“So, what you are asking us to do is send this back so that you can have a jury trial?”
Chief Justice O’Connor, to counsel for Smathers
“So, are you saying an expert can’t render an opinion based on their examination of a file whether or not they believe something was wanton, willful or reckless?”
Justice Kennedy, to counsel for the Caseworkers
On October 26, 2021, the Supreme Court of Ohio heard oral argument in Tammy Smathers, individually and on behalf of the Estate of Harmony Brooklyn Rayne Carsey v. Rick Glass, Executive Director of Perry County Children’s Services, et al., 2020-1062. At issue in this case is whether a mistaken belief, held by child protection caseworkers, that a child was not living with an accused abusive parent is sufficient to preserve the caseworkers’ immunity from liability. This case was argued at the University of Akron School of Law.
Case Background
Tylor Carsey and Tammy Smathers, the father and paternal grandmother of two-year-old Harmony Carsey, lodged complaints in the fall of 2015 about the mother’s treatment of the child. Perry County Children’s Services (PCCS) began investigating in November 2015, following a report from Smathers that the child was being restrained in a crib in a hot upstairs bedroom.
Nick Pease, a PCCS caseworker, began checking in on Harmony and the other children at Crystal Carsey’s home. Crystal’s husband, Tylor Carsey, had recently left her and the children following a marital dispute. Twice after home visits in November Pease documented that the children appeared safe. However, Harmony was later rushed to an emergency department after falling at her grandmother’s house, one day after a visit from Pease. Physicians at the emergency department decided to life-flight Harmony to a pediatric intensive care unit in another hospital.
While Harmony was receiving care in the PICU, another caseworker, Katie Hursey, spoke with a doctor, who did not indicate Harmony had been abused. The doctor attributed a distended stomach to gas and said the child had been cleared by a trauma team. Harmony was thin, the doctor told Hursey, but not malnourished.
Harmony was discharged from the hospital and began living with her grandmother and father for an extended period. However, during a mid-December home visit, Pease did note Harmony’s presence at Crystal Carsey’s residence.
Around Christmas, Tylor Carsey returned Harmony to Crystal Carsey for an extended stay but did not notify PCCS after doing so. Around the same time, PCCS received medical records from Harmony’s PICU visit that indicated an “overwhelming amount of evidence concerning….physical abuse and neglect.”
On January 8, 2016, Harmony died from dehydration in Crystal Carsey’s home. Harmony had been left in an overheated room without fluids. PCCS reported being entirely unaware that Harmony had not been in her father’s care in the weeks preceding her death and instead had moved back in with her mother.
On November 20, 2017, Tammy Smathers filed a wrongful death action against PCCS, Executive Director Glass, Pease, and two other PCCS caseworkers, Katie Hursey and Ben Taylor, (collectively, “the Caseworkers”) alleging negligent and willful misconduct and violation of section 5101:2-37-02 of the Administrative Code. The trial court dismissed all claims against the Agency, all the negligence claims against the Caseworkers and all the administrative code violation claims.
On November 13, 2018, Smathers filed an amended complaint alleging that the Caseworkers acted with willful indifference and were reckless in failing to investigate allegations that Harmony Carsey was being abused and neglected. The trial court granted the Caseworkers’ motion for summary judgment and dismissed Smathers’ claims, finding the Caseworkers were immune from liability pursuant to R.C. 2744.02(A)(1). Smathers appealed.
The Appeal
In a unanimous opinion the Fifth District Court of Appeals upheld the trial court’s decision. The appeals court agreed with the trial court’s finding that no genuine issues of material fact existed as to whether the caseworkers acted with willful indifference or recklessness in their investigation of abuse of Harmony.
The Fifth District pointed out that the Caseworkers were never informed that Harmony had returned to live with her mother on Christmas Day, and PCCS received no abuse complaints between Christmas and the date of Harmony’s death. The court cited R.C. 2744.03, which provides public employees with immunity from wrongful death damages, unless their actions or omissions were with malicious purpose, in bad faith, or in a reckless or wanton manner. The appellate court did not find the Caseworkers acted in any such manner given they were unaware Harmony was living with her mother and given that PCCS discovered no immediate threats of serious harm during Pease’s visits to Crystal Carsey’s home.
