Opinion
23-275
11-14-2024
WEST VIRGINIA DEPARTMENT OF HUMAN SERVICES, Defendant below, Petitioner, v. DAVID B., GUARDIAN AD LITEM AND NEXT FRIEND OF J.B. and M.B., and S.M., INDIVIDUALLY, Plaintiffs below, Respondents.
Jace H. Goins, Esq. S. Caleb Davis, Esq. Steptoe & Johnson PLLC Charleston, West Virginia Counsel for Petitioner Lonnie C. Simmons, Esq. Robert M. Bastress, III, Esq. Dipiero, Simmons, McGinley & Bastress, PLLC Charleston, West Virginia James M. Barber, Esq. Law Offices of James M. Barber Charleston, West Virginia Counsel for Respondents
Submitted: September 17, 2024
Appeal from the Circuit Court of Kanawha County The Honorable Jennifer F. Bailey, Judge Civil Action No. 21-C-915
Jace H. Goins, Esq. S. Caleb Davis, Esq. Steptoe & Johnson PLLC Charleston, West Virginia Counsel for Petitioner
Lonnie C. Simmons, Esq. Robert M. Bastress, III, Esq. Dipiero, Simmons, McGinley & Bastress, PLLC Charleston, West Virginia James M. Barber, Esq. Law Offices of James M. Barber Charleston, West Virginia Counsel for Respondents
JUSTICE BUNN deeming herself disqualified, did not participate in the decision in this case.
JUDGE MICHAEL W. ASBURY sitting by temporary assignment.
SYLLABUS OF THE COURT
1. "'A circuit court's denial of summary judgment that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the 'collateral order' doctrine.' Syllabus Point 2, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660 (2009)." Syllabus Point, Maston v. Wagner, 236 W.Va. 488, 781 S.E.2d 936 (2015).
2. "This Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court." Syllabus Point 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).
3. "The ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine. Therefore, unless there is a bona fide dispute as to the foundational or historical facts that underlie the immunity determination, the ultimate questions of statutory or qualified immunity are ripe for summary disposition." Syllabus Point 1, Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996).
4. For purposes of qualified immunity, internal agency policies, procedures, manuals, guidelines, or similar documents that have not been legislatively approved are not, and cannot be used to create, clearly established statutory rights or law of which a reasonable person would have known.
5. Where qualified immunity is raised by a state agency as grounds for summary judgment on a claim of oppressive conduct, the nonmoving party, in order to avoid summary judgment, must produce some admissible evidence that creates an issue of fact as to whether an official, employee, or agent of the agency acted in a manner that was an abuse of any discretionary power invested by law in the exercise of, or under color of exercising, the duties of his or her office and while doing so acted with an improper motive.
OPINION
HUTCHISON, JUSTICE
The Plaintiffs, David B., guardian ad litem and next friend of J.B., M.B., and S.M., individually, (collectively the Plaintiffs), sued the West Virginia Department of Human Services (DHS). After discovery, DHS sought summary judgment on all claims against it arguing it was qualifiedly immune from the Plaintiffs' claims. By order dated April 11, 2023, the circuit court denied summary judgment. DHS brought an interlocutory appeal to this Court asserting the circuit court erred in denying it qualified immunity. After reviewing the parties' briefs and the appendix record, hearing oral argument, and considering the pertinent legal authority, we conclude DHS is entitled to qualified immunity on all the claims leveled against it by the Plaintiffs. Thus, we reverse the order of the circuit court denying summary judgment and remand this case for entry of an order granting DHS summary judgment and dismissing the action against it.
"Pursuant to Rule 40 of the West Virginia Rules of Appellate Procedure , the identities of juveniles are protected in Court documents. Initials or descriptive terms are used instead of full names to promote confidentiality." State v. Meadows, 231 W.Va. 10, 14 n.1, 743 S.E.2d 318, 322 n.1 (2013) (per curiam). Where using the full names of others involved in a case might also serve to identify the juveniles, we will also use initials or descriptions to identify those other persons.
The DHS was previously called the Department of Health and Human Resources (DHHR). We have substituted DHS for DHHR as the proper party in this case and shall refer to the Defendant-Petitioner as DHS.
I. Facts and Procedural Background
A. The DHS Investigations
On March 24, 2015, DHS received a referral for child protective services alleging that, J.F.L., a registered sex offender, had updated his address to reflect that it was now identical to that of J.M.K. J.M.K. was the biological mother of A.A. and S.M., and was the adoptive parent of her nieces, J.B. and M.B., all of whom resided in J.M.K.'s residence. On March 24, A.A. was 15 years old, S.M. was 12 years old, J.B. was 4 years old, and M.B. was 3 years old.
A.A. is male. The other children are female.
Within twenty-fourhours of receiving the referral, Child Protective Services (CPS) workers initiated an investigation. During the investigation, S.M. told a CPS worker that she gets along with J.F.L. J.B. told the CPS worker that "she had a babysitter when her mom was working." When interviewed, J.F.L. admitted that he is a registered sex offender having been convicted previously of sexually assaulting his niece who was nine years old at the time. He stated that he is not restricted from being around children. He additionally stated that he is never left alone with the children and is not a caretaker of the children. The CPS worker who interviewed him characterized J.F.L. as "cooperative" and "willing to work with this worker[.]" J.M.K. was also interviewed. J.M.K. related to the CPS worker that she was aware of J.F.L.'s sex offender status. She also informed the CPS worker that J.F.L. was not a caretaker to the children and that she does not leave the children home alone with him. J.M.K. expressed her belief that the referral was a retaliatory act by another family member upset over J.M.K.'s adoption of the nieces. J.M.K. also told the CPS worker "that if there was an issue with [J.F.L.] being in the home with her children, that she would make [J.F.L.] leave. [She] stated that she would never put anyone or anything before her children."
The CPS worker did not substantiate maltreatment as the "[e]vidence does not indicate abuse and/or neglect according to WV Code 49-1-3." While the CPS worker did "have concerns with [J.F.L.]'s past conviction[,]" the CPS worker further explained that she did "not have any evidence to suggest that [J.F.L.] is not allowed to be around children" and that "[t]he children have not made any disclosures about [J.F.L.] that would be concerning." The CPS worker found that J.M.K. "arranges appropriate supversion [sic] for the children when she is not able to be home with them." The CPS worker also found that J.M.K "has been threatened by other family members in regard to the removal of the children from her home." The CPS "[w]orker found the home to be appropriate" and that "[t]here were no children in the household identified as unsafe or maltreated."
"In 2015, the West Virginia Legislature recodified Chapter 49 of the West Virginia Code relating to Child Welfare." In re K.E., 240 W.Va. 220, 225 n.5, 809 S.E.2d 531, 536 n.5 (2018)." W.Va. Code § 49-1-3 was recodified in 2015 as W.Va. Code § 49-1-201." M.H. v. C.H., 242 W.Va. 307, 312 n.8, 835 S.E.2d 171, 176 n.8 (2019)
On April 25, 2018, DHS received another CPS referral, this time alleging that M.B. told another girl that "someone was kissing her private parts." Again, within twenty-four hours, DHS initiated an investigation.
During CPS's interview with M.B., M.B. related that "a boy at school touched her privates parts [sic] and she really didn't like it so she told him to stop." M.B. then pointed to her "butt area." M.B. "reported that she lives at home with mom, daddy, [J.B.] and [S.M.]." She further reported that "daddy" never gives her a bath. M.B. also explained that the touches she receives from J.F.L that she does not like are related to corporal punishment. She also related that she is struck by her siblings either accidentally or when roughhousing. M.B. "denied getting any other touches that she doesn't like from anyone in her family."
According to J.M.K., she and J.F.L. married in approximately 2016.
S.M. "reported that she has a good relationship with mom and her step-dad, [J.F.L.] who she calls dad." S.M. reported feeling "very safe in her home" and that she was comfortable around J.F.L. and never had any concerns about him being around her or her sisters. During his CPS interview, J.F.L. again admitted to being a registered sex offender and reiterated that he was not barred from being around children. He stated that he did not bathe the girls because he did not want anyone to be able to say anything concerning him and the girls. He also related he is visited by the State Police to ensure he is doing well. J.M.K. was interviewed by the CPS as well. J.M.K. stated that she had no concerns with J.F.L. being around the girls and that she frequently spoke with her girls about sexual abuse since she is a sexual abuse survivor herself. She relayed that if she had any concerns about J.F.L. he would not be in the home. Finally, the CPS worker spoke with L.M. who was friends with J.M.K. According to L.M., she was around the family every week or two and spoke with J.M.K. daily. L.M. denied having any concerns with the family and felt comfortable with J.F.L. being around the girls.
