Md. ruled liable in abuse, neglect cases

Court of Appeals says state can be sued over social workers' mistakes

July 29, 2004|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

In a decision expected to reverberate statewide, Maryland's highest court ruled yesterday that the state can be held liable for negligence if a child dies after social service workers mishandle reports of child abuse or neglect.

"It is great news. The Court of Appeals today joins the majority of states that have answered in the affirmative whether the Department of Social Services has a duty to a child who died as a victim of abuse or neglect," said Stephen B. Mercer, the lawyer for the Texas father who sued.

Mercer contended that his client repeatedly reported to St. Mary's County social service workers that his toddler son was being physically abused while in the care of the boy's mother -- but that they failed to intervene and the child was fatally beaten.

"When DSS is notified of that abuse and fails to perform its mandatory duties, that child suffers in a very different way from the general public at large. Here, of course, it was his tragic death," Mercer said.

The mother was not charged, but her boyfriend was charged with -- and found not guilty of -- murder in the boy's death. But the high court was not ruling on the couple's or DSS' responsibility, but on whether a civil case could proceed against the state.

Attorneys for the state argued in court that the case should not go forward, and defended the actions of the DSS workers.

"The allegations bear very little relationship to reality," said Assistant Attorney General Shelly E. Mintz, representing the state Department of Human Resources, which includes the St. Mary's DSS. "The social workers did an exemplary job; they did a thorough investigation."

She said the Department of Human Resources and lawyers would closely examine the ruling for its public policy implications.

Writing for the majority in the 5-2 ruling, Court of Appeals Judge Alan M. Wilner said the law creates a duty to protect children identified as the possible victims of "harm likely to occur if the statutory duty is ignored" by social workers.

"We cannot conceive that the legislature intended, when a child is killed or injured, at least in part because DSS fails to perform the duties clearly cast upon it to make a site visit within 24 hours and a thorough investigation, for the only sanction to be the placement of a reprimand in some social worker's personnel file," he wrote. "The Legislature meant for DSS and its social workers to act immediately and aggressively when specific reports of abuse or neglect are made, and the best way to assure that is done is to find that they do have a special relationship with specific children ... and ... to make them liable if harm occurs because they fail in their mandated duty."

Wilner noted that DHR has reported that in fiscal year 2003, there were 7,300 substantiated reports of child abuse and neglect. He also pointed to federal statistics showing that nationally, 1,400 children died of abuse and neglect in 2002.

The opinion comes against a backdrop of high-profile child abuse deaths and efforts to improve services. Among them was the May 11 beating deaths of month-old twin girls who had been born at Johns Hopkins Hospital to a 17-year-old whose abuse of a previous child had been documented. A social worker at the hospital had called DSS before the babies were discharged, but the hospital had not been given information about the mother, a runaway foster teen, that might have indicated the twins were at risk. The parents have been charged with murder in the twins' deaths.

Dissenting judges expressed concern about the public policy ramifications of the ruling.

"The Department does not make parents kill their children," Judge Dale R. Cathell wrote in a dissent joined by Judge Lynne A. Battaglia.

He called the majority's opinion a "bonanza for trial attorneys" because the court has never before given a green light to lawsuits based on deciding that a "special relationship" exists between the state and a group of its residents.

He wrote that the ruling will not help children but will create confusion for child protective workers and for the many state agencies that rely on employee discretion in making decisions.

But Mercer said he did not expect the ruling to unleash a torrent of lawsuits. Such cases would be difficult to prove, and if the parent won, state law would limit the amount of an award to $200,000. Yesterday's ruling returns the case to Anne Arundel County Circuit Court for trial on the negligence count. That court had dismissed all of the lawsuit's counts. Only the decision on several negligence counts was appealed.

Mercer said the goal is to examine how the St. Mary's County Department of Social Services handled repeated reports by Eric Horridge that his toddler son, Collin, was being abused by Tiffany Fairris, the mother, and her boyfriend, Daniel Fowkes, after they moved to St. Mary's County. The child was 19 months old when Horridge began making reports in December 1999; Collin was beaten to death Feb. 25, 2000.

Because Horridge's lawsuit has not gone to trial, only his version of what took place, and not the department's account, has been aired. Horridge contended that DSS workers did not see Collin until four days after one of his reports and then failed to intervene, labeling him a "disgruntled parent."

Fowkes was charged with murder in the child's death but was found not guilty. He said he stepped on the toddler's stomach in an effort to ease Collin's respiratory problems. Mintz said that Fowkes' action was not something social workers could have foreseen.

Neither Fowkes nor Fairris could be reached for comment last night.

Sun staff writer Lynn Anderson contributed to this article.

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