated that, though HCJFS had made a follow-

up visit to the home, the visit “should have resulted in a report of abuse.”

{¶7} The amended complaint also alleged that certain county employees

made statements that could be attributed to the county. It alleged that the Hamilton 4 O HIO F IRST D ISTRICT C OURT OF A PPEALS

County coroner had stated that G.B. had been beaten, tortured, and starved “her

entire pathetic, pathetically short life.” The amended complaint further claimed that

the head of HCJFS had admitted that the caseworkers “did not follow procedures,”

and that the Hamilton County prosecuting attorney had stated that mother “should

never had had kids, let along gotten this poor girl back.”

{¶8} The amended complaint further alleged that the caseworkers had

“failed to inspect the home of [mother and father], which was unsuitable for a

placement of [G.B.].” It claimed that the caseworkers “provided false and fraudulent

reports to persuade the Juvenile Court to order the infant [G.B.] be placed back with

the parents on or about September 20, 2013, after having previously removed the

infant from the home and placed her in foster care where she was doing well.” It

stated that the caseworkers had failed to report signs of abuse or follow up with

CCHMC personnel “regarding clear and obvious signs of abuse and neglect.” The

amended complaint finally alleged that the caseworkers had engaged in “gross

misconduct and egregious mishandling of the infant’s placement and care.”

{¶9} While the amended complaint makes allegations in different ways

throughout the pleading, the claims can be summarized as asserting that the

caseworkers had: (1) failed to properly inspect the home of G.B.’s parents; (2)

provided false and fraudulent reports to persuade the juvenile court to place G.B.

back with her parents; (3) failed to properly report signs of abuse; (4) failed to follow

up with CCHMC’s personnel regarding clear and obvious signs of abuse and neglect

and failed to take action before G.B. was released home; and (5) failed to report

abuse to G.B. and to have the child removed from the parents’ home.

{¶10} Hamilton County, the county commissioners, HCJFS, Lavusa,

Stephens, and Setty filed motions for judgment on the pleadings claiming that they

were entitled to immunity for the claims in the amended complaint. The trial court 5 O HIO F IRST D ISTRICT C OURT OF A PPEALS

granted the motions and dismissed the claims against all defendants except G.B’s

parents. The appellants have appealed that decision in one assignment of error.

Motion for Judgment on the Pleadings

{¶11} In one assignment of error, the appellants claim that the trial court

erred in granting the motions for judgment on the pleadings of the county, the

county commissioners, HCJFS, Lavusa, Stephens, and Setty. This court has recently

set forth the standard of review for cases in which a trial court has dismissed claims

based on sovereign immunity pursuant to Civ.R. 12(C).

We review de novo a trial court’s ruling on a Civ.R. 12(C)

motion for judgment on the pleadings. Waldman v. Pitcher, 2016-

Ohio-5909, 70 N.E.3d 1025, ¶ 15 (1st Dist.). We must accept all

material allegations in the nonmoving party’s complaint as true and

must construe all reasonable inferences in that party’s favor. Id. The

motion should only be granted if it appears beyond doubt that the

nonmoving party cannot prove any set of facts entitling her to relief.

Id.

A trial court may grant a motion for judgment on the pleadings

on the basis of an affirmative defense such as immunity where the

complaint bears conclusive evidence that the action is barred by the

defense. Bucey v. Carlisle, 1st Dist. Hamilton No. C-090252, 2010-

Ohio-2262, ¶ 9. So “unless the pleadings ‘obviously or conclusively

establish[ ] the affirmative defense,’ a court may not grant a motion for

judgment on the pleadings.” Harris Farms, LLC v. Madison Twp.

Trustees, 4th Dist. Scioto No. 17CA3817, 2018-Ohio-4123, ¶ 18,

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quoting Cristino v. Bur. of Workers’ Comp., 2012-Ohio-4420, 977

N.E.2d 742, ¶ 21 (10th Dist.).

