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

“I don’t believe the other side has argued Twombly in the appellate court, did they?”

Justice Brunner, to counsel for Grandmother

“Why does the York case not control in this particular case?”

Justice Donnelly, to counsel for the Caseworkers

On April 28, 2021, the Supreme Court of Ohio heard 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.

Case Background

On March 29, 2015, two-year-old Glenara Bates 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. The trial court granted the Caseworkers’ motions and dismissed the claims. Grandmother appealed.

The Appeal

In a 2-1 decision the First District Court of Appeals affirmed the trial court’s judgment. The majority 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.  

The dissenting judge agreed with the majority that Family Services was entitled to political subdivision 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 the dissenting judge 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. The dissenting judge would find that these allegations could demonstrate that the caseworkers acted wantonly or recklessly, thereby establishing an exception to the individual caseworkers’ immunity.

Read the oral argument preview of the case here.

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.”)

*Civ.R.12(C) (“After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.”)

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.”)

O’Toole v. Denihan , 118 Ohio St.3d 374 (2008) (A public children services agency and its employees do not have a duty to cross-report the case to law enforcement, and they “are immune from liability for failing to do so.”)

*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.”)

*Tuleta v. Med. Mutual of Ohio, 2014-Ohio-396 (8th Dist.) (Rule 8 and Ohio’s traditional “no set of facts” pleading standards were not meant to replace a well-researched and factually supported cause of action.)

*Cited by counsel at oral argument

At Oral Argument

Arguing Counsel

Emmett E. Robinson, Robinson Law Firm, LLC, Wakeman, for Appellants Maternal Grandmother, as Administrator of the Estate of G.B., a deceased minor, and Maternal Grandmother, Individually.

Pamela J. Sears, Assistant Prosecuting Attorney, Hamilton County, for Caseworker Appellees Shamara Stephens a.k.a. Shamara Hooks-Ware, Kassie Setty, and Lumadi Lavusa.

Grandmother’s Argument

Two-year-old Glenara Bates was tortured and murdered by her own parents, who have been found criminally responsible for her death. But this appeal is about holding the Family Services caseworkers assigned to Glenara responsible for wantonly and recklessly failing to do anything to stop her torture and murder. More specifically, this case is about whether Grandmother will ever have the chance to conduct discovery to determine precisely how the caseworkers failed Glenara. The trial court denied any opportunity for discovery, and the court of appeals affirmed in a split decision.  While the appeals court purported to apply Ohio’s well established notice pleading standards, the opinion makes clear that a majority of the court subjected plaintiffs to a heightened pleading standard. Had the proper standard been applied, this case unquestionably would have survived the motion for judgment on the pleadings.

The caseworkers involved here knew that Glenara’s mother was an abuser before Glenara was even born. Glenara’s mother had already abused her six older children and all of them had been taken from her. Family Services was present at the hospital the day Glenara was born.  They immediately took Glenara from her mother’s care because they knew how dangerous she was. Eight months later the juvenile court returned Glenara to her mother and three months after that, Family Services terminated its supervision of the case. Then tragically a year later, on December 4, 2014, Glenara was taken to Cincinnati Children’s Hospital, a month before her second birthday. She was unable to walk, unable to stand without support, presented with flat affect, and had severe developmental delays. The medical records attached to the complaint make it clear that she also suffered from hair loss, and she was diagnosed with likely bilateral collapsed lungs.

When Glenara was taken to the hospital, the almost two-year-old weighed 17 pounds.  While in the hospital, even though malnourished and famished, Glenara wouldn’t eat when presented with food until her mother gave her permission. Her mother admitted to the hospital staff that she had intentionally withheld food from Glenara from the day that she first got custody of her. The signs of abuse were blatant and obvious.

The hospital staff contacted Family Services which supposedly made one visit while Glenara was in the hospital. Glenara  was admitted for 11 days and during that period there is no evidence that Family Services did anything other than a single visit. There was no evidence of any follow up, no evidence of any safety plan, no evidence of any intent to remove her from her parents and no plan to conduct follow- up visits. Glenara was discharged 11 days later, on December 15, 2014. The medical record makes clear that any biologically caused failure to thrive was ruled out immediately. The cause of Glenar’s severe problems was that her parents were starving her. Three months later, on March 4, 2015, Family Services conducted a home visit. At that home visit, Glenara was pronounced “happy and healthy,” and the case was essentially closed. Three and a half weeks later, Glenara was murdered by her parents. According to the medical examiner, the cause of death was battered child syndrome with acute and chronic intracranial hemorrhages and starvation.  Glenara was covered with over 100 bruises.

