2004 Ohio 6108 | Ohio Ct. App. | 2004
Lead Opinion
{¶ 3} As was admitted in the complaint, while acting as foster parents, a domestic violence situation occurred at the Sobiski foster home. Subsequently, the county removed the foster child, and appellee sued the county and four of its employees for money damages. The county and its employees asserted their immunity before this court.
{¶ 4} Appellee filed her complaint on July 16, 2003. She had voluntarily dismissed her previous complaint. Appellants moved to dismiss the refiled complaint on grounds that included immunity. The court denied the motion by order dated December 17, 2003. The pertinent section of R.C.
{¶ 5} "(C) An order that denies a political subdivision or anemployee of a political subdivision the benefit of an allegedimmunity from liability as provided in this chapter or any otherprovision of the law is a final order."
{¶ 6} In the case at bar, the order denying the motion to dismiss merely noted that the motion was denied, without further explanation. On January 13, 2004, appellants filed their notice of appeal.
{¶ 8} Appellants' first assignment of error states: "The trial court erred by overruling immunity, under Chapter R.C. 2744, of defendant, identified as Cuyahoga County Department of Children and Family Services."
{¶ 9} Appellants' second assignment of error states: "The trial court erred by overruling immunity, under Chapter R.C. 2744, of defendant, Elizabeth Feeney (identified in the complaint as `Libbey Feeney')."
{¶ 10} Appellants' third assignment of error states: "The trial court erred by overruling immunity, under Chapter R.C. 2744, of defendant, Kenneth Crookston."
{¶ 11} Appellants' fourth assignment of error states: "The trial court erred by overruling immunity, under Chapter R.C. 2744, of defendant, Allan Sowell."
{¶ 12} Appellants' fifth assignment of error states: "The trial court erred by overruling immunity, under Chapter R.C. 2744, of defendant, Joan Todd."
{¶ 13} The standard of review on a Civ.R. 12(B)(6) motion to dismiss, which raises questions of law, is de novo. Hunt v.Marksman Prods. (1995),
{¶ 14} In the case at bar, the foster child was removed from the home of appellee and her husband following a domestic violence situation.1 Appellee admits that an incident occurred in her home and that her husband was arrested following the incident.2 Appellee's complaint states that "on or about 29 January 2003, Dr. Sobiski was struck by Mr. Terry Reed (her now estranged husband) in an act of domestic violence."3 The county, without objection from appellee, entered into the record a certified copy of a complaint filed by appellee's husband with the domestic relations court in Case No. DV 03 291088. However, in the court filing, Reed stated that he was the victim of domestic violence perpetrated by appellee.4 For purposes of this appeal, these issues are not material. They are mentioned simply to illustrate some of the complex factors facing county child protection workers in this case.
{¶ 15} The foster parents in this case were not without recourse. As a foster parent, appellee could have requested permission from the juvenile court to intervene as a party. The determination as to such request for intervention is within the juvenile court's discretion. While a foster parent is not automatically entitled to party status, the court has wide discretion to name parties to a juvenile court action, and this discretion includes naming foster parents as parties. In reZhang (1999), 135 Ohio App.3d.
{¶ 16} Moreover, the foster parents could have petitioned the juvenile court to challenge the placement change. Other disappointed foster parents have filed such motions with a juvenile court. In re Moorehead (1991),
{¶ 17} As previously stated, the key issue in this case is immunity. The Political Subdivision Tort Liability Act, R.C. 2744 et seq., sets forth a three-tiered analysis for determining whether a political subdivision is immune from liability. R.C.
{¶ 18} Under R.C.
{¶ 19} The Ohio immunity statute provides a three-tiered analysis for determining whether or not a political subdivision or its employees have immunity. First, R.C.
{¶ 20} Under the first tier of the analysis, the court must consider whether immunity is established pursuant to R.C.
{¶ 21} "(A)(1) For the purposes of this chapter, the functionsof political subdivisions are hereby classified as governmentalfunctions and proprietary functions. Except as provided indivision (B) of this section, a political subdivision is notliable in damages in a civil action for injury, death, or loss toperson or property allegedly caused by any act or omission of thepolitical subdivision or an employee of the politicalsubdivision in connection with a governmental or proprietaryfunction."
{¶ 22} (Emphasis added.)
{¶ 23} The exceptions are set forth in R.C.
