Travis Stewart, Individually and On Behalf of His Deceased Minor Child, Mya George VS State of Louisiana Through The Department of Social Services
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 0607 IRAVIS STEWART INDIVIDUALLY AND ON BEHALF OF HIS DECEASED MINOR CHILD MYA GEORGE VERSUS STATE OF LOUISIANA THROUGH DEPARTMENT OF SOCIAL SERVICES MAR 2 6 2008 Judgment Rendered Appealed from the Eighteenth Judicial District Court In and for the Parish of West Baton Rouge State of Louisiana Docket Number 33607 Honorable Alvin Batiste Jr @ Counsel for Robert M Marionneaux Jr Baton Rouge Judge Plaintiff LA Appellee Travis Stewart and Cleo Fields Courtney DeCuir Individually and on Baton minor child Rouge behalf of his deceased LA Mya George Charles Foti Counsel for Attorney General Defendant Sonceree Smith Clark State of Louisiana Royal W Appellant through Department of L Colbert Jr Social Services Wayne Gaudin Jr Sallie Jones Sanders Attorneys General Rouge LA Assistant Baton J C WHIPPLE PARRO KUHN GUIDRY BEFORE CARTER PETTIGREW DOWNING GAIDRY McDONALD McCLENDON HUGHES u j c I AND WELCH n TI e P 5Sf i IJ IJ Hl CVf etw f vd UAJ frf 1 d j 7 VI DOPT5 vTS fYle J1 5 fI1rtj1Y1r1A S i9rJ vvv c vii a 1 d J t 1 4 L nfi 1 J f7SS cRD PA JCAJ cn U2 W o J ir 5e s l z nClAI I piL q tJs Re h 4 7 2 e ep c t 7 PER CURIAM through the Department of Social Services Office of The State of Louisiana Community Services DSS survival action for fatal subject of biological father in injuries sustained by his minor daughter while she For the investigation by DSS an in favor of a appeals a judgment following the amend the we reasons was a judgment and as amended affirm FACTS AND PROCEDURAL HISTORY On the April 2003 two and 11 half year old Mya George Mya hospital by ambulance for treatment of a head injury to have caused her were Melissa mother and caring for received rarely referral from the care was instructed determine what caused On May was not to matter 14 2003 DSS was by and DSS to be a DSS assigned interviewed subsequently to by older sister Syndrome hit Mya in the caregiver was Mya was allowed Mya s sitter Melissa Smith Smith buttocks and that she had on matter was in White s for the children unable to was to definitively remain in Turnage s discharged from the hospital police that Mya had bruises Based allow White Mya s injury 22 2003 Mya and Rheanna April injury had been sustained while Mya during the investigation of this custody when she On This who suffered from Downs Because the to Mya lived with her Turnage s stepfather her head When taken subdural hematoma that having abused Mya White reported that Mya s Turnage Rheanna Turnage White hospital concerning Mya Ruby Jenkins Jenkins Jenkins White denied head with a toy to was Mya s biological parents a coma Jessie White her father saw Mya when she sustained the injury a Rheanna placed her in seizures and a Turnage Turnage and Travis Stewart Stewart DSS caseworker the a were this report and a on middle initial unkept to DSS and and lower back and her patch of hair missing from her head dirty and an her upper reported Smith noted that and had been in the care of White investigation by Jenkins DSS obtained 2 a verbal Jt hold order from district a court from to remove both children judge Turnage s custody following day when Jenkins and The appeared for what issuance of judge speak the verbal hold order After informing them that this The matter out judge offered use A while she worked safety plan Jenkins later that day Delane agreed DSS few weeks records s with brought before another Turnage and attempt to work library as a meeting place Jenkins be allowed to Turnage suggested care at be a for the minor children caregiver to care for and case was but determine how the incident was provided interview with supervise the children while of the April and May incidents continued during which time Jenkins conducted interviews supervision an and work investigation The In staffed by DSS on June 27 and 2003 due was inconclusive for injury occurred and who to physical abuse and a physical abuse the lack of as supervision was next gathered medical a lack DSS could not was due to may have been involved and the Turnage of the results and again notified her that White May DSS informed not to caregiver for the children since Mya s injuries occurred while she 3 over The results of the investigation led to the following conclusions the April incident of for the children caregiver of Mya and Rheanna in Turnage s absence not was of his could be to relationship prepared which contemplated that Delane was that White would Turnage meet Kimberly Delane Delane that her friend advised that the were Turnage to discuss the issue of childcare and Butler met with would be the the that follows the hearing they Butler meeting the judge indicated that matter judge the issuing judge requested that they the Chris Butler be vacated because of his to going worker nature their During with them was of this cases co be the 72 hour was to verbal hold order in a wanted to Turnage believed they a was be used in his as a care 23 September On with bruises her head forehead on Mya also had legs Turnage took 2003 lump a abrasions and scratches on to a back ears White Mya was Mya died on in a a coma the to skin and September 25 on tear her forehead on not was 2003 hospital and lower shoulders top of her head hematomas both thighs and the face and to beating by unresponsive Mya eyes arms Local authorities informed DSS that live due an her buttock expected She was to three years old In actions Following The trial to denied DSS court in the alternative or jury a Stewart filed survival and trial by jury he Mya for the survival action and assessed 75 percent was the of these circumstances against DSS behalf of and light erred in investigation awarding of a DSS 20 percent s motion for motion for finding DSS Mya s case 8 000 000 in 0 for his in be to a was awarded 8 000 000 wrongful death action Turnage and to 5 percent judgment notwithstanding trial new 2 in the be 75 percent to on Fault to White 1 the verdict appealed contending DSS grossly negligent finding DSS death wrongful that handling of the at fault and in damages in the survival action APPLICABLE LAW of child Ch C duty arts 611 and 612 and La R S 9 2798 1 a protection caseworker and DSS is delineated The Todd v State through of Social Services Office of Communitv Services 96 3090 p 8 So 2d 35 39 At the time follows with respect I The judgment simply pertinent to this immunity from liability afforded to cast DSS for 75 percent of the to a judgment 699 provided DSS caseworker amount La Department La 9 9 97 La Ch C art 611 A case by plus judicial as 3 interest from the date of judicial demand and its share of court costs 2 In his memorandum in reduced 3 opposition by operation of law Article 611 was amended 2006 La Acts No 372 S I to DSS s motions because ofthe by statutory cap 2004 La Acts No which added paragraph 4 76 C Stewart indicated that the verdict was of 500 000 S 1 which rewrote paragraph A and by Any person who in faith makes report cooperates in any result of such report or participates in good investigation arising as a judicial proceedings authorized under the a provisions any caseworker who in of this Chapter investigation makes good faith conducts investigative judgment or disposition or releases or uses information contained in the central registry for the purpose of protecting a child shall have immunity from civil or criminal liability that otherwise might be incurred or imposed or an an DSS art s investigation 612 which and assessment of a report of abuse is governed by La Ch C provides A 1 Upon receiving a report of abuse or neglect of a child who is not in the custody of the state the local child protection unit of the department shall promptly assign a level of risk to the child based on the information provided by the reporter Reports of high and intermediate levels of risk shall be 2 investigated promptly This investigation shall include a preliminary investigation as to the nature extent and cause of the abuse or neglect and the identity of the person actually responsible for the child s condition This preliminary investigation with the child and his parent of the investigator on school or shall be not parents or premises or denied by school personnel shall include an other caretaker access to interview Admission the child in school investigation reports of low levels of risk may be assessed promptly through interviews with the family to identifY needs and available match to community resources If during In lieu of 3 an this assessment it is determined that a child is at immediate substantial risk of harm the local child protection unit shall promptly conduct or participate in an intensive investigation mandatory and permissive reporters shall cooperate fully with investigative procedures including independent investigations and psychological B All persons including evaluations of the child initiated The without limitation by the parent provisions of this Paragraph shall not on behalf of the child require the disclosure of communications between an attorney and his client or any confession or other sacred communication between priest rabbi duly any ordained minister or Christian Science practitioner and his communicant course of requested his parents conducted in the investigation shall be tape recorded if All interviews of the child C or child protective by the parent or parents a Upon determination that there is reason to believe that the child has been abused or neglected the local child protection unit If necessary the shall conduct a more intensive investigation investigator may apply for an evaluation order authorized by Article D 614 5 When the report concerns a facility under the supervision of the department the secretary of the department may assign the E duties and powers department enumerated herein office within the the purposes of this Chapter or may enter into agreements with other state agencies to conduct in accordance with this Article Violation of the duties the offender to criminal The G any to carry out cooperative investigations F to imposed by authorized prosecution by RS Department of Social Services shall 14 403 A priorities for identified by response and allocate staff resources to cases reporters as presenting immediate substantial risk of harm evidence of willful in carrying out intentional or 2 set case Absent subjects this Article to misconduct the investigative functions of the negligence protection program caseworkers supervisors program children or state gross child and managers agency heads shall be immune from civil and criminal liability in any legal action arising from the department s decisions made relative to the The duty setting of priorities for cases and targeting of staff resources to of child abuse investigate complaints insuring the safety of children White or neglect is not tantamount to White 479 So 2d 588 589 v La App 1st