          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                 January 2018 Term                          FILED
                                 _______________
                                                                        January 31, 2018
                                                                            released at 3:00 p.m.
                                   No. 17-0025                          EDYTHE NASH GAISER, CLERK
                                                                        SUPREME COURT OF APPEALS
                                 _______________                             OF WEST VIRGINIA


   BILL J. CROUCH, in his capacity as Secretary of the West Virginia Department of

                          Health and Human Resources,

                           Defendant Below, Petitioner


                                         v.

         ERIC GILLISPIE, Administrator of the Estate of Raynna Rea Boggs,
                          Plaintiff Below, Respondent

       ____________________________________________________________

                  Appeal from the Circuit Court of Kanawha County

                      The Honorable Carrie L. Webster, Judge

                             Civil Action No. 12-C-697


                REVERSED AND REMANDED WITH DIRECTIONS


       ____________________________________________________________

                             Submitted: January 9, 2018
                              Filed: January 31, 2018

Ancil G. Ramey, Esq.                          Charles M. Johnstone, II, Esq.
Hannah C. Ramey, Esq.                         Johnson W. Gabhart, Esq.
Steptoe & Johnson PLLC                        Johnstone & Gabhart, LLP
Huntington, West Virginia                     Charleston, West Virginia
Counsel for the Petitioner                    Counsel for the Respondent


JUSTICE WALKER delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT



              1.     “A circuit court’s denial of summary judgment that is predicated on

qualified immunity is an interlocutory ruling which is subject to immediate appeal under

the ‘collateral order’ doctrine.” Syllabus Point 2, Robinson v. Pack, 223 W. Va. 828, 679

S.E.2d 660 (2009).



              2.     “This Court reviews de novo the denial of a motion for summary

judgment, where such a ruling is properly reviewable by this Court.” Syllabus Point 1,

Findley v. State Farm Mut. Auto Ins. Co., 213 W. Va. 80, 576 S.E.2d 807 (2002).



              3.     “To the extent that governmental acts or omissions which give rise

to a cause of action fall within the category of discretionary functions, a reviewing court

must determine whether the plaintiff has demonstrated that such acts or omissions are in

violation of clearly established statutory or constitutional rights or laws of which a

reasonable person would have known or are otherwise fraudulent, malicious, or

oppressive in accordance with State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d

591 (1992). In absence of such a showing, both the State and its officials or employees

charged with such acts or omissions are immune from liability.” Syllabus Point 11, W.

Va. Reg’l Jail & Corr. Facility Auth. v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014).




                                             i
              4.     “If a public officer is either authorized or required, in the exercise of

his judgment and discretion, to make a decision and to perform acts in the making of that

decision, and the decision and acts are within the scope of his duty, authority, and

jurisdiction, he is not liable for negligence or other error in the making of that decision, at

the suit of a private individual claiming to have been damaged thereby.” Syllabus Point

4, Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995).




                                              ii
WALKER, Justice:

             Eric Gillispie, administrator of his daughter’s estate, filed a wrongful death

action against the West Virginia Department of Health and Human Resources (DHHR).

Mr. Gillispie contends that DHHR’s investigation of allegations made about the care of

his daughter was not sufficiently thorough. DHHR contends, among other things, that the

circuit court should have granted its motion for summary judgment on the basis of

qualified immunity because the complained-of conduct involved discretionary functions

and there was no violation of a clearly established statutory or constitutional law. We

agree with DHHR’s position and reverse the order of the Circuit Court of Kanawha

County and remand with instructions to enter summary judgment in favor of DHHR.



               I. FACTUAL AND PROCEDURAL BACKGROUND

             On April 19, 2010, Child Protective Services (CPS) received an anonymous

call alleging that Leslie Boggs, who was involved in a dispute with Mr. Gillispie

regarding their daughter, Raynna, was unable to care for the child as needed because she

was a recovering addict and alcoholic and continued to abuse substances.              The

anonymous reporter, later identified as Eric Gillispie, also generally alleged that Leslie

Boggs’s current boyfriend, Andrew Myers, was a convicted felon who had a history of

domestic violence issues concerning Leslie but nonetheless was allowed in the home with

Raynna. Mr. Gillispie did not allege that Raynna was the subject of any domestic

violence. Mr. Gillispie also reported that a fire had broken out in the home while Leslie

Boggs was intoxicated. During this call, when asked to identify individuals who could
                                          1

corroborate the allegations, Mr. Gillispie offered no names. Rather, he stated that the last

time he had seen the child she was “fine,” and that the child was currently staying with

her mother, Leslie, at the home of her grandmother, Donna Boggs. Mr. Gillispie also

identified the caretakers of the child as himself, Leslie Boggs, and Donna Boggs, and he

provided Donna Boggs’s address.