As a result of the investigation, the CPS worker concluded that "maltreatment will NOT be substantiated on [J.F.L] and [J.M.K.] for neglect-failure or inability to supply necessary supervision." According to the CPS worker "[d]uring the course of this assessment there was no disclosure of sexual abuse by [J.F.L.]" and "[t]here is no evidence of abuse or neglect within the family at this time."
On July 22, 2020, DHS received a third CPS referral. In this referral, it was alleged that S.M. had been sexually abused in the home by J.F.L. for the preceding six years and that J.M.K. was aware of the abuse and allowed it to occur.
B. The criminal case against J.F.L.
On October 10, 2020, J.F.L. was indicted on numerous sexually related criminal counts including twenty-two counts of first-degree sexual abuse, thirty counts of second-degree sexual assault, fifty-two counts of sexual abuse by a parent, guardian, custodian, or person in position of trust, thirty counts of incest, and two counts of soliciting a minor via computer. S.M. was the victim in most of the counts while J.B. accounted for the remainder. A jury convicted J.F.L. on all counts.
C. The Plaintiffs' Civil Case against DHS.
On October 14, 2021, the Plaintiffs sued DHS and "unknown [DHS] supervisors" in the Circuit Court of Kanawha County alleging their acts and omissions resulted in S.M., J.B., and M.B. being subjected to sexual abuse by J.K.L for a protracted period. The Plaintiffs claimed that DHS and the unnamed DHS supervisors were negligent, grossly negligent, reckless, fraudulent, malicious, and oppressive. The Plaintiffs averred that DHS's employees violated several sections of the 2013 version of DHS's Child Protective Services Policy (the DHS Policy) that was in effect in 2015 and 2018. Specifically, the Plaintiffs' complaint asserted that DHS violated DHS Policy's §§ 3.24, 4.26, 5.25, 7.28, and 7.3.
Section 3.24 of the DHS Policy provided:
3.24 Reports Involving Registered Child Sex Offenders
West Virginia Code Section § 15-12, Sex Offender Registration Act, requires that certain sex offenders register demographic information about themselves in order that citizens may take appropriate precautions to protect its vulnerable populations. This statute also requires lifetime registration for any individual who commits a sexual crime against a child under the age of 18.
In order to help further protect children from harm by registered child sex offenders, CPS will accept for assessment referrals alleging that a registered child sex offender has unlimited and/or unrestricted access to a child under the age of 18. An example of unlimited and/or unrestricted access would be if the biological parent co-habitates with the registered child sex offender and the children also reside in the home, even if only part-time. Other examples of unlimited and/or unrestricted access include child sex offenders who: act as a caregiver, even part-time; spend the night with the non-child sex offender caregiver and is able to come and go from room-to-room at will; is a relative and the non-child sex offender parent leaves the child in the child sex offender's care, even if only one day per week. Please note that this is not to mean the children must be unsupervised for it to qualify as "unlimited and/or unrestricted". "Parttime" means someone who may be a paramour or relative, who has frequent access but is not a resident. It could also be used to describe an offender who may be present only on weekends, but not during the week.For reports of unlimited and/or unrestricted access of a child to a registered sex offender, the worker will:
• Follow the same rules and procedures for intake as other reports of suspect child abuse or neglect
• Complete a search of the West Virginia State Police Sex Offender Registry located on the internet at http://www.wvstatepolice.com/sexoff/, making sure that (1) the individual is, indeed, listed on the registry, and
(2) that the individual was convicted and registered for a sex offense against a child under the age of 18.
• Document the results of the search in the intake assessmentThe supervisor will:
• Indicate whether the referral will be accepted or screened out. If screened out, the supervisor must provide an explanation as to why the referral does not indicate that the child is being subjected to conditions that are likely to result in abuse or neglect.
Section 4.26 of the DHS Policy provided:
4.26 Family Functioning Assessments where children are determined to be abused or neglected but safe
Once the Supervisor reviews the Family Functioning Assessment and/or consults with the CPS Social Worker and agrees that there is abuse or neglect but not impending danger in the home, the following must occur by either the CPS Social Worker or Supervisor:
• Contact the family to discuss the findings from the Family Functioning Assessment.
• Explain to the family that due to a finding that abuse or neglect occurred, either a Child Protective Service Social Worker will complete a services plan or a referral to an ASO Provider will be made for the completion of a needs assessment and services plan. Inform the caregivers of the issues/dynamics that may have led to the abuse or neglect as well as the expectations of Child Protective Services, the Providers when appropriate, as well as the family's expectations.
• Discuss the case with the Ongoing CPS Supervisor and Open the Family for Ongoing Child Protective Services(See CPS Policy Section5.25 Ongoing Services to children abused or neglected but not unsafe for additional information) (emphasis in original)
Section 5.25 of the DHS Policy provided:
5.25 Ongoing Services to children abused or neglected but not unsafeFollowing the completion of Family Functioning Assessment, certain cases may have a finding that child abuse or neglect occurred but there will be no identified impending danger. In those situations the case must be open for Ongoing CPS. In instances where a child has been abused or neglected but safe and there is an identified Socially Necessary Services Provider who can complete the Needs Assessment and Service Plan, the CPS Social Worker must:
• Contact the family, letting them know the CPS Social Worker who will be assigned the case
• Complete a referral to the ASO Services Provider for the Needs Assessment and Services Plan 110165
• Thoroughly explain to the provider the reason for the referral and provide a copy of the Family Functioning Assessment
• Explain to the provider at the time of the referral that the Service Provision will terminate in 90 days
• Remind the provider that during their casework process they are to attempt to identify resources and build upon the families strengths in order for the family to meet the identified needs at case closure and after case closure
• Collect and review provider reports and contact the provider as necessary but minimally once per month to monitor the provision of services
• Contact the provider at least 5 working days prior to the 90th day of service provision reminding them the date that the services will end.
• If there is any indication that a child in the home may be unsafe or threatened with abuse or neglect, or if the provider discovers information related to unknown abusive or neglectful behaviors, a CPS referral must be made and a Family Functioning Assessment must occur to determine if any child in the home is in impending danger.There may be instances when there is not an ASO provider to complete the Needs Assessment and Service Plan. In those situations the CPS Social Worker must:
• Thoroughly review the information collected during the Family Functioning Assessment to determine what family need may have contributed to substantiated maltreatment
• Family needs may include but are not limited to issues concerning: housing, social, education, health, mental health, recreation, spiritual, legal, financial, and transportation
• Make contact with the family within 5 working days, explaining the purpose of the Service Plan and complete the Service Plan with the family based upon information collected during the Family Functioning Assessment as well as additional information provided by the family. (note the Family Functioning Assessment will substitute for the Needs Assessment) (emphasis in original)
• Complete the Service Plan within 30 days of the finding of abuse or neglect
• Make face to face with all household members at least monthly in order to assist the family in completing the services plan, monitor progress, address any issues with providers or within the home, and assist the family in gaining access to the specific services in their services plan
• Through the casework process, attempt to identify resources and build upon the families strengths in order for the family to meet the identified needs at case closure
• If a potential impending danger is discovered or a new incident of possible abuse or neglect occurs, a referral for CPS must be made
• Close the case within 90 days if there are no outstanding referrals for CPS or newly discovered impending dangers.When Child Protective Services opens a family for Ongoing Child Protective Services due to abuse or neglect being, the Supervisor must:
• Discuss service provision with the assigned CPS Worker and ensure that the Socially Necessary Services Provider or Child Protective Services Social Worker is appropriately addressing the family's needs and connecting the family with both formal and informal resources that can assist the family once the Child Protective Services Ongoing Case is closed
• If there is indication that additional abuse or neglect in the home exists, or if a child may be in impending danger and threatened with harm, ensure that a child abuse and neglect referral is made and child safety addressed
• Ensure that the case is closed within 90 days unless there are outstanding CPS referrals or newly discovered information indicating that a child may be in impending danger.
