Marshall v. Montgomery Cty. Children Serv. Bd. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Marshall v. Montgomery Cty. Children Serv. Bd., 92 Ohio St.3d 348,
2001-Ohio-209.]

MARSHALL, APPELLANT, v. MONTGOMERY COUNTY CHILDREN SERVICES
BOARD, APPELLEE, ET AL.
[Cite as Marshall v. Montgomery Cty. Children Serv. Bd. (2001), 92 Ohio St.3d
348.]
Juvenile law -- Child abuse -- Political subdivision tort liability -- Within the
meaning of R.C. 2744.02(B)(5) and 2744.03(A)(6)(c), R.C. 2151.421
does not expressly impose liability for failure to investigate reports of
child abuse.
(No. 00-865 -- Submitted December 13, 2000 -- Decided July 25, 2001.)
CERTIFIED by the Court of Appeals for Montgomery County, No. 17856.
__________________
SYLLABUS OF THE COURT
Within the meaning of R.C. 2744.02(B)(5) and 2744.03(A)(6)(c), R.C. 2151.421
does not expressly impose liability for failure to investigate reports of
child abuse.
__________________

DOUGLAS, J. On October 2, 1996, Rozanne Perkins beat her two-and-a-
half-year-old son Davon on the head. He died of his injuries the next day. Prior
to the murder of her son, Perkins had a substantial history of abusing her children
beginning in 1985. From 1985 to 1995, Perkins had four other children in
addition to Davon. During the same time period, but prior to the birth of Davon,
Montgomery County Children Services Board ("CSB") responded to numerous
complaints regarding Perkins's abuse of her children. Perkins was alcohol- and
drug-dependent. CSB ultimately removed all four of Perkins's children from her
custody and control.

SUPREME COURT OF OHIO

CSB received the first report of abuse of the Perkins's children in 1985,
when it was alleged that Perkins was slapping her three-month-old child, Ebony.
In 1987, a report was made to CSB alleging that Perkins had abandoned and
physically abused two of her children, Ebony and Gary. However, CSB was
unable to substantiate the claims. In 1988, CSB once again received allegations
that Perkins had abandoned her children; however, CSB has no record of any
charges of abuse then. CSB assisted the paternal grandmother, Doris Harris, to
obtain custody of Ebony and Gary. Perkins did not appear at the hearing to
contest custody.

In August 1992, Perkins was once again referred to CSB, this time for
beating her son Dorian with a belt and striking him in the eye. CSB then assigned
a caseworker to the Perkins family on an ongoing basis. Perkins admitted to the
CSB caseworker that she had beaten the child with the belt but stated that she
"wouldn't do it anymore as long as the child didn't cry anymore." Due to the
severity of the abuse, CSB removed Dorian from his mother's custody to the
custody of his aunt, Ruby Perkins. CSB determined that in order to regain
custody of her children, Perkins must attend parenting and chemical dependency
classes and submit to a psychological review. Perkins failed to comply with the
requirements of the chemical-dependency program.

CSB continued to work with Perkins over a fourteen-month period, during
which Perkins gave birth to yet another child, Darian. A toxicology screen
performed shortly after Darian's birth indicated that the child was born alcohol-
dependent and also tested positive for narcotics. CSB concluded that Darian had
been heavily exposed to a variety of drugs and alcohol prior to his birth. As a
result, CSB removed Darian from Perkins's custody and placed him with Robin
Marshall, Darian's paternal aunt. None of Perkins's children was returned to her.

During this time period, CSB had a policy of closing all cases where no
child remained in the home, even if CSB was aware that the mother was pregnant
2

January Term, 2001
with another child. Prior to closing the case file, CSB became aware that Perkins
was pregnant with a fifth child. Because no children remained in Perkins's home,
CSB closed the file even though Perkins was pregnant, had a history of abusing
her children, and Perkins was suspected of still being dependent on alcohol and
drugs. On October 14, 1993, Perkins's caseworker pointed out in her final report
that Perkins was "approximately 4-5 months pregnant." In addition the
caseworker reported, "I would not be surprised in the least if the Agency receives
a referral on her for a drug exposed infant when she delivers in February or
March."

Also during this time, CSB had a classification system for the cases that
were reported. The priorities were listed as levels one through four. A level-one
priority was the most critical and level four was the least critical. A level-one
priority required CSB to make contact with the child within one hour of the
report. A level-two priority required CSB to make contact with the child within
twenty-four hours. A level-three priority required CSB to initiate a case within
twenty-four hours and make contact with someone familiar with the case, not
necessarily the parent or child victim. CSB established no minimum response
time for a level-four priority, and the priority level could change depending upon
the information gathered. The levels CSB assigned to cases could be altered once
a review of any existing record indicated that based upon an existing history, the
case required a higher level of priority.

