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Greenfield v. DFS Director Miles

Supreme Court of Delaware

May 30, 2019

TIFFANY GREENFIELD, as Next Friend and Guardian ad litem for ETHAN FORD, a minor, Plaintiff Below, Appellant,
DFS DIRECTOR LAURA MILES, individually and in her official capacity; DFS DIRECTOR VICTORIA KELLY PSY.D, individually and in her official capacity; FAMILY CRISIS THERAPIST TRINA N. SMITH, individually and in her official capacity; JAMIE ZEBROSKI M.S.W., individually and in her official capacity as a Supervisor for DFS; CRYSTAL BRADLEY, M.S., individually and in her official capacity as a Senior Family Services Specialist for DFS; NANCY CRAIGHTON, individually and in her official capacity as a Supervisor for D FS, Defendants Below, Appellees.

          Submitted: March 6, 2019

          Court Below-Superior Court of the State of Delaware C.A. No. N16C-07-115

         Upon appeal from the Superior Court. AFFIRMED.

          Andrew C. Dalton, Esquire (argued) and Bartholomew J. Dalton, Esquire; DALTON & ASSOCIATES, P.A., Wilmington, Delaware; Attorneys for Plaintiff Below, Appellant.

          Joseph C. Handlon, Esquire (argued) and Wilson B. Davis, Esquire, DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware; Attorneys for Defendants Below, Appellees.

          Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices, constituting the Court en Banc.


         This is an appeal from the Superior Court's dismissal of a lawsuit brought on behalf of a minor, Ethan Ford, by his guardian, Tiffany Greenfield, [1] against three child-welfare workers and their supervisors.[2] Greenfield alleged that the defendants, who worked for the Delaware Division of Family Services ("DFS"), [3] contributed in one fashion or another-some as case workers, others as managers and supervisors-to four faulty investigations of reports that Ford and his half-sister, Autumn Milligan, were being abused and neglected by their mother, Tanasia Milligan. According to Greenfield's complaint, the defendants' dereliction of duty resulted in the tragic death of Autumn and permanent and irreversible damage to Ford-damage that necessitates long-term physical care and psychological services.

         But what was once a sprawling complaint against two former DFS Directors, three DFS supervisors, and three DFS caseworkers that included claims of negligent hiring, retention, and supervision of the caseworkers by their supervisors is now a case against just two of the caseworkers, Trina Smith and Crystal Bradley, and their direct supervisors focused solely on their direct involvement in their investigations. In 2009, Smith was assigned to investigate Tanasia's care of the new-born Ford when a hospital test detected marijuana in his system. After a visit to the home where Tanasia lived with Ford, Smith concluded that Ford appeared to be "well-cared for"[4]and closed her investigation. Five years later, Bradley was the designated caseworker charged with investigating Tanasia after she and her boyfriend-both apparently under the influence of drugs-appeared at Greenfield's house to pick up Ford and Autumn. After a seven-week-long investigation, during which Bradley met with Tanasia and her children "multiple times" and spoke with Tanasia by phone on six additional occasions, Bradley and her supervisor "moved [the case] into treatment."[5]

         Because Smith, Bradley, and their supervisors were public employees, Greenfield's claims are subject to the Delaware State Tort Claims Act, [6] which immunizes public officers and employees against claims based on the performance of official duties that involve the exercise of discretion unless the act or failure to act causing the alleged harm was not done in good faith or was performed in a grossly negligent manner. Greenfield has not alleged bad faith, and the Superior Court determined that the investigations conducted by Smith and Bradley involved the exercise of discretion and that Greenfield had not alleged facts supporting an inference of gross negligence. Accordingly, the court ruled that Greenfield failed to state a claim for relief under Superior Court Civil Rule 12(b)(6) and entered an order of dismissal. The Superior Court also dismissed related civil-rights claims that were based on the same allegedly inadequate investigations.

         Preliminarily, we state the obvious. The DFS caseworkers' efforts to ensure the safety of Tanasia's children, Autumn and Ford, failed with doleful consequences. And in cases such as this, the same humanity that causes our hearts to break when we hear of the mistreatment of a child also cries out and demands that those who are responsible for the needless suffering be held to account. But it is worth stressing that the claims we are called upon to assess in this case have not been made against the person at whose hands Autumn and Ford suffered. Instead and for reasons that we do not fault, Ford's guardian seeks redress from individuals who were charged with protecting him but who were unable to do so. Those same individuals, however, are also required to preserve and foster the family unit, which creates an obvious tension between their duties that requires the exercise of judgment.