Section 7.28 of the DHS Policy provided:
7.28 Circumstances Requiring Termination of Parental RightsStatute State statute, 49-6-5b, requires that under certain circumstances the Department must: file a petition for termination of parental rights; or, must request to join in a petition for termination of parental rights filed by another party. Definition The Department is required to file a petition or to join in a petition to terminate rights or to otherwise seek a ruling to terminate parental rights in any pending proceeding when a parent, guardian or custodian has:
• Subjected the child, another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent to aggravated circumstances which include, but are not limited to, abandonment, torture, chronic abuse and sexual abuse;
• Committed murder of the child's other parent, another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent;
• Committed voluntary manslaughter of the child's other parent, another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent;
• Attempted or conspired to commit such a murder or voluntary manslaughter or been an accessory before or after the fact to either such crime; or
• Committed unlawful or malicious wounding that results in serious bodily injury to the child, the child's other parent, to another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent; or
• Committed sexual assault or sexual abuse of the child, the child's other parent, guardian, or custodian, another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent; or,
• Been required by state or federal law to register with a sex offender registry; or
• The parental rights of the parent to another child have been terminated involuntarilyExceptions The Department may determine not to seek termination of parental rights when:
• At the option of the Department the child has been placed with a relative;
• the Department has documented in the unified child or family case plan made available for court review a compelling reason, including but not limited to the child's age and preference regarding termination or the child's placement in custody of the Department based on any proceedings initiated under Article 5 of Chapter 49, that filing a petition would not be in the best interests of the child; or
• the Department has not provided, when reasonable efforts to return a child to the family are required, the services to the child's family as the Department deems necessary for the safe return of the child to the home.Worker Actions Whenever a worker is involved in a case, or learns of a case where a petition requesting termination of parental rights was filed, because a court has determined that a parent has abandoned a child, or a court has determined that a parent has committed murder or voluntary manslaughter of his or her children, has attempted or conspired to commit such murder or voluntary manslaughter or has been an accessory before or after the fact of either crime or has committed unlawful or malicious wounding resulting in serious injury to the child or to another or his or her own children or the parental rights to a sibling have been terminated then the worker must either file a petition or seek to join in the petition which has already been filed. There are no exceptions to this requirement. Whenever a worker is involved in a case in which a child has been in foster care for 15 of the most recent 22 months, the worker must either seek termination of parental rights or document in the case plan a compelling reason for not requesting termination. There are no exceptions to this requirement.
Section 7.3 of the DHS Policy provided:
7.3 Aggravated Circumstances and other situations where reasonable efforts are not requiredStatute Aggravated circumstances is the term used in state statute to define certain conditions which nullify the need to make reasonable efforts to prevent removal of a child and to provide reunification services once a child has been removed. This term is found in 49-6-3(d), 49-6-5(a) and is referred to in 49-6-8(a) of the Code. Purpose The purpose of this statute is to define those conditions which are so harmful to children and are such an indicator of parental inability to provide proper care that preservation of the family is not required. Definition The Department is not required to make reasonable efforts to prevent the removal of a child or to reunite the child with the child's parent if the court determines the parent has subjected the child to aggravated circumstances which include but are not limited to abandonment, torture, chronic abuse and sexual abuse. Other instances when reasonable efforts are not required are when the parent has:
• Committed murder of the child's other parent, guardian or custodian, another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent;
• Committed voluntary manslaughter of the child's other parent, another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent;
• Attempted or conspired to commit such a murder or voluntary manslaughter or been an accessory before or after the fact to either such crime; or,
• Committed-a felonious assault that results in serious bodily injury to the child, the child's other parent, to another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent;
• Committed sexual assault or sexual abuse of the child, the child's other parent, guardian, or custodian, another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent;
• Has been required by state or federal law to register with a sex offender registry; or
• The parental rights of the parent to another child have been terminated involuntarily.Note: the definition of aggravated circumstances is not exhaustive. That is, a worker can present to the court information about the acts of a parent other than those described above and ask that the court consider these acts as aggravated circumstances. (emphasis in original). Worker Actions If at any time during the Child Protective Services process it is determined that a parent has committed an act which meets the definition of an aggravated circumstance, the worker must immediately assess the parent's actions. The worker must follow the policies and protocols outlined in CPS Policy, in particular CPS Policy Section 4.26.
The Plaintiffs also asserted a claim against DHS for negligent training and supervision claiming that DHS "failed to properly train its agents and employees" and that DHS was "aware that without proper training and supervision that minors under [DHS]'s care such as Plaintiffs faced danger to their physical and emotional well[-]being." Additionally, although the Plaintiffs affirmatively (and, indeed, emphatically) disclaimed reliance on the United States Constitution or any federal statute, the Plaintiffs alleged a state constitutional tort under the West Virginia Constitution.
Paragraph 61 of the Plaintiffs' complaint reads, "Plaintiffs are not making a claim under the United States Constitution or any federal statute." (emphasis in original).
After extensive discovery, DHS sought summary judgment based on the doctrine of qualified immunity. During the circuit court's hearing on DHS's summary judgment motion, the Plaintiffs withdrew their state constitutional tort action. The Plaintiffs also further agreed that because they failed to substitute named defendants for the "unknown [DHS] supervisors" that the Plaintiffs could proceed only against DHS. As a result, the Plaintiffs' counsel asserted that the Plaintiffs were pursuing "straight forward negligence" claims against DHS. The Plaintiffs admitted the gravamen of their claim was that DHS was negligent in not seeking to terminate the parental rights of J.M.K and J.F.L. based on J.F.L.'s registry as a sex offender as required by section 7.28 of the DHS Policy.
By order dated April 11, 2023, the circuit court denied DHS's motion for summary judgment. While acknowledging that DHS had the right to raise qualified immunity, the circuit court ruled that "it will be left up to the jury to decide under the facts whether or not there were mandatory duties not followed or whether the actions of Defendant [DHS]'s agents and employees violated clearly established law." The circuit court then recognized our case law holding that "[t]here is no immunity for an executive official whose acts are fraudulent, malicious, or otherwise oppressive." The circuit court, recognizing that this Court has never explicitly defined what is meant by the term "oppressive," nevertheless concluded that the "jury could conclude that at least some of [DHS]'s actions were oppressive[.]" The circuit court also concluded that DHS was not qualifiedly immune from the Plaintiffs' claim of negligent supervision and training.
DHS then filed this interlocutory appeal asserting that the circuit court erred in denying it summary judgment based on qualified immunity.
II. Standard of Review
"Typically, the denial of a motion for summary judgment is an interlocutory ruling not subject to appellate review." Praetorian Ins. Co. v. Chau, 247 W.Va. 521, 530, 881 S.E.2d 432, 441 (2022). However, we have recognized that "'[a] circuit court's denial of summary judgment that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the 'collateral order' doctrine.' Syllabus Point 2, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660 (2009)." Syl. Pt. 1, Maston v. Wagner, 236 W.Va. 488, 781 S.E.2d 936 (2015). Thus, DHS's appeal is properly reviewable by this Court. Accordingly, our review is plenary as "[t]his Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court." Syl. Pt. 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002). Our review is guided by our recognition that:
The ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine. Therefore, unless there is a bona fide dispute as to the foundational or historical facts that underlie the immunity determination, the ultimate questions of statutory or qualified immunity are ripe for summary disposition.
Syl. Pt. 1, Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996).
With these standards in mind, we now address the matters before the Court.
III. Discussion
DHS asserts before us, as it did before the circuit court, that it is entitled to qualified immunity on the claims leveled against it. "Qualified immunity is an immunity from suit afforded to public officials and State agencies under certain conditions." W.Va. Div. of Corr. & Rehab. v. Robbins, 248 W.Va. 515, 524, 889 S.E.2d 88, 97 (2023). "[T]he purpose of qualified immunity is to allow officials to do their jobs and to exercise judgment, wisdom, and sense without worry of being sued." W.Va. Bd. of Ed. v. Marple, 236 W.Va. 654, 661, 783 S.E.2d 75, 82 (2015). In West Virginia, unless expressly limited by statute, "qualified immunity is necessarily broad[,]" Maston, 236 W.Va. at 500, 781 S.E.2d at 948,and applies to "the State, its agencies, officials, and/or employees." Kent v. Sullivan, 249 W.Va. 747, 901 S.E.2d 500, 505 (2024). "[T]he doctrine of qualified immunity is . . . applicable to actions brought only against state agencies, such as the [Petitioner] in the instant case." Hess v. W.Va. Div. of Corr., 227 W.Va. 15, 19, 705 S.E.2d 125, 129 (2010) (per curiam).