Cir 1985 Concerning the policymaking entities or their officers failure employees Liability shall B officers or discretionary or not or omissions of La R S 9 2798 1 in pertinent part be imposed on public entities or when such acts are within the course public provides their performance employees based upon the exercise exercise or perform their policymaking or discretionary or or to acts or the acts and scope of their lawful powers and duties The C provisions of Subsection B of this Section are not applicable To acts or omissions which are not reasonably related I the legitimate governmental objective for which the policymaking discretionary power exists or 2 To acts fraudulent malicious flagrant misconduct Thus set although DSS and its forth in La Ch C arts or omiSSIOns intentional employees which willful constitute may be entitled to the 611 and 612 and La RS 9 immunity if gross negligence is alleged and proven C 6 RW or qualified immunity 1 2798 v or criminal reckless outrageous to there is no such State of Louisiana Department of Social Services Office of Community Services 05 1044 p 10 La 1st Cir 911 06 App 943 So 2d 471 481 writ denied 06 2386 La 12 2106 944 So 2d 1289 the scope of the workers action are The unless the Todd not a child from his home duty and authority of social workers deliberation and personal the removal of involving Decisions manner in which the investigation is 699 So 96 3090 at 14 duty in which they a are given investigation is conducted is incomplete that it could so Such decisions at 42 2d awkward balance that child abuse handling while yet looking 3090 out for not to no one be found The supreme present cases delicate require Although provided with guidelines social judgment merely performing clearly lie within latitude for of discretion to be thorough recognized the court caseworkers i e the need for the best interest ofthe child Todd 96 15 699 So 2d at 43 at Stewart urges that DSS decisions reached were contends that DSS s thorough to as document with was not investigation substantiated incomplete that it was so allegedly used document that White therefore posed a about her abuse the was danger to to seek Mya a from the following the April suitable to care hospital to cannot He to be be found speak with Mya about her abuse to inflict subject to of to a to retrieve the Mya s head injury in speak plastic April 2003 seek professional assistance and her being and to Mya 7 to confirmed incident of abuse and April 2003 incident 2003 incident for that the to speak with Mya protective order against White for Mya s safety interview Rheanna about the discharge and by Jenkins testimony regarding the following failures Mya s hospitalization was thorough anything but reasonable given the circumstances Mya s treating physician after her hospitalization hammer that were investigation s to returned search out monitor to to Mya s safety after her former environment other family members who In considering Stewart s argument burden of proving gross matter Gross want of that Ambrose La 7 5 94 639 So entire absence of So 2d at 40 and the care Additionally gross care or the Falkowski same v different from jury s no negligence 93 3099 p 93 3099 2d 522 finding in this regard 528 well defined at La was 13 manifestly incident and the information known 699 So to 2d 1st Cir to at 10 wanton merge and at 40 citing 1993 Gross legal meaning distinctly separate and Ambrose 93 3099 639 So 10 699 extreme as an have tended App 2d In 639 So 2d case at 220 constituted gross clearly error at 223 erroneous at 6 in this conduct review under the manifest at at Todd 96 3090 care 10 determination that Jenkins to prudence clear distinction between such willful 96 3090 5 has also been termed the Todd 96 3090 want of even scant in this exercise to of the dictates of disregard Todd a recover diligence and the negligence has been described ordinary negligence See Ambrose s and to accustomed men are two 637 So Maurus negligence is subject DSS care negligence and the meaning negligence therefore has The Gross utter the There is often reckless conduct and gross on slight complete neglect of the rights of others to 699 So 2d at 40 take careless even 2d 216 219 20 departure from ordinary or the part of Jenkins in order want of even negligence is the diligence which on mindful that Stewart has the are New Orleans Police Department Ambulance Service v amounting negligence we wrong standard if the determining it is necessary jury s to assess each Jenkins at such time Investigation At the time of trial Jenkins had worked of the 16 years that she had been reports of abuse or On 11 April employed as a child welfare with DSS neglect that had been reported to the seizure disorder and 2003 a Mya was admitted subdural hematoma 8 to the secondary Her job specialist was to II for 15 investigate agency hospital with to a new onset injury The a closed head medical records of Our Lady ofthe Lake Regional Medical Center OLOL reflect the facts following pertinent noted that the Michael Quinn was ocular an consulted injury Dr trauma Dr or According and atraumatic normal which showed signs of child abuse Barbara J Golden also was performed Golden observed that t here is also been noted some of her head 5 have to Mya was Pursuant to transferred assigned to on on doctors who had treated hematoma was was a reported that is s exam was the discharge was consulted Dr Mya during her hospitalization her feet out of the as well as a lesion hospital s intensive 14 2003 by one of Dr the child has on the left side care unit to the regarding Mya s treating physicians the possibility of physical This report of abuse records indicated that she had Mya and that they could direct result of determined that the an 14 2003 April Cashio in in the Grenier ocular Mya s phthalmology the presence of the subdural hematoma Jenkins was Dr pediatric neurology consult by on consultation ordered a Cashio contacted DSS abuse based on o P questionable history of trauma and lesions regular hospital floor on April A Christopher However time Quinn he stated that by Mya while she Grenier to Dr at that summary dictated no Mya s regular pediatrician and Dr Katherine Elkins Elkins medical partner cared for Dr ophthalmologist completely 4 babysitter To rule out hospital hospital social worker Maria Cashio Cashio and Rheanna had been with White for the past two weeks and had Mya not seen The someone not spoken purposefully hitting Mya Mya on different that the subdural say injury could have possibly happened the that Rheanna had hit to was the head with in the head It way it had been a toy xylophone hammer 4 The Whites had 5 Jenkins received separated Mya authorization executed s and Mrs White had been living with her mother since Apri12003 medical records from OLOL by Turnage 9 on June 6 2003 pursuant to a medical When Jenkins called the to hospital caring for Mya while Turnage worked 6 speak to spoke with Jenkins Jenkins testified that she had now from anyone had she ever was talked Smith pick to willing to Smith During for care 2003 and that this 14 April next s were home and children s According These visits with home were Mya but not to Over time well 6 let were times when Smith a a work day and month the children bring began Sometimes Rheanna would up both girls her own Mya and Rheanna like Mya at her home a to allow couple of times Stewart Smith testified that always dirty and sick when things worsened Because the situation were time at Smith to visit Mya knew was a away at her and night kept Rheanna in the for up to four whole month 10 Smith at some hospital According days at a time of blisters and scrapes change in their personalities eating one delivered to her explained that in the beginning her home with bruises Smith testified that she observed with Smith for s Turnage would daddy Smith There a Mya leave with him stayed with Mya for two days did not speak much during this time 7 at Smith Stewart visited the children would arrive black eyes of Tumage After about morning Smith stated the children 2003 five and arranged by Turnage who told Smith Stewart and called him by White the first time that Jenkins to Smith testified that she loved to was Subsequently White started picking Mya would stay from Smith complaints concerning Mya from nine at the end staying with Smith overnight for days leave contacted before their conversation Smith informed Jenkins that her hours Initially Smith the to Smith to began babysitting for Mya and Rheanna in she up the children from Smith them back was Mya and Rheanna testified that 2002 September to prior received any not According not been during this conversation she asked Jenkins why she had who Smith Turnage as point got her to Smith Mya Once Mya was left neighbor Misty Porche Porche next door that Mya started s involved Porche testified she noticed withdrawn in that she would to act longer speak no or go swimming with her daughter According to Smith she contacted the Plaquemine 9 services several times but received no get Stewart his mother Beverly Gertrude work did to not come see to to Turnage call the authorities if at Turnage seeing the children Turnage called her mother Sheila White According to Smith some bogus Turnage as contacting Smith in Mya s hospital Turnage call her approximately Later that and one parent who had excuse to explain the condition of usual let it go at that and returned to half to a work to two hours make ends to 12 meet she herself had talked to was DSS to afford s present when Smith called DSS a couple of times on the Jenkins learned that Mya sometimes played with Porche Mya she was just starting to speak Porche testified that she Turnage to pay young a to have telephone for Turnage reported that she While at Smith s home that when she first met Jenkins told Smith room day Jenkins spoke sitter for the children but had been unable 9 Smith Smith contacted to attempt police involved the or not protective work After 8 IO Beverly Smith threatened opinion always had s II the children to After come who in Smith the children however she did response Once after White had delivered the children office of child was a single Turnage had a 300 debt owed to a daughter Porche recalled of times She added that couple Porche indicated that she had called DSS twice from Smith s home because Smith had not been able to get anyone to return her calls 10 Il At trial Smith stated that she did not have contact information for Stewart Smith stated that she was always given child had marks Furthermore Rheanna the excuse or Beverly that the children had fought but only aggressive child and one loving toward Mya 12 Cashio Mya was s very notes reflect the and Rheanna testified that were although Smith noted that Rheauna was not an following Turnage worked as a cashier for by White or a babysitter while Turnage cared for she lived with her mother she visited White 11 s home a that convenience store worked daily Mrs White 13 Smith for past childcare Turnage told Jenkins