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Jones v. Massachusetts Department of Children & Families

Superior Court of Massachusetts, Suffolk

January 19, 2018

Therese JONES and Maxwell Jones by his Mother and Next Friend, Therese Jones


          Robert B. Gordon, Justice

         This case arises out of the decision of defendant Massachusetts Department of Children and Families (" DCF") to take emergency custody of minor plaintiff Maxwell Jones (" Maxwell"). This decision followed a statutorily mandated investigation in which DCF learned that plaintiff Therese Jones (" Ms. Jones") had left her three-year old son sleeping alone in a Marriott hotel room while she drank with friends at the hotel bar. Plaintiffs’ Complaint concedes that Ms. Jones left the infant Maxwell alone in her hotel room when she " ran into a few work friends and had a few drinks, " but insists that she " checked in on her son every ten to fifteen minutes."

         Plaintiffs have brought negligence claims against DCF, asserted under the Massachusetts Tort Claims Act, G.L. c. 258 (the " MTCA"). Plaintiffs contend that Ms. Jones " ha[d] never been arrested, had no criminal record, and had no previous contact or investigation with DCF, " facts that DCF purportedly " failed to investigate." In these circumstances, plaintiffs charge, the decision to take Maxwell into emergency custody and remove him from the care of his mother was " wrongful."

         DCF has now moved to dismiss the Complaint, both for failure to state a claim pursuant to Mass. R. Civ. P. 12(b)(6) and for lack of subject matter jurisdiction pursuant to Mass. R. Civ. P. 12(b)(1). DCF maintains that the Complaint sets forth no facts plausibly suggesting negligence on the part of DCF. DCF alternatively argues that even otherwise viable negligence claims of the type asserted by the plaintiffs in this case must be dismissed, because they fall within the MTCA’s " discretionary function" exemption, G.L. c. 258, § 10(b).


         At the outset, the Court expresses doubt that the plaintiffs have stated viable claims for negligence, as the facts pleaded in the Complaint do no more than attach conclusory labels- viz., a " failure to investigate" and a " wrongful" decision to assume custody of the minor child- to the conduct of the defendant. Beyond such labels, the Complaint sets forth no facts permitting a plausible inference that DCF’s investigative actions and decisions were improper in any respect. Plaintiffs stress that Ms. Jones " checked in on her son every ten to fifteen minutes, " but do not dispute that Ms. Jones left the child unattended in a strange hotel room for substantial periods of time while she consumed alcohol in a bar. DCF findings of neglect by caretakers have been upheld in similar circumstances. See, e.g., Lindsay v. Department of Social Services, 439 Mass. 789, 798-800 (2013) (upholding finding of neglect against caretaker who left child in a car for two to three hours); K.M. v. Department of Children & Families, 81 Mass.App.Ct. 1102, 2011 WL 6094762 at *1-2 (2011) (Unpub. Rule 1:28 Decision) (upholding finding of neglect where caretaker left two-year old child alone in classroom for 15-25 minutes).

         Plaintiffs likewise allege that a more assiduous investigation would have revealed that Ms. Jones had no criminal record or history with DCF. Yet the Complaint nowhere suggests that the failure to discover these facts was in any way material to the reasonableness of DCF’s investigation or its decision to take Maxwell into emergency custody. Nothing in either the law or common sense precludes DCF from taking action to protect a child from first-time abusers; and the cases are legion in which reviewing courts have upheld actions of the agency doing just that. The allegations in the Complaint, therefore, appear to be deficient both as to the putative negligence of DCF and the causal link between the omissions of the agency and the harm suffered by the plaintiffs.

         That being said, the Court need not reach the question of whether the allegations pleaded in the Complaint state viable negligence claims (the resolution of which it would ordinarily defer to a Rule 56 motion after the development of a fuller evidentiary record). This is because the MTCA claims plaintiffs have put forward are barred by the " discretionary function" exemption of Section 10(b) of the statute. Mass. G.L. c. 258, § 10(b) sets forth an exemption from the waiver of sovereign immunity that otherwise allows public employers to be held liable for injuries caused by the negligent or wrongful conduct of public employees acting within the scope of their employment. See G.L. c. 258, § 2. That exemption provides that public employers shall not be liable for " any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused." G.L. c. 258, § 10(b). The purpose of this exemption is to shield government entities and their personnel from civil liabilities associated with the inherently challenging policy determinations and judgment calls that must be made in connection with their work. See Pina v. Commonwealth, 400 Mass. 408, 413-15 (1987).

         In the leading SJC case expounding the discretionary function exemption, Sena v. Commonwealth, 417 Mass. 250 (1994), the Court held that the exemption barred negligence claims challenging the investigative and prosecutorial decisions of law enforcement personnel. Id. at 256. The Court found that police officers exercise " quintessential discretion" when making these kinds of decisions, because they must " rely on their own judgment, based on their experience and their knowledge of the law[, ] to determine what evidence to seek, how to gather that evidence, and whether and when to apply for warrants." Id. Such decisions, in turn, call for the protection of the Section 10(b) exemption because they are " based on considerations of, and necessarily affect, public policy." Id.

         Two decisions of this Court have applied the teaching of Sena to bar negligence claims asserted against DCF and its predecessor agency in analogous circumstances. In Suarez v. Belli, No. CA96-00748, 1997 WL 39918 (Mass. Super. Ct. Jan. 13, 1997) (Hely, J.), the plaintiff alleged that DCF social workers had conducted a " procedurally inadequate, faulty, and unfair investigation, " and had " engaged in unspecified negligence in the course of [its] care and protection investigation and proceedings." Id at * 4. Relying on Sena, the Court dismissed the negligence claims as barred by the discretionary function exemption of Section 10(b). Noting DCF’s quasi-prosecutorial role, the Court wrote:

" The functions of the Department employees in this case in deciding ‘whether, when, how, and whom’ to investigate and whether and when to initiate court proceedings are similar in many important respects to the investigative functions of the police officers in Sena . The discretionary function immunity applies as a matter of law to the allegations of negligence by Department employees in this complaint."

Id. (allowing motion to dismiss).

         Similarly, in Serrano. Mass. Department of Social Services, No. 022538A, 2007 WL 1631010 (Mass. Super. Ct. May 8, 2007) (Fecteau, J.), the Court applied Section 10(b)’s discretionary function immunity to bar a claim of negligence against DCF’s predecessor in connection with the placement of a child in its care into a residential facility. The Court wrote that " [DCF] must be able to freely exercise its discretion when making often difficult and complex decisions about child placement without fear of liability." Id. at 7.

         Suarez and Serrano rightly recognize that, when conducting an investigation and making the statutorily mandated determination of whether to take custody of a child who has been the subject of a Section 51A report of abuse or neglect, DCF is thrust into a complex role that combines features of law enforcement and policy construction. Agency staff are called upon to exercise professional judgment, weigh competing evidence, make assessments of credibility, and interpret principles of law as they apply to the question of whether there is " reasonable cause" to believe a child’s continued placement with particular parents exposes him/her to an immediate risk of abuse or neglect. See G.L. c. 119, § 51B(c). Indeed, the ...

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