The state may waive qualified immunity if it is expressly waived in an applicable state insurance policy. The Plaintiffs do not argue that the DHS insurance policy waived DHS's qualified immunity. See W.Va. Dep't of Env't Prot. v. Dotson, 244 W.Va. 621, 627 & n.10, 856 S.E.2d 213, 219 & n.10 (2021).
West Virginia applies two standards to determine if a state agency, agent, official, or employee is protected by qualified immunity. First, "[a] litigant may pierce the shield of qualified immunity by showing that a government official has violated a clearly established statutory or constitutional right." Maston, 236 W.Va. at 501, 781 S.E.2d at 949.Second, a litigant may pierce the shield of qualified immunity by showing that the government official's, employee's, or agent's acts or omissions were fraudulent, malicious, or oppressive. See W.Va. Div. of Nat. Res. v. Dawson, 242 W.Va. 176, 190, 832 S.E.2d 102, 116 (2019) ("Throughout the history of our qualified immunity case law, this Court has continually and consistently held that one way to defeat qualified immunity is by alleging that the acts or omissions of a public official or employee were fraudulent, malicious, or oppressive."). The first test is based upon federal law, while the second is in addition to the federal law-based test. Hupp v. Cook, 931 F.3d 307, 326 (4th Cir. 2019) (citation omitted) ("[West Virginia's] qualified immunity doctrine borrows heavily from the analogous federal qualified immunity jurisprudence but also requires an additional finding that the defendant's alleged conduct not be 'fraudulent, malicious, or otherwise oppressive' to the plaintiff."). We now turn to applying these two standards to the case at bar.
A. Clearly Established Statutory Right or Law.
In applying the first qualified immunity standard, we employ a two-stage test:
A public official or State agency may claim to be qualifiedly immune from suit only when "the acts or omissions which give rise to the suit . . . involve . . . discretionary governmental functions." If they do, then the public official or State agency is entitled to qualified immunity unless "the plaintiff has demonstrated that such acts or omissions are in violation of clearly established statutory or constitutional rights or laws of which a reasonable person would have known . . . . "Robbins, 248 W.Va. at 524, 889 S.E.2d at 97 (footnotes omitted) (emphasis in original).
The first part of this test is easily met in this case as we have recognized that "there is no dispute that the investigative process of [DHS] in child abuse and neglect proceedings requires the exercise of discretion." Crouch v. Gillispie, 240 W.Va. 229, 234, 809 S.E.2d 699, 704 (2018); see also White by White v. Chambliss, 112 F.3d 731, 736 (4th Cir. 1997) (observing that a state social worker's decision whether to remove a child is a "discretionary judgment").
We next turn to the second part of the test: have the Plaintiffs demonstrated that the acts or omissions which give rise to the suit violated clearly established statutory or constitutional rights or laws of which a reasonable person would have known? The Plaintiffs assert that this answer is 'yes' based upon DHS's alleged violation of the DHS policy. DHS argues that "internal policies and procedures that have not been subject to legislative approval cannot form the basis of a well-established right." We agree with DHS.
Plaintiffs in this Court raise several constitutional rights they claim DHS violated and that were clearly established. But, having affirmatively (and, indeed, emphatically) declined in their complaint to rely on the United States Constitution, and having affirmatively withdrawn their state constitutional tort claim during the summary judgment hearing in circuit court, they have waived these constitutional arguments, and they cannot rely on them in this Court. See, e.g., Maynard v. Gen. Elec. Co., 486 F.2d 538, 539 (4th Cir. 1973) ("[W]e will not consider new causes of action raised for the first time on appeal[.]"); Linz v. City of Brea, 19 F.3d 1440 (9th Cir. 1994) (memorandum) (unpublished) (text available at 1994 WL 96336, at *1) ("Linz waived his claim based on being handcuffed too tightly. During Linz's deposition his attorney said that the 'claim stops at the point in time after they drew the blood.' He objected to questions about the subsequent period which included the time when Linz was allegedly handcuffed too tightly, and said '[w]e are withdrawing that part of the complaint.' Linz may not resurrect the handcuffing claim on appeal."). The Plaintiffs also claim that "some actions can be so obvious that there is no requirement for there to be a specific case, statute, or regulation on point to meet the clearly established law requirement." While we do not necessarily disagree with this observation, nevertheless the Plaintiffs must identify some predicate body of law from which the alleged right at issue emanates. As the United States Court of Appeals for the Fourth Circuit has explained, "[w]e observe that the 'exact conduct at issue need not' previously have been deemed unlawful for the law governing an officer's actions to be clearly established. Instead, we must determine whether pre-existing law makes 'apparent' the unlawfulness of the officer's conduct." Sims v. Labowitz, 885 F.3d 254, 262-63 (4th Cir. 2018) (citations omitted) (emphasis added). In the instant case, the Plaintiffs have abandoned their constitutional arguments and are limited to the DHS policy, which we find is not law. Finally, to the extent that the Plaintiffs purport to rely on this Court's case law which they characterize as supporting their position, we observe that most of these cases post-date 2018. For qualified immunity purposes, a right must be clear at the time of the defendant's acts or omissions. "[T]he court must decide whether the right at issue was 'clearly established' at the time of defendant's alleged misconduct." Pearson v. Callahan, 555 U.S. 223, 232 (2009). Thus, cases decided after the alleged misconduct are of no use in the qualified immunity analysis. See, e.g., Brosseau v. Haugen, 543 U.S. 194, 200 n.4 (2004) (per curiam) (citations omitted) ("The parties point us to a number of other cases in this vein that postdate the conduct in question, i.e., Brosseau's February 21, 1999, shooting of Haugen. These decisions, of course, could not have given fair notice to Brosseau and are of no use in the clearly established inquiry.").
DHS asserts that we have decided this point in its favor in Crouch v. Gillispie, 240 W.Va. 229, 809 S.E.2d 699 (2018). We made no such ruling in Crouch. At best we assumed for arguments' sake that the interim guidelines at issue in that case could create clearly established law. "[A]n assumption is not controlling precedent." Gonzalez v. Hasty, 269 F.Supp.3d 45, 63 (E.D.N.Y. 2017), aff'd, 755 Fed.Appx. 67 (2d Cir. 2018).
Statutory rights or statutory law are those rights or laws found in a statute. See, e.g., Black's Law Dictionary 1708 (11th ed. 2019) (defining "statutory" as "1. Of, relating to, or involving legislation <statutory interpretation>. 2. Legislatively created <the law of patents is purely statutory>. 3. Conformable to a statute <a statutory act>."). And it is well established that "a statute is a law passed by the legislature or an enactment of the legislature, and a determination of what the law will be in the future by legislative act." 82 C.J.S. Statutes § 1 at 23 (2022) (footnotes omitted); see, e.g., Roy Anderson Corp. v. 225 Baronne Complex, L.L.C., 251 So.3d 493, 502 (La. Ct. App. 2018) ("A statute is a legislatively created law."); Snow v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 896 So.2d 787, 791 (Fla. Dist. Ct. App. 2005) ("A statute is a form of positive law enacted by the legislative branch of government."); Battershell v. Bowman Dairy Co., 185 N.E.2d 340, 345 (Ill.App.Ct. 1961) ("Statute is the term applied to laws enacted by the legislature."); Werner v. Pioneer Cooperage Co., 155 S.W.2d 319, 324 (Mo.Ct.App. 1941) (defining "a statute [as] being a law enacted by the State Legislature[.]").