              CPS accepted the referral of Mr. Gillispie’s phone call the same day. The

Interim Child Protective Services Policy for West Virginia Safety Assessment and

Management System Pilot Counties (CPS Guidelines)1 required the Assessment Worker,

Erica Garcia, to make face-to-face contact with Leslie Boggs within 72 hours of the April

19, 2010 report. Likewise, Ms. Garcia was to consult with her supervisor within 24 hours

of the face-to-face visit. Jenny Pace was immediately assigned as the case supervisor, but

was disqualified from serving in that capacity because she knew Eric Gillispie. Pamela

Ingram later replaced Ms. Pace as the case supervisor.



              The next day, on April 20, 2010, Ms. Garcia attempted face-to-face contact

with Leslie Boggs and Raynna at the home of Donna Boggs. Ms. Garcia testified that she

knocked on Donna Boggs’s door and heard people inside the house, then saw two women

leaving the house by car. Ms. Garcia prompted the car to stop, after which she asked if

       1
        We differentiate the CPS Guidelines relating specifically to safety assessments
from the broader CPS policy that governs CPS activities generally.


                                             2

either of the two women were Leslie Boggs. Both denied being Leslie Boggs. Lacking

particular information to identify them as the subjects of the referral, Ms. Garcia gave

them her card and the two women left. Ninety minutes later, Donna Boggs called Ms.

Garcia and told her that they had lied about their identities because they wanted to

confirm that she was a CPS worker and not someone attempting to serve papers. During

the call, the Boggses set up an interview with Ms. Garcia and another CPS worker, Sarah

Flowers, for April 22, 2010. At the April 22, 2010 face-to-face interview, Ms. Garcia

and Ms. Flowers completed a Present Dangers and Family Functioning Assessment

(Assessment) to determine, based on certain criteria outlined by CPS Guidelines,2

whether Raynna was in present or imminent danger. As Ms. Garcia testified, upon a

finding of present or imminent danger based on the guidelines, the CPS worker must

remain in the home with the child until alternate caretakers are arranged.




       2
         CPS Guidelines provide that the following conditions are “present dangers” to a
child: (1) The child is being maltreated at the point of contact during the assessment
process; (2) The child has multiple or different kinds of injuries that are non-accidental;
(3) The child has injuries to the face or head; (4) Serious injuries are identified in a report
and/or evident at the point of contact during the assessment; (5) The maltreatment of
several victims is suspected; (6) The maltreatment appears to be premeditated; (7) Life
threatening living arrangements are present; (8) Unexplained injuries; (9) The
maltreatment demonstrates bizarre cruelty; (10) Caregiver is intoxicated (alcohol or other
drugs) at the time of assessment such that the caregiver is unable to provide for his/her
child right now due to his/her level of intoxication; (11) Caregiver is out of control
(mental illness or other significant lack of control); (12) Caregiver is acting dangerous
now or is described as dangerous or aggressive; (13) Caregiver is unable or unwilling to
perform basic care; (14) Caregiver overtly rejects intervention; (15) Spouse abuse present
and continuously occurring; and (16) Family will flee.


                                              3

                 During the completion of the Assessment, Ms. Garcia and Ms. Flowers

interviewed Leslie and Donna Boggs separately. Because Leslie indicated that she would

be living with her mother for some time, the CPS workers interviewed them both and

observed their care of Raynna, as well as that of J.B.,3 Leslie’s older son, who also lived

in the home. Ms. Garcia and Ms. Flowers reported that Donna Boggs had been J.B.’s

caretaker for many years, and appeared to be very protective of him. They additionally

concluded that Donna enhanced the protection of Raynna because it appeared that Donna

understood the importance of putting J.B.’s needs before her own and provided a loving

and nurturing environment.         Leslie reportedly had abdicated all responsibility for

parenting J.B. in favor of her mother and had more of a sibling relationship with him.

They reported that Leslie attended to Raynna during the visit, acted appropriately with

her and had the basic knowledge of how to care for her.



