The Georgia Tort Claims Act: a License for Negligence in Child Deprivation Cases?

• Publication year: 2010

The Georgia Tort Claims Act: A License for Negligence in Child Deprivation Cases?

Mauricia Allen

Introduction

In what has been described as "‘one of the most horrific cases of child abuse ever seen in Fulton County,'"^[1] five-year-old Terrell Peterson died from repeated physical abuse.^[2] This tragedy occurred even after the plight of Terrell and his siblings had been reported to the Department of Family and Children Services (DFCS or "Department") on eight separate occasions, with no less than twenty-one different caseworkers mishandling his file over a two-year period.^[3] Sadly, this is not an isolated incident. Of 513 files on Georgia children who died between 1996 and 1998, forty-six percent of the deaths occurred while DFCS had an open file on either the child or the child's family.^[4] Equally disturbing is the fact that DFCS violated either state policies or procedures in nearly a third of the cases.^[5] Further, this is not just a local problem, but also a national one with "[t]ens of thousands of other children" being seriously harmed after a child protection agency became involved in the situation.^[6] Some areas have reported that as many as twenty-five to forty-five percent of children who die of alleged child abuse and neglect were previously reported to the appropriate child welfare agency.^[7]

Cases like these raise questions of great importance: What is the appropriate level of culpability for DFCS in the alleged negligent handling of a child deprivation case?^[8] Should the Department be held civilly liable, or should it be protected by governmental immunity?^[9] The Georgia Tort Claims Act^[10] (GTCA) waives the state's sovereign immunity for torts that state officials and employees commit within the scope of their employment.^[11] However, the GTCA provides an exception to this waiver for the discretionary acts of state employees, resulting in complete immunity for these actions.^[12] The exception is applicable even if the discretion is abused, resulting in immunity for the negligent performance of discretionary acts.^[13]

The purpose of this Note is to explore both the Georgia courts' application of the GTCA in suits against DFCS for the alleged negligent handling of child deprivation cases and the proper immunity that should be afforded DFCS in such circumstances. Part I reviews the history of the GTCA. Part II outlines the state's statutory duty to protect its children. Part III evaluates the seemingly contradictory application of the discretionary function exception among the Georgia courts. Part IV explores how other jurisdictions, both federal and state, interpret the discretionary function exception. Finally, Part V analyzes the policy implications of applying either a broad or a narrow definition of discretionary function under the GTCA in cases involving the negligent mishandling of child deprivation cases.

I. The Georgia Tort Claims Act

A. Basis for the Georgia Tort Claims Act

The Georgia Tort Claims Act (GTCA) is patterned after the Federal Tort Claims Act (FTCA).^[14] The basis for the FTCA, the doctrine of sovereign immunity, originated in the common law.^[15] The doctrine is based on the common law maxim that "the King can do no wrong," thus relieving the government from liability for the negligence of a government agent or official.^[16] Historically, the injured's only recourse was the use of a private congressional claim bill, which was a petition for a legislative enactment allowing compensation for the harm the government caused.^[17]

In 1946, due to a marked increase in the number of people injured by the government and the cumbersome nature of the claim bills, Congress waived governmental immunity and passed the FTCA.^[18] The FTCA allows citizens to sue the government in tort for the negligent acts of its employees and officials.^[19] However, the FTCA is subject to a discretionary function exception,^[20] allowing the government to retain sovereign immunity when a government employee or official makes a decision based on his discretion.^[21] Unfortunately, the statute does not define "discretionary," nor does the legislative history lend much guidance to its meaning.^[22] Thus, the federal courts are left to interpret the definition of "discretionary" as well as the breadth of the discretionary function exception.^[23]

B. History of the GTCA

Until 1974, the State of Georgia was cloaked in the protective blanket of sovereign immunity.^[24] However, in that year, the Georgia Constitution was amended to authorize the General Assembly to establish a court of claims to try cases against the state.^[25] Nonetheless, the amendment specifically reserved the state's sovereign immunity.^[26] In 1990, the legislature drafted an amendment to the Georgia Constitution, explicitly retaining the state's sovereign immunity absent a waiver by the General Assembly in the form of a state tort claims act.^[27]