The DHS policy was not passed by the Legislature as a statute. Nor did the Legislature pass the DHS policy as a legislative rule pursuant to the West Virginia Administrative Procedures Act, see W.Va. Code §§ 29A-3-1 to -20-which we have recognized as statutory enactments. "[L]egislative rules in West Virginia are authorized by acts of the Legislature and we have treated them, as they should be, as statutory enactments." Appalachian Power Co. v. State Tax Dep't, 195 W.Va. 573, 584, 466 S.E.2d 424, 435 (1995). Hence, "[o]nce a disputed regulation is legislatively approved, it has the force of a statute itself." Id. at 585, 466 S.E.2d at 436; see also Syl. Pt. 2, in part, W.Va. Health Care Cost Rev. Auth. v. Boone Mem'l Hosp., 196 W.Va. 326, 472 S.E.2d 411 (1996) ("Once a disputed regulation is legislatively approved, it has the force of a statute itself. Being an act of the West Virginia Legislature, it is entitled to more than mere deference; it is entitled to controlling weight."); Penn Virginia Operating Co., LLC v. Yokum, 242 W.Va. 116, 120, 829 S.E.2d 747, 751 (2019) ("A legislative rule has the force of a statute[.]"); Summers v. W.Va. Consol. Pub. Ret. Bd., 217 W.Va. 399, 405, 618 S.E.2d 408, 414 (2005) (per curiam) ("[L]egislative rules have the force and effect of statutes[.]"); Feathers v. W.Va. Bd. of Med., 211 W.Va. 96, 102, 562 S.E.2d 488, 494 (2001) ("[W]hen regulations enacted by an agency have been legislatively approved, they have the force of statutes and are interpreted according to ordinary canons of statutory interpretation."); Men & Women Against Discrimination v. Fam. Prot. Servs. Bd., 229 W.Va. 55, 60, 725 S.E.2d 756, 761 (2011) (per curiam) ("In considering the validity of legislative rules . . . we give those rules the same weight as we would give a statute.").
We recognize that under the West Virginia Administrative Procedures Act a legislative rule is valid either if it is submitted to the legislative rule-making review committee for approval, or the Legislature expressly exempts such a rule from legislative rule-making review and approval under West Virginia Code § 29A-1-3(d). Syl. Pt. 13, Simpson v. W.Va. Off. of Ins. Comm'r, 223 W.Va. 495, 678 S.E.2d 1 (2009). The parties do not argue that the DHS policy is an exempt legislative rule, so we do not address that issue. Likewise, the West Virginia Constitution may vest certain state agencies with an independent constitutional rule-making authority. That situation is also not before this Court.
The Plaintiffs counter that the DHS Policy is an interpretation and effectuation of West Virginia statutory and decisional law, and we should treat the DHS policy on par with a statute or legislative rule. We disagree for two related reasons.
First, "statutory rights are simply a matter of grace bestowed by the legislature." 82 C.J.S. Statutes § 4 at 26-27 (2022) (footnote omitted). Thus, administrative agencies cannot create statutory rights in West Virginia except through promulgation of legislative rules as contemplated by our Administrative Procedures Act.
Second, we have recognized that an administrative agency's interpretation of statutes in internal agency policies, manuals, guidelines, or other such documents simply lack the force and effect of law. See, e.g., W.Va. Consol. Pub. Ret. Bd. v. Wood, 233 W.Va. 222, 228 n.9, 757 S.E.2d 752, 758 n.9 (2014) (quoting Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000)) (recognizing that an agency's statutory "interpretations contained in policy statements, agency manuals, and enforcement guidelines, all . . . lack the force of law[.]"); see also Schweiker v. Hansen, 450 U.S. 785, 789 (1981) (holding that the Social Security Administration's Claims Manual "has no legal force," and does not bind the agency). Lacking the force and effect of law, internal agency policies, manuals, guidelines, or other such documents cannot form the basis of clearly established statutory rights or law for purposes of qualified immunity.
The Plaintiffs also observe, as did the circuit court, that that the DHS Policy introduction states the policy was based on, inter alia, a consent decree entered in the case of Gibson v. Ginsberg. A copy of this consent decree is not included in the appendix record before us. To the extent the Plaintiffs wished to rely on this consent decree, they were obligated to ensure it was admitted in the trial proceedings and made a part of the appendix record before us. See, e.g., State v. Honaker, 193 W.Va. 51, 56 n.4, 454 S.E.2d 96, 101 n.4 (1994) ("We serve notice on counsel that in future appeals, we will take as nonexisting all facts that do not appear in the designated record and will ignore those issues where the missing record is needed to give factual support to the claim.").
We therefore hold that for purposes of qualified immunity, internal agency policies, procedures, manuals, guidelines, or similar documents that have not been legislatively approved are not, and cannot be used to create, clearly established statutory rights or law of which a reasonable person would have known. That being the case, the circuit court erred in denying the DHS summary judgment on the clearly established qualified immunity standard and we reverse its judgment on this ruling.
DHS Policy § 7.28 states that it is based on West Virginia Code § 49-6-5b. We have taken it upon ourselves to determine if that statute required DHS to file for parental rights termination when the sole ground was that a parent, guardian, or custodian has been required by state or federal law to register with a sex offender registry. We have reviewed West Virginia Code § 49-6-5b (2014) applicable in 2015 and West Virginia Code § 49-4-606 (2017) (a recodification of West Virginia Code § 49-6-5b) applicable in 2018. Neither contains any reference to sex offender registration as a ground mandating DHS to file for, join in, or otherwise seek in any pending proceeding, the termination of parental rights.
Having concluded that DHS is entitled to qualified immunity on our first standard, we now turn to whether DHS is entitled to qualified immunity under our second standard, which requires us to assess whether there was proof of fraudulent, malicious, or otherwise oppressive conduct. See, e.g., Ayersman v. Wratchford, 246 W.Va. 644, 656, 874 S.E.2d 756, 768 (2022) ("Given that the Wratchfords cannot establish a violation of clearly established constitutional or statutory laws or rights, the only way they can overcome the presumption of qualified immunity for Mr. Ayersman is to demonstrate that his conduct in investigating the fire was fraudulent, malicious, or oppressive.").
B. Oppressive Acts
Even where an agency is entitled to qualified immunity based on the lack of clearly established law, we have recognized that "under West Virginia immunities law, qualified immunity does not shield a public official from suit whose acts are 'fraudulent, malicious, or otherwise oppressive.'" Robbins, 248 W.Va. at 524 n.28, 889 S.E.2d at 97 n.28 (quoting Syl. in part, State v. Chase Sec., Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992)). In this case, the Plaintiffs elected not to pursue relief from DHS employees for their allegedly oppressive acts. Regardless, those remain germane to our analysis of DHS's claim to qualified immunity because under West Virginia law, the qualified immunity of an agency is inexorably intertwined with that of its officers, employees, and agents based on the doctrine of respondeat superior. That is, if a "public official or employee was acting within the scope of his duties, authority, and/or employment," when he allegedly oppressed the plaintiff, "the State and/or its agencies may be held [vicariously] liable for" the official or employee's oppressive acts. Syl. Pt. 12, in part, W.Va. Reg'l Jail & Corr. Facility Auth. v. A.B., 234 W.Va. 492, 766 S.E.2d 751 (2014). On the other hand, if the public official was "acting outside of the scope of his duties, authority, and/or employment," when he allegedly oppressed the plaintiff, "the State and/or it agencies are immune from vicarious liability . . . ." Id. Stated plainly, a state agency may be held liable for its employee's oppressive acts only if the employee so acted within the scope of his employment. See id. at 506, 766 S.E.2d at 765 ("We can perceive no stated public policy which is justifiably advanced by allocating to the citizens of West Virginia the cost of wanton official or employee misconduct by making the State and its agencies vicariously liable for such acts which are found to be manifestly outside of the scope of his authority or employment.").
The Plaintiffs sole focus in this case is whether DHS may be held vicariously liable for its unnamed employees allegedly oppressive acts. The Plaintiffs admit that this Court has never addressed what is meant by "oppressive" in the qualified immunity context. DHS also recognizes that we have never defined what is meant by the term "oppressive." It points out, though, that we have denied summary judgment in a qualified immunity case where we concluded that "there is evidence in the record that could lead a jury to infer a malicious or oppressive motive." Dawson, 242 W.Va. at 191, 832 S.E.2d at 117 (emphasis added). It then contends that this is consistent with "the commonly accepted definition of 'oppression' [that] explicitly requires that the oppressor be motivated by some untoward end[.]" Pet'r's Br. at 23 (emphasis in original) (citing "Oppression," Black's Law Dictionary (11th ed. 2019)). And DHS then argues the Plaintiffs have failed to show that DHS's actions or inactions were motivated to an untoward end. We think DHS is correct.