Steele v. City of Cincinnati, 1st Dist. Hamilton No. C-180593, 2019-Ohio-4853, ¶ 14-

15.

Immunity for the Agency Defendants

{¶12} We will first address the question of the immunity of the county, the

county commissioners, and HCJFS. Immunity for government agencies is

determined in a three-step process. The first tier of the analysis in R.C. Chapter 2744

establishes the defense of sovereign immunity for political subdivisions. The next

carves out certain exceptions to immunity where liability may still be imposed.

Finally, if the claim satisfies one of the exceptions, the third tier delineates those

defenses that may be asserted against liability. See Franks v. Lopez, 64 Ohio St.3d

345, 347, 632 N.E.2d 502 (1994).

{¶13} First, “[t]he general rule is that * * * immunity applies to shield the

exercise of governmental or proprietary functions [by a political subdivision] unless

the injured party is entitled to rely on one of the exceptions specifically recognized by

statute.” Nungester v. Cincinnati, 100 Ohio App.3d 561, 565, 654 N.E.2d 423 (1st

Dist.1995). The parties concede that Hamilton County is a political subdivision and

that engaging in the protection of children through HCJFS is a governmental

function. See R.C. 2744.01(C)(2)(m); Rankin v. Cuyahoga Cty. Dept. of Children

and Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, 889 N.E.2d 521, ¶ 16.

{¶14} Once immunity has been established, the next step is to determine

whether there is an exception that would reimpose liability. R.C. 2744.02(B) lists

five express exceptions to the general grant of immunity:

(1) the negligent operation of a motor vehicle by an employee;

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(2) the negligent performance of proprietary functions;

(3) the failure to keep public roads open and in repair;

(4) the negligence of employees occurring within or on the

grounds of certain buildings used in connection with the

performance of governmental functions; and

(5) the express imposition of liability by statute.

{¶15} None of these exceptions apply in this case. In fact, in their brief, the

appellants only argue that HCJFS is liable to the extent their employees are liable.

The appellants claim that the agency defendants therefore cannot be dismissed from

the action, citing Elliott v. Cuyahoga Cty. Executive & Council, 8th Dist. Cuyahoga

No. 105773, 2018-Ohio-1088. But that decision does not stand for this proposition.

In that case, the county of Cuyahoga admitted that it would remain a party even if

the county itself was not liable, as long as its employees remained in the suit in their

official capacities. Id. at ¶ 27. Thus, the court concluded that “we need not reach the

question of whether the county must be retained as a party to an action for purposes

of R.C. 2744.07 where the immunity of the codefendant employees is in question.”

Id. And the case that Elliott cited, Lambert v. Hartman, 517 F.3d 433 (6th

Cir.2008), did not even address immunity claims. See Lambert at 428 (because the

case was dismissed on the merits, the court saw “no need to address the Defendants’

immunity arguments.”).

{¶16} There is no provision within R.C. 2744.01 et seq. that would allow a

governmental entity to be retained in a lawsuit, absent a cognizable cause of action

for which no immunity applies. The trial court properly determined that the agency

defendants were entitled to immunity and that their motions for judgments on the

pleadings were properly granted. We therefore turn to the analysis of the claimed

immunity of Lavusa, Stephens, and Setty. 8 O HIO F IRST D ISTRICT C OURT OF A PPEALS Immunity for HCJFS Caseworkers

{¶17} The determination of immunity for government employees is

governed by R.C. 2744.03(A)(6). That sections states that

In addition to any immunity or defense referred to in division (A)(7) of

this section and in circumstances not covered by that division or

sections 3314.07 and 3746.24 of the Revised Code, the employee is

immune from liability unless one of the following applies:

(a) The employee’s acts or omissions were manifestly outside

the scope of the employee’s employment or official

responsibilities;

(b) The employee’s acts or omissions were with malicious

purpose, in bad faith, or in a wanton or reckless manner;

(c) Civil liability is expressly imposed upon the employee by a

section of the Revised Code. Civil liability shall not be construed

to exist under another section of the Revised Code merely

because that section imposes a responsibility or mandatory

duty upon an employee, because that section provides for a

criminal penalty, because of a general authorization in that

section that an employee may sue and be sued, or because the

section uses the term “shall” in a provision pertaining to an

employee.