In 1992, the General Assembly enacted the GTCA.^[28] The statute expressly waives the state's sovereign immunity for the torts of state employees acting within the scope of their employment "in the same manner as a private individual or entity would be liable under like circumstances."^[29] The exclusive remedy under the GTCA is an action against the agency, not against the employee who commits the tort.^[30] However, the waiver is limited by several potentially broad-reaching exceptions.^[31] One such exception is for the performance of a "discretionary function or duty" by a state employee.^[32]

In construing the meaning of the discretionary function exception, the courts first looked to the plain meaning of the statute.^[33] The statute defines "discretionary function or duty" as that "requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors."^[34] In order to ascertain the scope of this broad definition, the courts found it necessary to review the legislative history in search of the General Assembly's intent in providing for the discretionary function exception.^[35]

In the second section of the GTCA, the General Assembly acknowledged that "inherently unfair and inequitable results" will occur if sovereign immunity is strictly applied.^[36] The General Assembly noted that unlike a private business that can limit its liability by choosing which services to provide, the state must provide a broad range of services and functions.^[37] Consequently, the General Assembly concluded that the state should not be required to provide every feasible service available, and "the state's exposure to tort liability must be limited."^[38]

The legislative history provides little insight into the General Assembly's actual intent in creating the discretionary function exception.^[39] Because of the apparent conflict between the GTCA's broad ban against the state's unrestrained tort liability and the narrow definition of discretionary function, the courts must interpret the ambiguous legislative history and determine how to apply the exception.^[40] Thus, judicial interpretation of the breadth of this exception will either expand or limit the state's tort liability in executing its statutory duty to protect Georgia's children.^[41]

II. Georgia's Duty to Protect Its Children

In the landmark case of DeShaney v. Winnebago County,^[42] the United States Supreme Court held that when a state voluntarily decides to protect abused and neglected children, state tort law may create a duty to adequately protect the child.^[43] The state may then be held negligent for failing to satisfy that duty.^[44] As a result, child welfare agencies are obligated to investigate allegations of child abuse and neglect, intervene if needed, and protect children from maltreatment.^[45] In Georgia, the Department of Human Resources is responsible for providing services to protect the welfare and safety of the state's children through its own programs and those of DFCS and Child Protective Services (CPS).^[46]

A. Georgia's Child Protection Law

In order to have a cognizable claim of negligence, a duty must exist.^[47] Georgia code section 49-5-8 ("Code")^[48] outlines the state's statutory duty to protect the welfare and safety of its children.^[49] The Code's purpose "is to promote, safeguard, and protect the well-being and general welfare of children and youth of this state."^[50] Georgia law requires that DFCS follow procedures and affirmatively act to carry out this mandate.^[51] The statute requires the Department to investigate all suspected cases of child abuse and neglect.^[52] However, the Code does not provide any specific guidelines for DFCS to follow in the course of its investigations.^[53] The procedures that DFCS must follow after receiving a report of alleged child deprivation are set out in the Child Protective Services Social Services Manual.^[54]

1. Child Protective Services Procedure

CPS has a legal duty to protect children who are victims of abuse and neglect.^[55] Once CPS receives a report of suspected abuse, the intake worker is responsible for gathering all relevant information necessary to assess the child's situation.^[56] The intake worker assigns a response time to any report that may need further investigation.^[57] The response time, determined by the urgency of the situation, may be anywhere from an immediate response up to five days.^[58]

Deciding whether a report warrants field investigation involves the use of a decisional tree titled the "Child Abuse/Neglect Intake Screening Tree" ("Tree").^[59] In using the Tree, intake workers gather the information to certain pertinent questions that require a yes or no response.^[60] Each yes or no response dictates which branch of the tree the caseworker will proceed down in the information-gathering process.^[61] Some situations allow the report to be "screened-out," which means that no field investigation will follow the intake report; however, the...