          IN THE SUPREME COURT OF THE STATE OF DELAWARE

TIFFANY GREENFIELD,                        §
as Next Friend and Guardian ad litem       §
for ETHAN FORD, a minor,                   §   No. 143, 2018
                                           §
       Plaintiff Below,                    §   Court Below—Superior Court
       Appellant,                          §   of the State of Delaware
                                           §
       v.                                  §
                                           §   C.A. No. N16C-07-115
DFS DIRECTOR LAURA MILES,                  §
individually and in her official capacity; §
DFS DIRECTOR VICTORIA KELLY §
PSY.D, individually and in her official §
capacity; FAMILY CRISIS                    §
THERAPIST TRINA N. SMITH,                  §
individually and in her official capacity; §
JAMIE ZEBROSKI M.S.W.,                     §
individually and in her official capacity §
as a Supervisor for DFS; CRYSTAL           §
BRADLEY, M.S., individually and in §
her official capacity as a Senior Family §
Services Specialist for DFS; NANCY §
CRAIGHTON, individually and in her §
official capacity as a Supervisor for      §
DFS,                                       §
                                           §
       Defendants Below,                   §
       Appellees.                          §

                          Submitted: March 6, 2019
                          Decided:   May 30, 2019

Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR,
Justices, constituting the Court en Banc.

Upon appeal from the Superior Court. AFFIRMED.
Andrew C. Dalton, Esquire (argued) and Bartholomew J. Dalton, Esquire; DALTON
& ASSOCIATES, P.A., Wilmington, Delaware; Attorneys for Plaintiff Below,
Appellant.

Joseph C. Handlon, Esquire (argued) and Wilson B. Davis, Esquire, DELAWARE
DEPARTMENT OF JUSTICE, Wilmington, Delaware; Attorneys for Defendants
Below, Appellees.



TRAYNOR, Justice, for the Majority:




                                        2
       This is an appeal from the Superior Court’s dismissal of a lawsuit brought on

behalf of a minor, Ethan Ford, by his guardian, Tiffany Greenfield, 1 against three

child-welfare workers and their supervisors.2 Greenfield alleged that the defendants,

who worked for the Delaware Division of Family Services (“DFS”),3 contributed in

one fashion or another—some as case workers, others as managers and

supervisors—to four faulty investigations of reports that Ford and his half-sister,

Autumn Milligan, were being abused and neglected by their mother, Tanasia

Milligan. According to Greenfield’s complaint, the defendants’ dereliction of duty

resulted in the tragic death of Autumn and permanent and irreversible damage to

Ford—damage that necessitates long-term physical care and psychological services.

       But what was once a sprawling complaint against two former DFS Directors,

three DFS supervisors, and three DFS caseworkers that included claims of negligent

hiring, retention, and supervision of the caseworkers by their supervisors is now a

case against just two of the caseworkers, Trina Smith and Crystal Bradley, and their

direct supervisors focused solely on their direct involvement in their investigations.

In 2009, Smith was assigned to investigate Tanasia’s care of the new-born Ford when



1
  Greenfield is Ford’s maternal aunt.
2
  Greenfield has not challenged the Superior Court’s dismissal of her claims against Javonne Rich,
another DFS case worker.
3
  DFS is a division of the State of Delaware’s Department of Services for Children, Youth and
their Families.



                                                    3
a hospital test detected marijuana in his system. After a visit to the home where

Tanasia lived with Ford, Smith concluded that Ford appeared to be “well-cared for”4

and closed her investigation.          Five years later, Bradley was the designated

caseworker charged with investigating Tanasia after she and her boyfriend—both

apparently under the influence of drugs—appeared at Greenfield’s house to pick up

