Opinion
18-P-694
03-04-2020
Therese JONES v. DEPARTMENT OF CHILDREN AND FAMILIES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Therese Jones, appeals from a judgment dismissing her complaint against the defendant, the Department of Children and Families (DCF). Because Jones's complaint is foreclosed by the discretionary function exception to the Massachusetts Tort Claims Act, we affirm.
Background. We assume the following facts as alleged in Jones's complaint to be true. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 625 n.7 (2008). On February 18, 2014, Jones and her three year old son were staying at a Marriott hotel. While the child was asleep, Jones went to the hotel bar where she ran into some work friends and had a few drinks. Jones returned to her room every ten to fifteen minutes to check on her son. While Jones's complaint does not specify how, DCF learned that the child had been left alone in the hotel room while Jones was at the hotel bar. DCF took immediate temporary custody of the child on that basis.
Jones further alleged that she had never been arrested, had no criminal record, and had no previous involvement with DCF. Based on DCF's failure to investigate these factors, Jones brought a claim for negligence against DCF. Jones specifically alleged the following: "[T]he defendant ... failed to investigate any of the above-stated factors prior to taking custody of the minor child, and likewise after the defendant had assumed custody of the minor it failed to investigate the matter in a timely fashion resulting in the plaintiff wrongfully being deprived of custody of the minor child."
DCF filed a motion to dismiss, arguing that Jones's allegations did not support a claim for negligence and that Jones's claim was further barred by the discretionary function exception to the Massachusetts Tort Claims Act. See G. L. c. 258, § 10 (b ). Because we agree that Jones's claim is barred by the discretionary function exception, as discussed more fully below, we affirm on that basis and decline to address whether her allegations support a claim for negligence.
Discussion. The Massachusetts Tort Claims Act has "abrogated the Commonwealth's immunity in tort actions in most circumstances." Morrissey v. New England Deaconess Ass'n -- Abundant Life Communities, Inc., 458 Mass. 580, 592 (2010). The Legislature has, however, "chosen to preserve sovereign immunity for certain claims, irrespective of their legal sufficiency or merit, or the gravity of the injuries alleged." Id., quoting Smith v. Registrar of Motor Vehicles, 66 Mass. App. Ct. 31, 32 (2006). One such exception is for "any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public employer or public employee, acting within the scope of his office or employment." G. L. c. 258, § 10 (b ). This discretionary function exception applies "whether or not the discretion involved is abused." Id.
In determining whether the discretionary function exception applies, we first look to "whether the [governmental] actor had any discretion to do or not to do what the plaintiff claims caused [her] harm." Harry Stoller & Co. v. Lowell, 412 Mass. 139, 141 (1992). If the governmental actor had no discretion because a statute, regulation, or established agency practice required a specific course of conduct, the "discretionary function exception to governmental liability has no role to play in deciding the case." Id. Our "second and far more difficult step is to determine whether the discretion that the actor had is that kind of discretion for which § 10 (b ) provides immunity from liability." Id. "[F]unctions which rest on the exercise of judgment and discretion and represent planning and policymaking" fall within the exception, whereas "functions which involve the implementation and execution of such governmental policy or planning" do not fall within the exception. Whitney v. Worcester, 373 Mass. 208, 217 (1977).
As to whether DCF had any discretion in conducting its investigation, we conclude that it did. When called to the hotel, DCF had to decide whether it had reasonable cause to believe that the child's health or safety was in immediate danger from abuse or neglect. See G. L. c. 119, § 51B (c ) ("If the department has reasonable cause to believe a child's health or safety is in immediate danger from abuse or neglect, the department shall take a child into immediate temporary custody if it has reasonable cause to believe that the removal is necessary to protect the child from abuse or neglect. The investigation and evaluation shall commence within 2 hours of initial contact and an interim report with an initial determination regarding the child's safety and custody shall be completed as soon as possible but not more than 24 hours after initial contact" [emphasis added] ); G. L. c. 119, § 51B (e ) ("Notwithstanding subsection [c ], whenever the department has reasonable cause to believe that removal is necessary to protect a child from abuse or neglect, it shall take the child into immediate temporary custody. If a child is taken into immediate temporary custody, the department shall make a written report stating the reasons for such removal and shall file a care and protection petition under section 24 on the next court day"). The governing statute does not, however, list any specific factors that DCF needed to investigate in making this decision. See G. L. c. 119, § 51B.
With this in mind, we note that DCF verified that Jones's son had been left alone in their room while Jones was at the hotel bar having a few drinks. Whether DCF needed to conduct a further investigation before taking immediate temporary custody of the child was a discretionary decision. Cf. Sena v. Commonwealth, 417 Mass. 250, 256 (1994) (law enforcement officers have discretion as to whether and when to apply for arrest warrants because "[t]here obviously is no objective scale with which a law enforcement officer can weigh the evidence he accumulates in any particular case to determine whether and when that evidence would support a finding of probable cause").
While Jones argues that DCF failed to conduct any investigation whatsoever before taking immediate temporary custody of her son, the allegations in her complaint do not support this argument. Jones's argument instead appears to go to her allegations that DCF did not investigate certain factors, such as whether she had ever been arrested, but Jones has not pointed to any statute, regulation, or established agency practice that required DCF to investigate those factors. Moreover, where this is a legal question, we are not persuaded by Jones's argument that her complaint was improperly decided at the motion to dismiss stage before she had an opportunity to conduct discovery.
Regarding Jones's allegations that DCF did not conduct a timely investigation, we note that she does not allege any violations of the time constraints specified in G. L. c. 119, § 51B, or any other statute. In the absence of any such allegations, DCF's decisions regarding when and how long to investigate were also discretionary.
We further conclude that the discretion involved was one of policymaking or planning for which G. L. c. 258, § 10 (b ), provides immunity from liability. It has long been established that decisions regarding what and when to investigate "are based on considerations of, and necessarily affect, public policy." Sena, 417 Mass. at 256 (regarding investigative decisions of law enforcement officers). See Harry Stoller & Co., 412 Mass. at 143 ("Even decisions made at the operational level, as opposed to those made at the policy or planning level, would involve conduct immunized by the discretionary function exception if the conduct were the result of policy determinations"). As such, the decisions made by DCF here regarding what and when to investigate are precisely the sort of decisions that "should be insulated from a form of review which might impede governmental operations by subjecting governmental decision making to after-the-fact judicial tort analysis." Whitney, 373 Mass. at 217.
Judgment affirmed.