{¶18} On appeal, the appellants claim that the trial court erred in granting

the motion for three reasons: (1) the caseworkers owed G.B. a duty to protect her

while she was in the custody of HCJFS, (2) the caseworkers breached their duty to

investigate the circumstances surrounding abuse or suspected abuse reported by

9 O HIO F IRST D ISTRICT C OURT OF A PPEALS

CCHMC, and (3) the caseworkers acted recklessly, wantonly, maliciously, or in bad

faith. We will discuss each argument in turn.

Duty to Protect While in Custody

{¶19} In the first portion of their argument, the appellants claim that the

caseworkers breached their duty “in the context of the reports and information that

the County and individual caseworkers provided to the juvenile court that resulted in

the juvenile court ordering G.B.’s return to her mother.” The appellants claimed that

the reports were “unreliable” and that they were “the product of the caseworkers’

neglect, reckless misconduct, willful misconduct, and/or wanton misconduct.”

Further, in the amended complaint, plaintiffs-appellants averred that the reports

were false or fraudulent.

{¶20} When a caseworker provides information to a juvenile court for the

purpose of assisting the juvenile court in making a child-custody decision, that

conduct is entitled to immunity. As the Sixth Circuit set forth,

“[U]nder certain circumstances, social workers are entitled to absolute

immunity.” The scope of this immunity is akin to the scope of absolute

prosecutorial immunity, which applies to conduct “intimately

associated with the judicial phase of the criminal process,” As this

Court previously has described:

The analytical key to prosecutorial immunity * * * is

advocacy—whether the actions in question are those of

an advocate. By analogy, social workers are absolutely

immune only when they are acting in their capacity as

legal advocates—initiating court actions or testifying

under oath—not when they are performing

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administrative, investigative, or other functions. The

case before us turns on whether the actions of which

[the plaintiff] complains were taken by [the defendant

social worker] in her capacity as a legal advocate.

(Citations omitted.) Pittman v. Cuyahoga Cty. Dept. of Children & Family Servs.,

640 F.3d 716, 724 (6th Cir.2011). And this immunity remains in place even if, as the

appellants alleged in the amended complaint, intentional misrepresentations are

made. The Pittman court went on to conclude that

[P]rosecutors do not forfeit their absolute immunity when they

knowingly make false statements while advocating before the court:

“Like witnesses, prosecutors and other lawyers were absolutely

immune from damages liability at common law for making false or

defamatory statements in judicial proceedings (at least so long as the

statements were related to the proceeding), and also for eliciting false

and defamatory testimony from witnesses.” Because absolute

immunity for social workers is akin to absolute immunity for

prosecutors, the same protection must apply here, no matter how

undesirable the results. In the words of Chief Judge Learned Hand,

absolute immunity represents “a balance between ... evils”; “[I]t has

been thought in the end better to leave unredressed the wrongs done

by dishonest officers than to subject those who try to do their duty to

the constant dread of retaliation.”

(Emphasis added.) Id. at 724-725. Because the statements made to the juvenile

court by the caseworkers had been made while acting in their capacity as legal

advocates, they are entitled to absolute immunity. See Bauch v. Richland Cty.

Children Servs., 6th Cir. No. 17-3435, 2018 WL 2338906 (May 23, 2018) (social 11 O HIO F IRST D ISTRICT C OURT OF A PPEALS

worker entitled to absolute immunity for statements made in document submitted to

juvenile court for purposes of triggering child-removal proceedings).