While admittedly there was nothing in the medical records in December 2014 showing the bruising and the scars, they certainly were present in the period between the discharge and the visit from the social workers.  Given all these facts, it would not be possible for the caseworkers to find Glenara “happy and healthy” on their home visit without acting wantonly and /or recklessly. So, one of three things happened. Either the caseworkers didn’t do the visit but lied and said they did, they did the home visit but lied about the outcome because they didn’t want the trouble of another case, or they were so wanton and reckless that they missed these signs of a bruised, tortured, scarred child who at that point weighed between 13 and 17 pounds. She was 13 pounds when she died. The caseworkers missed all those signs. 

If this case can’t survive a motion for judgment on the pleadings, no case can. This court was very clear in York that notice pleading standards apply to governmental employee immunity cases.  That 30-year-old decision has never been challenged. The appeals courts in Ohio are unanimous that notice pleading applies in this context, with the only exception being the 2-1 majority in this case. This court has occasionally held that in very limited circumstances such as employer intentional torts and hiring in the religious context heightened pleading is appropriate. But those limited circumstances have profound public policy reasons for those special rules. They have no application to this case. It has been 30 years since this court has extended heightened pleading standards beyond that very narrow subset of cases. This certainly would not be the case to extend it any further.

At one point opposing counsel suggested in her brief that the plaintiff was required to include facts beyond the operative facts of what occurred and must plead heightened intent, but this is not required in Ohio, even for fraud. Finally, opposing counsel urges the court to adopt the Twombly standard in this case and presumably in all civil cases. This court has had numerous opportunities to do this in the past, has repeatedly declined to do so, and should again decline. And even Twombly requires only plausibility, which plaintiff has met here.

Opposing counsel also argues this case is about duty. This court has made clear that whether a government employee is entitled to immunity is an entirely separate question from whether the elements of the underlying claim have been established. Opposing counsel’s duty argument was not raised in the motion for judgment on the pleadings, or in the court of appeals and thus has been abandoned. Immunity, not duty, is and remains the threshold issue here.

Caseworkers’ Argument

A reversal in this case will establish a general duty in Ohio to protect children over whom an agency does not have custody from the actions of a third party over whom the agency has no control. Of the utmost concern here is that Family Services and these caseworkers did not have legal custody of this child. There is no general duty in Ohio to protect someone over whom you do not have custody or protect that person from someone over whom you do not have control.

This case is not simply about rule 12 (C) or about Iqbal and Twombly or whether the Court should expand Rule 8 to incorporate plausibility. This case isn’t even necessarily about heightened intent. It is about whether in Ohio there is a general duty to protect children over whom you do not have custody from persons over whom you do not have control. That has never been established before this case and will set that precedent if it is not reversed.  

While the Caseworkers did make a case for Iqbal and Twombly, and while the Court hasn’t been willing to go that far or to enlarge Civ.R. 8’s concept to incorporate plausibility, the lower courts in Ohio are adopting plausibility to a degree. But a heightened pleading standard is not necessary to resolve this case in the Caseworkers’ favor. This is a case that stresses the tension between the application of Civ. R. 12(C), Civ. R. 8 and R.C. 2744.03(A)(6)(b). Case precedent establishes that the Court does not look for the magic words of recklessness, but at the facts alleged in the complaint to see if they are sufficient to move the case beyond the pleading stage. In this case they were not.

More specifically, this case presents the tension between the basic, fundamental right to raise one’s children versus the right of the government to intervene when a parent is doing so in a way that harms the child.  In this case, the juvenile court gave the children back, reinstituting custody. Protective Services was terminated not only at the recommendation of Family Services but also at the recommendation of the guardian ad litem. That is apparent from the pleadings and from the public records attached to the pleadings.  If, at the time of the hospitalization there had been some report of physical abuse, or a repeat of the reason why the children were initially taken away from this mother, then there could be an argument that there was some sort of knowledge imputed to the agency, but that was not the case here. There was no allegation of physical abuse or starvation that was known to the agency.

When this child was admitted to the hospital, the medical professionals were not sure if this was a case of neglect, either socially or organically caused. The reason she was in the hospital for 11 days was for the hospital to rule out an organic cause for failure to thrive. When the child was released from the hospital, the doctor at the hospital ascribed the failure to thrive to three things-lack of medical care, financial hardship, and lack of familial support. The mother voluntarily brought her child to the hospital. And it is apparent from the medical records that the mother ran into problems with insurance. No one would suggest that because someone has financial hardships or lack of familial support that their children should be removed from them.

We are limited here to what is in the complaint. What we do know from the complaint is that the caregiver was present and was responsive.  The complaint alleges that the caseworkers’ failure to intervene which allowed the child to be discharged to her mother is the factual nexus leading ultimately to her murder, and that those failings render Family Services liable. Also alleged as a basis for liability was the failure to report the continuing abuse to law enforcement, but this Court has been very specific in holding that there is no cross duty of the agency to report.  The agency is the agency to whom neglect and abuse are reported.