Ford and Autumn. After a seven-week-long investigation, during which Bradley met

with Tanasia and her children “multiple times” and spoke with Tanasia by phone on

six additional occasions, Bradley and her supervisor “moved [the case] into

treatment.”5

       Because Smith, Bradley, and their supervisors were public employees,

Greenfield’s claims are subject to the Delaware State Tort Claims Act, 6 which

immunizes public officers and employees against claims based on the performance

of official duties that involve the exercise of discretion unless the act or failure to act

causing the alleged harm was not done in good faith or was performed in a grossly

negligent manner. Greenfield has not alleged bad faith, and the Superior Court

determined that the investigations conducted by Smith and Bradley involved the

exercise of discretion and that Greenfield had not alleged facts supporting an



4
  First Amended Complaint (“Complaint”) ¶ 13, Greenfield, et al. v. Budget of Delaware, Inc., et
al., N16C-07-115 (Del. Super. Mar. 24, 2017), Dkt. No. 20, available at Second Am. App. to
Opening Br. A73–94.
5
  Complaint, supra note 4, at ¶ 20.
6
  10 Del. C. § 4001 et seq.

                                                  4
inference of gross negligence. Accordingly, the court ruled that Greenfield failed to

state a claim for relief under Superior Court Civil Rule 12(b)(6) and entered an order

of dismissal. The Superior Court also dismissed related civil-rights claims that were

based on the same allegedly inadequate investigations.

      Preliminarily, we state the obvious. The DFS caseworkers’ efforts to ensure

the safety of Tanasia’s children, Autumn and Ford, failed with doleful consequences.

And in cases such as this, the same humanity that causes our hearts to break when

we hear of the mistreatment of a child also cries out and demands that those who are

responsible for the needless suffering be held to account. But it is worth stressing

that the claims we are called upon to assess in this case have not been made against

the person at whose hands Autumn and Ford suffered. Instead and for reasons that

we do not fault, Ford’s guardian seeks redress from individuals who were charged

with protecting him but who were unable to do so. Those same individuals, however,

are also required to preserve and foster the family unit, which creates an obvious

tension between their duties that requires the exercise of judgment.

      Under such circumstances, our law requires that complaints against such

individuals be written to a higher standard. We agree with the Superior Court that

Greenfield’s complaint did not satisfy that standard and therefore affirm.




                                             5
                                 I.    BACKGROUND7

       Tanasia Milligan was the custodial parent of Ethan Ford and his younger half-

sister, Autumn Milligan. During the five-and-a-half years between Ford’s birth and

Autumn’s tragic death, 8 DFS conducted four separate investigations of reports that

Tanasia was abusing and neglecting Ford and Autumn.

    A. January 2009

       DFS conducted its first investigation following Ford’s birth in January 2009

when hospital tests detected marijuana in Ford’s system. Tanasia admitted that she

had smoked marijuana during her pregnancy because it helped with her nausea.

Trina Smith was the caseworker assigned to this investigation. Smith’s supervisor

was Nancy Craighton. At that time, Laura Miles was the Director of DFS.

       According to Greenfield’s Amended Complaint (“Complaint”), “Smith and

Craighton identified the following concerns and risk factors: (1) possible substance

abuse; and (2) lack of cooperation with recommended services.” 9 Smith attempted

to schedule a meeting with Tanasia “for a drug evaluation.”10 It is unclear from the

Complaint whether an evaluation was completed, but it is alleged that “a drug screen




7
  These facts are drawn from the Complaint, supra note 4.
8
  Although not described in the Complaint, Autumn’s death was evidently the result of physical
trauma at the hands of Tanasia.
9
  Complaint, supra note 4, at ¶ 13.
10
   Id.



                                                 6
was never completed.” 11 Smith visited Tanasia’s home and determined that Ford

“was well-cared for.”12 This investigation was closed—allegedly by Smith and

Craighton—after forty-one days as “unsubstantiated with concern.” 13 Neither Smith

nor Craighton had any further interaction with Tanasia or her children.