that she hospitalization White 14 s According care when Rheanna hit Mya on checked Mya but found the day next with a during treating physicians were of the available not never did Due to Rheanna s not interview Jenkins visited her in the stated that she give a worker Although none to of speak Mya s at no speak with Mya s Mya in connection with this incident Jenkins did find a case the hospital at Mya did Jenkins Mya due to Mya s more to to Jenkins visited day Jenkins visited the hospital the III xylophone Turnage investigation so Mya while to head occurred policy required interview hospital anything inability on the to Mya s investigation an of the course weeks pnor two known hit to only concern of course to something had happened Turnage injury Jenkins also did Jenkins said she did half a the head with a toy no the during the physicians and she to that Jenkins admitted that DSS doctor other time aware was and one out if age yet know not Mya s when verbal abilities Mya could tell her what happened Jenkins made statement Mya was asleep effort no to interview Rheanna about this incident Jenkins called Cashio the next morning to inform her that she had spoken Turnage and had visited the hospital Jenkins reported that her investigation Jenkins noted that incomplete purposefully hit Mya Turnage Rheanna while the was investigation called Jenkins to inform her that the hospital 13 According pay After Turnage 4 a was Turnage to although advised was period one had not to allow being conducted Turnage s payment care White On to care April 16 for Mya or 2003 Cashio Jenkins authorized Cashio testified that for childcare fluctuated was reported seeing White Mya was ready for discharge discharge Mya to Turnage s to Smith no to depending once a on her oftime Smith was not really concerned with the money and did not report ability to care that previous two behind in payments told Cashio that Mya and Rheanna had been weeks 12 staying with White for the is made to DSS from the a family hospital without authorization from DSS Notably Jenkins did emergency plan at Mya left the hospital In on interviewed the Whites on told Jenkins that he had while 11 with Mya her April no a was 2003 21 week and a at of knowledge that she did not assumed that Rheanna had hit incident White at s Jenkins request White that may have occurred injury on care but he recalled that while he half earlier Rheanna had hit Mya were in his and that Rheanna had crying her office an When he got toy xylophone hammer a devise her with the children while she worked help investigation of the April Mya and Rheanna in the bathroom was to statement not 17 April with connection despite Turnage s this time have anyone other than White April the child cannot be released concerning suspected child abuse a out the head of the bathroom he observed that hammer in her hand Thus White no visible sign of fracture to At that time he noticed Mya on mJury Jenkins had 1997 leg in September based not on a validated to care going Turnage not to to comply with to own Nonetheless a care to Turnage Jenkins that safety plan The given devised Rheanna s care and an shut her out allowed to impossible for prior incident with opportunity Turnage by DSS which required for her children Jenkins had determined that Smith to s was admission that it seemed was available by providing childcare after Mya s April hospitalization Turnage began in White was caring for her children demonstrated allow White Although for Rheanna despite Turnage s already not was a finding of neglect DSS had advised Turnage that White could work without White Rheanna had with that occurred while Rheanna provide unsupervised take the children her investigated Turnage in connection to assist Smith testified that Following Mya s discharge Jenkins did 13 Turnage not make a home visit and admitted that she did not know who while bruises May 22 2003 Turnage left Mya and Rheanna with Smith who observed various on of portions Mya s body and that Rheanna appeared unbathed and her hair unwashed and uncombed Smith called DSS receive a return viewing phone call to phone call from DSS she called Porche the children Porche Officer Fontenot to Porche also called DSS subsequently the children come see reported the situation local a on but did with her mother hospital the children since she had been Jenkins testified that telephone of one of Jenkins said she returned Smith from Detective co the children receive not return a where she encountered store Mya and Rheanna Porche asked Officer Fontenot then which he did Turnage had dropped the kids off and left quickly due to She stated that up from White Smith informed Detective number from her come see not Young who interviewed Smith and Porche and just picked the children Mya these observations When Smith did to s worker noticing bruises on co May 22 on While noon speaking was after Detective responsible was for the concerned about a out voice message of the office IS on Jenkins with Smith Jenkins received Detective a call Young who was then took Smith and the children with him Smith testified that she called DSS two or three times oflice involved 14 on the retrieving Smith s telephone Young who confirmed Smith s story very concerned for the children to Mya over the last five months Smith left workers while she call around was Young that she an Turnage had also told According Young Smith indicated that she suspected that White bruises by be to to DSS Smith stated that emergency at the went to whom she told about contacted Detective Kenneth her that she had Troubled report the condition of the children Office Leo Fontenot 15 the children Turnage worked On On watching was May 22 before getting to the the sheriffs police station where Jenkins met Smith Mya reported they were at said Mya concise was unable to not police station the communicate She District that to to obtain Jenkins spoke next court clerk advised her date to was to Her Upon returning supposed Although with no not get a statement a clear from Mya response to which Jenkins Turnage effort was on judge in the Eighteenth Judicial her to take the judge who spoke the to the judge was out diagnosis to to her a m April in an Mya and Rheanna into of the office a on his cell verbal hold order law clerk who indicated that the The children Dr Elkins for an Mya had a right was a non to Jenkins the law were taken into state accidental examination ear trauma In addition infection with a hole Afterwards Jenkins care office Jenkins take place the was aware s Rouge Parish following morning According be there for 9 00 placed the children into foster was court authorizing the bruises Dr Elkins discovered that in her eardrum 6 words Jenkins that Jenkins could get extent DSS matters for West Baton custody and then brought by Jenkins to that some being advised of the facts the judge granted Jenkins testified that she later s district a verbal hold order a 16 After phone to speak to Turnage and after consulting with her supervisor locate generally handled custody judge able of the children pictures only asked Mya who hurt her the Jenkins contacted the office of state the to off at her home willing to care for Mya Jenkins took was having abused contained in the record Being unable effort was from her therefore Jenkins did statement concerning her injuries is Smith Although Mya and interacted with them spoke with Detective Young who Turnage had dropped the children that because of a crisis with Mrs White While Jenkins and interviewed Smith who denied investigation had initiated the them prepared the paperwork for the hearing day next of Mya s father s When Jenkins and Butler the foster name as a result of the conversation that she had 14 2003 Jenkins did not have any other made to contact him at this point 15 identifying information Thus care case manager be the 72 hour assigned hearing I7 the to Jenkins and Butler issued the verbal hold order wanted sitting in the the judge 18 hold order outer The 19 He area of the judge explained that he hold order from another district children to was The court related judge supervisor Robin to with met to Turnage and that he should Bettis a Despite his request that Jenkins and were sufficient to order Bettis not not Bettis a a hold child welfare district manager with agree with the decision was request of this a Jenkins pursue another hold order to vacate continued presiding judge frequently explained that when not said that he did not order DSS to return the judge Jenkins did eXplained that DSS did According were judge then noted that DSS could request a order in that the agency recommendation 17 Verda Sanchez grandmother her Turnage spite of being specifically told by the judge that she could request immediate Bettis judge who had them in his chambers Turnage because he believed the stated grounds order from another DSS told that the chambers while Jenkins and Butler s Turnage the judge justify the issuance of the hold In see were they believed would judge advised Jenkins and Butler that he had to rescind the verbal have issued the verbal hold order Butler talk with to and her Joseph George George brother showed up for what case custody with the asks DSS nature the verbal hold to work with is received from a a state family judge DSS The issuing judge testified that the children and their parents were not there on May 23 2003 hearing He explained that DSS had to present an affidavit verifying everything hours of the issuance of the hold order to get the hold order produced in writing An within 24 affidavit was presented by DSS but it was not notarized due to his realization that a conflict of for the 72 hour interest existed 18 According Jenkins to the notes case conducted on that presence on May 23 was pure coincidence while reflect that she informed Turnage that the 72 hour hearing would be issuing judge Turnage s day 19 at 9 00 a m Candice LeBlanc DSS attorney by an order by a judge vacating explained that once supervisor a the hold order for most of the state testified that DSS has to abide hold order was vacated children 16 Jenkins the state immediate no supervisor Robin longer had legal custody Bettis of the generally would not go to a different judge in effort an to have its recommendation adopted On 23 while in the May sustained her injuries During their while Butler made contact appointments assist discussed provide to care services however p m 2 00 to West Baton and the a m special needs daycare provided with information offered counseling spoken to on on The to 10 00 state at the a m centers convenience There for to pay store were no in West Baton helping safely daycare varied from 2 00 daycare facilities in and brought to a Delane indicated that she Turnage a was and was resources Turnage mentioned that she had to After restaurant their mother where Jenkins was going to care knot He indicated that attending physician suspected records of this visit indicate that on they a Mya s shoulder were going fracture of her to when she