Undeniably, this death was tragic, but that fact cannot enter into a reasoned application of the law. Winnowed to its essence is the allegation that there was a failure to prevent the discharge from the hospital to the custody of the mother and then the failure to report the continuing abuse which allowed the child to remain in the home where she was killed. What is missing from this complaint is to what extent these injuries may or should have been apparent.  The caseworker, who is not a nurse, and is not conducting an autopsy, cannot see healing fractures.

The complaint in this case piles inference upon inference, which is impermissible.  The complaint fails to state which of the child’s injuries were or should have been apparent, and yet, the inference is to be drawn that because certain injuries should have been apparent, the caseworkers either saw them and didn’t do anything about it or lied about even conducting a home visit. This is an inference upon an inference. It’s well settled that there can be multiple inferences from a set of facts but what is impermissible is to infer something from an inference. That is the legal problem with this argument.

Investigating suspected abuse and neglect is undeniably a function of Family Services. As the Court ruled in O’Toole, the three categories which trigger that duty are the emergency removal of a child, cases where the court has ordered the agency to provide protective services, and cases where the agency had custody of the child. There is no doubt that when the agency has custody or control, there is a duty to protect. But where the agency is investigating potential abuse or neglect, that does not translate into a general duty to protect during that investigation. There is no legislative mandate that some action must be taken at the end of an investigation. There is simply a duty for the agency to investigate, but the agency can sustain abuse or neglect and not remove children. There is no duty to remove or to take custody of children. Not every case of abuse and neglect that is reported to the agency translates into a criminal matter, although that certainly can be the case.

What Was On Their Minds

Heightened Pleading Requirements

This whole Twombly conversation seems to me beside the point, noted Justice DeWine. Twombly’s really about plausibility, about whether a set of facts is plausible, but that’s really not the issue here, is it?  I don’t think anyone disagrees that this claim is plausible, that there was a failure to know what was going on here. The real issue here is the specificity with which allegations need to be made. That’s not really a Twombly issue, is it? Twombly wouldn’t change anything here, would it?

The Hospital Visit

When the child was in the hospital for 11 days, there were no indications of physical abuse, were there, asked Justice DeWine?

Agency’s Duty Here

How would this case be different if the agency had no prior contact with this family, asked Justice Brunner? Would it be different if the agency had not taken this child away from its mother at birth and had not been aware of the history of family violence, abuse and neglect? If there had been no prior contact and the same result occurred, does that affect the duty or the relationship between the parties in terms of whether the trial court can grant the motion for judgment on the pleadings? isn’t there a duty of any children’s services agency to identify when a child is in danger? Isn’t that kind of a public duty? Isn’t that one of the reasons why the agencies exist? Isn’t there a duty  to report crimes if it observes them in its investigation?

What triggered the mandatory report here, asked Chief Justice O’Connor? Regardless of the reason that brought the child to the hospital, there was no doubt about her malnutrition and her physical condition, was there? The parents were to do a better job and here’s how?

So, there is a mandatory duty to report but no duty to do anything about it, asked Justice Donnelly?

The Home Visit

Upon the discharge from the hospital, doesn’t the record reflect there was only one home visit, asked Chief Justice O’Connor? What about the fact that a report was made that clearly did not comport with the condition of the child?

How it Looks from the Bleachers

To Professor Emerita Bettman

Because I was an unpaid consultant to Grandmother’s side, I am not going to predict the outcome.  I will leave that to my student contributor Maria Ruwe.

To Student Contributor Maria Ruwe

This is a twisted case, both factually and legally. The two parties relied on very different arguments. Mr. Robinson, counsel for Grandmother, spent the first six minutes of his time reviewing the horrendous facts of this case. At first, I thought this approach was a somewhat ineffective way to garner emotional support for his cause. But as he continued, and particularly when he recounted how the caseworkers had pronounced Glenara “happy and healthy,” only three months before she died, it effectively drove home just how appalling the facts are and how seemingly reckless the caseworkers’ conduct was. In stark contrast to Mr. Robinson’s almost-emotional emphasis on the facts, Ms. Sears, self-assured and firm, cut straight to the legal issue. While Mr. Robinson focused on the pleading standard, Ms. Sears maintained that this case presented no cognizable right of interest. Because the caseworkers had no duty in this case, Ms. Sears argued that this case should be dismissed.

I find this a very difficult case to call. Ms. Sears was excellent throughout her argument. But at the end, the justices asked several difficult questions. Although Ms. Sears handled the questions well, the substance of her answers clearly rubbed some of the justices the wrong way. I predict that this case will be remanded.