Update: On November 23, 2021 the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here.

On April 28, 2021, the Supreme Court of Ohio will hear oral argument in Maternal Grandmother, as Administrator of the Estate of G.B., a deceased minor, and Maternal Grandmother, Individually v. Hamilton County Department of Job and Family Services, Hamilton County, Ohio, Denise Driehouse, Chris Montzel, Todd Portune, Shamara Stephens a.k.a. Shamara Hooks-Ware, Kassie Setty, and Lumadi Lavusa, and Father of G.B. and Mother of G.B., 2020-0705. At issue in this case is whether the pleading standard should be heightened for a wrongful death claim against child-protection caseworkers. Full disclosure: Professor Emerita Bettman was an unpaid consultant to Appellant’s counsel in the case.

Case Background

On March 29, 2015, two-year-old Glenara  died while in the custody of her mother. When Glenara was born, she was immediately placed in foster care because her mother had previously abused her six older siblings. When she was eight months old, the Juvenile Court returned Glenara to her mother.

On December 4, 2014, Glenara’s mother brought Glenara to Children’s Hospital due to developmental concerns. Attributing Glenara’s health issues to neglect and abuse, Children’s Hospital reported its concerns to Hamilton County Department of Job and Family Services (“Family Services”). Three months after being contacted, appellee caseworkers from Family Services visited Glenara’s home and determined that Glenara was “happy and healthy.” Three weeks later, Glenara died. Glenara’s autopsy revealed that the two-year-old girl weighed only 13 pounds and had been starved, beaten, whipped, and bitten for months. Glenara’s mother and father were both convicted of her murder.

Alleging wrongful death and related survivorship claims, Glenara’s maternal grandmother (“Grandmother”) sued Hamilton County, Hamilton County Department of Job and Family Services, and the individual Family Services caseworkers, Shamara Stephens a.k.a. Shamara Hooks-Ware, Kassie Setty, and Lumadi Lavus (“Caseworkers”). Pertinent here, the Caseworkers brought motions for judgments on the pleadings, asserting that they were entitled to immunity in their official and individual capacities as employees of a political subdivision. Hamilton County Court of Common Pleas Judge Lisa C. Allen granted the Caseworkers’ motions and dismissed the claims. Grandmother appealed.

The Appeal

In a 2-1 decision authored by Judge Russell Mock and joined by Judge Robert Winkler, the First District Court of Appeals affirmed the trial court’s judgment. The appellate court concluded that the caseworkers were entitled to immunity because they had not acted maliciously, in bad faith, wantonly, or recklessly. Relevant to this appeal, the First District further held that the allegations in Grandmother’s complaint were insufficient to support a finding for Grandmother. More specifically, the appellate court held that the complaint did not contain detailed factual allegations. For example, the complaint alleged that the caseworkers made unreliable and fraudulent statements to the juvenile court to persuade the court to place Glenara back with her parents, failed to act on the concerns of Children’s Hospital, failed to do a proper home inspection, and failed to report signs of abuse properly. Without more, the court reasoned, these allegations were insufficient to establish that the caseworkers acted maliciously, in bad faith, wantonly, or recklessly. Additionally, the court noted that the contents of the caseworkers’ statements were available to the Grandmother. But because the complaint did not specify what the unreliable or fraudulent statements were, or how the caseworkers’ conduct was willful, wanton, or reckless, the appellate court dismissed Grandmother’s claims.  

Judge Candace Crouse dissented in part. Judge Crouse agreed with the majority that Family Services was entitled to immunity and that the complaint was insufficient to establish that the individual caseworkers had acted wantonly or recklessly regarding their reports to the juvenile court. But Judge Crouse would find Grandmother’s complaint sufficient to establish wanton or reckless conduct by the individual caseworkers for failing to investigate the report of abuse and neglect by Children’s Hospital adequately. The complaint alleged that the caseworkers failed to inspect the home properly, failed to investigate the report by Children’s Hospital properly, and failed to abide by established procedures regarding Glenara’s case. Judge Crouse would find that these allegations could demonstrate that the caseworkers acted wantonly or recklessly, thereby establishing an exception to the individual caseworkers’ immunity.

Key Statutes and Precedent

Ohio Civ.R. 8(A) (“A pleading that sets forth a claim for relief . . . shall contain (1) a short and plain statement of the claim showing that the party is entitled to relief; and (2) a demand for judgment for the relief to which the party claims to be entitled.”)

