Aaron M. Dougherty, Sr., et al vs. The Missouri Department of Social Services/The Children's Division, et al

MODIFIED 9/1/20

AARON M. DOUGHERTY, SR., ET AL.,

Appellants, v.

THE MISSOURI DEPARTMENT OF SOCIAL SERVICES/THE CHILDREN'S DIVISION, ET AL.,

Respondents. ) ) ) ) ) ) ) ) ) ) ) )

WD82133

July 21, 2020

Appeal from the Circuit Court of Jackson County, Missouri Honorable Kenneth R. Garrett, III, Judge

Before Division Four: Karen King Mitchell, Presiding Judge, Thomas H. Newton, and Anthony Rex Gabbert, Judges

Mr. Aaron and Ms. Kelsey Dougherty, in their own right and on behalf of four minor children, appeal a Jackson County Circuit Court judgment granting a summary-judgment motion filed by individual employees of the Children's Division (Division) of the Missouri Department of Social Services. The Doughertys had filed a petition against the employees, in their individual and official capacities, for negligence in failing to comply with the Missouri Child

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Welfare Manual when the children were taken into temporary family court custody in 2011 after a hotline call on a suspicion of physical abuse. We determined that the appeal from the circuit court judgment was untimely in Dougherty v. Missouri Department of Social Services, 585 S.W.3d 355 (Mo. App. W.D. 2019), but we have since granted the Doughertys leave to file an appeal out of time. We affirm. The petition seeking damages for negligence against the Division and individual employees was filed in May 2017. 1 The Doughertys base their negligence claims on the Division employees' alleged failure to (1) give the Doughertys notice of a Family Support Team (FST) meeting and to conduct an FST meeting within 72 hours of the children's removal from the home; and (2) give preference to a grandparent or other relative with respect to placement of the children. In this regard, the petition cites as the source of these duties a Division manual: [T]he Defendant Agency's Missouri Child Welfare Manual, at Section 4 Chapter 7 Subsection 1, mandates that within the first 24 to 72 hours after removing a child from the home, to wit: "the children service worker shall conduct a Family Support Team (FST) Meeting with all parents"; and that at this meeting that "family resources are to be encouraged for placement of the children."

1 The Division was previously a defendant, but the trial court dismissed the claims against it in October

1. Dougherty v. Mo. Dep't of Social Servs., 585 S.W.3d 355, 359 (Mo. App. W.D. 2019). The

remaining defendants and their Division positions as of October 2011 are Ms. Jennifer McIntyre, Children's Service Worker II; Ms. Courtney Whited, Children's Service Supervisor; and Ms. Heather Barry, Children's Service Specialist.

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The Doughertys claim that these duties were ministerial and that the Division employees breached them, but the Doughertys do not allege that the Division employees violated a statute or regulation. They seek damages in excess of $5 million for "grievous injuries," including emotional pain and mental suffering, to themselves and the four minor children. 2

The Division employees filed a motion for summary judgment in January 2018, setting forth material facts not in dispute and arguing that (1) the Division employees did not owe a duty to the Doughertys under the Child Welfare Manual because it does not impose ministerial duties on such employees; (2) even if the Division employees owed a ministerial duty to the Doughertys under the Child Welfare Manual, a protective hearing and FST meeting were conducted within 72 hours of the court's order that the children be taken temporarily into protective custody; (3) the Doughertys did not suffer an injury as a result of the alleged failure to conduct an FST meeting in 2011; and (4) the Doughertys have no actionable negligence claim based on failure to place three of the children with their paternal grandfather. 3 The Doughertys responded to the motion, and the Division employees filed reply suggestions in support of the motion.

2 The oldest child (age 4) was visiting with the Doughertys in October 2011, when the hotline call was made; Ms. Dougherty is that child's mother, but the child's biological father is not Mr. Dougherty. The child was immediately placed with her biological father. The three other children (ages 3, 1, and 6 months) are the biological children of both Mr. and Ms. Dougherty. These children were in non- kinship foster care from late October 2011 until December 2011 and returned to the family in May

3 The Division employees articulated three reasons why the Doughertys have no actionable negligence claim related to placement of the children. The employees argue that (1) such a claim is barred by official immunity; (2) a negligence claim based on custody placement is not actionable as to Division