bring Mya to was met and right clavicle inform her removing the hospital The to Mya s language consisted of only 17 getting for the children in evening Turnage s brother called Jenkins Turnage had discovered clothing community particular fast food interviewed Delane Later that Rouge Parish office Jenkins contacted the foster parents and s transported them home Turnage s home Furthermore there with the care of her children the children Jenkins The willing was all of the available her friend Delane about asked that the children be s parties The person who could problem with transportation a appropriate parenting Upon leaving the judge Mya to set up Rouge Parish that provided services for those work shifts Jenkins Rouge but Turnage had were no that in an effort resources Jenkins made it clear that White could not under any Turnage s work hours 2 00 Mya Turnage possibility of another for the children or how Jenkins talked with meeting community explain suggested that Turnage look into 24 hour daycare services available in Butler Baton a m hour two not Turnage in utilizing available services for the children circumstances could library Turnage s with different daycare options care judge hospital a few words When Jenkins was asked about the release of authorized the medical visited Mya at to to speak White Nonetheless Jenkins did that time at Jenkins on not next investigation of the May May with Rheanna suspect that Mya and Rheanna visited at an to effort her home because to According around May 30 to Jenkins were at White s Smith White staying was someone was 2003 the children with a teacher who worked May 22 incident Turnage would Smith was at went to Turnage s to was not bring the causing problems Turnage s home a at mlstreatmg Mya 21 Beverly Turnage home to to let Jenkins denied that she with White around Beverly offered s In couple of take the children but Turnage s residence being 20 home the first time she visited May 30 Beverly contacted Jenkins and expressed Jenkins obtained Nonetheless home Turnage and Jenkins spoke Turnage felt that Smith Smith about the children to On June 2 20 saw Smith indicated that she wanted her know that White 22 22 incident Upon leaving Turnage s home Smith reportedly telephoned Jenkins refused home Turnage s home visit with the children times spoke Jenkins care home Turnage s Smith testified that after the children s 30 but White would not let her into his home During this meeting Jenkins outside Jenkins hospital her mother to Mya the Turnage s home again later that night In connection with her attempted release to personnel Mya by have concern that Mya placed in her telephone number address and where Smith testified that Stewart shot fireworks with Mya at her home around July 4th 21 Beverly testified that in May 2003 while she was in a store Ray Bryant of the West Baton department informed her that Mya had a broken collar bone as a result of being day Beverly approached Turnage at her place of work and inquired about Mya Turnage responded that Mya was fine Afterwards she went by the otlice of the who had issued the verbal hold order in search of guidance Upon being told that she was judge interested in getting Mya the judge s secretary called the person to whom she needed to speak and gave her the telephone Beverly told the person to whom she was speaking about her relationship to Mya and pleaded for Mya to be given to her After giving this person her contact information Beverly waited for someone from DSS to contact her but no one ever did Rouge Parish juvenile abused 22 Jenkins That never same heard from Stewart regarding Mya 18 she was with she and her employed According to Beverly Mya but not any may want to go to at one Jenkins testified that she advised longer to attorney an son seek time had give Beverly custody of Mya since the child had been returned that she Beverly custody of Mya because DSS to was the contact unable to custody of Turnage On June 3 2003 connection with the May 22 2003 explained he White was caring for Rheanna and Mrs White h ome on up again brother a refused referral from a two week to or allow Smith speaking period in who Mayor was was closed discuss the final June 30 findings care Turnage He caring for Mya hospital he had to Smith never caring s According was to receiving Turnage s resided with White but there White Mrs were for the children Jenkins denied with during which White stayed eXplained was Turnage to help that she had taken there also s case DSS staff concluded that White should s file record of the Jenkins visited Turnage of the home the Whites s was for the children Turnage very sick caretaker for either child on to June as a to Smith around June 19 to On June 27 2003 DSS case According s not be used April and May incidents home to Jenkins on July 18 2003 to she found the children happy Although the investigation of the April incident was inconclusive for physical 23 was bring both of the children Smith that Mrs White to vacation time from her job and be home and s her second visit and Mrs White George with Rheanna to Mrs White on 23 present Turnage explained and be interviewed in to that when Mrs White fell sick and had to be taken to the Mya from pick Jenkins office May incident During this interview White indicated that Smith testified that to to came abuse it was valid for lack of supervision therefore White blamed Smith for the abused and neglected 19 Turnage was advised appearance and condition ofthe children that White was was have any not to not to serve their as indicated that she could case notes reflect how DSS that expected without which she On and over vehicle when the identity DSS a 15 2003 on where seat September notice the bruises There were lower legs 23 Mya bruises a place for family her to live on traveling two on car stopped following the the on news cardiovascular failure s then know not Bettis denied that 911 call White was telephoned Turnage who to work to home to unresponsive Turnage brought Mya to Mya be went to Turnage carrying her head forehead lump on was at White s Dr pediatric or four Turnage explained that she did arms eyes ears thighs and a to not wake her up back shoulders and top of her head hematomas her face and both 24 2003 OLOL swing she did Although over the On his third Short real a three times and hit or Turnage reported that Mya had fallen three Mya s a called 911 right in to his Mya until that night when she attempted on September situated him White wake up not Mya also had in was was saw Subsequently Mya was transferred to saw a kept turning and looking child a 2003 Turnage abrasions and scratches On provide concerned citizen Daria Short Short Upon finding her before while not know upset and stated that she did policeman pulled the driver informed about Mya Turnage help with childcare Nonetheless Jenkins very the lane in which he River West Medical Center days a driver who a inform her that he could check was of the driver she later was ever On Turnage to Short indicated that the driver swung down towards the veered all Smith on Jenkins to suspected that DSS would take the children from her September manner rely with the children and that he According primary caregiver her to pay her bills and reported seeing erratic contact unsupervised skin on tear her forehead on her buttock OLOL Stephen critical respiratory failure 20 L Papizan care a unit massive blunt pediatric cardiologist Mya s diagnosis trauma was closed head trauma and cardiac injury multiple bruising anal secondary nonaccidental to the caretaker trauma in arrhythmias all suspected Mya had fallen with her down admission the to warned by DSS not Mya few to her the as on s OLOL to two personnel days prior her that she had not been she had Although previously been she had fallen with Turnage admitted top of Turnage care for the past two days to Dr Papizan that and that White had contacted night of September 23 2003 when he could not awaken Mya of these remarks medical to Mya only sustained slight bruising from the fall days previously had been in White on losing her children leave her children with White because she had fallen Mya steps approximately hospital Subsequently Turnage admitted truthful because of her fear of a some be home s Concerning Mya s injuries Turnage initially reported that to personnel suspected that a In light family member had abused Mya Interviews revealed the by O conducted by Delane for about three weeks place a time that time During to live had been living with Turnage Turnage and Mrs O Turnage had allowed the children the children would cry when believe that White would do Quinn White picked days Ms O Turnage 2003 incident following pertinent information The children had not been cared for Turnage worked 24 following the September period Thomas and and Quinn friends of Turnage who had moved from Massachusetts for O DSS they to go with White not go to harm up the children and not 24 or they stayed came was According Rheanna looking the children while that this with White Mya Quinn reported that both children could keeping Quinn reported could anything and were Misty the second to Turnage Turnage refused According with him for three to to Ms or four home with scratches which recall the date of the other time she had allowed the children to go with White 21 White had occurred explained of the way of the neighbor s as a result of them falling when he pushed them out Rottweiler Turnage and the O Quinns stated that Turnage had left Mya and Rheanna with White she on 23 2003 September Turnage went to about 10 00 p Quinns took to have them addressing DSS opined Phillips if pick to the to children the on at Turnage that he could reported work wake not on Mya Turnage could hospital not She called the 23 September up Rheanna from White a According to Jenkins DSS just that matter and Phillips testified first and foremost to regulations of the to though was free work with the case family then he to s seek a to a s to or the judge had revoked they work hold order from another judge objective is to ensure that children reports of child abuse and neglect based Code and DSS on are recurrence Its role of as the rules and policy and procedures child is in clear and substantial danger his or If a her first get the child out ofthe harmful situation DSS officials said after June 2 reports from anyone 2003 to he had indicated his desire that that DSS Louisiana Children DSS worker believes that responsibility is judge a neglect of children while in the custody of DSS respond Cindy program for protection protected from abuse and neglect and to reduce the child abuse andor protector is by We note however that in this he made it clear that DSS Nonetheless 22 actions in the instant matter May right thing under the circumstances According caseworker is ordered only order in this out Jenkins post that Jenkins did the she would do 23 and White called the section administrator of the child Phillips Phillips it m Turnage eXplained that noon custody ofRheanna