{¶21} But even if the caseworkers were not entitled to immunity for

communications made to the juvenile court in the aid of a child-custody

determination, the allegations in the complaint are insufficient to establish that

plaintiffs-appellants are entitled to relief. Unsupported conclusions of a complaint

are not sufficient to survive a motion to dismiss. State ex rel. Hickman v. Capots, 45

Ohio St.3d 324, 544 N.E.2d 639 (1989). As the Eighth District reasoned:

While a complaint attacked by a * * * motion to dismiss does not need

detailed factual allegations, the [plaintiffs’] obligation to provide the

grounds for their entitlement to relief requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of

action will not do. Factual allegations must be enough to raise a right

to relief above the speculative level. Conclusory statements in a

complaint that are not supported by facts are not afforded the

presumption of veracity and are insufficient to withstand a motion to

dismiss. While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations to survive a

motion to dismiss.

(Citations omitted.) DiGiorgio v. Cleveland, 8th Dist. Cuyahoga No. 95945, 2011-

Ohio-5878, ¶ 41.

{¶22} The mere assertion that the caseworkers made unreliable or false and

fraudulent statements to the juvenile court, without more, is insufficient to establish

that the caseworkers acted with malicious purpose, in bad faith, or in a wanton or

reckless manner. The content of the statements made to the juvenile court were

available to the appellants, as some of those reports exist in the record of this case 12 O HIO F IRST D ISTRICT C OURT OF A PPEALS

(though we cannot consider their substance in the determination of this motion).

The appellants had a duty to say something more than that the statements were

unreliable or false. The amended complaint does not set forth what this unreliable or

fraudulent information was and it was required to do so on some level.

Failure to Act on CCHMC Concerns

{¶23} The appellants next argue that the caseworkers breached their duty to

investigate allegations of abuse that arose from G.B.’s hospitalization at CCHMC. As

it related to the claims of G.B.’s condition while at the hospital, the amended

complaint stated that caseworkers “were called to the hospital to meet with G.B. and

her parents.” During the time of her hospitalization, HCJFS “took no action and

allowed [mother] to take G.B. home.” The caseworkers “made the indefensible

decision to return G.B. to the depraved custody of her parents.” Finally, the

amended complaint stated that the caseworkers “made a follow-up visit to G.B.’s

home on March 4, 2015 and allegedly found everything was fine and that G.B. was

happy and healthy.”

{¶24} Within these allegations, the amended complaint makes a number of

assertions. They can be reduced to two basic claims: the caseworkers failed to report

abuse, and the caseworkers failed to perform an adequate investigation. We will

discuss each in turn.

{¶25} First, we conclude that HCJFS through its caseworkers does not have

a duty to report child abuse. First, HCJFS is the agency to which abuse is reported.

See R.C. 2151.421(A)(1)(a). And there is no duty on the part of a children’s services

agency to report suspected abuse to other agencies such as law enforcement. See

O’Toole v. Denihan, 118 Ohio St.3d 378, 2008-Ohio-2574, 889 N.E.2d 505, ¶ 2.

13 O HIO F IRST D ISTRICT C OURT OF A PPEALS

{¶26} We next turn to the claim that the agency, through its caseworkers,

failed to perform an adequate investigation. We begin by noting that the amended

complaint concedes that some form of investigation took place, with both a hospital

and a home visit. The amended complaint claims that the agency, through its

caseworkers, should have sought removal of G.B. But the observations made by

CCHMC related to poor parental care: malnourishment, low weight, and other

related issues which were related to “lack of medical care, financially disadvantaged

[sic], poor family support.”

{¶27} The amended complaint then goes on to conclude that the

investigation must have been inadequate because of the extent of G.B.’s post-

hospitalization mistreatment that was uncovered after G.B.’s death. But there are no

allegations about what the investigation should have uncovered or how it was

inadequate. The assertion that since the injuries to G.B. had been ongoing and

substantial they must have been obvious at the time of the investigation is pure

speculation.