         Under such circumstances, our law requires that complaints against such individuals be written to a higher standard. We agree with the Superior Court that Greenfield's complaint did not satisfy that standard and therefore affirm.

         I. BACKGROUND[7]

         Tanasia Milligan was the custodial parent of Ethan Ford and his younger half-sister, Autumn Milligan. During the five-and-a-half years between Ford's birth and Autumn's tragic death, [8] DFS conducted four separate investigations of reports that Tanasia was abusing and neglecting Ford and Autumn.

         A. January 2009

         DFS conducted its first investigation following Ford's birth in January 2009 when hospital tests detected marijuana in Ford's system. Tanasia admitted that she had smoked marijuana during her pregnancy because it helped with her nausea. Trina Smith was the caseworker assigned to this investigation. Smith's supervisor was Nancy Craighton. At that time, Laura Miles was the Director of DFS.

         According to Greenfield's Amended Complaint ("Complaint"), "Smith and Craighton identified the following concerns and risk factors: (1) possible substance abuse; and (2) lack of cooperation with recommended services."[9] Smith attempted to schedule a meeting with Tanasia "for a drug evaluation."[10] It is unclear from the Complaint whether an evaluation was completed, but it is alleged that "a drug screen was never completed."[11] Smith visited Tanasia's home and determined that Ford "was well-cared for."[12] This investigation was closed-allegedly by Smith and Craighton-after forty-one days as "unsubstantiated with concern."[13] Neither Smith nor Craighton had any further interaction with Tanasia or her children.

         B. September 2012

         Three-and-a-half years later, DFS opened its second investigation after receiving a report that Ford and Autumn were "found outside after midnight in diapers."[14] The investigation disclosed that Tanasia's 16-year old brother was babysitting the children and had fallen asleep. The caseworker, who is not identified in the Complaint, assigned the case a low priority. The caseworker met with Tanasia on two occasions, during one of which Ford and Autumn were present. Although the caseworker determined that the children were developmentally delayed and referred Tanasia to programs, Tanasia did not follow through or have Ford and Autumn evaluated. According to the Complaint, "[a]fter six (6) failed attempts to follow-up with [Tanasia], the caseworker closed the case within 55 days as 'unsubstantiated with concern.'"[15] The Complaint does not identify the caseworker or allege that any of the defendants were involved in any capacity in this second investigation.

         C. Spring 2013

         In the spring of 2013, DFS opened a third investigation following a report from an unidentified source that "the children were locked in a room for long periods of time and could not communicate appropriately."[16] The Complaint does not disclose the identity of the caseworker assigned to this investigation or state whether any evidence tending to support the report was uncovered. The investigating caseworker who is alleged to have been working under the supervision of DFS Director Kelly, "met with [Tanasia], twice with [Ford] and Autumn present, and determined that the children were clean and well fed, but developmentally delayed."[17] The case was closed as unsubstantiated after forty-six days. The Complaint alleges that a caseworker failed to fill out a risk assessment form in accordance with DFS policy, which led to the case being closed prematurely.

         Before moving on to the fourth and final investigation, we pause to observe that, up to this point, contrary to the Complaint's labeling of the first three cases as showing a "pattern of neglect and abuse," with the exception of Ford's positive marijuana test at birth, the Complaint does not affirmatively allege that any of these investigations had substantiated that abuse or neglect had occurred.

         D. Fall 2013

         By the fall of 2013, Tanasia and her children were living at the Budget Motor Lodge ("Budget") with Willie Reeder, whom the Complaint describes as Tanasia's "boyfriend and 'pimp.'"[18] The Complaint says that other residents of the motel later reported that Tanasia "often hit her children for misbehaving and that both children were often locked in the motel room alone."[19] The Complaint does not allege, however, that DFS knew of those conditions until later.

         E. April 2014

         The fourth and final DFS investigation was opened in early April 2014 after Tanasia and Reeder appeared at Greenfield's house to pick up the children while under the influence of drugs. Greenfield resisted but Reeder "barged in the home and took the children."[20] Greenfield and Tanasia's other sisters called the child-protection hotline, which prompted the opening of an investigation.