on September 23 In his around get Mya and brought her remember if she had talked O 22 2003 Mya and Rheanna that night to spoke Monday September 2003 they did family members friends police Jenkins denied having received 22 a or not receive any calls doctors call about White until beating a or September child in a about Smith car or that White suspicions s living was in the house same the as children Dr called Darlyne Nemeth as a clinical combined with seizure provided opined that DSS did activity to is a her which indicated Her allowed care Turnage s since children of by According a especially considering she referenced the injuries that failing to through the believed that a was seizures mean and 22 excuses 2003 that Dr were the parent DSS a not was a an in case Mya was subdural hematoma with was suffer from such a that a highly unlikely a history of abuse in seizures by Mya in January treatment rendered ophthalmologist Coma Scale admitted into the emergency to go Specifically 2001 to August Mya in that she should have evaluated test should have been room judge should have gone further Dr Nemeth by what the doctor said but opined a subdural hematoma and accordingly for the best interest of the child 23 evaluating Nemeth faulted those involved for Glasgow a the that type of injury resulting responsibility of understanding what to act on abuse Dr Nemeth the fact that on usually cause Based given critical ofthe medical opined that if DSS suspected abuse but to age do sustained social worker would have that DSS had the subdural hematoma severe based suffering age would neurologist rather than performed when Mya a s were Mya s subdural hematoma and that conceded that after was the subdural hematoma April 2003 and May Dr Nemeth a Nemeth the medical records indicated 2002 see opinion Mya s child of Rheanna to Dr signs of Dr Nemeth stated it condition in the absence of abuse hit in the head presence of do what should have been done in this not to return to neuropsychologist and clinical strong indicator of abuse very the child parent and caretaker related seizures psychologist by Stewart testified that the witness information a She further ordered that the child be returned Liability of DSS Based on our thorough of the entire record in this revIew conclude that there is sufficient factual evidence in the record finding that Jenkins conduct constituted matter As outlined above there Jenkins could have contacting Rheanna clinical a 25 incident and a more complete investigation psychologist for the to Mya s discharge from OLOL not she worked in care an 2003 April to for hired 26 on Mya s previous or by DSS for to 6 safety always subject contact cases not a child in East Baton have Turnage sign to psychologist a was written allow Smith when dealing to with Rouge performed and Livingston Parishes is left to the discretion of the Program Policy Manual states involving a Levell investigation a home visit must occur within the time frame for a home visit is not completed supervisory approval and documentation of contacts and if the rationale must be included in the record subject receipt contacts the following Nonetheless Dr Nemeth testified that she had been Jenkins also stated that the number of home visits cases plan27 help her with the children while caseworker Section 4 525B of the Office of Community Services that in April speak with Smith who told Jenkins that she with disabilities age occasions the Turnage s home immediately immediate Mya and Rheanna Jenkins did Jenkins testified that DSS did not children of by evaluating Mya and safety plan documenting her understanding and agreement 25 matter to despite being informed by Turnage have anyone other than White While Jenkins did of this Mya s treating physician following establish not of purpose by making regularly scheduled visits Startlingly Jenkins did s negligence in the handling of this gross following Mya s release from the hospital in April2003 willing to support the jury several instances in which Jenkins failed to were performed by speaking directly that she did we policies and procedures in investigating the reports of abuse made follow DSS her to matter of are a expected to be Section 4 525A completed report by the agency or as soon as provides that all adult and child possible but within 10 calendar days of initiation of the documentation is contained in the record for Mya s case investigation No such which was designated a visit or Level I investigation 27 A safety plan is used to establish immediate supports or interventions to control the immediate Examples include removal of the perpetrator protective services day care a voluntary parental arrangement for a child to stay with a relative or friend for a temporary period of time and court intervention with placement outside of the home A safety plan is designed to control the circumstances that make the child unsafe and therefore reduces the danger to the child when factors are controllable with implementation of the plan Office of Community Services Program Policy Manual Section 4 100 D 41 harm 24 provide childcare such was required not allow to White to to return to the children obey such an order it was the district court judge Jenkins did document such not an reasonable for the order to retain children the jury to expressly denied giving such order in her case notes reasonably could have found that Jenkins should have an for court judge Turnage and assertions by DSS that Jenkins to testimony since obtain care despite testimony by Jenkins and Butler that the district Further ordered DSS and custody ofthe children based on 28 discredit this order and an Moreover gone to another the the jury judge to following judge advised Jenkins that she could get another judge to issue the hold order since the reason he was vacating the order was because his relationship to Turnage restricted him from issuing the order The district The court danger and risk posed to the children that prompted issuance of the verbal hold order still existed DSS did it reasonable for it were to believe that the children DSS to seek the not not at believe risk if nor was they were Turnage s custody in light of the medical evidence DSS possessed documenting the severity of the injuries the children had sustained returned to in the past while in White White to s care and childcare and in as a result of the mother of allowing of light Turnage history continuing to allow White to care for the children despite prior admonitions from DSS and agreements from Turnage not to allow White to do so following the 1997 and April 2003 incidents Additionally DSS expressed and documented its disagreement with the district court judge s decision to vacate the verbal provide hold order for those By Jenkins s reasons testimony it was not impossible for DSS to have fulfilled the district court judge s acknowledged request for DSS to work with Turnage and still retain custody of the children As Jenkins testified at trial even if we had kept the child in foster care our plan would have been to work with the parent and it the parent that we removed from would have did all the necessary things that she had to do one of our obligations at that point own would have still been to return back to that parent 28 According to the contemporaneous notation Jenkins made on her case activity following transpired relative to the aborted 72 hour hearing on May 23 2003 Spoke with Judge Judge advised that the Turnage Family have issued a in regards he had to to Melissa rescind his He stated Ms Turnage Turnage and her VHO granted on 5 sheet the minor children 22 03 regarding is related to him and he should not Verbal Hold Order VHO rescinded b y Judge Judge stated we could request a hold order from another Judge however he requested that we talk with the mother find out what is going on with her children and work to help her with services 25 despite DSS s claims that it did not seek to get a hold order from DSS did another judge because it would be considered judge shopping seek and obtain a hold order from another judge of the district court to obtain custody of Rheanna in September 2003 acknowledging that it did not seek to obtain the order from the previous judge because the judge had a conflict of interest that prohibited him from issuing the order And Jenkins admitted several times her during investigation of Mya s in the way she handled the accurately complete required documentation Mya her family and other witnesses Jenkins not attempted the agency to excuse practice s While her guidelines allowing such a practice it does not to required failing from to neglectful was failing to fully and interview and monitor required by departmental guidelines with the neglect explanation that it such excuse agency was policy s practices might personally excuse relieve DSS of responsibility for release from the hospital in April or prevail 2003 she did not know who was of her to case that she strictly follow certain rules in the to Jenkins admitted that visit which some as testimony about Jenkins conduct in part testimony to following Mya was be s caring for Mya yet she did performed within ten not days of perform a home the initial incident report being received by DSS until May 23 2003 following the second report of suspected abuse nearly a Likewise following the May 2003 incident Jenkins waited month until June 20 2003 observe how Mya was to perform another home visit and personally doing although Turnage history of noncompliance would s Hence clearly warranted closer monitoring of the family unpersuaded by DSS instructions again DSS s assertion that do the right thing Turnage Mother s s may have statement to Day but had s not no way of recommendations was knowing that Turnage Such confidence in appeared equally implausible Detective jury likely despite Turnage having previously ignored regarding White it had fail to follow the agency the to the 26 to the authorities Turnage to jury in light of Young that she had noticed bruises reported the injuries would nor on Mya on questioned Smith about the Such a statement Turnage elevate her to been viewed reasonably own to the case Jenkins obtained by the jury above the concerns which should have been evident According incident of fear that her children would be taken from her out could have tendency s her children DSS injuries and to copy of Detective of addressed by appropriately Young s display of a safety and welfare report completed by Jenkins relative a as to the May 2003 in investigation report conjunction with her investigation of that incident In line with Jenkins following called Jenkins on more allowing White to care contravention of DSS over was than s for Mya assertions were s the children orders province receiving of the jury to and safety by Smith that she Turnage still was May 2003 incident after the Jenkins denied care any credit the in phone calls from testimony of Smith that of Jenkins The jury other DSS may have workers rejected attempting