                 As to reports of drug and alcohol abuse, Leslie denied abusing any

substances. She stated that she only drank socially and not while her children were

present. Donna likewise reported that Leslie did not abuse drugs or alcohol, and the CPS

workers did not find any evidence of alcohol or drug abuse during the home visit. Leslie

admitted that she had had some domestic violence issues in the past with J.B.’s father.

She also reported to Ms. Garcia that she currently had a restraining order and domestic

        3
            Consistent with the parties’ use below, we refer to Raynna’s half-sibling by his
initials.


                                               4

violence petition against Mr. Gillispie because he had threatened her and had set her

apartment on fire. The domestic violence petitions were confirmed by the CPS workers.

Based on Ms. Garcia’s and Ms. Flowers’s interviews and observations in the face-to-face

interview, as well as the context of Mr. Gillispie and Leslie’s apparently volatile

relationship, Ms. Garcia determined that none of the present danger conditions existed to

justify removing Raynna from the home at that time.



              CPS policy establishes a thirty-day window from the time it accepts a

referral to complete a family functioning assessment to determine whether to open a case

for ongoing CPS intervention. To aid in CPS’s investigation, the Boggses gave the CPS

workers the names and contact information for Noble Young and Mary Ellis, a church

friend and cousin, respectively, who could speak to the Boggses’ home situation. CPS

Guidelines refer to such individuals as “collaterals,” meaning that they are “[a] third party

(e.g., friends, neighbors, relatives, or professionals) with information about the alleged

abuse/neglect and risk of serious harm to the children.”



              The day following the face-to-face interview, April 23, 2010, Ms. Garcia

unsuccessfully attempted to contact both of the collaterals offered by the Boggses and left

messages for them. That same day Ms. Garcia also called Mr. Gillispie and informed

him of the face-to-face visit with the Boggses. Mr. Gillispie again did not provide




                                             5

contact information for any collaterals able to corroborate his allegations regarding Leslie

Boggs’s parenting abilities or substance abuse.



              On May 6, 2010, Ms. Garcia met with her supervisor, Ms. Ingram, to report

on the face-to-face visit and her conclusion that no present danger existed. Ms. Ingram

concurred in Ms. Garcia’s findings that no present danger existed. Ms. Garcia continued

the investigation into whether continued CPS intervention was necessary. Before the

conclusion of the thirty-day investigative window, however, Ms. Garcia received

information that Raynna had died under suspicious circumstances on May 10, 2010.

Leslie Boggs is currently incarcerated for the death of Raynna that apparently resulted

from Ms. Boggs rolling onto Raynna while sleeping after having consumed alcohol.



              Mr. Gillispie, as administrator of Raynna’s estate, filed this wrongful death

suit, alleging that DHHR’s investigation was not sufficiently thorough and resulted in the

death of Raynna. DHHR moved for summary judgment arguing that Mr. Gillispie’s

claims sounded in negligence for failure to thoroughly investigate Mr. Gillispie’s

allegations against Leslie Boggs prior to the death of Raynna.         DHHR argued that

because DHHR has discretion in the performance of its investigations, even if performed

negligently, it is entitled to qualified immunity. DHHR also raised statutory immunity




                                             6

pursuant to West Virginia Code        § 49-2-802(h),4 which provides that “[n]o child

protective services caseworker may be held personally liable for any professional

decision or action taken pursuant to that decision in the performance of his or her official

duties as set forth in this section or agency rules promulgated thereupon.” Conversely,

Mr. Gillispie argued that DHHR had a duty to conduct a thorough investigation and had

violated certain requirements contained in CPS Guidelines.



              The circuit court examined the factual circumstances in light of the CPS

Guidelines and determined that

              [t]here is no question that the CPS policy gives workers
              substantial discretion when they conduct investigations . . .
              [a]nd ultimately, the CPS worker and supervisor will make a
              decision at the end of the investigation as to whether the case
              should be closed or further action should be taken. These
              decisions and actions fall within the CPS workers’
              discretionary functions and they have qualified immunity
              against any alleged negligence in their exercise of the same.

However, when viewing the CPS Guidelines in conjunction with the statutory mandate5

that CPS investigations be sufficiently thorough, the circuit court determined that DHHR




       4
         W. Va. Code § 49-2-802(h) was added in the recodification of the Child Welfare
Act in 2015.
       5
        W. Va. Code § 49-6A-9(b)(3), recodified in 2015 as W. Va. Code § 49-2­
802(c)(3), provides that each local protective service office shall perform the following
duties:

                                                                            (continued . . .)