{¶28} There is no liability in Ohio for a children’s services agency or its

caseworkers for failing to investigate allegations of abuse. Marshall v. Montgomery

Cty. Children Serv. Bd., 92 Ohio St.3d 348, 351-352, 750 N.E.2d 549 (2001). But

HCJFS, through its caseworkers, did conduct an investigation into G.B.’s care as a

result of her stay at CCHMC. At the time, the concerns were malnourishment and

poor family support. There were no expressed concerns about physical abuse, which

was the cause of G.B.’s death. The speculation that evidence of physical abuse should

have been apparent during the March 4 home visit is not enough to establish that the

caseworkers engaged in “reckless, willful, wanton or bad faith actions/inactions.”

14 O HIO F IRST D ISTRICT C OURT OF A PPEALS Claim That Caseworkers Acted Recklessly, Wantonly, Maliciously, or in Bad Faith

{¶29} The appellants next claim that the trial court improperly granted the

motion for judgment on the pleadings because the amended complaint had made

sufficient allegations that the caseworkers had engaged in “reckless, willful, wanton

or bad faith actions/inactions.”

{¶30} In their brief, the appellants summarize the allegations against the

caseworkers, in which they claim:

that they were the [HCJFS] caseworkers who worked on G.B.’s case;

that they provided to the Juvenile Court unreliable information and/or

information that was the result of their reckless conduct, willful

misconduct, and/or wanton misconduct; that the information they

provided ultimately led to G.B. being placed back with her parents;

that Children’s Hospital reported G.B.’s starvation and abuse to them;

that they breached their statutory duty to fully investigate the reported

starvation and abuse, including a failure to properly and adequately

conduct home visits to check in on G.B.; that they allowed G.B. to

return home with her parents after being released from the hospital;

and that they had a role in creating the circumstances that ultimately

led to G.B.’s death, despite being on notice that she was being starved

and abused. The Estate’s amended complaint contains all the

foregoing specific material allegations of reckless, willful, wanton, or

bad faith actions/inactions against the individual caseworkers and

clearly alleges the acts or omissions were at least reckless, thereby

exempting them from immunity.

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Much of this is a restatement of arguments previously made, but it goes no farther to

establishing that the amended complaint set forth cognizable claims.

{¶31} The Ohio Supreme Court has set forth the definitions of reckless,

willful, and wanton misconduct as it relates to immunity. Anderson v. Massillon,

134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266. The court said:

Willful misconduct implies an intentional deviation from a

clear duty or from a definite rule of conduct, a deliberate purpose not

to discharge some duty necessary to safety, or purposefully doing

wrongful acts with knowledge or appreciation of the likelihood of

resulting injury. [Tighe v. Diamond, 149 Ohio St. 520, 527, 80 N.E.2d

122 (1948)]; see also Black’s Law Dictionary 1630 (8th Ed.2004)

(describing willful conduct as the voluntary or intentional violation or

disregard of a known legal duty).

Wanton misconduct is the failure to exercise any care toward

those to whom a duty of care is owed in circumstances in which there

is great probability that harm will result. [Hawkins v. Ivy, 50 Ohio

St.2d 114, 117-118, 363 N.E.2d 367 (1977)]; see also Black’s Law

Dictionary 1613-1614 (8th Ed.2004) (explaining that one acting in a

wanton manner is aware of the risk of the conduct but is not trying to

avoid it and is indifferent to whether harm results).

Reckless conduct is characterized by the conscious disregard of

or indifference to a known or obvious risk of harm to another that is

unreasonable under the circumstances and is substantially greater

than negligent conduct. Thompson v. McNeill, 53 Ohio St.3d 102, 104-

105, 559 N.E.2d 705 (1990), adopting 2 Restatement of the Law 2d,

Torts, Section 500, at 587 (1965); see also Black’s Law Dictionary 16 O HIO F IRST D ISTRICT C OURT OF A PPEALS

1298-1299 (8th Ed.2004) (explaining that reckless conduct is

characterized by a substantial and unjustifiable risk of harm to others

and a conscious disregard of or indifference to the risk, but the actor

does not desire harm).