     B. September 2012

       Three-and-a-half years later, DFS opened its second investigation after

receiving a report that Ford and Autumn were “found outside after midnight in

diapers.”14 The investigation disclosed that Tanasia’s 16-year old brother was

babysitting the children and had fallen asleep. The caseworker, who is not identified

in the Complaint, assigned the case a low priority. The caseworker met with Tanasia

on two occasions, during one of which Ford and Autumn were present. Although

the caseworker determined that the children were developmentally delayed and

referred Tanasia to programs, Tanasia did not follow through or have Ford and

Autumn evaluated. According to the Complaint, “[a]fter six (6) failed attempts to

follow-up with [Tanasia], the caseworker closed the case within 55 days as


11
   Id.
12
   Id.
13
   Id. The root cause analysis that Greenfield included in her appendix on appeal but did not
incorporate into her complaint states that “unsubstantiated with concern” is undefined. A300. We
note, however, that the Delaware Code of Regulations defines the appellation “unsubstantiated
with concern” as a term applied to cases where DFS determines that “substantiation proceedings
for that incident of abuse or neglect are not warranted or justified, but that there are reasons for
concern.” 7 Del. Reg. 340 (Sept. 2003), codified at 9 Del. Admin. C. § 300-11.3.
14
   Complaint, supra note 4, at ¶ 14.



                                                     7
‘unsubstantiated with concern.’”15 The Complaint does not identify the caseworker

or allege that any of the defendants were involved in any capacity in this second

investigation.

     C. Spring 2013

        In the spring of 2013, DFS opened a third investigation following a report

from an unidentified source that “the children were locked in a room for long periods

of time and could not communicate appropriately.” 16 The Complaint does not

disclose the identity of the caseworker assigned to this investigation or state whether

any evidence tending to support the report was uncovered. The investigating

caseworker who is alleged to have been working under the supervision of DFS

Director Kelly, “met with [Tanasia], twice with [Ford] and Autumn present, and

determined that the children were clean and well fed, but developmentally

delayed.”17 The case was closed as unsubstantiated after forty-six days. The

Complaint alleges that a caseworker failed to fill out a risk assessment form in

accordance with DFS policy, which led to the case being closed prematurely.

        Before moving on to the fourth and final investigation, we pause to observe

that, up to this point, contrary to the Complaint’s labeling of the first three cases as

showing a “pattern of neglect and abuse,” with the exception of Ford’s positive


15
   Id.
16
   Id. at ¶ 15.
17
   Id.

                                              8
marijuana test at birth, the Complaint does not affirmatively allege that any of these

investigations had substantiated that abuse or neglect had occurred.

     D. Fall 2013

        By the fall of 2013, Tanasia and her children were living at the Budget Motor

Lodge (“Budget”) with Willie Reeder, whom the Complaint describes as Tanasia’s

“boyfriend and ‘pimp.’”18 The Complaint says that other residents of the motel later

reported that Tanasia “often hit her children for misbehaving and that both children

were often locked in the motel room alone.” 19 The Complaint does not allege,

however, that DFS knew of those conditions until later.

     E. April 2014

        The fourth and final DFS investigation was opened in early April 2014 after

Tanasia and Reeder appeared at Greenfield’s house to pick up the children while

under the influence of drugs. Greenfield resisted but Reeder “barged in the home

and took the children.” 20 Greenfield and Tanasia’s other sisters called the child-

protection hotline, which prompted the opening of an investigation.

        This time, Crystal Bradley, a senior family services specialist, was assigned

to the case under the supervision of Jamie Zebroski. Over a period of fifty-two days,

Bradley met with Tanasia and her children “multiple times” 21 and spoke with Tanasia


18
   Id. at ¶ 17.
19
   Id.
20
   Id. at ¶ 18.
21
   Id. at ¶ 19.

                                             9
by phone six additional times.        The Complaint notes, however, that on four

occasions, Tanasia could not be reached by phone. Additionally, the Complaint

alleges that “caseworkers failed to interview motel residents or other collateral

contacts that could have been helpful in providing the information needed to

adequately investigate the claims by [Tanasia]’s sisters that she was neglecting and

abusing [Ford] and Autumn.”22 The Complaint also notes that “the sisters mentioned

marks on the children’s bodies” 23 and that the caseworkers’ notes did not indicate

that an examination was ever completed.