                                             7

was not entitled to qualified immunity. Through this lens, the circuit court concluded that

the CPS Guidelines were adopted by DHHR to implement the statutory requirement for a

thorough investigation and therefore had the full force and effect of law. Thus, despite

finding that DHHR has discretion in conducting their investigations, the circuit court

nonetheless determined that DHHR was not entitled to qualified immunity because it was

alleged that it had violated a clearly established statutory or constitutional law. The

circuit court denied DHHR’s motion for summary judgment and this appeal followed.



                              II. STANDARD OF REVIEW

                In qualified immunity cases, we have held that “[a] circuit court’s denial of

summary judgment that is predicated on qualified immunity is an interlocutory ruling

which is subject to immediate appeal under the ‘collateral order’ doctrine.”6 Likewise,

“[t]his Court reviews de novo the denial of a motion for summary judgment, where such

ruling is properly reviewable by this Court.”7



       Upon notification of suspected child abuse or neglect, commence or cause
       to be commenced a thorough investigation of the report and the child’s
       environment. As part of this process, within fourteen days there shall be a
       face-to-face interview with the child or children and the development of a
       protection plan, if necessary for the safety and health of the child, which
       may involve law-enforcement officers or the court[.]
       6
           Syl. Pt. 2, Robinson v. Pack, 223 W. Va. 828, 679 S.E.2d 660 (2009).
       7
        Syl. Pt. 1, Findley v. State Farm Mut. Auto Ins. Co., 213 W. Va. 80, 576 S.E.2d
807 (2002).


                                              8

                                     III. ANALYSIS


               DHHR alleges the circuit court erred in determining that it was not entitled

to qualified immunity even though the circuit court also found that DHHR was vested

with discretion in the conduct of its investigations. In furtherance of that argument,

DHHR contests the circuit court’s determinations that interim CPS Guidelines qualify as

a clearly established statutory or constitutional law, and that Mr. Gillispie had

demonstrated a violation of those guidelines. In contrast, Mr. Gillispie argues that the

CPS Guidelines were promulgated by DHHR in response to the statutory directive that

CPS conduct a thorough investigation and therefore have the full force and effect of law.



               Qualified immunity, as we have discussed, “is broad and protects ‘all but

the plainly incompetent or those who knowingly violate the law.’”8 Further, “[a] public

officer is entitled to qualified immunity for discretionary acts, even if committed

negligently.”9 In light of these standards, qualified immunity determinations often center

upon whether a decision was discretionary or nondiscretionary. Here, however, the


      8
         W. Va. State Police v. Hughes, 238 W. Va. 406, 411, 796 S.E.2d 193, 198 (2017)
(quoting Hutchison v. City of Huntington, 198 W. Va. 139, 148, 479 S.E.2d 649, 658
(1996)).
      9
          Maston v. Wagner, 236 W. Va. 488, 500, 781 S.E.2d 936, 948 (2015).


                                             9
circuit court concluded and there is no dispute that the investigative process of DHHR in

child abuse and neglect proceedings requires the exercise of discretion. Consequently, at

issue is the determination that DHHR was nonetheless stripped of qualified immunity

because Mr. Gillispie demonstrated that a clearly established statutory or constitutional

law had been violated. Indeed, as we have discussed,

                       [t]o the extent that governmental acts or omissions
                which give rise to a cause of action fall within the category of
                discretionary functions, a reviewing court must determine
                whether the plaintiff has demonstrated that such acts or
                omissions are in violation of clearly established statutory or
                constitutional rights or laws of which a reasonable person
                would have known or are otherwise fraudulent, malicious, or
                oppressive in accordance with State v. Chase Securities, Inc.,
                188 W.Va. 356, 424 S.E.2d 591 (1992). In absence of such a
                showing, both the State and its officials or employees charged
                with such acts or omissions are immune from liability.10

More specifically, we are asked to determine whether the CPS Guidelines rise to the level

of a clearly established statutory or constitutional right, and, if so, whether Mr. Gillispie

has demonstrated acts or omissions in violation of the CPS Guidelines.