         This time, Crystal Bradley, a senior family services specialist, was assigned to the case under the supervision of Jamie Zebroski. Over a period of fifty-two days, Bradley met with Tanasia and her children "multiple times"[21] and spoke with Tanasia by phone six additional times. The Complaint notes, however, that on four occasions, Tanasia could not be reached by phone. Additionally, the Complaint alleges that "caseworkers failed to interview motel residents or other collateral contacts that could have been helpful in providing the information needed to adequately investigate the claims by [Tanasia]'s sisters that she was neglecting and abusing [Ford] and Autumn."[22] The Complaint also notes that "the sisters mentioned marks on the children's bodies"[23] and that the caseworkers' notes did not indicate that an examination was ever completed.

         Unlike the three previous investigations, this case was moved into treatment to address numerous concerns and risk factors, including the possibility of drug and alcohol abuse; mental health factors; appropriate parenting/discipline; housing conditions; the children's developmental delay; and the children's medical and educational needs. According to the Complaint, Tanasia permitted DFS to send the children to a pediatrician and agreed to undergo drug screening but "later failed in many respects to comply with the caseworker's prescribed, mandatory treatment plan for her and the children."[24]

         F. Autumn's death

         The Complaint alleges that:

[l]ess than three months after [Tanasia]'s fourth DFS so-called "investigation," and as a direct and proximate result of the gross negligence, dereliction of duty, and recklessness by the individual caseworkers and their respective supervisors, directors and agents, acting under the color of state law, by and through the extraordinary grant of authority to DFS and its staff, Autumn Milligan is dead, and Ethan Ford was permanently and irrevocably damaged in ways that are impossible to know the full scope of at the present time, certainly will result in the need for, at the very least, long-term care and psychological services throughout his life.[25]

         The Complaint itself does not allege any further details about Autumn's death such as the direct cause of death[26] nor does it draw any connection between Autumn's death and Ford's alleged damages, though Greenfield's opening brief on appeal does provide a brief description of how Autumn died. In any event, after Autumn's death, Ford was removed from Tanasia's custody and placed under the legal guardianship of the State and the physical custody of Greenfield.[27] Greenfield received permanent legal guardianship on January 21, 2016 after a proceeding in Family Court.[28]

         G. Greenfield's pleadings in the Superior Court

         Although Greenfield was now Ford's guardian and entitled to some access to DFS's files on the four cases in which Ford was involved, Greenfield did not seek to obtain any of those files.[29] Instead, Greenfield, acting as Ford's next friend and guardian ad litem, filed a complaint without the benefit of those files in Superior Court in July 2017, naming as defendants two former DFS directors (Miles and Kelly); three caseworkers (Smith, Bradley, and Javonne Rich); one DFS supervisor, (Zebroski); and Budget of Delaware, Inc., the holding company for Budget. The original complaint purported to state claims against these individuals for (1) negligence, gross negligence and recklessness; (2) civil rights violations under the United States and Delaware Constitutions; (3) a "state-created danger" claim; (4) negligent, grossly negligent, and reckless hiring, retention and supervision; (5) intentional infliction of emotional distress; and (6) negligent infliction of emotional distress.[30]

         The DFS employees moved to dismiss arguing that Greenfield's claims were time-barred under 10 Del. C. § 8119; that the DSTCA required her to plead gross negligence as to her tort claims and she had failed to plead particularized facts supporting her gross negligence allegations as required by Superior Court Civil Rule 9; that she had failed to identify particular defendants who performed the investigations to permit her § 1983 claims to go forward; and that her claims against the DFS employees in their official capacities were barred by sovereign immunity.

         In February of 2017, the Superior Court granted the motion to dismiss, finding merit in all grounds asserted in the motion, save the statute-of-limitations ground, the resolution of which the court found was unnecessary. The court, however, granted Greenfield leave to file an amended complaint to cure the pleading deficiencies.

         Greenfield filed her amended complaint a month later, alleging the same claims that were in the original complaint but also providing additional factual detail and allegations that, in some instances, identified the specific DFS worker who performed-or failed to perform-the acts that formed the bases of her claims. The amended complaint also added Craighton as a defendant. Once again, the DFS employees moved to dismiss.