        Unlike the three previous investigations, this case was moved into treatment

to address numerous concerns and risk factors, including the possibility of drug and

alcohol abuse; mental health factors; appropriate parenting/discipline; housing

conditions; the children’s developmental delay; and the children’s medical and

educational needs. According to the Complaint, Tanasia permitted DFS to send the

children to a pediatrician and agreed to undergo drug screening but “later failed in

many respects to comply with the caseworker’s prescribed, mandatory treatment

plan for her and the children.” 24

     F. Autumn’s death

        The Complaint alleges that:


22
   Id.
23
   Id. at ¶ 18.
24
   Id. at ¶ 17.

                                             10
       [l]ess than three months after [Tanasia]’s fourth DFS so-called
       “investigation,” and as a direct and proximate result of the gross
       negligence, dereliction of duty, and recklessness by the individual
       caseworkers and their respective supervisors, directors and agents,
       acting under the color of state law, by and through the extraordinary
       grant of authority to DFS and its staff, Autumn Milligan is dead, and
       Ethan Ford was permanently and irrevocably damaged in ways that are
       impossible to know the full scope of at the present time, certainly will
       result in the need for, at the very least, long-term care and psychological
       services throughout his life. 25

       The Complaint itself does not allege any further details about Autumn’s death

such as the direct cause of death26 nor does it draw any connection between

Autumn’s death and Ford’s alleged damages, though Greenfield’s opening brief on

appeal does provide a brief description of how Autumn died. In any event, after

Autumn’s death, Ford was removed from Tanasia’s custody and placed under the

legal guardianship of the State and the physical custody of Greenfield. 27 Greenfield

received permanent legal guardianship on January 21, 2016 after a proceeding in

Family Court.28

     G. Greenfield’s pleadings in the Superior Court

       Although Greenfield was now Ford’s guardian and entitled to some access to

DFS’s files on the four cases in which Ford was involved, Greenfield did not seek to


25
   Id. at ¶ 22 (emphasis in original).
26
   Although the Complaint characterizes Autumn’s death as the “direct and proximate result” of
the caseworkers’ actions and inactions, we do not understand the Complaint to suggest that DFS
directly mistreated Autumn in a way that led to her death.
27
   Second Am. Opening Br. 10.
28
   Second Am. App. to Opening Br. A234–35.



                                                 11
obtain any of those files.29 Instead, Greenfield, acting as Ford’s next friend and

guardian ad litem, filed a complaint without the benefit of those files in Superior

Court in July 2017, naming as defendants two former DFS directors (Miles and

Kelly); three caseworkers (Smith, Bradley, and Javonne Rich); one DFS supervisor,

(Zebroski); and Budget of Delaware, Inc., the holding company for Budget. The

original complaint purported to state claims against these individuals for (1)

negligence, gross negligence and recklessness; (2) civil rights violations under the

United States and Delaware Constitutions; (3) a “state-created danger” claim; (4)

negligent, grossly negligent, and reckless hiring, retention and supervision; (5)

intentional infliction of emotional distress; and (6) negligent infliction of emotional

distress.30

          The DFS employees moved to dismiss arguing that Greenfield’s claims were

time-barred under 10 Del. C. § 8119; that the DSTCA required her to plead gross

negligence as to her tort claims and she had failed to plead particularized facts

supporting her gross negligence allegations as required by Superior Court Civil Rule

9; that she had failed to identify particular defendants who performed the

investigations to permit her § 1983 claims to go forward; and that her claims against

the DFS employees in their official capacities were barred by sovereign immunity.