The Fifth District also rejected Smathers’ claim that the trial court failed to consider the opinions of her expert witnesses. One such witness had concluded that the caseworkers acted recklessly, but the appeals court held such a conclusion is a matter for the trier of fact. Finally, while a grant of summary judgment is reviewed de novo, an appeals court defers to the trial court’s findings of fact and “will not disturb the trial court’s decision if it is supported by competent, credible evidence.”
Read the oral argument preview of the case here.
Key Statutes and Precedent
R.C. 2744.02(A)(1) (provides, in part: “Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death or loss to person or property allegedly caused by any act or omission of a political subdivision or employee of the political subdivision in connection with a governmental or proprietary function.”)
R.C. 2744.03(A)(6)(b) (public employees are immune from civil liability except under three circumstances, including if their “acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.”)
Ohio Civ.R. 52 (trial court not required to list all its reasons in support of decision to grant summary judgment.)
Ohio Adm. Code 5101:2-39- 01(C) (provides that if removing a child from a home, the public children services agency must do one of the following: provide a court with “documentation of the provision of reasonable efforts to prevent removal,” unless certain factors apply; obtain an ex parte emergency order from the court; or obtain assistance from law enforcement if exigent circumstances require immediate intervention before a child is removed.)
State v. Williams, 4 Ohio St.3d 53 (1983) (“Any relevant conclusions which are supported by a qualified expert witness … should be received unless there are other reasons for exclusion.”)
*O’Toole v. Denihan, 2008-Ohio-2574 (defines recklessness as “a perverse disregard of a known risk,” adding that since the standard for showing recklessness is high, summary judgment can be appropriate when conduct does not demonstrate a “disposition to perversity.” Also states the reckless actor must be conscious that their “conduct will in all probability result in injury.”)
*Lindsey v. Summit Cty. Children Servs. Bd., 2009-Ohio-2457 (9th Dist.) (use of expert witness to make legal conclusion fails to show genuine issue of material fact as to whether a party lost immunity due to recklessness.)
Anderson v. Massillon, 2012-Ohio-5711 (1. “Willful,” “wanton,” and “reckless” describe different and distinct degrees of care and are not interchangeable (Thompson v. McNeill, 53 Ohio St.3d 102, 559 N.E.2d 705 (1990), modified.) 2. Willful misconduct implies an intentional deviation from a clear duty or from a definite rule of conduct, a deliberate purpose not to discharge some duty necessary to safety, or purposefully doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury. (Tighe v. Diamond, 149 Ohio St. 520, 80 N.E.2d 122 (1948), approved and followed.) 3. Wanton misconduct is the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result. (Hawkins v. Ivy, 50 Ohio St.2d 114, 363 N.E.2d 367 (1977), approved and followed.) 4. Reckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct. (2 Restatement of the Law 2d, Torts, Section 500 (1965), adopted.)
Argabrite v. Neer, 2016-Ohio-8374 (“Ohio courts lack the authority to confer immunity based on a different standard than the General Assembly has implemented.”)
*Cited by counsel at oral argument
Smathers’ Propositions of Law Accepted for Review
Proposition of Law 1
Falsification of safety assessments required of Public Children Services Agencies (PCSAs) by Ohio statute and regulations is probative on whether a children’s services worker acted recklessly, wantonly, or intentionally.
Proposition of Law 2
On review of a motion for summary judgment raising statutory immunity as applied to CPS workers, a trial court should consider a well-founded expert affidavit detailing conduct probative on the standards stated in the statute.
Proposition of Law 3
On review of a motion for summary judgment, a court of appeals reviews de novo, not for competent, credible evidence.
Proposition of Law 4
When evaluating whether a children’s service’s worker’s conduct was reckless, willful, wanton, or intentional, allegations of comparative fault are irrelevant.
At Oral Argument
Arguing Counsel
Peter D. Traska, Traska Law Firm, LLC, Cleveland, for Appellants Tammy Smathers individually and as Administrator of the Estate of Harmony Carsey
Matthew S. Teetor, Teetor|Westfall, Columbus, for Appellees Rick Glass, Katie Hursey, Ben Taylor, and Nick Pease
Smathers’ Argument
Eight weeks and one day before Harmony Carsey would be found dead, dehydrated and restrained in her cage-like crib, PCCS Caseworker Katie Hursey was warned in a phone call from Tammy Smathers that “the 2 year-old is kept in a bedroom upstairs because Crystal cannot handle her. It is unknown how the child is kept in the room.”