         H. The Superior Court's dismissal

         The Superior Court again dismissed Greenfield's complaint, this time parsing the claims one-by-one against the DFS caseworkers (Smith and Bradley)[31] and their supervisors (Kelly, Miles, Craighton, and Zebroski).

         i. Smith and Bradley

         The court first examined and dismissed the allegation that Smith and Bradley were negligent, grossly negligent, and reckless in the performance of their duties during the 2009 and 2014 investigations. As mentioned, because Smith and Bradley were public employees, the court first addressed whether the DSTCA precluded this claim. It determined that the tortious actions of Smith and Bradley alleged in the Complaint involved the exercise of discretion and therefore claims based on those actions were barred unless performed in a grossly negligent or reckless manner. Finding that Smith's and Bradley's "single and limited investigations [] [were] too far removed from the end result, either temporally, qualitatively, or causally to rise to the level of gross negligence, "[32] the Superior Court dismissed the claims of negligence, gross negligence, and recklessness against them. In a similar vein, the Superior Court concluded that the Complaint did not come close to pleading facts that supported the claims against Smith and Bradley for the intentional infliction of emotional distress.

         The Superior Court also dismissed Greenfield's state-created-danger claim, finding that Greenfield had failed to plead any of the four elements of that claim. The Superior Court also found that Greenfield waived her other § 1983 claims because she had failed to address them in her briefing. Accordingly, it dismissed all claims against Smith and Bradley.

          ii. Kelly, Craighton, Miles, and Zebroski

         The Superior Court also dismissed all claims against the supervisors Kelly, Craighton, Miles, and Zebroski. First, the Superior Court found that none of them had a duty to Ford to supervise, hire, or train DFS employees. Second, because the line workers had not been performing ministerial acts and were not grossly negligent, the Superior Court reasoned that their supervisors could not have been performing ministerial acts or acting with gross negligence either. Third, as with Smith and Bradley, the Superior Court found that the alleged conduct "does not remotely meet the pleading standard for [intentional infliction of emotional distress]."[33]

         iii. 10 Del. C. § 8119

         After concluding that the above reasons sufficed for dismissal, the Superior Court also found that the statute of limitations applicable to this case, 10 Del. C. § 8119, would have barred Greenfield's claims. Section 8119 provides for a two-year time limit on personal injury actions and begins to run when "such alleged injuries were sustained."[34] The Superior Court determined that § 8119 began to run with the closing of DFS's last investigation on May 29, 2014. According to the Superior Court, the statute of limitations thus had run by the time Greenfield filed this action on July 15, 2016.

         I. Greenfield's claims on appeal

         On appeal, Greenfield presses four arguments relating to her gross negligence and state-created-danger claims.[35] First, she asserts that the individual defendants are not entitled to immunity because they repeatedly failed to perform non-discretionary, i.e., ministerial duties. Second, Greenfield claims that the Complaint alleged particular facts that give rise to an inference of gross negligence that would overcome the defendants' immunity defense even for discretionary acts. Third, Greenfield contends that the Superior Court erred when it held that she had not adequately pleaded a claim under the state-created-danger doctrine. Finally, Greenfield asks us to reject the Superior Court's ruling that her claims were time-barred under 10 Del. C. § 8119 and not subject to tolling under 10 Del. C. § 8116. We will address Greenfield's first three arguments in turn. Because we agree with the Superior Court that Greenfield has failed to state a claim in her Complaint upon which relief can be granted, we need not address her statute-of-limitations argument.


         This Court reviews the granting of a motion to dismiss for failure to state a claim de novo.[36] "[A] complaint sufficiently states a cause of action when a plaintiff can recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint."[37] When considering the motion, we accept all well-pleaded allegations as true, [38] and we "draw all reasonable factual inferences in favor of the party opposing the motion."[39] Dismissal is warranted "only if it appears with reasonable certainty that the plaintiff could not prove any set of facts that would entitle him to relief."[40] That said, while a complaint usually "need only give general notice of the claim asserted, "[41] "circumstances constituting . . . negligence . . . shall be stated with particularity."[42]

         Questions of statutory interpretation are questions of law, which we review de novo.[43]