29
     Oral Arg. 42:00–45 (Mar. 6, 2019).
30
     Count VI, negligent infliction of emotion distress, was brought solely against Budget.

                                                     12
           In February of 2017, the Superior Court granted the motion to dismiss, finding

merit in all grounds asserted in the motion, save the statute-of-limitations ground,

the resolution of which the court found was unnecessary. The court, however,

granted Greenfield leave to file an amended complaint to cure the pleading

deficiencies.

           Greenfield filed her amended complaint a month later, alleging the same

claims that were in the original complaint but also providing additional factual detail

and allegations that, in some instances, identified the specific DFS worker who

performed—or failed to perform—the acts that formed the bases of her claims. The

amended complaint also added Craighton as a defendant. Once again, the DFS

employees moved to dismiss.

     H. The Superior Court’s dismissal

           The Superior Court again dismissed Greenfield’s complaint, this time parsing

the claims one-by-one against the DFS caseworkers (Smith and Bradley) 31 and their

supervisors (Kelly, Miles, Craighton, and Zebroski).

      i.      Smith and Bradley

           The court first examined and dismissed the allegation that Smith and Bradley

were negligent, grossly negligent, and reckless in the performance of their duties



31
   At oral argument in the Superior Court, Greenfield conceded that she had failed to make any
factual allegations to support her claims against Rich. Therefore, the Superior Court dismissed all
claims against Rich. As mentioned, Greenfield has not appealed that dismissal.

                                                   13
during the 2009 and 2014 investigations. As mentioned, because Smith and Bradley

were public employees, the court first addressed whether the DSTCA precluded this

claim. It determined that the tortious actions of Smith and Bradley alleged in the

Complaint involved the exercise of discretion and therefore claims based on those

actions were barred unless performed in a grossly negligent or reckless manner.

Finding that Smith’s and Bradley’s “single and limited investigations [] [were] too

far removed from the end result, either temporally, qualitatively, or causally to rise

to the level of gross negligence,”32 the Superior Court dismissed the claims of

negligence, gross negligence, and recklessness against them. In a similar vein, the

Superior Court concluded that the Complaint did not come close to pleading facts

that supported the claims against Smith and Bradley for the intentional infliction of

emotional distress.

       The Superior Court also dismissed Greenfield’s state-created-danger claim,

finding that Greenfield had failed to plead any of the four elements of that claim.

The Superior Court also found that Greenfield waived her other § 1983 claims

because she had failed to address them in her briefing. Accordingly, it dismissed all

claims against Smith and Bradley.




32
  Greenfield for Ford v. Budget of Delaware, Inc. et al., 2017 WL 5075372, at *3 (Del. Super.
Oct. 31, 2017).

                                                14
       ii.      Kelly, Craighton, Miles, and Zebroski

             The Superior Court also dismissed all claims against the supervisors Kelly,

Craighton, Miles, and Zebroski. First, the Superior Court found that none of them

had a duty to Ford to supervise, hire, or train DFS employees. Second, because the

line workers had not been performing ministerial acts and were not grossly

negligent, the Superior Court reasoned that their supervisors could not have been

performing ministerial acts or acting with gross negligence either. Third, as with

Smith and Bradley, the Superior Court found that the alleged conduct “does not

remotely meet the pleading standard for [intentional infliction of emotional

distress].”33

      iii.      10 Del. C. § 8119

             After concluding that the above reasons sufficed for dismissal, the Superior

Court also found that the statute of limitations applicable to this case,

10 Del. C. § 8119, would have barred Greenfield’s claims. Section 8119 provides

for a two-year time limit on personal injury actions and begins to run when “such

alleged injuries were sustained.” 34 The Superior Court determined that § 8119 began

to run with the closing of DFS’s last investigation on May 29, 2014. According to




33
     Id. at *4.
34
     10 Del. C. § 8119.

                                                 15
the Superior Court, the statute of limitations thus had run by the time Greenfield

filed this action on July 15, 2016.