Perkins gave birth to her fifth child, Davon, on February 2, 1994. CSB
received no reports from the hospital that Davon was alcohol- or drug-dependent.
On October 24, 1994, CSB received a report from Danny McLemore, Perkins's
boyfriend and Davon's father, requesting that CSB check on the child due to the
mother's substance-abuse problem. CSB assigned the case as a level-three
priority, which required that contact be made with someone familiar with the case
within twenty-four hours. The caseworker assigned to the case reviewed the
3

SUPREME COURT OF OHIO
records that CSB maintained regarding Perkins and was aware that Perkins had a
history of substance abuse and that four of her children had been removed from
her home. Despite Perkins's history, CSB made no changes to the level of
priority of the McLemore complaint concerning Davon.

The CSB caseworker assigned to investigate the complaint concerning
Davon attempted to contact Perkins through an unannounced home visit on
October 25, 1994. However, no one was home, and a contact letter was left
requesting that Perkins contact CSB. The caseworker made additional attempts to
contact Perkins on November 14, and December 1, 1994, and January 10, 1995,
each time leaving a note requesting Perkins to contact CSB. Perkins failed to
respond. Contrary to the requirements of a level-three priority, the caseworker did
not attempt to contact any other persons during this time period.

On April 19, 1995, nearly six months after McLemore's complaint, CSB
made contact with Perkins. The caseworker's report indicated that Perkins denied
any substance abuse. The caseworker also found that Perkins's house was clean
and that Davon did not appear to be neglected. Based upon the caseworker's
home visit the case was closed.

On October 6, 1995, the Dayton Police Department arrested Perkins for
domestic violence. Perkins attempted to stab McLemore while he was driving,
forcing him to pull the car off the road in order to disarm Perkins. Davon was a
passenger in the rear seat of the car during this altercation. Perkins was later
charged with child endangering as a result of this incident.

During this time, CSB and the Dayton Police Department ("DPD") had an
agreement that DPD would report to CSB all complaints that DPD received of
child abuse, child neglect, and child endangering. DPD placed all of the reports
that it received into a box located in the detective section of DPD. Every morning
a CSB employee would retrieve the reports that DPD had placed in the box. CSB
immediately investigated all criminal charges of child endangering that were
4

January Term, 2001
received. Due to her altercation with McLemore, Perkins was arrested and
charged with domestic violence and child endangering. However, contrary to the
agreement between DPD and CBS, DPD did not place any reports of Perkins's
arrest for child endangering in the box for CSB retrieval.

CSB had no further referrals of this case until October 2, 1996, the day
that Davon was beaten to death by his mother.

On October 1, 1997, Marshall, Davon's paternal aunt and administrator of
his estate, appellant, filed a wrongful death action against CSB, Helen Jones,
Director of CSB, Montgomery County, the city of Dayton, and an unnamed
Dayton police officer. The complaint alleged that CSB, appellee, knew or should
have known about the previous acts of violence perpetrated by Perkins against her
children. The complaint further alleged that appellee negligently failed to
investigate and negligently failed to remove Davon from Perkins's custody and
that its negligence was the proximate cause of Davon's death. In addition, the
complaint alleged that the city of Dayton, through DPD and its unnamed police
officer, negligently failed to report the arrest of Perkins for domestic violence and
child endangering.

Appellee, Montgomery County, Jones, and Dayton filed motions for
summary judgment, which were granted June 10, 1999. Appellant appealed the
summary judgment in favor of CSB and Dayton. The Court of Appeals for
Montgomery County affirmed the trial court's decision. In response to
appellant's motion to certify a conflict, the court of appeals certified a conflict
between its judgment in favor of CSB and Rich v. Erie Cty. Dept. of Human
Resources (1995), 106 Ohio App.3d 88, 665 N.E.2d 278; Crago v. Lorain Cty.
Commrs. (1990), 69 Ohio App.3d 24, 590 N.E.2d 15; Sprouse v. Lucas Cty. Bd. of
Edn. (Mar. 12, 1999), Lucas App. No. L-98-1098, unreported, 1999 WL 128636;
Reed v. Perry Cty. Children's Serv. (June 29, 1993), Perry App. No. CA-429,
5

SUPREME COURT OF OHIO
unreported, 1993 WL 274299. This cause is now before this court upon our
determination that a conflict exists.

The certified question is:

"For the purposes of the immunity exceptions in R.C.
2744.02(B)(5) and R.C. 2744.03(A)(6)(c), does R.C. 2151.421 expressly
impose liability on political subdivisions and their employees for failure to
investigate child abuse?"