responsibility for wrongdoing interfere with was unable fact was to rests mask the mistakes Bettis parent is unable its part s at opined to sufficient evidence on testimony from Jenkins and made trial that DSS can to to DSS that Turnage recognize and address this Jenkins further indicated that the solely with the parent and only protect the child but the jury presented failure by shifting all DSS s job is simply to duty to help a protect the child while Martina Gauthreaux assistant secretary of the Office of Community unified if at the a was substandard conduct to to unreasonable the protect her children and DSS protect children parent as Turnage to parental rights if could have found that there not monitor adequately occasion and informed her that one within the to 2003 incidents April and May the Smith but it failure all Services possible opined that While such primary objective of the goals agency as 27 DSS s primary goal is to keep families may be commendable if feasible it is expressed in its policy manual and by law 29 Further to the extent that handling of Mya have been as procedures with Mya to investigate possible placement of Mya with father Stewart s Beverly arguably could have been more Mya by heeding Jenkins advice of Mya such failure placed with her required by the The or s to Jenkins or her still legal counsel seek did seeking custody assist in invalidate her offer not failure to in to other While grandmother Beverly proactive and assertive by Beverly excuse agency OCS caseworkers in manual proper safely achieved in compliance with agency guidelines if Jenkins had relatives such custody objective compromised the an by Jenkins the goal of maintaining family unity could s case followed mandated of such to obtaining have Mya investigate such possibility as guidelines Program Policy Manual is the guideline evaluating reports of child abuse and neglect covering Child Protection Investigation the to In the following be used by chapter of the statement is found in the introduction of the chapter goal of Child Protection Investigation Services is to protect children from abuse neglect exploitation or abandonment and to ensure their safety through protective investigation social services The provision and environment when it Emphasis added While the intervention legal to remove guidelines provided complying with the guidelines at 42 or to not see to caseworkers do 29 cannot be construed comply with such guidelines also Oliveaux from that seriously threatens their safety and well being not preclude latitude in the or exercise of discretion in performance of the caseworker s duty such latitude ignore them v St authorization See Todd 96 3090 Medical Center Program Policy Louisiana Children s Code 28 Manual lists to completely at 14 699 So 2d 39 147 La App eight objectives for Child Protection Investigation Services with the goal to maintain family unity and prevent removal of the child appearing last on the list See also La Ch C art 601 The health safety and best interest of the child shall be the paramount concern in all proceedings under Title VI of the Subpart C ofSection 4 100 ofthe oes Francis as 2d Cir So 04 15 12 889 So 2d 1264 1272 writ denied 05 0454 La 4 29 05 901 2d 1067 Based on and monitoring the as to be the jury the follow to or her six months liability on own to establish the combined DSS interests professional Hence find we support opposed finding of a given in the to time frame requisite degree of negligence no error gross the interests of the to caseworker in the as a case was so guidelines and departmental as in this and mistakes committed errors have been insufficient to repeated failures sufficient evidence was investigation Whereas the diligently seek the best interests of the child mother by Jenkins in investigating find there we that Jenkins grossly negligent by Jenkins separately would negligence case finding s committed errors handling Mya s presented to support incomplete totality of the assessment of to impose liability against DSS Allocation of Fault When fault is attributable provides in loss the contributing statute degree to the including that the other ascertainable or tortfeasor La C C art 2323 A death injury but As with other person suffers injury death a to party to the is identity person s the action insolvency limited not loss shall be determined or ability or to pay provisions not a discretion in its allocation of fault reallocate fault if it finds the trial immunity by or in its allocation of fault Gregor v or reasonably a finding of fact the trier of fact is vested with much Accordingly court and ofR S 23 1032 known or regardless nonparty comparatively negligent parties is factual determinations La 5 20 03 a percentage of fault of all persons causing The allocation of fault between 14 one damages where of whether the person is regardless of the person s 1138 p than more pertinent part In any action for or to was clearly an appellate wrong or court may manifestly Argenot Great Central Insurance 851 So 2d 959 968 29 only erroneous Company 02 In Watson 967 974 State Farm Fire and Casualty Insurance Company 469 So 2d v 1985 La may influence the created was 4 conduct the fault degree of resulted from inadvertence risk Supreme Court identified various factors that the Louisiana or assigned including 1 involved by the conduct the 3 capacities of the significance whether actors extenuating circumstances that might require the proper allocation of fault that DSS Although conduct s primary was by Mya on cause as opposed Jenkins to s or was sought by 5 inferior and a the any in haste without proceed Further thorough was wrong in its clearly find that the record supports the jury expected do we conduct which and as to realize and there was not assessment s grossly negligent and fell well consider such gross negligence was the direct appeal finds should adjust the award but only highest or v Accordingly Frey we highest degree percent And a to cause was an of the harm suffered indirect cause 95 11l9 pp Mya s safety clearly and wrong extent of La even handling Turnage made was if there had of Mya apportionment of lowering 1 16 96 find that under the circumstances reasonably that case s case guard against the harm inflicted the 7 8 based danger posed to Mya by her or raising point respectively that is reasonably within the jury of fault that as of the complete investigation monitoring After the court of lowest appreciate to to by Mya Clearly the greater danger and was no assurance clearly had the superior capacity Clement jury incomplete investigation monitoring and handling of Mya s caregivers White actor to the conduct of Jenkins which resulted in Jenkins failure been superior find that the of the harm suffered White posed by we we through its employee below the standard of care risk of what how great 2 danger thought Considering these factors be the of the awareness whether the conduct 666 So 2d presented in this s fault it it to the discretion 607 matter 611 the could be attributed to the DSS would be 25 aware 30 of the danger posed by White and was instructed repeatedly re allocate the jury who failed The to s to determination of fault follow DSS remaining degree the heinous and allow White not to instructions s of fault 50 or percent care to for the young child attribute 25 percent fault take any we damage sustained 4 7110 06 La compensation 1036 at 3 is the as a result of the delict 933 So 2d 770 774 or recompense 933 So 2d at 773 the life of child a our Company 06 0894 p 17 La The survival action is damages for fatal injury or comes to be injury an impossible to v compensated A C and S Inc damages refers sustained place a 05 1036 to pecuniary McGee 05 monetary value established that a on monetary award a loved one as a State Farm Mutual Automobile Insurance App 1st Cir 8 29 07 970 So 2d 564 580 writ designated beneficiaries to recover 972 So 2d 1168 a to right granted to the deceased his property quasi offense from which the fatal injury A survival action v victim who has suffered the loss of Rideau denied 07 2228 La 1 11 08 the offense satisfaction for one tort McGee jurisprudential system has appropriate remedy for a The term While it is result of the fault of another all White the perpetrator of Damages Louisiana Civil Code article 2315 authorizes p Turnage severely grave harm suffered by the young victim Survival Action for to to protect her child measures to attribute likewise we into existence or arose otherwise caused by La C C art 2315 1 simultaneously with the and tort permits recovery only for the damages suffered by the victim from the time of injury to the moment of death Louviere v Cir 9 23 05 and is transmitted State Louisiana 923 So to the victim s beneficiaries upon his death Department of Education 04 1897 p 5 La 2d 146 149 writ denied 05 2258 La 4 24 06 App 1st 926 So 2d 538 A trial court is within its much discretion in pain and suffering where there is awarding survival damages the smallest amount of evidence of 31 pain on for the part of the deceased by his actions and Development 04 1619 p 9 Transportation reasonable trier of fact could assess 1261 L Ed 2d 379 1994 highest or a La 1993 The v Maritime Overseas denied 510 U S cert exact time that Turnage home found On Mya being following was documented She had bruises on as to be the knots from determine the 0894 at 17 injury her head on scan of forehead mass hemorrhage edema legs lump her forehead brain effect and There was a also awaken next evening White Mya Turnage to 22 went the River West the top of head right and left and left right Mya s brain showed cerebral the September the River West Medical Center at scratches abrasions and scratches to on ears back 3 5 the face skin in midline shift of the on by Dr Papizan 32 in right and left thigh abrasions and swelling swelling cm top of head hematomas tear on the buttock loss of gray white matter Pediatric Intensive Care Unit of OLOL seen abuse of injuries sustained by Mya and left eyes shoulders lower diameter not m noon on unresponsive and took her examined right arms About 10 00 p care work and told her that he could at Medical Center prominent 127 Mya sustained the injuries that eventually caused her called massive to an point of an award within that discretion Rideau 06 Turnage left Mya in White s A CT court appellate Corporation 623 prior awards appropriate and then only 2003 s a the to 114 S Ct 1059 1114 death is unknown however the record reveals that around White 917 at 579 970 So 2d to 6 10 05 Only after it is determined that there has been resort to lowest of Dept particular injury circumstances that the reduce the award Youn So 2d 1257 discretion is App 1st Cir for the effects of the particular plaintiff under the particular or La State v only when the award is in either direction beyond that which So 2d 15 21 It is should increase Barthel otherwise or to hemispheres resulting in both the compatible with right scalp Mya September 24 with herniation and was