Id. at ¶ 32-34. Further, bad faith involves a dishonest purpose, conscious

wrongdoing, the breach of a known duty through some ulterior motive or ill will, as

in the nature of fraud, or an actual intent to mislead or deceive another. Cook v.

Cincinnati, 103 Ohio App.3d 80, 91, 658 N.E.2d 814 (1st Dist.1995), citing Jackson v.

Butler Cty. Bd. of Commrs., 76 Ohio App.3d 448, 602 N.E.2d 363 (12th Dist.1991).

{¶32} The amended complaint does not specify how the conduct of the

caseworkers constituted willful misconduct. It does not specify how the conduct

constituted wanton misconduct. It does not specify how the conduct constituted

reckless misconduct. And it does not specify how the caseworkers acted in bad faith.

In essence, what the amended complaint has alleged is that G.B. had suffered from a

period of abuse for some period of time prior to her death. HCJFS was involved with

G.B. as a result of the report from CCHMC for neglect and malnutrition. During the

course of that investigation, HCJFS, through its caseworkers, should have discovered

the signs of physical abuse. Because they did not, they must have been acting in a

willful, wanton, or reckless manner or they must have been acting in bad faith. But

merely saying that they had acted in one of those ways (the amended complaint

cannot even identify which) is insufficient. Unsupported legal conclusions are not

accepted as true for purposes of a motion to dismiss and are insufficient to withstand

such a motion. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 193, 532 N.E.2d 753

(1988). “A complaint must be more than bare assertions of legal conclusions.”

Vagas v. Hudson, 9th Dist. Summit No. 24713, 2009-Ohio-6794, ¶ 10.

17 O HIO F IRST D ISTRICT C OURT OF A PPEALS

{¶33} The amended complaint in this case did not set forth sufficient facts

to survive the motions for judgment on the pleadings. The trial court correctly

granted those motions.

Conclusion

{¶34} As the United States Supreme Court has held, the “state does not

become the permanent guarantor of an individual’s safety by having once offered

him shelter.” DeShaney v. Winnebago Cty. Dept. of Social Serv., 489 U.S. 189, 201,

109 S.Ct. 998, 103 L.Ed.2d 249 (1989). What happened to G.B. is unspeakably

tragic, but the fault for her misfortune lies with her parents. We overrule the

appellants’ sole assignment of error and affirm the judgment of the trial court.

Judgment affirmed.

WINKLER, J., concurs. CROUSE, J., concurs in part and dissents in part.

CROUSE, J., concurring in part and dissenting in part.

{¶35} I concur with the majority that HCJFS is entitled to political

subdivision immunity under R.C. 2744.02. I further agree with the majority that the

complaint offers only unsupported conclusions concerning the reports submitted by

the caseworkers to the juvenile court and is therefore insufficient to establish that the

HCJFS caseworkers acted in a wanton or reckless manner in that regard. However, I

disagree with the majority’s conclusion that the complaint does not sufficiently plead

facts that demonstrate wanton or reckless conduct1 by the individual caseworkers on

the claim of failure to adequately investigate the report of abuse/neglect by CCHMC.

1While the complaint also alleges that the caseworkers acted maliciously and in bad faith, I do not believe the complaint alleges sufficient facts to support those allegations.

18 O HIO F IRST D ISTRICT C OURT OF A PPEALS

{¶36} In ruling on a motion for judgment on the pleadings, “a court must

construe the material allegations in the complaint, along with all reasonable

inferences to be drawn therefrom, in favor of the nonmoving party[.]” Ohio

Manufacturers’ Assn. v. Ohioans for Drug Price Relief Act, 147 Ohio St.3d 42, 2016-

Ohio-3038, 59 N.E.3d 1274, ¶ 10. The court may grant the motion “only if it appears

beyond doubt that the nonmoving party can prove no set of facts entitling it to

relief.” Id. Thus, the nonmoving party is not required to affirmatively dispose of the

immunity question at the pleading stage. Scott v. Columbus Dept. of Pub. Utils., 192

Ohio App.3d 465, 2011-Ohio-677, 949 N.E.2d 552, ¶ 8 (10th Dist.). “Requiring a

plaintiff to affirmatively demonstrate an exception to immunity at this stage would

be tantamount to requiring the plaintiff to overcome a motion for summary

judgment at the pleading stage. Instead, a plaintiff must merely allege a set of facts

that, if proven, would plausibly allow for recovery.” Id.