This case must be reversed and remanded for a jury trial. If the Court agrees with Smathers’ third proposition of law, that would be dispositive of the case. This case should go back to the trial court because there are too many calls that court would need to make ab initio. This Court could also do its own de novo review of the case. It would better serve the development of the law in this area for this Court to make the immunity determinations in this case rather than sending it back.
There have not been many cases dealing with social worker immunity. O’Toole v. Denihan is the lead case in that context, but there aren’t many others to use for comparison. In O’Toole the Court determined that summary judgment was appropriate because there was a safety plan in place for the child. The factors are different in this case.
The record in this case presents mixed questions of law and fact. The only issue that either of the lower courts engaged with is the narrative that the social workers believed that Harmony was with her father and grandmother from Thanksgiving to Christmas. There is ample evidence to disbelieve that narrative, foremost of which is Harmony was seen at her mother’s house by Nick Pease on December 11, 2015, which is almost exactly the midpoint between those two holidays. PCCS’s documentation never says that they believed that Harmony was staying continuously with her grandmother and father. The rest of Tammy Smathers’ testimony states that the children were being shuttled back and forth during that time. Everyone in the family agreed that if anyone suggested to Crystal that they were keeping the children, she would have become violent. There is definitely an issue of fact on this record about where this child was. There is an issue of fact as to whether it was reasonable for PCCS to believe that the children were staying with Tammy and Tylor during that timeframe. This would be a very easy issue to try.
Crystal Carsey has had one child taken away permanently. She lost custody to Tammy Smathers. She had been subject to several substantiated reports of child abuse in the past. Notes from a call from Smathers in October said it looked like the children hadn’t eaten for a while and that they smelled bad. Tammy Smathers was trying to get their attention. Also, Crystal had an open warrant for child endangerment going back to June of 2015. If Crystal had been stopped by the police for anything, she was at risk of being picked up because she had an open warrant. That’s not a safe situation for the children. Any background check, any diligence on the part of the Caseworkers would have identified that issue and would have said we need to step in more.
Once the Caseworkers went into the house and did in-person visits it was blindingly apparent that Crystal was an extreme hoarder and that it was not safe for anybody, let alone for children of tender years. It’s hard to explain how that fact didn’t just hit home. The social workers Ben Taylor, and Nick Pease saw the upstairs room, they saw the way that the crib was modified so that two sides of the crib were bolted to the wall, and that there was an exposed electrical outlet right there, not even one with child safe plugs. These are all the things that they knew immediately upon taking in the case. Their notes minimize what was going on.
Harmony was so small she was off the bottom of the chart for growth. She was in the zero percentile for growth. She was documented by life flight as being 15 pounds at 2 years old. There were bruises all over her body. The very belated completion of the safety assessment is damning evidence in this case. It wasn’t a close call at the time Harmony was life flighted. There is every reason for this case to go to a jury.
Caseworkers’ Argument
This case was decided by both the lower courts on undisputed facts, not on any unique issue of law. Smathers’ theory at this stage of the case is that these individual caseworkers should have removed Harmony from Crystal’s home at a time when Harmony was no longer residing there.
The court of appeals independently reviewed the entire record and correctly found the Caseworkers were entitled to immunity. If this Court finds that the court of appeals did not apply the correct standard, the appropriate remedy would be to remand the case to the court of appeals with instructions to review the entire the record under de novo review. However, it is the Caseworkers’ position that both lower courts did conduct de novo review, found the material facts undisputed, and correctly found that summary judgment was warranted.
The question of whether or not an individual actor is reckless is a question of law. It is a legal conclusion that courts have the authority to make based on the record before it. The legal conclusion as to recklessness is within the province of the court, not an expert’s affidavit. Both the trial court and the appellate court considered the factual assertions in Smathers’ experts’ affidavits, but not their legal conclusions on recklessness. An expert can render an opinion based on facts, but it cannot make a legal conclusion. Those are reserved for the courts.
These are the undisputed facts on which both lower courts decided this case. When Harmony Carsey was discharged from the hospital on November 24, she was released to her father and Tammy Smathers. From that point on, they both said they had her. She was in their custody. The testimony from both Smathers and Tylor unequivocally states that they had Harmony from the time she was discharged from the hospital until Christmas. They both testified that they would allow the children to visit Crystal Carsey’s home, but then retrieve her.