R.C. 2151.421(A)(1)(a)  (Reports of suspected child abuse must be made to the public children services agency or a peace officer in the county where the child resides, or where the suspected abuse occurred.)

R.C. 2477.03(A)(6)(B)(Employee-Immunity Statute) (A governmental employee is immune from liability, unless the employee’s “acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.”)

Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190 (1988) (Unsupported legal conclusions are not deemed true for purposes of a motion to dismiss and “are not sufficient to withstand such a motion.”)

Mussivand v. David, 45 Ohio St.3d 314 (1989) (“It is not necessary that the defendant should have anticipated the particular injury. It is sufficient that his act is likely to result in an injury to someone.”)

Byrd v. Faber, 57 Ohio St. 3d 56 (1991) (holding that plaintiffs who bring negligent-hiring actions against religious institutions must plead with particularity.)

York v. Ohio State Highway Patrol, 60 Ohio St.3d 143 (1991) (declining to hold plaintiffs bringing reckless-conduct claims against the State to a heightened pleading standard.)

Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351 (1994) (“[T]he issue of wanton misconduct is normally a jury question.”)

Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007) (A plaintiff must plead enough “facts to state a claim for relief that is plausible on its face.” To prevail, the plaintiff must show “more than a sheer possibility that a defendant has acted unlawfully.”)

Ashcroft v. Iqbal, 556 U.S. 662 (2009) (A complaint must contain facts, not mere legal conclusion. Further, “threadbare recitals of a cause of action’s elements, supported by mere conclusory statements” are insufficient.)

Vagas v. Hudson, 2009-Ohio-6794 (9th Dist.) (“A complaint must be more than bare assertions of legal conclusions.”)

DiGiorgia v. Cleveland, 2011-Ohio-5878 (8th Dist.) (“While a complaint attacked by a motion to dismiss does not need detailed factual allegations, the [plaintiffs’] obligation to provide the grounds for their entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”)

Votes to Accept the Case

Yes: Chief Justice O’Connor and Justices Kennedy, Donnelly, Stewart, and former Justice French

No: Justices Fischer and DeWine

Grandmother’s First Proposition of Law Accepted for Review

To adequately plead that child-protection caseworkers have lost their immunity to suit, plaintiffs need only allege—consistent with ordinary notice-pleading requirements—facts from which reasonable jurors could conclude that the caseworkers’ conduct was wanton or reckless. Plaintiffs are not obliged to satisfy any heightened pleading standards requiring them to plead with specificity or affirmatively prove the “wanton or reckless” exception to government immunity.

Grandmother’s Second Proposition of Law Accepted for Review

To allege a claim against child-protection caseworkers for failing to adequately investigate a report of child abuse, the plaintiff need not plead that the injury the child suffered was from precisely the same form of abuse that was initially reported and that triggered the investigation.

Grandmother’s Argument

Grandmother’s complaint adequately alleged that the caseworkers acted wantonly or recklessly when they failed to investigate Glenara’s case properly. Ohio is a notice-pleading state, requiring concise and simple pleadings. Specifically, the condition of a person’s mind, such as whether someone acted wantonly or recklessly, may be generally averred. When ruling on a motion for judgment on the pleadings, courts must accept allegations in a pleading as true, and construe all inferences favorably for the non-moving party. Courts may grant a motion for judgment on the pleadings only if a plaintiff undoubtably cannot prove any set of facts that would support the claim.

Grandmother’s pleading contained ample facts to support her claim and to put the caseworkers on notice regarding the nature of her claims. Requiring anything more specific forces Grandmother to prove her case at the pleading stage, which contradicts the requirements of notice pleading. By reading Grandmother’s pleading, and drawing inferences in her favor, it is quite easy to imagine a plausible set of facts enabling Grandmother to prevail on her claims.

A plaintiff’s allegations challenging the immunity of a political subdivision or its employees is not required to satisfy a heightened pleading standard for two reasons. First, no important public policy reason exists for imposing a heightened pleading standard. Ohio courts impose a heightened pleading standard in the rare situations that implicate important public policy concerns. For example, employees bringing intentional tort claims against their employers are required to plead with particularity. Ohio courts have imposed this standard to promote the public policies of deterring groundless claims against employers, avoiding the routine conversion of workplace injuries into intentional tort claims, and facilitating efficiency. The other type of cases in which the Court has required heightened pleading are negligent-hiring claims against religious institutions, which have First Amendment implications. Because no such public policy concerns are implicated by the present case, Ohio courts should continue to require notice pleading.