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The Doughertys admitted a number of the statements of material fact; denied a number without including any specific references to the discovery, exhibits, or affidavits; or contested them with such specific references. Those facts the Doughertys contested with references to evidence outside the pleadings included whether Division employees had tried to contact Mr. Dougherty's father (Grandfather), who refused to give them information about Mr. and Ms. Dougherty, and whether the Doughertys had been informed about the FST meeting before it occurred and expressed their intent not to cooperate or attend. During the January 2018 pre-trial hearing, at which the summary-judgment motion was argued, the Doughertys sought to amend their petition after the trial court noted that the Doughertys' claims were not based on the violation of an obligation imposed by statute or rule and that the petition did not allege a ministerial duty. The Division opposed the amendment, and the trial court overruled the request. The trial court granted the Division employees' summary- judgment motion in February 2018 based, in part, on official immunity. The Doughertys were granted leave to file an appeal out of time after their original appeal was dismissed. Dougherty, 585 S.W.3d at 360. Legal Analysis We review the grant of a summary-judgment motion de novo. Cygnus SBL Loans, LLC v. Hejna, 584 S.W.3d 324, 329 (Mo. App. W.D. 2019) (citing ITT

employees because such decisions are within the exclusive jurisdiction of the family court; and (3) the Doughertys are estopped from raising this claim because they entered a stipulation in the underlying juvenile proceeding as to the family court's jurisdiction and its authority to enter custody orders.

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Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). "We do not defer to the trial court's decision, but instead use the same criteria that the trial court should have employed in initially deciding whether to grant Respondent's motion." Id. If the motion, the response, the reply and the sur-reply 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, the court shall enter summary judgment forthwith. Rule 74.04(c)(6). We review the record in the light most favorable to the party against whom judgment was entered and accord that party the benefit of all inferences which may reasonably be drawn from the record. Summary judgment is appropriate where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion.

Id. (citations omitted). Under Rule 74.04(c)((2), the party opposing summary judgment must admit or deny each of the movant's factual statements, and any "denial may not rest upon the mere allegations or denials of the party's pleading. Rather, the response shall support each denial with specific references to the discovery, exhibits or affidavits" demonstrating those facts "showing that there is a genuine issue for trial." Rule 74.04(c)(2). A response that does not comply with these requirements as to any specific numbered paragraph in the movant's statement "is an admission of the truth of that numbered paragraph." Id. In the first point, the Doughertys argue that the trial court erred in granting the summary-judgment motion because official immunity did not apply in that,

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viewed in the light most favorable to the Doughertys, the evidence demonstrated that the Division employees breached a ministerial duty to provide preferential placements for the children with their grandparents. 4 Because the Doughertys rely on facts not alleged in their original petition and fail in the point relied on to claim that the trial court erred in denying their motion to amend the pleadings, the Doughertys' argument as to facts not alleged on the original petition is not preserved and we do not consider that argument further. Rule 84.04(e). As best we can discern the balance of the Doughertys' argument in support of Point I, they claim that the petition put the Division employees on notice that the Doughertys' negligence claims arose from a duty imposed by statutory law and, given the importance to the Legislature that children taken into custody be placed with grandparents, the Doughertys' failure to cite statutory law in the petition should not bar them from relying on statutory law to overcome the official-immunity defense. The Doughertys invoke public policy and legislative intent to support their argument about the significance of placing children within the Division's

4 Although the Doughertys do not argue whether material facts are in dispute as to this point, a comparison of the affidavits filed by Ms. McIntyre and Mr. Dougherty's father do not directly conflict. Ms. McIntyre stated that she called Mr. Dougherty's father (Grandfather) before the children were taken into custody, seeking information about the Doughertys and whether the Grandfather had any concerns about the parenting of the children. She reported that he was not cooperative. The Grandfather's affidavit states that he was first notified by his son of the children's removal from his son's home in October 2011. The Grandfather also stated that he had not been contacted by any representative of the Children's Division to say that he and his wife were being considered for foster placement. Accordingly, material facts of any relevance to the point are not in dispute. Ms. McIntyre spoke with the Grandfather before the children were removed from the home as part of her investigation, and he was not cooperative. His affidavit does not dispute this fact.

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custody with grandparents or other family members. They also cite statutes enacted to ensure such placement, specifically sections 210.305, RSMo. (2009 Supp.), and 210.762, RSMo. (2007 Supp.). Because they failed to cite these statutes in their petition, however, the trial court did not err in refusing to consider them as a basis for deciding whether material facts are in dispute or the Division employees are entitled to official immunity. Stephens v. Dunn, 453 S.W.3d 241, 250 (Mo. App. S.D. 2014) ("[I]n cases alleging tort against a government employee, the Missouri Supreme Court has . . . declared that absent allegations that a government employee violated 'either a statutory or departmentally-mandated duty,' a plaintiff's petition is 'insufficient to state a claim which is not barred by the doctrine of official immunity as a matter of law.'"; quoting State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 445 (Mo. banc 1986)). 5