                Of course, “the question of whether the constitutional or statutory right was

clearly established is one of law for the court.”11 The issue, we have recognized, is

whether “it would be clear to a reasonable officer that his conduct was unlawful in the

       10
         Syl. Pt. 11, W. Va. Reg’l Jail & Corr. Facility Auth. v. A.B., 234 W. Va. 492,
766 S.E.2d 751 (2014) (footnote added).
       11
            Hutchison, 198 W.Va. at 149, 479 S.E.2d at 659.


                                              10

situation he confronted.”12 Expounding on that criteria, we have explained that specificity

is required:

               To prove that a clearly established right has been infringed
               upon, a plaintiff must do more than allege that an abstract
               right has been violated. Instead, the plaintiff must make a
               “particularized showing” that a “reasonable official would
               understand that what he is doing violated that right” or that
               “in the light of preexisting law the unlawfulness” of the
               action was “apparent.”13


               Here, Mr. Gillispie alleges that certain time frames and directives contained

in the CPS Guidelines were not met, and the failure to meet those CPS Guidelines

constitutes a violation of a clearly established statutory or constitutional law for which

DHHR is not afforded qualified immunity. In particular, Mr. Gillispie alleges three

breaches of CPS Guidelines. First, he alleges that Ms. Garcia did not make face-to-face

contact within twenty-four hours of an accepted referral. Second, he alleges that Ms.

Garcia did not contact a sufficient number of collaterals, and, third, that Ms. Garcia did

not communicate with a supervisor within twenty-four hours of the face-to-face home

visit. In addition to arguing that the CPS Guidelines were interim and did not rise to the

level of a clearly established statutory or constitutional law, DHHR likewise argues that

Ms. Garcia did not, in fact, violate any of the CPS Guidelines.

       12
         City of Saint Albans v. Botkins, 228 W. Va. 393, 400, 719 S.E.2d 863, 870
(2011) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).
       13
         Hutchison, 198 W. Va. at 149 n. 11, 479 S.E.2d at 659 n. 11 (quoting Anderson
v. Creighton, 483 U.S. 635, 640 (1987)) (footnote added).


                                             11

              The circuit court determined that the CPS Guidelines in effect in Kanawha

County at the time of the investigation, despite their interim nature, had the full force and

effect of law because “[t]he Social Service Manual [was] incorporated by reference as a

legislative rule by W. Va. C.S.R. § 78-5-2 (eff. July 1, 1986).” Although the Social

Service Manual may have been incorporated by reference by that state regulation in 1986,

the CPS Guidelines in effect at the operative time had been revised in 2009, were revised

again in 2010, and have not been adopted or approved by the Legislature. Moreover, the

CPS Guidelines are interim rules and even so are not uniformly applied across the state—

they are applicable only in pilot counties. Under these circumstances, we have difficulty

elevating those interim guidelines to a clearly established statutory or constitutional law;

the issue is compounded by Mr. Gillispie’s failure to demonstrate that clearly established

CPS Guidelines were violated, that Ms. Garcia would have known she was violating a

clearly established right or that the specific alleged failures were even remotely causally

related to Raynna’s death.



              Initially, we dispose of the allegation that Ms. Garcia violated the CPS

Guidelines by not making face-to-face contact within twenty-four hours of accepting a

referral. CPS Guidelines allow a response time of seventy-two hours, which may be

abbreviated if deemed necessary by the supervisor. The intake sheet provides for a

seventy-two hour response time, but also intimates that the supervisor may have

suggested a twenty-four hour response time. The testimony elicited by attorneys in Ms.


                                             12

Garcia’s deposition did little to clarify that matter, but the response time, in this case, is

of no moment—Ms. Garcia attempted face-to-face contact within twenty-four hours and

met with the Boggses within the seventy-two hour window.                   It is particularly

inconsequential because even if a twenty-four-hour response time was imposed by the

intake supervisor, Mr. Gillispie has not even alleged, much less demonstrated, that the

investigation was in any way impacted by a forty-eight-hour lag in response time.