         III. ANALYSIS

         During briefing in this Court, Greenfield narrowed the scope of her claims on Ford's behalf. In her complaint, Greenfield alleged a number of supervisory oversights by Kelly, Craighton, Miles, and Zebroski.[44] But on appeal, Greenfield has waived her claims of negligent hiring, retention, and supervision claims against Kelly, Craighton, Miles, and Zebroski in their official and individual capacities.[45]Nevertheless, Greenfield stated at oral argument that, despite the abandonment of her claims against the DFS supervisors for negligent hiring, retention, and supervision, she continued to press gross negligence claims against the DFS supervisors based on their "direct involvement" with the case.[46] We note that these allegations of "direct involvement" appear to consist of joint actions that Craighton and Zebroski supposedly took with their supervisee case workers to "identif[y] . . . concerns and risk factors" and to close the cases.[47] In contrast, there appear to be no allegations in the Complaint of "direct involvement" against Kelly and Miles-the allegations against them appear to exclusively relate to supervisory acts.[48] We therefore focus on the two DFS cases that Smith, Bradley, Craighton, and Zebroski ("the DFS Defendants") handled in their nonsupervisory capacities.

         A. Delaware State Tort Claims Act

         Greenfield challenges the Superior Court's conclusion that the DFS Defendants were immune from suit under the Delaware Tort Claims Act.[49]

Under the DSTCA, public employees are immune from suit when
(1) The act or omission complained of arose out of and in connection with the performance of an official duty requiring a determination of policy, the interpretation or enforcement of statutes, rules or regulations, the granting or withholding of publicly created or regulated entitlement or privilege or any other official duty involving the exercise of discretion on the part of the public officer, employee or member, or anyone over whom the public officer, employee or member shall have supervisory authority;
. . . and
(3) The act or omission complained of was done without gross or wanton negligence.[50]

         Thus, immunity under § 4001 applies to discretionary acts or omissions "done without gross or wanton negligence."[51]

         Greenfield challenges the Superior Court's application of the DSTCA in two ways. First, she claims that the Superior Court erred when it determined that the duties the DFS Defendants are alleged to have breached involved the exercise of discretion. Second, Greenfield argues that, even if that determination was correct, the Complaint pleads facts susceptible to proof that the DFS Defendants' conduct was grossly negligent, [52] and that therefore immunity is not available under the DSTCA. Greenfield is incorrect on both counts.

         i. Discretionary vs. Ministerial Acts

         Greenfield argues that at least some of the DFS Defendants' acts causing Ford's injuries were ministerial by claiming that the Delaware statute that mandates the reporting and investigation of child abuse and neglect, 16 Del. C. § 906, [53] assigns nondiscretionary duties to the DFS Defendants. Before addressing this contention, we would do well to explain the distinction our law draws between ministerial and discretionary acts in this context.

         In Sussex County v. Morris, [54] after noting that courts have struggled to distinguish discretionary acts, which are subject to qualified immunity under 10 Del. C. § 4001, from ministerial acts, which are not subject to immunity, we adopted the definition of ministerial act set forth in the Restatement (Second) of Torts. Under that definition, acts are called "ministerial" or "operational" if the act "involves less in the way of personal decision or judgment or the matter for which judgment is required has little bearing of importance upon the validity of the act."[55]An act is discretionary if it is not ministerial.

         As we have observed, the "distinction between discretionary and ministerial acts is always one of degree, "[56] but our case law helps to illustrate the distinction. In Sadler v. New Castle County, [57] we held that state rescuers' decision to carry the plaintiff across a river rather than up the riverbank after the plaintiff suffered a fall was discretionary.[58] In Sussex County, [59] a Sussex constable was transporting a mental patient in the back seat of constable's family car when the patient jumped out of the car and was seriously injured. This Court held that the constable's "selection and equipment of the car, "[60] which was "indisputably ill-equipped for the transportation of mentally ill passengers, "[61] was effectively a ministerial act because it had "little bearing of importance upon the validity of his official conduct," i.e., transporting the passenger.[62] In Hughes ex rel. Hughes v. Christiana School District, [63] this Court held that a teacher's decision to allow a sick student to go to the nurse unescorted was a discretionary decision, noting that "no facts support" that the teacher should have necessarily engaged in another ...

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