     I. Greenfield’s claims on appeal

       On appeal, Greenfield presses four arguments relating to her gross negligence

and state-created-danger claims.35 First, she asserts that the individual defendants

are not entitled to immunity because they repeatedly failed to perform non-

discretionary, i.e., ministerial duties. Second, Greenfield claims that the Complaint

alleged particular facts that give rise to an inference of gross negligence that would

overcome the defendants’ immunity defense even for discretionary acts. Third,

Greenfield contends that the Superior Court erred when it held that she had not

adequately pleaded a claim under the state-created-danger doctrine.                      Finally,

Greenfield asks us to reject the Superior Court’s ruling that her claims were time-

barred under 10 Del. C. § 8119 and not subject to tolling under 10 Del. C. § 8116.

We will address Greenfield’s first three arguments in turn. Because we agree with

the Superior Court that Greenfield has failed to state a claim in her Complaint upon

which relief can be granted, we need not address her statute-of-limitations argument.




35
   Greenfield has not challenged the dismissal of her intentional-infliction-of-emotional-distress
claim or the dismissal of her non-state-created-danger civil-rights claim.



                                                   16
                   II.    STANDARD AND SCOPE OF REVIEW

       This Court reviews the granting of a motion to dismiss for failure to state a

claim de novo.36 “[A] complaint sufficiently states a cause of action when a plaintiff

can recover under any reasonably conceivable set of circumstances susceptible of

proof under the complaint.”37 When considering the motion, we accept all well-

pleaded allegations as true, 38 and we “draw all reasonable factual inferences in favor

of the party opposing the motion.” 39 Dismissal is warranted “only if it appears with

reasonable certainty that the plaintiff could not prove any set of facts that would

entitle him to relief.” 40 That said, while a complaint usually “need only give general

notice of the claim asserted,”41 “circumstances constituting . . . negligence . . . shall

be stated with particularity.”42

       Questions of statutory interpretation are questions of law, which we review de

novo.43




36
   RBC Capital Mkts., LLC v. Educ.s Loan Trust IV, 87 A.3d 632, 639 (Del. 2014).
37
   Browne v. Robb, 583 A.2d 949, 950 (Del. 1990) (quoting Spence v. Funk, 396 A.2d 967, 968
(Del. 1978)).
38
   Browne, 583 A.2d at 950.
39
   Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005).
40
   Id.
41
   Id.
42
   Super. Ct. Civ. R. 9(b); see also Rattner v. Bidzos, 2003 WL 22284323, at *13 (Del. Ch. Sept.
30, 2003) (for a gross negligence claim to survive a motion to dismiss, allegations must be
particularly pled and sufficient to sustain an inference of gross negligence).
43
   Dambro v. Meyer, 974 A.2d 121, 129 (Del. 2009).



                                                  17
                                     III. ANALYSIS

       During briefing in this Court, Greenfield narrowed the scope of her claims on

Ford’s behalf.      In her complaint, Greenfield alleged a number of supervisory

oversights by Kelly, Craighton, Miles, and Zebroski. 44 But on appeal, Greenfield

has waived her claims of negligent hiring, retention, and supervision claims against

Kelly, Craighton, Miles, and Zebroski in their official and individual capacities.45

Nevertheless, Greenfield stated at oral argument that, despite the abandonment of

her claims against the DFS supervisors for negligent hiring, retention, and

supervision, she continued to press gross negligence claims against the DFS

supervisors based on their “direct involvement” with the case.46 We note that these

allegations of “direct involvement” appear to consist of joint actions that Craighton

and Zebroski supposedly took with their supervisee case workers to “identif[y] . . .