{¶37} R.C. 2744.03(A)(6)(b) abolishes an individual employee’s grant of

immunity when “[t]he employee’s acts or omissions were with malicious purpose, in

bad faith, or in a wanton or reckless manner.”2 In the context of R.C.

2744.03(A)(6)(b), wanton misconduct “is the failure to exercise any care toward

those to whom a duty of care is owed in circumstances in which there is great

probability that harm will result.” Anderson v. Massillon, 134 Ohio St.3d 380, 2012-

Ohio-5711, 983 N.E.2d 266, ¶ 33. Reckless conduct “is a perverse disregard of a

known risk.” O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d

505, ¶ 73.

2I note that the trial court analyzed the individual employees’ immunity under R.C. 2744.02. But that standard applies only to HCJFS.

19 O HIO F IRST D ISTRICT C OURT OF A PPEALS

{¶38} In concluding that the appellants failed to allege wanton or reckless

misconduct by the HCJFS employees, the trial court and the majority heavily rely on

the complaint’s “concession” that a home visit took place. Contrary to what the trial

court and the majority claim, however, the complaint does not concede that the

caseworkers actually inspected the home. Rather, it alleges that the caseworkers

contended that they inspected the home. Specifically, the complaint states that the

caseworkers “allegedly made a follow-up visit to [G.B.’s] home on March 4, 2015 and

allegedly found everything was fine and that [G.B.] was happy and healthy.”

Nevertheless, even if the complaint can be read to allege that the caseworkers did

perform some sort of follow-up home visit, a wrongful-death claim can still be made

against the individual caseworkers if they breached their duty to investigate the

child-abuse report pursuant to R.C. 2151.421 by “acting recklessly within or in

response to that investigation.” See Gomez v. Noble Cty. Children Servs., 7th Dist.

Noble No. 09 NO 361, 2010-Ohio-1538, ¶ 56-57, citing O’Toole at ¶ 72-91.

{¶39} A review of the complaint reveals sufficient underlying facts relating

to the HCJFS employees’ omissions and states of mind, as well as the risk or

probability of harm. With regard to the risk or probability of harm, the complaint

initially details mother’s extensive history with HCJFS. It states that, at G.B.’s birth,

HCJFS immediately removed G.B. from mother’s custody because mother had

abused her other children, who were also removed from the home. According to the

complaint, G.B. remained in HCJFS temporary custody for eight months and under

the protective supervision of HCJFS for an additional three months.

{¶40} The complaint then states that mother took G.B. to CCHMC

approximately one year after regaining custody. The complaint claims that the

hospital personnel documented significant indicia of abuse. Specifically, it claims

that the personnel observed gait problems, joint swelling, and weight below the third 20 O HIO F IRST D ISTRICT C OURT OF A PPEALS

percentile for G.B.’s age. G.B.’s medical records, attached to the complaint, note a

complex social history, severe protein malnutrition, and a differential diagnosis of

child neglect. The exhibit further reads: “Often, [G.B.] would look to mom * * *

prior to placing [food] in her mouth, as if waiting for an ok. If mom said ‘eat it’ or ‘go

ahead’ she then put it in her mouth and started to chew.” The complaint alleges this

behavior is indicative of long-standing abuse by mother. In their final assessment,

the hospital personnel concluded that G.B.’s failure to thrive was “most likely social”

and HCJFS would be consulted.