transferred 2003 to where she the was At trial Dr Papizan described Mya s injuries First of all she voice or shoulders there She wouldn t respond to pain or She had livid bruising on the face and around the eyes forehead And all those bruises she was breathing very swelling around those bruises well as was follows unresponsive was stimulus any as as to the lCD she was on a rapidly in the ER By the time she was breathing machine She had a high temperature She had a very high She had bruises blood pressure extending down There to the eyelids and bruising behind the was were She didn t ears on both sides of the forehead the of the right side and down below the temple Her ears her eyes at all She had a large purple bruise on her chest collar bone and shoulder area There were many bruises on the upper arms and a fairly big bruise on the left arm Her heart rate was irregular and very Her stomach was swollen eyes red on move and extended There normal stomach Given the nature of the definitely took that it and tube into rapid stomach her movement a various locations of the bruises more acknowledged that was as than a one blow result to Mya cause went the on I didn t hear Papizan said Dr Mya injuries sustained by Mya through a traumatic experience before she died The elements of damage for the survival action of earnings and other damages sustained by In re Brewer denied 15 9 sub 06 05 0666 p 5 nom 936 So damage in a in a are Chemicals Inc 2d 1278 Loss of sufficiently to are suffering loss 826 writ 934 So 2d 823 the severity of can life30 an at 7 14 App element of damages 933 So 2d at pain Hampton was an Loss of enjoyment of life refers to the detrimental alterations of a person 33 Rubicon abuse of the only element of the survival action applicable or v 1st Cir 1991 damages awarded person s inability to participate in the activities McGee 05 1036 at 3 933 So 2d at 773 La assessing quantum for pain and suffering and duration of the La is also be awarded if the McGee 05 1036 be considered in We find that the amount of 30 enjoyment proven 579 So 2d 458 469 since the and Medical Review Panel for Claim of Brewer 06 1290 re The factors survival action discretion 1st Cir 5 5 06 App pain the victim up to the moment of death survival action for which recovery from such loss 776 780 In La are pleasures of life that life to jury s her claim lifestyle or a were formerly etUoyed s or would be for were pain traumatic and recorded that she the nightmarish and extremely was way The suffering not a By the time Mya had arrived grave responding to any stimuli young child discretion would have been we was 2 000 000 certainly highest award within the jury See Conerly 2 5 million awarded in State v died the day before her fifth birthday medical malpractice committed by the doctor during her birth a result of 97 0871 survival action of 714 So as a and was damages awards for 7 8 98 2d 709 OLOL it Accordingly tragic and other survival action find that the at including pain in which her short life ended considering the evidence presented the death of injuries sustained by Mya unquestionably injuries suffered a as s La child that a result of Cf Launders v AD 3d 57 828 N Y S 2d 36 2007 Steinberg 39 CONCLUSION For the foregoing reasons the judgment of the trial allocate the percentages of fault percent fault the award to to 6 925 are assign 50 percent fault Melissa Turnage and 25 percent fault reduce the award of survival respects the judgment of trial of to assessed to court damages is affirmed the State of Louisiana to to to DSS to Jessie White re 25 We further amend 2 000 000 Costs of this In all other appeal in the amount through the Department of Social Services AMENDED AND AS AMENDED AFFIRMED 34 is amended court NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 0607 TRAVIS STEWART INDIVIDUALLY AND ON BEHALF OF HIS DECEASED MINOR CHILD MYA GEORGE VERSUS STATE OF LOUISIANA THROUGH DEPARTMENT OF SOCIAL SERVICES BEFORE CARTER C l DOWNING GAl DRY PARRO J WHIPPLE PETTIGREW PARRO KUHN GUIDRY McDONALD McCLENDON HUGHES AND WELCH JJ dissenting Based on my review of the entire record I disagree with the majority conclusion that there is sufficient factual evidence in the record to s support the jury s finding that Ruby Jenkins conduct constituted gross negligence in the handling of this matter My belief is based on the consideration of the facts set out in the opinion and the following evidence that During the course the household of Melissa Turnage s Rheanna care of s of her was in offered at trial employment Ruby Jenkins Jenkins had investigated Turnage Turnage leg in connection with a fracture to Rheanna September 1997 that had occurred while she Turnage s stepfather Jessie White White investigation Turnage stated that White would Turnage indicated that White had provided from the hospital about her injury According majority to care In not have connection the with that intentionally hurt Rheanna for Rheanna ever since Turnage White loved Rheanna and Although Rheanna s pediatrician could was in she came home was very upset injury was a not say that the result of abuse the case was validated DSS advised Turnage that White Three years later in was not to September Pursuant to its conclusions by DSS for neglect render unsupervised 2000 Mya George Mya care to was Rheanna born Turnage s brother Joseph George testified that Turnage and her children lived with him following Mya s birth and After Anthony Bailey for As early Mya s eyes on her forehead Elkins testified that she Dr by Rheanna period of about five months a This bruise not was Turnage noted that Rheanna the incident was Elkins testified that she would have contacted abuse at that time On August 1 reportedly resulted from to services had the ear Quinn also noted that Mya Dr that the related medical records gave time Again DSS was not Jenkins denied 1998 DSS 1999 was contacted by the Office of course During her visit to the available to When there is a or a 2002 It was not until after the an suspected Quinn saw ear Mya which baseball park while with Dr limp Elkins testified suspected abuse at that April or Mya in 11 2003 incident that hospital social worker Maria Cashio about the possibility of subsequent investigation Jenkins testified that although investigation hospital on it is not April 15 a caseworker speak with always pOSSible to speak 2003 none of a doctor to a doctor Mya s treating physicians speak with her questioned about the decision 2003 condition a indication that anyone Community Services policy requires that of a Dr contacted in connection with that incident About her during the were walking with she receiving any reports about possible abuse of Rheanna 2000 2001 Mya being abused no was account of and behind the reportedly occurred when Mya fell down the bleachers at her aunt Michael Dr partner a hit a doing that type of thing protective Dr Elkins 2002 observed suspicious of Turnage s prone in connection with bruises on the side of her face had Dr Katherine Elkins January 3 2001 Mya s pediatrician as bruise between went to live with Johnanna Johnson leaving George s home Turnage Dr Elkins noted that child significant injury such not at that time have as a a concern to consult with DSS protection services are consulted any time subdural hematoma about child abuse 2 concerning Mya s April Nonetheless Dr Elkins did Furthermore the consulting ophthalmologist s report indicated that there child as there Elkins had conclusive evidence that the was no no reason to of child abuse Dr to Dr responsibility of understanding what did not opinion that there Turnage a to work without not do Furthermore was available to mean care on that in care and Mrs White Turnage s best of her The hospital for the injuries removal of protection a neglect information knowledge not have a parent may do or may available and ability enough evidence to her Based to she her on support the not providers who knew White said nothing of the children Furthermore White the doctor to child from his from abuse The medical mother testified that to the consistent with suspects in a supervision for the children they did not believe that White to his care regard suspected abuse by White xylophone what it always Although Jenkins and others feared that White did intentionally harm them negative social impossible for DSS is not for her children considering the matter to the hold order provide adequate would a point Jenkins had determined that Melissa Smith Smith investigation Jenkins concluded that she did a and to help with Turnage s needs for childcare investigated this issuance of was act it may have seemed that it was having White at that testified Jenkins it opinions subdural hematoma and seizures automatically take action based to signs were no by what the doctor said and reasoned that if the pediatrician explained that although position Dr opined that DSS had the Darlyne Nemeth suspect abuse it is understandable why DSS did not Jenkins 2 purposefully done of the two doctors light neglect of the accordingly for the best interest of the child she ultimately conceded that worker would have to go 1 s was or suspect abuse Although plaintiff s expert act sign of abuse injury question the ophthalmologist Elkins testified that in logical for Jenkins not was no or her following see own Turnage was the never reported that she very remorseful and concerned April 2003 incident they had brought and the doctor stated that the account of events home is viewed as as the was the alternative of last resort for Children removed from their own homes should be not the first choice those children whose lives are in clear immediate and substantial danger if they remained at home and the risk factors do not appear to be controllable with the implementation of a safety plan that includes Office of Community Services Program Policy Manual Section 4 the children remaining in the home 80S A 3 to what had it that At that time happened anything other than was White for lack of subsequently validated as to physical abuse was no there as accident an personneV including medical no one Although the April incident conclusive evidence of abuse 2003 that she had noticed bruises Smith spoke with Jenkins that to on Jenkins concerning Mya s wellbeing Based sufficient on to justify the May 22 issuance alleged improper the Chris Butler trying to get in touch with Jenkins believed there a verbal hold order authorizing her Once the hold order then went into his 3 Nonetheless the was rescinded based 5 speak to and work with Turnage According to the April library to discuss the matter Although was no efforts 5 issuing services to In addition to the bruises a non accidental trauma However in retrospect Mya Dr had Elkins Dr Elkins 11 notation that indicated a lack of concern about child abuse and realized that the a plastic hammer to report suspected child abuse on several occasions there She could not give any specific information about her what telephone number she had called or to