We begin by observing that the term "oppression" had a specific meaning at common law. At common law, oppression was a misdemeanor that,
in general, consist[ed] in the inflicting upon any person, from an improper motive, of any illegal bodily harm, imprisonment, or any injury other than extortion, by a public officer while exercising, or under color of exercising, his office. 10 Halsbury's L of Engl 3d ed p 615. The crime has also been defined as the abuse of any discretionary power invested by law in a public officer committed in the exercise of, or under color of exercising, the duties of his office with an improper motive. 2 Wharton, Criminal Law 12th ed § 1898.
Annotation, What Constitutes Offense of Official Oppression, 83 A.L.R.2d 1007 § 2 at 1008 (1962) (emphasis added); see also United States v. Claymore, 978 F.2d 421, 423 (8th Cir. 1992) ("[O]fficial oppression . . . consists, in general, of inflicting upon any person, from an improper motive, bodily harm or any injury by a public officer while exercising or under color of exercising his office."). Moreover, it has been observed that "[q]ualified immunity is not available if a public official acted with an improper motive[.]" 1 Civ. Actions Against State & Loc. Gov't § 4:12 (Westlaw March 2024 update); see also 14A C.J.S. Civil Rights § 785 at 732 (2017) (footnote omitted) ("An official will also not be entitled to qualified immunity . . . where the official demonstrates a bad or corrupt motive[.]")).The common law doctrine of oppression properly informs our state qualified immunity jurisprudence given this terms deep historical roots.
We hasten to point out that our decision today does not make oppression a crime. See State ex rel. Atkinson v. Wilson, 175 W.Va. 352, 355, 332 S.E.2d 807, 810 (1984) ("[T]here exists a distinction between a court's power to evolve common law principles in areas in which it has traditionally functioned, i.e., the tort law, and in those areas in which the legislature has primary or plenary power, i.e., the creation and definition of crimes and penalties.").
With that established, we now consider the interplay between "oppression," qualified immunity, and our summary judgment standard.
We initially recognize that we have stated that "[p]articularly in 'complex cases . . . where issues involving motive and intent are present,' summary judgment should not be utilized as a method of resolution." Kelley v. City of Williamson, 221 W.Va. 506, 510, 655 S.E.2d 528, 532 (2007) (per curiam) (quoting Masinter v. WEBCO Co., 164 W.Va. 241, 243, 262 S.E.2d 433, 436 (1980)). We think that this absolutist position goes too far. We have observed that "under our modern approach, we have found that simply because a case implicates intent and motive does not render summary judgment perforce unavailable." Berardi v. Meadowbrook Mall Co., 212 W.Va. 377, 382 n.3, 572 S.E.2d 900, 905 n.3 (2002) (per curiam); see also Williams v. Precision Coil, Inc., 194 W.Va. 52, 61, 459 S.E.2d 329, 338 (1995) ("Courts take special care when considering summary judgment in [cases] [where] state of mind, intent, and motives may be crucial elements. It does not mean that summary judgment is never appropriate."); Conrad v. ARA Szabo, 198 W.Va. 362, 370, 480 S.E.2d 801, 809 (1996) ("[W]e refuse to hold that simply because motive is involved that summary judgment is unavailable[.]").
Thus, while courts should be cautious in granting summary judgment in cases dealing with motive, Hanlon v. Chambers, 195 W.Va. 99, 105, 464 S.E.2d 741, 747 (1995), "[s]ummary judgment will not be defeated, however, simply because issues of motive or intent are involved." Meister v. Georgia-Pac. Corp., 43 F.3d 1154, 1159 (7th Cir. 1995). "'[E]ven in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.'" Johnson v. Killmer, 219 W.Va. 320, 323, 633 S.E.2d 265, 268 (2006) (per curiam) (quoting Medina- Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). That guidance is particularly relevant in the context of DHS's motion for summary judgment because "unless there is a bona fide dispute as to the foundational or historical facts that underlie the immunity determination, the ultimate questions of statutory or qualified immunity are ripe for summary disposition." Syl. Pt. 1, in part, Hutchison, 198 W.Va. at 144, 479 S.E.2d at 654. Consequently we hold that where qualified immunity is raised by a state agency as grounds for summary judgment on a claim of oppressive conduct, the nonmoving party, in order to avoid summary judgment, must produce some admissible evidence that creates an issue of fact as to whether an official, employee, or agent of the agency acted in a manner that was an abuse of any discretionary power invested by law in the exercise of, or under color of exercising, the duties of his or her office and while doing so acted with an improper motive. See, e.g., Smith v. Stafford, 189 P.3d 1065, 1074 (Alaska 2008) ("Where qualified immunity is raised by the moving party as grounds for summary judgment, the nonmoving party, in order to avoid summary judgment, must present some admissible evidence that creates an issue of fact as to whether the official acted in bad faith or with an evil motive.").
In the case before us, the Plaintiffs' entire appellate argument concerning whether DHS may be held liable for its unnamed employees' allegedly oppressive actions consists of the assertion in their appellate brief that "the trial court held the facts were sufficient for the jury to conclude whether or not the [DHS]'s actions were oppressive and, therefore, also denied qualified immunity on this ground." The Plaintiffs have produced no evidence before this Court or in the circuit court suggesting that the DHS employees who investigated the CPS referrals acted or failed to act because of an improper motive. As such, the circuit court erred in denying DHS summary judgment on this ground and we reverse its judgment.
C. Negligent Supervision and Training
DHS asserts that it is qualifiedly immune from the Plaintiffs' negligent supervision and training claims and that the circuit court erred by denying it summary judgment on these grounds. We agree.
We observe that training and supervision are discretionary governmental functions. "This Court has consistently found training and supervision to be discretionary governmental functions[.]" W.Va. Dep't of Hum. Servs. v. A.R., 249 W.Va. 590, 900 S.E.2d 16, 25 (2024); see, e.g., A.B., 234 W.Va. at 514, 766 S.E.2d at 773 ("We believe that the broad categories of training, supervision, and employee retention, as characterized by respondent, easily fall within the category of 'discretionary' governmental functions."); W.Va. State Police, Dep't of Mil. Affs. & Pub. Safety v. J.H. by & through L.D., 244 W.Va. 720, 740, 856 S.E.2d 679, 699 (2021) (similar); Robbins, 248 W.Va. at 528, 889 S.E.2d at 101 ("[T]raining and supervising are discretionary functions[.]"). Nevertheless, if the Plaintiffs can demonstrate that DHS violated a clearly established right or law with respect to its training or supervision of its CPS workers who were involved in this case, DHS would not enjoy qualified immunity. A.B., 234 W.Va. at 515, 766 S.E.2d at 774. We do not believe the Plaintiffs have made such a showing.
First, the Plaintiffs have failed to identify any statute or legislative rule that required any particular training of CPS workers by the DHS.
Second, and perhaps more importantly, the Plaintiffs' argument rests on the premise that the DHS failed to train its CPS workers on the DHS Policy and that its supervisors allowed violations of the policy to occur. But, as we have decided, the DHS policy does not clearly establish a right. We faced a similar issue in A.B. where we found a state agency qualifiedly immune.
In A.B., A.B. was an inmate at a West Virginia Regional Jail and Correctional Facility Authority (WVRJCFA) jail. She was allegedly sexually assaulted by a guard. A.B. claimed that the WVRJCFA failed to train its employees concerning the federal Prison Rape Elimination Act (PREA), 42 U.S.C. § 15601, et seq. We rejected this claim finding that the PREA did "'"not grant prisoners any specific rights."'" A.B., 234 W.Va. at 515, 766 S.E.2d at 774 (quoting De'lonta v. Clarke, No. 7:11-cv-00483, 2013 WL 209489, at *3 (W.D. Va. Jan. 14, 2013) (quoting Chinnici v. Edwards, No. 1:07-cv-229, 2008 WL 3851294, at *3 (D. Vt. Aug. 12, 2008)). "As such, neither the PREA, nor the standards promulgated at its direction, provide[d] respondent with an adequate basis upon which to strip the WVRJCFA of its immunity." Id., 766 S.E.2d at 774. Like the PREA, the DHS policy does not grant the Plaintiffs any substantive rights and does not strip DHS of its qualified immunity. Nor do we find, considering our above conclusions, that DHS was fraudulent, malicious, or oppressive in supervising or training its employees. Consequently, the circuit court erred in denying DHS summary judgment on the Plaintiffs' negligent training and supervision claims and its decision must be reversed.