                Second, as to the failure to contact sufficient collaterals, CPS guidelines

provide that “[t]he CPS Social Worker must interview as many collaterals as needed to

reach conclusions regarding the alleged abuse/neglect and threat of serious harm.” This

directive is riddled with discretion and can be likened to the circumstances we considered

in Hughes, in which we explained that investigation of a crime scene is discretionary:

“Second, as to the November Troopers’ search of the quarry, the plaintiffs have not

directed us to any constitutional provision, statute, case, regulation, or any other law

governing the length of time or the method by which a State Police trooper must search a

potential crime scene.”14 Here, as in Hughes, there is no specific method that a CPS

worker must use to investigate a home situation—there is no directive for the length or

timing of interviewing collaterals, or the lengths to which CPS workers must go to

identify additional collaterals or locate collaterals for which they have no contact


       14
            Hughes, 238 W. Va. at 414, 796 S.E.2d at 201.


                                             13

information. Further, Ms. Garcia attempted to contact all of the collaterals for which she

was given contact information. Notably, Mr. Gillispie did not provide any collaterals to

corroborate his allegations. Of the collaterals Ms. Garcia contacted, none expressed

concern that the Boggses were incapable of adequately caring for Raynna, and Ms.

Garcia herself observed no concerns that would have necessitated removing Raynna from

the home. More importantly, Mr. Gillispie has not alleged which collaterals, if any,

would have provided any information that would have influenced Ms. Garcia to make a

finding of present danger so as to immediately remove Raynna from the home.



              It is important to recognize that the investigation was still ongoing at the

time of Raynna’s death. Ms. Garcia still had several weeks during which to determine

whether to open a case for ongoing CPS intervention. For that reason, Mr. Gillispie’s

challenge to the investigation is, in actuality, a challenge to Ms. Garcia’s failure to make

a finding of present danger requiring her to remove Raynna from Donna Boggs’s home at

the time of the face-to-face interview.   The challenges facing a CPS worker in making

the determination of whether or not a situation of present danger exists and, so, whether

to remove a child from a home, strikes at the heart of qualified immunity:

                     If a public officer is either authorized or required, in
              the exercise of his judgment and discretion, to make a
              decision and to perform acts in the making of that decision,
              and the decision and acts are within the scope of his duty,
              authority, and jurisdiction, he is not liable for negligence or




                                            14

                other error in the making of that decision, at the suit of a
                private individual claiming to have been damaged thereby.15

Qualified immunity is “justified and defined by the functions it protects and serves, not

by the person to whom it attaches.”16 We have further explained that “[t]he purpose of

such official immunity is not to protect an erring official, but to insulate the

decisionmaking process from the harassment of prospective litigation. The provision of

immunity rests on the view that the threat of liability will make officials unduly timid in

carrying out their official duties.”17 As we have discussed in the context of police

investigations, “[a] policeman’s lot is not so unhappy that he must choose between being

charged with dereliction of duty if he does not arrest when he has probable cause, and

being mulcted in damages if he does.”18 Likewise, had Ms. Garcia removed Raynna

from the home without sufficient evidence to do so, she and DHHR were equally exposed

to litigation. Accordingly, Ms. Garcia’s investigation into collaterals was discretionary,




       15
            Syl. Pt. 4, Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995) (footnote
added).
       16
         A.B., 234 W. Va. at 507–08, 766 S.E.2d 751, 766–67 (quoting Forrester v.
White, 484 U.S. 219, 227 (1988)).
       17
         W. Va. Dep’t of Health & Human Res. v. Payne, 231 W. Va. 563, 577, 746
S.E.2d 554, 568 (2013) (quoting Westfall v. Erwin, 484 U.S. 292, 295 (1988)) (cleaned
up).
       18
         Syl. Pt. 1, in part, Bennett v. Coffman, 178 W. Va. 500, 361 S.E.2d 465 (1987).
See also State v. Chase Sec., Inc., 188 W. Va. 356, 361 n.14, 424 S.E.2d 591, 596 n.14
(1992) (clarifying holding in Bennett as applicable only in qualified immunity cases).


                                             15

and we do not find her investigation was in violation of the CPS Guidelines such that

DHHR is stripped of qualified immunity.