Second, requiring such a standard would impose a significant difficulty for plaintiff to obtain relevant evidence before discovery can occur. In the present case, it would be virtually impossible for Grandmother to plead with particularity without first accessing the caseworkers’ files and deposing the relevant individuals. The particular and specific facts surrounding this case can be obtained only through discovery. Grandmother should be given the chance to engage in discovery.  

In York v. Ohio State Highway Patrol, the Supreme Court of Ohio declined to require a heightened pleading standard in a case where plaintiffs alleged a violation of a statute protecting immunity of a political subdivision and its employees. The Court should extend its holding in York to this case. Declining to do so would result in inconsistent pleading standards between immunity statutes. Both immunity statutes withhold immunity from public employees who engage in “wanton” misconduct, but one immunity statute would require particularized, fact pleading while another immunity statute would require general, notice pleading.

Here, the appellate court held that Grandmother pleaded insufficiently to establish whether the caseworkers acted wantonly or recklessly. But whether a political subdivision, or its employees, acted wantonly or recklessly is a factual issue, which should be determined only at summary judgment or trial. Indeed, every other case that has come before the Court regarding the employee-immunity statute has been at the summary judgment stage. This makes sense because immunity questions hinge on a defendant’s mental state, a determination which is inherently fact intensive.

When alleging that the caseworkers did not adequately investigate a report of child abuse, a plaintiff should not need to plead that the injury causing the child’s harm was from the exact same form of abuse that triggered the investigation. If upheld, the appellate court’s decision would require plaintiffs to plead facts establishing that the precise harm that befell the victim was foreseeable to the caseworkers. This result is inconsistent with established tort law, which dictates that a person may be liable for harm that is likely to occur, even if the exact injury the victim suffered was unforeseeable. Therefore, Grandmother should not be required to establish in her pleadings that the caseworkers should have foreseen physical abuse, based on the caseworkers’ knowledge that the parents were starving Glenara. Requiring such exacting foreseeability would result in Grandmother’s pleading being sufficient to establish reckless or wanton conduct only if Glenara’s parents had succeeded in starving her to death instead of beating her to death. This would result in caseworkers never being liable for a child’s abuse, unless the caseworkers were previously made aware of the precise type of abuse. 

Caseworkers’ Argument

This gravamen of this case is whether children’s services caseworkers have a duty to protect a child from subsequent criminal conduct of the child’s parents where the agency has received a report of possible neglect and the parents have legal custody of the child. Grandmother’s complaint is insufficient under Ohio’s notice pleading standard because no facts were pled that would establish Grandmother’s entitlement to relief.  Additionally, there is no statutory private cause of action for a caseworker’s failure to investigate, and the General Assembly never intended there to be one. Lastly, this Court should adopt a heightened pleading standard for several public policy reasons.

The lower courts did not hold Grandmother’s complaint to a heightened pleading standard. Rather, Grandmother’s complaint was dismissed because it failed to establish a nexus between the harm suffered and the caseworkers’ actions. The caseworkers are immune from liability, even if they acted negligently, as long as their conduct was not malicious, wanton, reckless, or in bad faith. Ohio case law indisputably establishes that governmental immunity cannot be overcome based on mere speculation. Because the complaint required considerable speculation to establish liability, as it was based on failures to act, the lower courts properly dismissed Grandmother’s complaint under Ohio’s notice pleading standard. Additionally, dismissal was proper at this stage because cases regarding political subdivision immunity should be determined at the earliest possible stage of litigation to preserve both public and private resources.

Even though the lower courts did not hold Grandmother’s complaint to a heightened pleading standard, several public policy reasons support the requirements that allegations of a caseworker’s bad faith, maliciousness, wantonness, or recklessness should be held to a “heightened intent” pleading standard. When alleging that an individual committed an intentional tort, mere knowledge of a risk does not by itself establish intent. Otherwise, almost every injury in the workplace could form the basis for a claim for an intentional tort. Similarly, the allegations here should be held to a heightened pleading standard—otherwise, virtually every injury to a child after a report of abuse or neglect could form the basis of a tort claim on the unsupported conclusion that the caseworker was unresponsive to a known risk of harm. Because unsupported conclusions that an individual intended to harm someone should not prevail over factual allegations, claims for intentional torts should meet a heightened pleading standard.