Nick Pease did see Harmony at Crystal Carsey’s home on December 11. He went back to that home on December 18 to get the authorization to obtain Harmony’s medical records from her hospital stay. Harmony was not there on the 18th. She had been returned to Smather’s home where she was residing with Tylor and Smathers. Their testimony is unequivocal that they had her during that month. Their testimony is also unequivocal that on Christmas day they returned her. Finally, their testimony is unequivocal that from the meeting when they brough Harmony to the Children’s Services offices to show her to Nick Pease and tell Nick Pease and Ben Taylor that they were taking her to the courthouse that day to formalize custody, they never contacted Children’s Services again. Nick Pease learned of this arrangement by going to Crystal’s home on December 11 and then again on the 18th that Harmony was going back and forth between the homes. But when Smathers and Tylor returned Harmony on Christmas day they did not inform Nick Pease, Ben Taylor, Katey Hursey or Rick Glass that they had done so, and they never informed any of those 4 individuals that Crystal did not return her to Smathers and Tylor. They did not inform anyone on the 25th that they returned her and that they subsequently did not regain custody.
Nick Pease returned to Crystal’s home several times in order to make contact, and to ensure that things were progressing smoothly. That is indicative of not being reckless. On December 4 when he saw Harmony with Smathers and Tylor they reported she was gaining weight back, that her hair was growing back, that she was “doing awesome.” He saw her again and inspected her at her mother’s house on December 11. He found that the diaper rash that had been reported when she was in the hospital was clearing up. She appeared to be fine. She appeared not to be at any risk of imminent harm, which is the necessary standard for removal of a child. On December 11, Harmony was doing ok at her mother’s house.
As for the crib Harmony was sleeping in at her mother’s house, the term “cage” is a misnomer. The crib was fastened to the wall to keep it from tipping over. Harmony’s medical charts state that she was a rocker. She would rock back and forth, which is believed to have caused some of her hair loss. Fastening a crib to a wall to prevent it from tipping was an example of trying to make a situation safer for Harmony, not less safe. The definition of a cage is an enclosure which would restrict Harmony’s movement. This was not a cage. This was a crib with one side removed and put over a window to make the situation safer for Harmony.
The caseworkers in this case don’t knock on doors where they are not wanted with families who may not want their involvement. A children’s services agency is to provide services. It is not a child removal agency. It is to help families get through difficult times. It is to help assess problems and issues and to resolve those issues. That’s what Nick Pease tried to do here. At his first visit he acknowledged that Cyrstal might have a hoarding problem. He got her in line with integrated services and tried to get her counseling. He identified issues with the refrigerator and tried to help her find a new one. He identified that this was a family that had issues. This was a family in crisis. But the children appeared to be fine and that’s corroborated by the police chief going with Nick on the first visit. He also didn’t think the children needed to be taken away immediately. He said this is a mom who might need some help and that’s what the caseworkers tried to do throughout the pendency of this case.
What Was on Their Minds
Appellate Review of Summary Judgment; Disputed Facts
Should we just remand the case to the trial court to decide if summary judgment was appropriate under the proper standard, asked Justice DeWine? Justice DeWine got into a lengthy back and forth with counsel for the Caseworkers on this point, insisting that Mr. Teeters couldn’t argue that the court of appeals applied the right standard of review for summary judgment. The court of appeals said it would not disturb the trial court’s factual finding as long as it was supported by competent credible evidence, said DeWine. That’s wrong as a matter of law, right? This line of questioning went on for a while, but Mr. Teeters would not concede the point. At one point Justice DeWine commented that de novo review is the opposite of competent, credible evidence. Wasn’t there conflicting testimony whether the Caseworkers knew that Harmony was in her mother’s care during the time leading up to her death, he asked.
If the Court were to agree with the third proposition of law, would it even need to reach the other three propositions of law, asked Justice Fischer?
Were the Caseworkers saying that the court of appeals found that the trial court did not abuse its discretion in looking at what facts were deemed to be settled in the record, asked Justice Brunner? Why couldn’t this Court simply perform the de novo review since it’s a legal question and then send it back to the trial court? Is it possible that this competent credible evidence that we don’t normally hear in any kind of a de novo review of summary judgment was simply to solidify what the facts were to draw the legal conclusions on immunity?
Does the case get remanded to the appellate court for them to do the analysis with the right standard or does it go back to the trial court, asked Justice Kennedy?
