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Georgia Agency Faces Wrongful Death Lawsuit Over Abused Toddler

In his recent State of the State address, Gov. Nathan Deal praised the work of Georgia’s Division of Family and Child Services (DFCS), whose employees are charged with protecting abused and neglected children. The governor singled out a case manager in Telfair County who saved an infant’s life. He also proposed a 19% wage increase for case managers throughout Georgia, noting that the state pays its child welfare workers less than every other state in the southeast aside from Louisiana.

Cowart v. Georgia Department of Human Services

Despite the governor’s support, not everyone is satisfied with the the work of the state’s case managers. In fact, the Department of Human Services, which oversees the DFCS, is currently facing a wrongful death lawsuit brought by the estate of a child who died, allegedly after a case worker failed to follow up on serious abuse allegations. The Georgia Court of Appeals recently reversed a trial judge’s decision dismissing the case, citing the need for additional evidence on a key legal issue.

According to the lawsuit, the deceased child was a 1-year old living with his mother and her boyfriend in Bartow County. In 2013, the child’s uncle contacted the local DCFS office, stating the mother was in “imminent danger of harm” due to his mother’s abuse of illegal narcotics. According to the estate’s lawsuit, the mother and the boyfriend committed “acts of torture, barbarism, cruelty, violence, molestation, and savagery” against the child over a period of four months, which eventually resulted in her death.

The lawsuit named the Department as a defendant on the grounds the case manager who received the uncle’s complaint was negligent in failing to take any action to protect the child.

Normally, a person may not sue a state agency due to the principle of sovereign immunity–the notion that the government cannot be sued in its own courts without its consent. The Georgia legislature has waived sovereign immunity in civil tort cases, including wrongful death actions, but only to the extent an employee fails to perform a “ministerial,” or legally mandated duty. The state cannot be sued over the exercise of a “discretionary function,” i.e. an employee’s exercise of his or her own professional judgment.

The Court of Appeals noted it was not clear, based on the record developed so far, whether or not the case manager was carrying out a discretionary function in declining to investigate the uncle’s abuse allegations. The estate claims there are in fact Department regulations that “required the case manager” to conduct an investigation. But the Court of Appeals could not determine at this time if those same policies allowed some discretion “to perform absolutely no investigation” at all.

Separately, the Court of Appeals affirmed the trial court’s dismissal of the estate’s claim against the state over the alleged physical injuries suffered by the deceased child. Georgia’s waiver of sovereign immunity specifically excludes injuries resulting from “an assault and battery committed by a third party,” even if the state’s negligence somehow contributed to said assault.