{¶41} According to the complaint, G.B.’s death occurred three months after

her discharge from CCHMC and three weeks after an alleged visit of mother and

father’s home. The complaint states that, at her death, two-year-old G.B. weighed

only 13 pounds and lived in a bathtub full of feces and blood. The Hamilton County

coroner’s report, attached to the complaint, certified that G.B. had been subjected to

“Battered Child Syndrome with Acute and Chronic Intracranial Hemorrhages and

Starvation” and listed the onset of such treatment as “months.” The coroner also

observed over 100 injuries, including bite marks, whip marks, and a gash in G.B.’s

forehead that was hand-stitched with needle and thread. The coroner opined that

these injuries did not happen immediately prior to her death. In fact, based on the

wounds, the coroner opined that G.B. was beaten, tortured, and starved “her entire

pathetic, pathetically short life.”

{¶42} With regard to the employees’ omissions, the complaint claims that

the HCJFS employees failed to properly investigate the CCHMC personnel’s report

regarding the clear and obvious signs of abuse and neglect exhibited by G.B.

Specifically, it alleges that the hospital personnel called HCJFS regarding their

observations and that the HCJFS employees went to the hospital to meet with G.B.

and mother. It further states that the employees “took no action” in response to the 21 O HIO F IRST D ISTRICT C OURT OF A PPEALS

personnel’s report of abuse, despite meeting with a severely-undernourished G.B. at

the hospital.

{¶43} The complaint also claims that the HCJFS employees failed to

properly inspect the home of mother and father, which was an unsuitable placement

for G.B. It alleges that, based on G.B.’s condition leading up to her death and the

home’s condition at the time of her death, the employees either never performed a

home visit or performed the visit in a wanton or reckless manner. Furthermore, the

complaint states that the head of HCJFS admitted that the employees did not adhere

to HCJFS procedures during their work on G.B.’s case. Based on the foregoing, the

complaint alleged sufficient underlying facts to support the appellants’ claim that the

HCJFS employees failed to act despite their knowledge of a known risk or probable

harm.

{¶44} Early resolution of whether employees of political subdivisions are

immune from liability is an important consideration. See Riscatti v. Prime

Properties Ltd. Partnership, 137 Ohio St.3d 123, 2013-Ohio-4530, 998 N.E.2d 437, ¶

17 (discussing the importance of determining R.C. Chapter 2744 immunity before

trial). However, the immunity question cannot always be determined at the earliest

stage of litigation.

Very often, the evidence necessary for a plaintiff to prevail is not

obtained until the plaintiff is able to discover materials in the

defendant’s possession. If the plaintiff were required to prove his or

her case in the complaint, many valid claims would be dismissed

because of the plaintiff’s lack of access to relevant evidence.

Consequently, as long as there is a set of facts, consistent with the

plaintiff’s complaint, which would allow the plaintiff to recover, the

court may not grant a defendant’s motion to dismiss. 22 O HIO F IRST D ISTRICT C OURT OF A PPEALS

York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991)

(expressly refusing to hold plaintiffs who bring reckless-conduct claims against the

state to a heightened pleading standard).

{¶45} As described above, the complaint discusses in excruciating detail the

severe indicia of abuse and neglect observed by CCHMC; the hospital personnel’s

suspicion that defendant mother was involved in the abuse and neglect; the hospital

personnel’s report of abuse and neglect to the HCJFS employees; the HCJFS

employees’ failure to investigate; G.B.’s return to the home of mother and father; the

HCJFS employees’ “alleged” home visit; G.B.’s tragic death three weeks later; and the

coroner’s finding that the cause of death was “Battered Child Syndrome with Acute

and Chronic Intracranial Hemorrhages and Starvation” with an onset of months.

Based on these statements, and construing all allegations most strongly in their

favor, I find that the appellants have alleged sufficient facts which, if proven, could

plausibly establish an exception to the individual caseworkers’ immunity under R.C.

2744.03(A)(6)(b).

{¶46} For these reasons, I respectfully dissent from that portion of the

majority’s opinion that holds otherwise.

Please note: The court has recorded its own entry on the date of the release of this opinion.