We could end the analysis here based on Boever v. Special School District of St. Louis County, 296 S.W.3d 487, 492 (Mo. App. E.D. 2009) ("To be liable for official acts, a public official or employee must breach a ministerial duty imposed by statute or regulation. . . . Absent allegations averring the existence

5 Even if we were to consider section 210.305 in analyzing the Division employees' duty, that section does not make placement with a grandparent a ministerial duty. While it requires immediate and "diligent efforts to locate, contact, and place the child with a grandparent or grandparents of the child" when "an initial emergency placement is deemed necessary," an exception allows the Division not to do so if it "determines that placement with a grandparent or grandparents is not in the best interest of the child." § 210.305.1. Similarly, section 210.762 appears to make such placement discretionary, stating, "If the division finds that it is not in the best interest of a child to be placed with relatives, the division shall make specific findings in the division's report detailing the reasons why the best interests of the child necessitate placement of the child with persons other than relatives." § 210.762.2.

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of a statutory or departmentally[ ]mandated duty and a breach of that duty, a petition fails to state a claim that is not barred by the doctrine of official immunity as a matter of law." (emphasis added) (citation omitted)). In this appellate court district, however, we have disagreed with case law requiring that a statute or regulation be pleaded to impose a duty on a public employee. See Nguyen v. Grain Valley R-5 Sch. Dist., 353 S.W.3d 725, 730-31 (Mo. App. W.D. 2011). Accordingly, we review the Child Welfare Manual to determine whether preferential placement of children with grandparents involves a ministerial duty. Before analyzing the Manual, however, we first address the official- immunity doctrine: Missouri has long-applied the doctrine of official immunity. This judicially[ ]created doctrine protects public employees from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts. The official immunity doctrine, however, does not provide public employees immunity for torts committed when acting in a ministerial capacity.

Whether an act can be characterized as discretionary depends on the degree of reason and judgment required. A discretionary act requires the exercise of reason in the adaptation of means to an end and discretion in determining how or whether an act should be done or course pursued. A ministerial function, in contrast, is one of a clerical nature which a public officer is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own judgment or opinion concerning the propriety of the act to be performed. The determination of whether an act is discretionary or ministerial is made on a case-by-case basis, considering: (1) the nature of the public employee's duties; (2) the extent to which the act involves policymaking or exercise of professional judgment; and (3) the consequences of not applying official immunity. Even a discretionary act, however, will not be protected by official

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immunity if the conduct is willfully wrong or done with malice or corruption.

Official immunity is intended to provide protection for individual government actors who, despite limited resources and imperfect information, must exercise judgment in the performance of their duties. Its goal is also to permit public employees to make judgments affecting public safety and welfare without concerns about possible personal liability.

Southers v. City of Farmington, 263 S.W.3d 603, 610-11 (Mo. banc 2008) (citations omitted). See also Brummitt v. Springer, 918 S.W.2d 909, 912 (Mo. App. S.D. 1996) (noting that the mandate at issue, to be more than merely directory, must indicate "what results shall follow a failure to comply with its terms."). The Child Welfare Manual is neither a statute nor a regulation. And, as the trial court noted, the Manual was not promulgated as a rule and therefore does not have the force and effect of law. Young v. Children's Div., 284 S.W.3d 553, 560 (Mo. banc 2009). Still, as departmental guidance, it states in relevant part that (1) the children's service worker "should gather information regarding the location of . . . potential relative or kinship care providers," (2) the "Children's Division is required to give grandparents first consideration for placement before other relative options," (3) an "immediate diligent search" for grandparents is required, and (4) other relatives should also be given first preference over non-related resource providers, "if the court has determined that relative placement is not contrary to the best interests of the child." The Manual is couched in terms of "should," no sanctions are prescribed for failure to comply,

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and it appears that, similar to the statutory provisions the Doughertys raise in the brief, a best-interests analysis, involving the exercise of a significant degree of reason and judgment, is implicated in the decision to place the children. Accordingly, the parts of the Manual addressing decisions about where children should be placed reflect a discretionary duty and not a ministerial one. In addition, the trial court found that the Manual "makes repeated reference that the policy and procedures 'cannot be accurately applied in all situations.'" The court also stated that other language in the Manual "is a clear disclaimer to this Court of the creation of any ministerial duties on behalf of Defendants." 6

The Doughertys contend that public policy and legislative intent imposed a ministerial duty on the Division employees to place the children with their grandparents. In support of the public-policy argument, the Doughertys cite only their petition and correspondence from the director of the Missouri Office of Child Advocate reiterating the court's authority to make a placement decision based on the best interests of the children. The Dougherty's argument regarding legislative intent is equally unsupported. Thus, we find the Doughertys' arguments unavailing. We conclude that the trial court did not err in ruling that the Doughertys failed to plead a ministerial duty based the Child Welfare Manual. Because we

6 In this regard, the trial court quoted the following from the Manual: "[t]he Manual provides procedures which should be followed in 85-100% of the Division's work with families."