What did they know, when did they know it, isn’t all of that disputed, asked Chief Justice O’Connor?
Does physical control of the children mean legal control, asked Justice Stewart?
Exceptions to Immunity
What happened here that would rise to the level of willful or wanton misconduct, as opposed to negligence, asked Justice Stewart?
When we get to the question of immunity, is the question of whether the conduct here was wanton, reckless, and intentional a mixed question of law and fact or simply a question of law, asked Justice Brunner?
Caseworkers’ Actions
Was the crib modification in the caseworkers’ notes, asked Chief Justice O’Connor? What did they say about the upstairs of Crystal’s house? This was an open case, right, it never closed? So, one would think there would be numerous visits, she added.
Was it incumbent upon the grandmother and Tylor to inform the social worker that the child was going back and forth, asked Justice Stewart? The office knew the child was going back and forth between homes?
Does the fact that the caseworkers were trying to help the family, not trying to break them up play into assessing whether they met the standard of wanton, reckless, intentional, to get past immunity, asked Justice Brunner? Isn’t Children’s Services main focus on the children?
Expert Testimony
Can’t an expert render an opinion based on their examination of a file as to whether or not they believe something was wanton, willful or reckless, asked Justice Kennedy?
Couldn’t an expert have looked at the facts, and then said if the caseworker conduct fell short of the administrative code directives, asked Chief Justice O’Connor?
How it Looks from the Bleachers
To Professor Emerita Bettman
Like a win for Smathers. Although Mr. Teeters, for the caseworkers, refused to concede that the Court of Appeals used the wrong standard of review on summary judgment, there seems little doubt that the justices thought otherwise, especially Justice DeWine, who, with his trademark tenacity, just wouldn’t let this go. While the Court could send this back to the court of appeals to apply the correct standard, I think it is more likely the justices will do their own de novo review and find there are genuine issues of material fact on immunity here. At one point, when Mr. Teeters kept insisting that the case was decided on undisputed facts, Chief Justice O’Connor said, “I know that’s what you said but I’m not hearing that and from the record I’m not seeing that.” And just listening to both sides, it seemed like two different versions, and certainly enough to defeat summary judgment.
To Student Contributor Max Londberg
Both advocates in this case seemed to commit tactical errors. Peter Traska, who represented Smathers, claimed that if the only issue in Crystal Carsey’s home had been its messiness, then that alone warranted removing Harmony. Matthew Teetor, representing the Caseworkers, told the Court that Children’s Services is not a removal agency and instead focuses on connecting struggling families with resources. But Traska’s claim calls on caseworkers to split apart families on first impressions, with little investigation or assistance provided.
Teetor pointed out that the appellate court affirmed the trial court’s finding that Harmony was “in the physical custody” of Smathers and Tylor Carsey from her release from the hospital until Christmas. He earlier said that the lower courts decided the case on “undisputed, unequivocal facts.” But Chief Justice O’Connor said the record indicated disputes of fact, and Justice DeWine pointed out conflicting testimony, including that a caseworker actually observed Harmony in Crystal Carsey’s care during the period. Teetor seemed to contend, however, that the case only presented a question of law: were the Caseworkers reckless? Traska contended it presented both questions of law and fact.
This case is difficult to predict because the Court seems to have many options before it. If decided on procedural grounds—that the Fifth District performed a de novo review that paid excessive deference to the trial court—it could be remanded, but to which lower court remains unclear. When asked, Traska said he hadn’t considered the question. Another option could be Traska’s apparent preference: the Supreme Court itself conducting its own, independent review to seed statutory interpretation of social work immunity into the caselaw.
Chief Justice O’Connor and Justice DeWine seemed sympathetic with Smathers’ cause, with O’Connor even calling the crib a “cage,” which Teetor refuted. Justice Brunner offered an interpretation of the procedural issue that favored the Caseworkers. She also clarified that the Caseworkers’ aim was to help the family, not break it up, and asked if that should be weighed for the legal question of recklessness. Justice Stewart questioned whether testimony that Smathers and Tylor Carsey “had [Harmony]” even meant Harmony was under their physical and legal control. Justice Stewart also stressed that the Caseworkers knew Harmony was splitting time between her parents.
Given the complexity and uncertainty of the case, I reluctantly predict that the Court remands to the Fifth District to perform de novo review under the proper standard.