Additionally, the statutes at issue here seek to balance a parents’ constitutional right to family integrity with an interest in eliminating harm to children. A heightened pleading standard would allow caseworkers to balance these two aims properly, without fear of a plethora of lawsuits. Currently, Ohio law permits an agency to separate a child from the parent, only when necessary for the child’s welfare or public safety. In making this decision, the agency must balance the health and welfare of the child with the trauma of removing a child from the home, as well as the parents’ and child’s constitutional rights to family integrity. A heightened pleading standard in these cases would allow caseworkers to balance these interests evenly, without giving undue weight to any interest.

Ohio should adopt the Iqbal/Twombly pleading standard for many reasons. First, the lower courts are confused about the proper pleading standard, and this Court could dispel this confusion by adopting the Iqbal/Twombly plausibility pleading standard. Second, adopting this standard would implement procedural uniformity with the federal system and other state systems. Third, adopting this standard would disassociate Ohio from the Conley standard, which the Supreme Court of the United States has abandoned. Lastly, the Iqbal/Twombly pleading standard serves a better gatekeeping function, barring frivolous claims and reducing litigation costs. Requiring a heightened pleading standard for allegations regarding a caseworker’s recklessness, maliciousness, wantonness, and bad faith in investigating reports of abuse or neglect would ensure that only plausible claims proceed to discovery.

If the Court adopts the Iqbal/Twombly pleading standard, then Grandmother’s complaint is plainly inadequate. To progress, Grandmother must show that the alleged inaction was reckless, willful, wanton, or in bad faith. Demonstrating that the caseworkers were reckless, willful, wanton, or acted in bad faith requires much speculation and does not establish a theory which moves from “possible” to “plausible.” Additionally, the complaint fails to connect the caseworkers’ knowledge factually with the harm caused to Glenara. Glenara’s death does not support an inference that caseworkers recklessly, willfully, wantonly, or in bad faith ignored signs of immediate harm which would justify removal. Because the complaint contained only speculative and conclusory allegations, the complaint cannot survive judgment on the pleadings and should be dismissed.

Amici in Support of Grandmother

A Better Childhood

A Better Childhood (“ABC”) is a nonprofit law firm seeking to protect and enforce the rights of children who have entered, or might enter, the foster care system. ABC is interested in the pleading standard for claims against caseworkers whose careless performance can result in harm to children. The caseworkers on Glenara’s case acted wantonly and recklessly and requiring Grandmother to plead with particularity would eliminate any chance of a remedy for many voiceless victims and condemn most claims before they even began.

Ohio is a notice-pleading state. A heightened pleading standard may be imposed when warranted by policy considerations, such as the reduction of frivolous suits. Heightened pleading is required in suits for fraud, negligent hiring by religious institutions and employer intentional tort claims. However, public policy unequivocally opposes subjecting claims against child welfare workers to a heightened pleading standard. Currently, several evidentiary obstacles and investigatory constraints complicate and discourage a thorough investigation of child abuse reports, which result in severe and irreversible harm to children, as illustrated by the tragic result in this case. Even so, Ohio continually commits to the public policy goal of protecting children from abuse. Ohio’s maintained interest in protecting children, joined by the shortcomings of so many abuse investigations, do not warrant a heightened pleading standard in child welfare litigation.

Additionally, Ohio courts have refused to apply heightened pleading standards on questions of immunity because of the difficulty of obtaining relevant evidence from the government. Many records that are critical to substantiating a child welfare claim are excluded from public access, which renders civil discovery the sole avenue for litigants to gather evidence to substantiate their claims of inadequate investigation by caseworkers. And ultimately, whether there was wanton or reckless conduct is usually a jury question. Lastly, Ohio courts have not required a heightened pleading standard for analogous claims against other kinds of employees of a political subdivision. For these reasons, the appellate court’s decision should be reversed, and the case should be remanded to the trial court so that Grandmother may proceed with discovery.

A Better Childhood’s Proposed Proposition of Law

For claims against individual child welfare caseworkers, public policy plainly proscribes subjecting plaintiffs to a heightened pleading standard.

Justice for Children Clinic

The Justice for Children Clinic (“JCC”) at The Ohio State University Moritz College of Law permits third-year law to advocate for children’s rights across various systems. After drawing all reasonable inferences in favor of Grandmother, the lower courts erred by finding that Grandmother cannot prove any set of facts entitling her to relief. Focusing on the procedure required by caseworkers after receiving a report of abuse, the JCC demonstrated how the caseworkers in this case acted recklessly and wantonly, while also emphasizing why Grandmother needs discovery to prove her claims. The JCC asserted that this case should be reversed and remanded to the trial court to allow Grandmother to fully develop the record.

Student Contributor: Maria Ruwe