DHS also claims the circuit court erred by permitting the Plaintiffs to file a reply to DHS's summary judgment motion exceeding the twenty-page limit contained in West Virginia Trial Court Rule 22.01. Given our resolution of this appeal, we do not address this claim.
IV. Conclusion
For the foregoing reasons, we reverse the Circuit Court of Kanawha County's judgment of April 11, 2023, and remand this case with directions to the circuit court to enter an order granting DHS summary judgment and dismissing the action against it.
Reversed and remanded with directions.
WOOTON, Justice, dissenting:
This Court historically and routinely affirms abuse and neglect adjudications and subsequent terminations of parental or custodial rights based, in whole or in part, on children being exposed to registered sex offenders. Exposing children to sex offenders is so egregious a failure of parental supervision and protection that our abuse and neglect statutory scheme unequivocally provides that reunification of the family is not necessarily required. See W.Va. Code §§ 49-4-602(d)(2)(F) (2015) and -604(c)(7)(D) (2020). Nonetheless, the majority has determined that despite being fully aware that the child victims in this case were living with a registered sex offender-and having received two formal referrals in that regard-there existed no "clearly established" legal obligation for petitioner DHS to intervene to ensure the children's safety. Respondents more than adequately identified clearly established law that gave DHS "fair warning" that a failure to act was potentially violative of that law. See Hope v. Pelzer, 536 U.S. 730, 741 (2002). As a result, I believe that DHS does not enjoy qualified immunity and I would permit a jury to consider the reasonableness of its conduct. Therefore, I respectfully dissent.
To strip a public official/employee, or vicariously liable State agency, of qualified immunity for negligence, a plaintiff need only allege that the actionable conduct "violate[d] clearly established laws of which a reasonable official would have known." Syllabus, in part, State v. Chase Sec., 188 W.Va. 356, 424 S.E.2d 591 (1992); see also Hutchison v. City of Huntington, 198 W.Va. 139, 148-49, 479 S.E.2d 649, 658-59 (1996) ("[W]hether qualified immunity bars recovery in a civil action turns on the objective legal reasonableness of the action assessed, in light of the legal rules that were clearly established at the time it was taken."). In the context of DHS's child protective services, there is little question that many of its duties are necessarily governed by individual, discretionary judgments. However, it is equally certain that there are aspects of its duties which are "'so well prescribed, certain, and imperative that nothing is left to the public official's discretion[,]'" making them virtually ministerial and unprotected by immunity. W.Va. Dep't of Health & Hum. Res. v. Payne, 231 W.Va. 563, 574, 746 S.E.2d 554, 565 (2013) (quoting Chase Sec., 188 W.Va. at 364, 424 S.E.2d at 599). Providing ongoing protective services and/or filing an abuse and neglect petition where children are residing with a registered sex offender is precisely such a duty.
Instead of scouring our abuse and neglect statutory scheme to ascertain the nature of DHS's obligations when children are exposed to sex offenders, the majority scarcely mentions the statutory scheme at all. Nowhere does the majority acknowledge the express statutory directive requiring court evaluation and approval of custodial situations where children are exposed to registered sex offenders-just as the DHS's policy contemplates. West Virginia Code §§ 49-4-602(d)(2)(F) and -604(c)(7)(D) each provide-as pertains to temporary and dispositional custody, respectively-that a parent, guardian, or custodian who "has been required by state or federal law to register with a sex offender registry" is such an obvious risk to children's safety that it obviates the need for DHS to make reasonable efforts to reunify the family unless a court makes specialized findings. Efforts to reunify with a parent or guardian who is a registered sex offender are presumptively not required unless a circuit court evaluates "the nature and circumstances surrounding the prior charges against that parent, that the child's interests would not be promoted by a preservation of the family." Id.
West Virginia Code § 49-4-604(c)(7)(D) provides:
(7) For purposes of the court's consideration of the disposition custody of a child pursuant to this subsection, the department is not required to make reasonable efforts to preserve the family if the court determines:
. . . .
(D) A parent has been required by state or federal law to register with a sex offender registry, and the court has determined in consideration of the nature and circumstances surrounding the prior charges against that parent, that the child's interests would not be promoted by a preservation of the family.West Virginia Code § 49-4-602(d)(2)(F) regarding temporary custody reads nearly identically.
If children being in the custody of a registered sex offender requires the circuit court to evaluate special considerations before it is permitted, it goes without saying that it is necessary to bring that family before the court such that it may conduct that analysis. Further, if a parent or guardian being a registered sex offender creates a general presumption that the family need not be reunified-the overarching goal of our abuse and neglect scheme-it is beyond question that the children's exposure to a sex offender in their own household requires, at a minimum, DHS intervention to provide ongoing protective measures for the children. To suggest that DHS intervention in this scenario is not reasonably implied by these statutes is wholly disingenuous, as evidenced by DHS's own policy, discussed infra. That there is no specific statutory authority directing it to file a petition in this circumstance is of no consequence; there is likewise no directive to file a petition when a child is physically or sexually abused, yet no one would reasonably argue DHS has no duty to do so.
However, rather than examining the import of these statutes that expressly reference registered sex offenders in the abuse and neglect context, the majority's lone reference to our abuse and neglect statutory scheme is to West Virginia Code § 49-4-605 (2018) (previously codified at §49-6-5b) entitled "When department efforts to terminate parental rights are required." The majority concludes that because this particular statute does not require DHS to seek termination of rights where a parent, guardian, or custodian is a registered sex offender, DHS had no "clearly established" obligation to intervene in the underlying circumstances. However, as this Court well knows, filing an abuse and neglect petition is not tantamount to seeking termination of parental or custodial rights. Indeed, the purpose of abuse and neglect proceedings is not exclusively and invariably to terminate a parental relationship; rather, the overarching purpose is to address the conditions of abuse and/or neglect and reunify families. Therefore, whether or not being a sex offender is on the list of scenarios where DHS is statutorily required to seek termination of rights is of no moment. The salient question for immunity purposes is whether the statutory scheme and our caselaw would have caused a reasonable DHS caseworker to know that failure to intervene-by way of providing ongoing safety services or filing an abuse and neglect petition-where children are residing with a registered sex offender potentially violates "clearly established" law stripping DHS of qualified immunity.
The statutorily prescribed circumstances where termination of rights is required under Section 605 and where reasonable efforts to reunify are not required pursuant to Sections 602 and 604 are virtually identical, with the addition of a parent or guardian being a registered sex offender to the latter. Compare W.Va. Code §§ 49-4-605 with 49-4-602, -604. DHS's policy therefore reflects a reasonable compilation of all statutory circumstances requiring its affirmative intervention such as to allow the circuit court to evaluate children's safety and is entirely consistent with our caselaw as discussed herein.
