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Rhea R. v. Department of Children and Families

Appeals Court of Massachusetts, Middlesex

January 16, 2020

RHEA R. [1] & others [2]
v.
DEPARTMENT OF CHILDREN AND FAMILIES.

          Heard: September 12, 2019.

          Governmental Immunity. Negligence, Governmental immunity. Civil action commenced in the Superior Court Department on July 27, 2016. The case was heard by John T. Lu, J., on a motion for judgment on the pleadings.

          Gregory A. Hession for the plaintiffs.

          Gregory Schmidt, Special Assistant Attorney General, for the defendant.

          Present: Green, C.J., Milkey, & Wendlandt, JJ.

          GREEN, C.J.

         After the Department of Children and Families (department or DCF) placed a foster child in the plaintiffs' home, the foster child sexually assaulted the family's young daughter. Under the written foster care agreement between the department and the plaintiff parents, the department had agreed to provide them with sufficient information about any child proposed for placement to enable them "knowledgeably [to] determine whether or not to accept the child." As the parents later discovered, however, the department was aware at the time it placed the child in the plaintiffs' home that the child had a history as both a victim and a perpetrator of sexual abuse, but did not disclose that information to the parents before placing him in their home. The plaintiffs filed a complaint against the department, claiming negligence and breach of contract. At issue on appeal is a judgment of the Superior Court dismissing the plaintiffs' complaint on the ground that their claims are barred by sovereign immunity, G. L. c. 258, § 10 (j) (§ 10 [j]) . We reverse.

         Background.

         The case comes before us on the plaintiffs' appeal from a judgment of dismissal, entered on the department's motion for judgment on the pleadings. We accordingly summarize the facts alleged in the plaintiffs' complaint, which we (like the motion judge) take as true for purposes of our evaluation of the department's claim of immunity. See Minaya v. Massachusetts Credit Union Share Ins. Corp., 392 Mass. 904, 905 (1984).

         The plaintiffs are two parents and their minor daughter. The parents have taken in hundreds of foster children under contract with the department since 1999. The written foster care agreement between the parents and the department, which is signed by both parents and (on behalf of the department) by the parents' department family resource worker, sets out in considerable detail the parents' and the department's respective responsibilities, imposing twenty specific obligations on the department and thirty-three specific obligations on the parents. Among the provisions of the agreement (and among the specific obligations undertaken by the department) is the following:

"THE DEPARTMENT . . . AGREES TO:
1. provide the family with sufficient information about a child who is in [the department's] care or custody, prior to placement, so that she or he can knowledgeably determine whether or not to accept the child, and to provide the foster/pre-adoptive family with sufficient information on an ongoing basis about the child who is in [the department's] care or custody to enable the foster/pre-adoptive family to provide adequate care to that child and to meet the individual needs of that child."[3]

         In May 2013, the department telephoned the mother to ask if it could place a twelve year old boy, to whom we shall refer as Frank, in her home for a few days. The only information about Frank furnished to the mother was that his grandmother had passed away and his aunt did not have legal custody. At the time of the department's request, the parents were not taking any new foster child placements and had notified their foster care supervisor of that decision. After a second request by the department (based on its expressed desire to avoid requiring Frank to change schools before the end of the school year), the mother "reluctantly" agreed to accept the placement, but stated to both Frank's caseworker and the parents' foster care supervisor that they would not keep him for the summer.

         Prior to Frank's placement in the parents' home, the mother requested additional information about him from Frank's caseworker but did not receive any, despite the department's awareness that Frank had a history of sexual abuse.[4] Had the parents known the information that was known to the department regarding ...


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