{¶ 24} "(1) Except as otherwise provided in this division,political subdivisions are liable for injury, death, or loss toperson or property caused by the negligent operation of any motorvehicle by their employees when the employees are engaged withinthe scope of their employment and authority. The following arefull defenses to that liability:
{¶ 25} "(a) A member of a municipal corporation policedepartment or any other police agency was operating a motorvehicle while responding to an emergency call and the operationof the vehicle did not constitute willful or wanton misconduct;
{¶ 26} "(b) A member of a municipal corporation firedepartment or any other firefighting agency was operating a motorvehicle while engaged in duty at a fire, proceeding toward aplace where a fire is in progress or is believed to be inprogress, or answering any other emergency alarm and theoperation of the vehicle did not constitute willful or wantonmisconduct;
{¶ 27} "(c) A member of an emergency medical service owned oroperated by a political subdivision was operating a motor vehiclewhile responding to or completing a call for emergency medicalcare or treatment, the member was holding a valid commercialdriver's license issued pursuant to Chapter 4506. or a driver'slicense issued pursuant to Chapter 4507. of the Revised Code, theoperation of the vehicle did not constitute willful or wantonmisconduct, and the operation complies with the precautions ofsection
{¶ 32} (Emphasis added.)
{¶ 33} Under the third tier of the analysis, immunity can be reinstated if the political subdivision can successfully argue that one of the defenses contained in R.C.
{¶ 34} "(5) The political subdivision is immune from liabilityif the injury, death, or loss to person or property resulted fromthe exercise of judgment or discretion in determining whether toacquire, or how to use, equipment, supplies, materials,personnel, facilities, and other resources unless the judgment ordiscretion was exercised with malicious purpose, in bad faith,or in a wanton or reckless manner."
{¶ 35} (Emphasis added.)
{¶ 36} In the case at bar, none of the second tier exceptions apply and the third tier is inapplicable as well.
{¶ 37} However, assuming arguendo that the analysis had progressed to the third tier, it would have failed. This is because there was no malicious, bad faith, or reckless conduct demonstrated by appellants. The foster child in the case at bar was removed from the home of appellee only after an extensive evaluation and consideration on the part of CCDCFS and its employees. Both parties acknowledged that the child was only removed subsequent to a domestic violence incident. Appellee admits that an incident occurred in her home and that her husband was arrested following the incident. A "safety plan" was developed by CCDCFS, and the county later inspected the home where appellee was residing following the domestic violence.
{¶ 38} On February 3, 2004, a staffing meeting was held and CCDCFS decided to remove the foster child from the care of appellee. The county recommended that the approved home study for appellee be rescinded and deemed invalid. Later, without objection from appellee, the county entered into the record a certified copy of a complaint filed by appellee's husband with the domestic relations court in Case No. DV 03 291088. In this filing, Reed stated that he was the victim of domestic violence. It is only after the safety plan, the home inspection, the staffing meeting, the domestic violence incident, and other criteria that CCDCFS decided to remove the child from appellee foster parent.
{¶ 39} The removal of a child from its current care giver, even in a foster parent situation, is a painful and contentious event. Emotions are high and people are vulnerable. The end result of such a custody situation is that one party will not obtain the result it desires. While this court is sensitive to appellee's situation, the evidence in the record indicates that statutory immunity applies, without exception, in this case. Furthermore, the evidence does not demonstrate any malice or wrongdoing on the part of appellants.
{¶ 40} This case would have been better served in probate court. However, that being said, we find merit with appellants' arguments. We find that the trial court erred, as to all appellants, when it overruled appellants' motion. The evidence in the case at bar demonstrates that immunity applies under R.C. 2744 and none of the statutory exceptions apply. CCDCFS and its employees did not act with malicious purpose, in bad faith, or in a wanton or reckless manner. Furthermore, finding individual CCDCFS' employees liable for engaging in proper daily activities inherent in their CCDCFS job duties would be contrary to public policy and result in an undesired chilling effect.
{¶ 41} Appellants' five assignments of error are sustained.
Judgment is reversed and remanded.
This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion.
It is, therefore, considered that said appellants recover of said appellee costs herein.
It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.
Celebrezze, JR., P.J., Concurs;
Karpinski, J., Dissents with separate Dissenting Opinion.
Dissenting Opinion
{¶ 42} Because this court lacks jurisdiction to hear this appeal, I respectfully dissent from the majority opinion. In its July 30th memorandum supplementing its original appellate motion, the county correctly noted that this court does not have jurisdiction over this case because the order appealed is not "a final appealable order."
{¶ 43} The foster mother's complaint stated that the alleged wrongdoing by the county and its agents occurred on or about February 4, 2003. When R.C.
In enacting S.B. 106, the legislature did not express any intent that R.C.
The legislative statements contained in the uncodified law in Section 3 of S.B. No. 106 unequivocally express the legislative intent that R.C.
{¶ 44} Jackson v. Columbus (2004),
{¶ 45} In the case at bar, the law in effect at the time the foster mother filed her complaint did not allow the county to appeal a denial of its motion to dismiss as a final appealable order without any Civ.R 54(B) language. This court, therefore, has no jurisdiction to hear the appeal. Accordingly, the case should be dismissed or remanded to allow the court to add the 54(B) language.