The statutory scheme aside, the majority's analysis denigrates the force of this Court's own precedent on the issue. This Court's caselaw has made abundantly clear that exposure to sex offenders justifies DHS intervention up to and including termination of rights. The majority dismisses this caselaw because some, but not all, of the cases cited by respondents reflecting this clearly established law post-date the events at issue. However, this Court held precisely the same in this regard for at least a decade prior to the underlying events. See, e.g., In re Charity H., 215 W.Va. 208, 213, 599 S.E.2d 631, 636 (2004) (affirming denial of improvement period based on adjudication where parent "consistently failed to take protective safety measures by exposing the children to sex
offenders[]"); In re Randy H., 220 W.Va. 122, 640 S.E.2d 185 (2006) (requiring DHS to amend petition to include exposure to sex offenders as allegation of abuse and/or neglect); In re B.H., 233 W.Va. 57, 754 S.E.2d 743 (2014) (affirming termination of custodial rights and denial of visitation where mother associated with sex offenders); In re A.D., No. 14-0507, 2014 WL 6634543, at *3 (W.Va. Nov. 24, 2014) (memorandum decision) (affirming termination where "Petitioner Mother allowed her boyfriend, a known registered sex offender, to live in her home and care for the children[]"); In re L.C., No. 14-0008, 2014 WL 2462981, at *2 (W.Va. June 2, 2014) (memorandum decision) (finding improvement period violated and termination required where father "permit[ted] his children to associate with a registered sex offender."); In re M.W., No. 15-0196, 2015 WL 7628820, at *2 (W.Va. Nov. 23, 2015) (memorandum decision) (affirming termination of rights based on adjudication for "knowingly allowing a registered sex offender in the home with the children[]"); In re N.U., No. 15-0032, 2015 WL 6181469 (W.Va. Oct. 20, 2015) (memorandum decision) (affirming termination and denial of post-termination visitation based on sex offender status); In re H.C., No. 17-0935, 2018 WL 1040464, at *2-4 (W.Va. Feb. 23, 2018) (memorandum decision) (affirming adjudication and termination of parental rights where "dangerous or inappropriate" people including "individual substantiated by CPS as a sex offender" frequented home).
And while cases post-dating the DHS's conduct in this case may not themselves establish DHS's "fair warning" of its obligation to act at the time of the underlying events, these cases demonstrate that DHS's present contention-that no reasonable DHS worker would have known DHS intervention was required-is opportunistic, at best.
In fact, as far back as 2006, this Court specifically took DHS and the lower court to task for failing to require investigation and amendment of a petition where evidence developed that a parent was exposing children to sex offenders. In Randy H., the guardian ad litem expressed concern that the mother associated with sex offenders and an ex-husband of the mother "might return to live in the respondent's household[.]" 220 W.Va. at 126, 640 S.E.2d at 189 (emphasis added). This Court found that "DHHR failed to act upon the allegations that further harm might come to the children because of respondent Lucinda H.'s alleged association with several sex offenders" and that the circuit court was obliged to require amendment of the petition and investigation into those specific allegations. Id. at 127, 640 S.E.2d at 190. Randy H. involved mere exposure to sex offenders and the potential that one may reside with the children in future, in contrast to the children's known, full-time residency with a sex offender in the instant case. Further, we chastised DHS for its failure to "thoroughly pursue the allegations of potential danger[.]" Id. at 128, 640 S.E.2d at 191. However, in this case the majority excuses its failure to do so because DHS could not have reasonably been aware of its obligation to do so-all evidence and its own policies to the contrary.
Further, in the year immediately prior to the first referral in the instant case, this Court affirmed an adjudication and termination of custodial rights where the allegations consisted exclusively of the children's exposure to sex offenders by their mother. In B.H., we found that despite substantial compliance with an improvement period, there was well-founded concern that the mother would continue to expose the children to sex offenders and thereby subject them to "serious risks attendant with such ill-advised associations." 233 W.Va. at 66, 754 S.E.2d at 752. We further expressly rejected the mother's "endeavor[] to excuse this relationship on the basis that her daughters were never around [the sex offender]" and affirmed termination of custodial rights for the mother's failure to "protect her children by avoiding relationships with individuals in whose presence her children were placed at risk of abuse." Id. (emphasis added).
Clearly, these cases affirming adjudications and terminations based on exposure to sex offenders-brought by the very agency that now claims it did not "clearly" know it was required to do so-involve facts not only commensurate with the underlying case, but arguably even less egregious. The underlying facts demonstrate not just that the children were "exposed" to sex offenders but resided with one on a full-time basis. The United States Supreme Court has explained, with regard to the level of specificity required when caselaw serves to establish a law or right as "clearly established," that
earlier cases involving "fundamentally similar" facts can provide especially strong support for a conclusion that the law is clearly established, [but] they are not necessary to such a finding. The same is true of cases with "materially similar" facts. . . . [T]he salient question . . . is whether the state of the law . . . gave respondents fair warning that their alleged treatment . . . was unconstitutional.Hope, 536 U.S. at 741.
Perhaps even more germane to the majority's resolution, the Hope Court more closely examined the types of evidence which demonstrate that a law is "clearly established," including non-Legislative support. In Hope, the Court found that its own cases, along with "binding Eleventh Circuit precedent, an Alabama Department of Corrections (ADOC) regulation, and a DOJ report" gave defendants "fair warning" that certain inmate disciplinary measures were unconstitutional. Id. at 741-42. More importantly, the Court expressly found non-"law" instructive as to whether that right was clearly established. The Court discussed at length the referenced DOJ report that concluded that the practices at issue were unconstitutional. Unlike the majority herein, instead of fixating on the report and whether the report was "law," the Court found it relevant to its assessment of whether a reasonable official would know that his conduct was improper-even where there was no evidence the defendant in the case had even received the report:
Although there is nothing in the record indicating that the DOJ's views were communicated to respondents, this exchange lends support to the view that reasonable officials in the ADOC should have realized that the use of the hitching post under the circumstances alleged by Hope violated the Eighth Amendment prohibition against cruel and unusual punishment.Id. at 745. The Court recognized that the caselaw which formed the underpinning of the
DOJ report was clearly established and that the report merely evidenced as much. This precedent makes plain that demonstrating that a defendant had "fair warning" that his or her conduct was violative of rights or laws is a holistic endeavor and is not determined solely by scrutinizing the form in which the clearly established law is presented.
However, perhaps the most frustrating aspect of this case is the irreconcilability between DHS's dubious position that there was no "clearly established" law requiring it to intervene and the fact that its policy-based on statutory and decisional law-specifically required it to do so. The law that DHS now bemoans as not "clearly established" was apparently so unmistakably clear that DHS felt compelled to formally adopt it into its internal written policies which govern its workers' actions. DHS representatives admitted that the policy is premised upon our abuse and neglect statutory scheme, as cited therein.
Rather than trying to square DHS's incongruous positions, the majority resolves the case by declaring that internal policies are neither statutes nor "law." Of course, mere internal policy is not "law," but a law is no less clearly established simply because it is restated in an internal policy. In fact, quite the opposite is implied thereby, as recognized by the United States Supreme Court in Hope. Further, DHS's policy is not an "interpretation" of statutes or decisional law; rather, it is a summary reiteration of it, as admitted by DHS representatives. To that end, despite acknowledging that identification of a "predicate body of law" suffices to establish a clearly established law that penetrates the shield of immunity, the majority refuses to look past DHS's policy to analyze the predicate body of statutory and caselaw upon which it is based.
The foregoing notwithstanding, I do not disagree generally with the idea that internal policies crafted through use of the judgment and discretion imbued in an agency may not themselves necessarily constitute "clearly established" laws. Each offering of "clearly established" law must be evaluated on its own merits in light of our guiding immunity principles. Internal policies are frequently the product of discretionary "best practices" and guidelines, subject to change or use of individual application and judgment or are otherwise insufficient to place a reasonable official on notice that his or her conduct violates clearly established law. The entire concept of qualified immunity would be destroyed by exposing the State to litigation for every insignificant or inadvertent variance from ever-changing internal protocol that does not place the State and its officials and employees on notice that their conduct violates the law. However, this is simply not such a case. DHS's alleged failures in this case are deeply rooted in both the statutory scheme and our caselaw; to say that it is not "clearly established" that exposure of children to registered sex offenders requires DHS's affirmative intervention defies common sense.
Finally, I note that the majority goes to great pains in its presentation of the facts to characterize DHS's conduct in this matter as timely, reasonable, justifiable and at worst-the product of its workers' seasoned judgment for which they enjoy immunity. However, these are matters for a jury to assess and have no bearing whatsoever on whether respondents have sufficiently identified a potential violation of "clearly established" law to overcome qualified immunity. This Court is required to construe respondents' case in the light most favorable to them. Under that view, respondents have alleged a failure of DHS's very charge, in the face of circumstances that clearly established law suggests that any reasonable child services worker would have known to initiate protective intervention.
That is not to say, however, that respondents would have inevitably succeeded on their claim were it permitted to proceed. Rather, respondents' case is sufficiently plead such as to remove the shield of qualified immunity and allow a jury to determine whether the facts and circumstances suggest that DHS should be held to account for these alleged failures.
Accordingly, I respectfully dissent.