Therese JONES and Maxwell Jones by his Mother and Next Friend, Therese Jones
MASSACHUSETTS DEPARTMENT OF CHILDREN & FAMILIES
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTâS
MOTION TO DISMISS
B. Gordon, Justice
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. Plaintiffsâ
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
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."
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 MTCAâs "
discretionary function" exemption, G.L. c. 258, Â§ 10(b).
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 DCFâs 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
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 DCFâs 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.
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, Â§ 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, Â§ 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, Â§ 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).
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.
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 DCFâs quasi-prosecutorial role, the Court
" The functions of the Department employees in this case
in deciding âwhether, when, how, and whomâ 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).
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)âs
discretionary function immunity to bar a claim of negligence
against DCFâs 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.
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
childâs continued placement with particular parents exposes
him/her to an immediate risk of abuse or neglect.
See G.L. c. 119, Â§ 51B(c). Indeed, the ...