whom she had spoken Smith testified that she attempted evidence to substantiate her claims She Furthermore her The Considering the circumstances and the subdural hematoma could have been caused by something other than 4 its issuing judge Jenkins and Turnage May 22 2003 Mya was treated for bruising at Dr Elkins office The diagnosis was a right ear infection with a hole in her eardrum believed for the first time that Mya was a victim of child abuse her on judge requested that Jenkins and On questioned to take issuing judge told Jenkins that another judge could be Butler Turnage with childcare were judge who usually handled The district court judge admittedly questioned Jenkins and Butler about the availability of assist when However not mention that she had noticed that she had been issuance of to obtain a hold order worker or May 22 on 4 agreed DSS s matter of this nature co the last five months day Smith did Mya and Rheanna into state custody her over the facts known to her at that time grounds contacted Mya on same bruises prior was it could not be validated for supervision Smith reported to Detective Kenneth Young and Officer Leo Fontenot the children suspected did not know except for May 22 2003 she never telephoned the local police or filed a report concerning alleged suspicions According to Jenkins after that Turnage was a good girl acknowledging a familial relationship 4 the issuing judge indicated doing anything to the children to Turnage and that he did not believe that she was judge s request 6 Jenkins felt that DSS had put together the best plan by of Turnage one with information on friends s childcare arrangements explained that DSS give her Kimberly Delane all of the available appropriate parenting and was In community instructed light was not in a Once position again Turnage was provided offered resources was to advise the agency of the events that had counsel and have legal proceedings instituted to on in these recently transpired Jenkins 2 2003 to take on June counseling of any changes Mya from Turnage Nonetheless Jenkins advised Beverly Beverly to Gertrude to which included the children being cared for in their reduce the risk to the children home possible Beverly to to obtain Beverly failed obtain custody of Mya to take Jenkins advice Robin Bettis regular case in will work May Bettis was adequate Mya and Rheanna According in explained that to Bettis preparing a addressing the issues of safety and risk to children not allow White around ordered that Turnage Turnage The to testified that she had child welfare district manager with DSS conferences with Jenkins about plan prepared plan a cooperate with DSS and She felt that the safety DSS cannot plan DSS workers do their best In the instant 6 Robin Bettis that they are a The the a in safety plan judge advised to adhere to any recommendations made to her care for the children Turnage had previously ignored DSS s instruction that the children did not automatically put DSS case 8 Mya and Rheanna safety plan contemplated that Delane would care guarantee that on notice that this safety plan The fact that not be left in was White s unworkable child welfare district manager with DSS testified that she and Jenkins discussed the fact to abide by a court order and they cannot go from judge to judge to get a ruling required that would be favorable to DSS Butler stated that the judge wanted DSS to give Turnage another cha nce 7 supports or interventions to control the immediate harm perpetrator protective services day care a voluntary parental arrangement for a child to stay with a relative or friend for a temporary period of time and court intervention with placement outside of the home A safety plan is designed to control the circumstances that make the child unsafe and therefore reduces the danger to the child when factors are controllable with implementation of the plan Office of Community Services Program Policy Manuai Section 4 A safety plan Examples lOO D 8 is used to establish immediate include removal of the 41 According to Detective Young Smith s suspicions of abuse by Mya s May 22 injuries Smith arrest of White in connection with had not seen White being abusive to the children 5 White were insufficient to support did not know anything an for certain and In addressing Jenkins post May 22 actions Jenkins did the right thing requests that a caseworker work with the that Jenkins Thus under the circumstances left was According to believing that she had complying with the safety plan DSS Turnage s place her in Beverly judge a family then the caseworker would do just was not home and Phillips if to comply with the judge s Under these circumstances and in the absence of recommendation without was authority proof that Turnage to remove home in connection with s Beverly Mya from s June 2 request Based on that the facts my thorough review of the entire record in this matter I do not believe provide constituted gross a abuse was not in Granted in that DSS s ideal Jenkins to the letter caseworker reasonable basis for the negligence in the handling of this finding is clearly wrong a negligence is not s situation policy manual Thus the caseworker s found to be of gross v State 96 3090 thorough investigation is manifestly is by a strictly constituted gross Clearly the guidelines in the performance of Department of Social Services 699 investigating So 2d 35 42 When matters of this nature incomplete that it could Accordingly case to be used that Jenkins failure to 9 9 97 in this case was so under the facts of this negligence guideline clearly wrong throuah La erroneous always followed by policies and regulations the latitude afforded to caseworkers in that Jenkins finding Services were not is a finding a investigating these reports of preclude any latitude for action See Todd duty Office of Community considering a supported by the record and to caseworkers do not provided Furthermore I think such matter policies and procedures Notably DSS evaluating jury s finding that Jenkins conduct conduct in Jenkins adhere to the guidelines established in DSS s a Cindy Phillips the section administrator of the child protection program for DSS opined that Phillips 2003 in the instant matter I feel that the is contrary to the 9 not be jury s finding spirit of the law and the decision in Todd 9 According to Jenkins always contact a child the number of home visits is psychologist when dealing discretionary with the caseworker and DSS did not with children of this age 6 or disability The entirety of the record supports conclusion that Jenkins a conducted within her discretionary authority and were have custody of Mya when the abuses occurred White s case 10 intentional conduct can be imputed Furthermore to find Jenkins Mya while in the care of White in not unreasonable Neither were DSS did not Turnage s negligence nor to Jenkins or DSS under the facts of this for failing failing to grossly negligent April investigations 2003 and for to find actual defy the judge abuse to s request that Jenkins and DSS work with Turnage following the incident of abuse that occurred in May 2003 is purely hindsight and untenable Therefore believe that the I constituted gross finding forth of gross negligence should not be imposed in jury manifestly erred with Mya in connection negligence Jenkins and DSS in LSA Ch C arts in the law are DSS notwithstanding any 10 See White v reasons I respectfully dissent White 479 So 2d 588 589 La App 1st Cir 1985 7 death 9 2798 1 In the absence of qualified immunity a set Accordingly liability ordinary negligence that may have occurred in this matter For these finding that Jenkins conduct entitled to the 611 and 612 and LSA R S on s See Todd 699 So 2d at 41 TRAVIS STEWART INDIVIDUALLY FIRST CIRCUIT AND ON BEHALF OF HIS DECEASED MINOR CHILD MYA GEORGE COURT OF APPEAL VERSUS STATE OF LOUISIANA STATE OF LOUISIANA THROUGH DEPARTMENT OF SOCIAL NO 2006 CA 0607 SERVICES Jt t fk ng Given the evidence offered regarding the lack of a relationship of the plaintiff with Mya the quantum granted by the majority is unreasonably high and shocks the conscience high when the State s Likewise the fault assessed conduct is compared to to the State is the conduct of Jessie White and Melissa Turnage Moreover I erroneously join in the dissent offered by Judge R Parro STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 0607 TRAVIS STEWART INDIVIDUALLY AND ON BEHALF OF HIS DECEASED MINOR CHILD MYA GEORGE VERSUS STATE OF LOUISIANA THROUGH DEPARTMENT OF SOCIAL SERVICES McCLENDON J y 1M A unless the in rte ll oowt we in part and dissents in part are de the ot we determine that there is findings Transp concurs 617 So 2d 880 882 though La convinced that had it been weighed the evidence differently 1989 an for that of the trier of fact Etcher l2128 01 negligence court judge to When DSS remove appellate a was court cannot substitute its 00 2282 p 9 La to not recused himself and rescinded his order based La judgment 2d So erroneous s 844 App 1 Cir 817 verbal hold order issue The facts did of reasonable 549 So 2d 840 ESCO sufficient evidence custody for their safety t the trier of fact it would have jury was manifestly requested that are Dep court may not reverse Mya and Rheanna from their mother obviously believed that there judge as findings finding findings and State v 806 So 2d 826 835 writ denied 02 0905 La 5 3102 gross state an Neumann In this matter I cannot say that the into v appellate v If the 1993 sitting Rosell Under such circumstances Stobart erroneous light of the record reviewed in its entirety even fuetual oowt reasonable factual basis for the no clearly wrong manifestly and Dev tri in 105 finding by a district custody DSS support taking the children change simply because the on the fact that he was related to Although specifically told by the judge that she could request the mother order from another judge Jenkins did 1 concur record with the to majority decision that there s support the jury not pursue s finding of gross another hold order was an Accordingly sufficient factual support in the negligence in the handling of this matter However I disagree with the as its case re allocation of fault Based majority on the s amended award of damages specific as well facts and circumstances of this I believe the maximum amount that could have been awarded for survival to damages majority s Mya s father is allocation of fault percentage of fault that sixty percent 60 death of can fault 1 000 000 believing that be attributed to despite repeated requests by DSS to do so Therefore I to ten DSS percent fault not to which resulted in Mya respectfully concur to I 10 disagree with the is the maximum Further I would have attributed Jessie White the person Mya and thirty percent 30 continued Additionally directly responsible for the Melissa Turnage the mother who leave her children in the s care of White death in part and dissent in part from the majority OpInIOn 2
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