               Finally, Mr. Gillispie alleges that Ms. Garcia violated the CPS Guidelines

by failing to contact her supervisor within twenty-four hours. Under the CPS Guidelines

a CPS worker must “[c]onsult with the CPS Social Worker Supervisor within 24 hours of

contact with the identified child unless a present danger is identified.” While Ms. Garcia

admits that she did not have contact with her supervisor within twenty-four hours of the

face-to-face visit, her admission is not without qualification—at the time, she was unable

to contact her supervisor because her initial supervisor had a conflict of interest and

another supervisor had to replace her. While a replacement supervisor could have been

assigned sooner, the crux of a qualified immunity determination is whether a reasonable

CPS worker would have known that she was violating a clearly established statutory or

constitutional right. As we discussed above, the relevant inquiry is whether “it would be

clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.”19 Given the circumstances described by Ms. Garcia, we conclude that a

reasonable CPS worker would not be aware that her conduct was unlawful when

confronted with a situation in which her original supervisor had a conflict and for that

reason alone did not meet the twenty-four-hour requisite time period.         Ultimately,


      19
           See supra note 12.


                                            16

however, it is a moot point. Prior to the death of Raynna, the new supervisor, Ms.

Ingram, agreed with Ms. Garcia’s assessment that no present dangers to Raynna existed

and that, therefore, there was no cause to remove Raynna from the home at that time. In

the end, in this particular case, whether Ms. Ingram reviewed Ms. Garcia’s assessment

immediately or on May 6, 2010, it had no impact on the investigation whatsoever.



                Even were we to find that the CPS Guidelines in this case rose to the level

of a clearly established statutory or constitutional right, Mr. Gillispie has neither alleged

nor demonstrated how the alleged violations, if credible, had any causal relation to the

death of Raynna such that DHHR could be held responsible for an insufficient

investigation. As this Court explained in State v. Chase Securities, Inc.,

                the thrust of any attempt to establish liability against a public
                official is the violation of some duty attendant to the official’s
                office and a resulting harm to the plaintiff. This analysis
                essentially adopts the common law tort concept that liability
                results from the violation of a duty owed which was a
                proximate cause of the plaintiff’s injury.20


                 We are wary of allowing a party to overcome qualified immunity by

cherry-picking a violation of any internal guideline irrespective of whether the alleged

violation bears any causal relation to the ultimate injury. Therefore, in the absence of

allegations tying the alleged violations to Raynna’s death, we are unable to view this case


       20
            188 W. Va. at 364, 424 S.E.2d at 599 (emphasis added).


                                               17

as more than an abstract assertion that DHHR could have investigated more thoroughly.21

Although we are struck by the resoundingly devastating facts of this case, we are bound

to faithfully apply the law. And, as we have discussed in two previous cases, skeletal

assertions are insufficient to strip DHHR of qualified immunity:

             Also, like Payne, in discovery, respondent made the skeletal
             assertion that if D.H. were properly trained and supervised,
             the rape would not have occurred. This illusory and languid
             contention is no more sufficient to overcome the State’s
             immunity in this case than in Payne: “Respondents seem to
             argue simply that if the DHHR defendants were doing their
             job properly, this incident would not have occurred. . . .
             Although this overly simplistic analysis may be appealing in
             light of these tragic events, qualified immunity insulates the
             State and its agencies from liability based on vague or
             principled notions [of government responsibility].”22




      21
          See, e.g., Simley v. City of Ferndale, No. 97-1858, 1999 WL 196504, at *4 (6th
Cir. January 13, 1999) (“This leads us to Mr. Simley’s main argument: that the arresting
officers are not entitled to qualified immunity because they should have performed a
more thorough investigation. Our task, however, is not to determine whether the officers
could have done a better job of investigating. We need only determine whether the
arresting officers’ conclusion was reasonable, albeit mistaken. . . . Having concluded that
a reasonable officer could have believed that there was probable cause to arrest, we need
go no further. The entry of summary judgment in favor of the arresting officers was
proper.”).
      22
         A.B., 234 W. Va. at 516 n.33, 766 S.E.2d at 775 n.33 (citing Payne, 231 W. Va.
at 574, 746 S.E.2d at 565).


                                            18

Raynna’s tragic death perhaps epitomizes this temptation, but we find that Mr. Gillispie

has failed to demonstrate a violation of a clearly established statutory or constitutional

law sufficient to strip DHHR of its qualified immunity.23




                                  IV. CONCLUSION

               For the foregoing reasons, we reverse the order of the Circuit Court of

Kanawha County denying DHHR’s motion for summary judgment and remand for the

entry of an order granting DHHR’s motion for summary judgment and dismissing the

action against it.



                                                 Reversed and Remanded with Directions.




       23
         Because we have concluded that DHHR is entitled to qualified immunity, we
need not address DHHR’s contention that it is likewise entitled to statutory immunity
pursuant to W. Va. Code § 49-2-802(h).


                                           19