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find that the duty at issue was discretionary, the Division employees are entitled to official immunity for performance of that duty. This point is denied. In Point II, the Doughertys claim that the trial court erred in granting summary judgment based on official immunity because Division employees had a ministerial duty to hold an FST meeting within 72 hours of removing the children from the home and the evidence, when viewed in the light most favorable to the Doughertys, demonstrates that this meeting did not occur. 7

Specifically, the Doughertys point to evidence that the director of the Missouri Office of Child Advocate found no documentation of an FST meeting and cautioned that these meetings were required even if the parents do not participate. 8

As with Point I, the Doughertys' petition alleged only the Child Welfare Manual as the source of the Division employees' alleged ministerial duty to conduct an FST meeting within 72 hours of removing the children from the home. But the Doughertys frame their argument on appeal on the basis of statutory law and legislative intent and not on the Child Welfare Manual. Again, the Doughertys appear to claim that they should have been permitted to amend their

7 To the extent that the Doughertys also argue that they were not notified of the protective custody hearing or meeting that followed it, because failure to notify is not raised in the point relied on, it has not been preserved and we do not consider it further. Rule 84.04(e).

8 That the documentation may not have been in order is not dispositive on whether an FST meeting was conducted when required. As well, the director's caution that such a meeting must be conducted even in the parents' absence appears to confirm Ms. McIntyre's affidavit indicating that Mr. and Ms. Dougherty expressed their intent not to cooperate or to attend the initial FST meeting, which was conducted immediately after the protective custody hearing and was attended by the oldest child's father, among others.

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petition during the pre-trial proceeding at which the summary-judgment motion was argued or, in the alternative, that the Division employees should be required to defend the litigation on the basis of statutory law, despite the Doughertys' failure to plead it. For the reasons articulated above, we reject each of these arguments. Further, the Doughertys' response to the summary-judgment motion admitted the fact that the Division employees arranged and held an FST meeting immediately after the October 18, 2011, protective custody hearing, which was within 72 hours of the court's order for the children to be taken into temporary protective custody. The statutory law does not speak in terms of the children's removal from the home in establishing the timing of the FST meeting. While the children were not removed from the home until October 20, 2011, because the Doughertys had moved the family to Kansas, the law does not require that the FST hearing be held within 72 hours of removal; rather it requires the hearing prior to or within 24 hours of the protective custody hearing or within 72 hours of a child requiring immediate placement, which occurred here. § 210.762.1. 9 Still, the

9 This section states the following:

When a child is taken into custody by a juvenile officer or law enforcement official under subdivision (1) of subsection 1 of section 211.031 and initially placed with the division, the division may make a temporary placement and shall arrange for a family support team meeting prior to or within twenty-four hours following the protective custody hearing held under section 211.032. After a child is in the division's custody and a temporary placement has been made, the division shall arrange an additional family support team meeting prior to taking any action relating to the placement of such child; except that, when the welfare of a child in the custody of the division requires an immediate or emergency change of placement, the division may make a temporary placement and shall schedule a family support team meeting within seventy- two hours. The requirement for a family support team meeting shall not apply when

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Doughertys did not plead statutory law as the source of the Division employees' duty; they pleaded the Child Welfare Manual. The Manual requires a meeting, not specified as an FST meeting, with all parents within 24-72 hours following the children's removal from the home, thus it does not support the petition's claim about an alleged failure to conduct an FST meeting. As no material facts are in dispute and the official-immunity doctrine applies to the Division employees' actions in scheduling and conducting an FST meeting, the trial court did not err in granting the summary-judgment motion. Point II is denied. 10

Conclusion Finding no material facts in dispute and the Division employees entitled to judgment as a matter of law based on the official-immunity doctrine, we affirm the trial court's summary judgment in favor of the Division employees.

/s/ Thomas H. Newton Thomas H. Newton, Judge

Karen King Mitchell, P.J., and Anthony Rex Gabbert, J. concur.

the parent has consented in writing to the termination of his or her parental rights in conjunction with a placement in a licensed child-placing agency under subsection 6 of section 453.010.

§ 210.762.1.

10 Because we conclude that the trial court correctly granted summary judgment to the Division employees on the basis of official immunity, we do not address whether the Doughertys could state claims for relief on a negligence theory based on the Division employees' purported failure to hold a timely FST meeting or their alleged failure to give preference to a relative placement for the children.