We answer the certified question in the negative. While the statutes at
issue in this case are the same as those interpreted in Campbell v. Burton (2001),
92 Ohio St.3d 336, ___ N.E.2d ___, the issue is whether R.C. 2151.421 expressly
imposes liability for a failure to investigate as opposed to a failure to report as in
Campbell. The duty to investigate reported child abuse or neglect is required by
R.C. 2151.421(F)(1), which states:

"Except as provided in section 2151.422 of the Revised Code, the public
children services agency shall investigate, within twenty-four hours, each report
of known or suspected child abuse or child neglect and of a known or suspected
threat of child abuse or child neglect that is referred to it under this section to
determine the circumstances surrounding the injuries, abuse, or neglect or threat
of injury, abuse, or neglect, the cause of the injuries, abuse, neglect, or threat, and
the person or persons responsible. * * * The public children services agency shall
submit a report of its investigation, in writing to the law enforcement agency." It
is clear that CSB had a duty pursuant to R.C. 2151.421 to investigate reports of
known or suspected child abuse within twenty-four hours.

In order to determine the liability of a political subdivision pursuant to the
Political Subdivision Tort Liability Act, a three-tiered analysis of R.C. Chapter
2744 is required. We have set forth this analysis in Cater v. Cleveland (1998), 83
Ohio St.3d 24, 28, 697 N.E.2d 610, 614, and in Campbell v. Burton (2001), 92
Ohio St.3d 336, ___ N.E.2d ___. We will not repeat that discussion here.
6

January Term, 2001

R.C. 2744.02(B)(5) provides:

"In addition to the circumstances described in divisions (B)(1) to (4) of
this section, a political subdivision is liable for injury, death, or loss to persons or
property when liability is expressly imposed upon the political subdivision by a
section of the Revised Code * * *. Liability shall not be construed to exist under
another section of the Revised Code merely because a responsibility is imposed
upon a political subdivision or because of a general authorization that a political
subdivision may sue and be sued."

Similar to the exception to political subdivision immunity found in R.C.
2744.02(B)(5), R.C. 2744.03(A)(6)(c) provides that an employee of a political
subdivision is immune from liability unless "[l]iability is expressly imposed upon
the employee by a section of the Revised Code."

The court of appeals found that within the meaning of R.C. 2744.02(B)(5)
and 2744.03(A)(6)(c), R.C. 2151.421 does not expressly impose liability for
failure to investigate allegations of abuse. We agree with the court of appeals but
arrive at our conclusions by way of a slightly different analytical approach.
In
Campbell, supra, we held that R.C. 2151.99 imposes a criminal penalty
for failure to report, pursuant to R.C. 2151.421(A)(1), known or suspected child
abuse. We determined that within the meaning of R.C. 2744.02(B)(5) and
2744.03(A)(6)(c), the term "liability" refers to either civil or criminal liability.
However, in contrast to its imposition of a penalty for failure to report, R.C.
2151.99 does not impose a penalty for failure to investigate, pursuant to R.C.
2151.421(F)(1), reports of child abuse or neglect. Therefore, within the meaning
of R.C. 2744.02(B)(5) and 2744.03(A)(6)(c), R.C. 2151.421 does not expressly
impose liability for failure to investigate reports of child abuse. Accordingly,
even if it failed to investigate a report, appellee is insulated from liability by
sovereign immunity.
7

SUPREME COURT OF OHIO

We find this troubling in light of the potential for a political subdivision to
entirely disregard affirmative duties and yet avoid liability under the cloak of
sovereign immunity.1 However, we are confined to review the law based upon the
issues presented in this appeal.

The judgment of the court of appeals is affirmed.
Judgment affirmed.

MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON,
JJ., concur.

MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., concur separately in
judgment.
__________________

COOK, J., concurring in judgment. R.C. 2151.421 does not expressly
impose liability upon a political subdivision or its employee, within the meaning
of R.C. 2744.02(B)(5) and 2744.03(A)(6)(c), for failure to investigate reports of
child abuse. I therefore join the syllabus and judgment of the majority. While
doing so, I continue to adhere to the views expressed in my dissenting opinion in
Campbell v. Burton (2001), 92 Ohio St.3d 336, ___ N.E.2d ___.

MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing
opinion.
__________________
D.K.
Wehner
and Thomas J. Replogle, for appellant.

Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and
Marcell N. Dezarn, Assistant Prosecuting Attorney, for appellee.
__________________

1.
For comparison to another statute that imposes a duty but does not impose liability, see
Butler v. Jordan (2001), 92 Ohio St.3d 354, ___ N.E.2d ___.
8