concerns and risk factors” and to close the cases.47 In contrast, there appear to be no

allegations in the Complaint of “direct involvement” against Kelly and Miles—the




44
   Complaint, supra note 4, at ¶¶ 13, 14, 15, 19, 20, 21.
45
   Reply Br. 9 n.6 (“Appellant concedes any argument as to the dismissal of her negligent hiring,
retention, and supervision claims against the individual Defendants in their individual
capacities.”). This concession was followed by Greenfield’s counsel’s acknowledgement at oral
argument that she believed that sovereign immunity precluded such claims made against the
supervisors in their official capacities and that her only remaining claims against supervisors are
those of “direct involvement” as discussed below.
46
   Oral Arg. 19:40–19:57 (Mar. 6, 2019).
47
   Complaint, supra note 4, at ¶¶ 13, 20.



                                                   18
allegations against them appear to exclusively relate to supervisory acts.48 We

therefore focus on the two DFS cases that Smith, Bradley, Craighton, and Zebroski

(“the DFS Defendants”) handled in their nonsupervisory capacities.

     A. Delaware State Tort Claims Act

       Greenfield challenges the Superior Court’s conclusion that the DFS

Defendants were immune from suit under the Delaware Tort Claims Act.49

       Under the DSTCA, public employees are immune from suit when

       (1) The act or omission complained of arose out of and in connection
       with the performance of an official duty requiring a determination of
       policy, the interpretation or enforcement of statutes, rules or
       regulations, the granting or withholding of publicly created or regulated
       entitlement or privilege or any other official duty involving the exercise
       of discretion on the part of the public officer, employee or member, or
       anyone over whom the public officer, employee or member shall have
       supervisory authority;

                                         . . . and

       (3) The act or omission complained of was done without gross or
       wanton negligence.50

Thus, immunity under § 4001 applies to discretionary acts or omissions “done

without gross or wanton negligence.”51

       Greenfield challenges the Superior Court’s application of the DSTCA in two

ways. First, she claims that the Superior Court erred when it determined that the


48
   See supra note 44.
49
   10 Del. C. § 4001 et seq.
50
   10 Del. C. § 4001 (emphasis added).
51
   Id.

                                               19
duties the DFS Defendants are alleged to have breached involved the exercise of

discretion. Second, Greenfield argues that, even if that determination was correct,

the Complaint pleads facts susceptible to proof that the DFS Defendants’ conduct

was grossly negligent, 52 and that therefore immunity is not available under the

DSTCA. Greenfield is incorrect on both counts.

      i.     Discretionary vs. Ministerial Acts

           Greenfield argues that at least some of the DFS Defendants’ acts causing

Ford’s injuries were ministerial by claiming that the Delaware statute that mandates




52
  In her briefs and at oral argument, Greenfield inserted facts and legal claims that are absent from
her Complaint. For instance, in her opening brief, Greenfield asserts that the DFS Defendants had
a duty to remove the children from the mother’s home, Second Am. Opening Br. 6, but there is no
such allegation in the Complaint. Greenfield’s opening brief also cites testimony about the
conditions at the Budget Motel Lodge from a deposition in Greenfield’s companion case against
the motel taken more than a year after the Complaint was filed. Id. at 27. Likewise, at oral
argument, Greenfield’s counsel attempted to support his legal argument by citing the contents of
a February 12, 2015 root cause analysis prepared by the Department of Services for Children,
Youth and Their Families even though that analysis was not incorporated into the Complaint by
reference. Greenfield also integrated facts in her briefs and at oral argument that do not bear upon
her underlying claims of gross negligence by the caseworkers. For example, Greenfield’s opening
brief asserts that Ford’s mother “beat his sister to death before his eyes.” Id. at 10. Ultimately,
we must take complaints as they are written. “Matters extrinsic to a complaint may not be
considered in a ruling on a motion to dismiss . . . [D]ocuments outside the pleadings may be
considered only in ‘particular instances and for carefully limited purposes.’” Wal-Mart Stores,
Inc. v. AIG Life Ins. Co., 860 A.2d 312, 320 (Del. 2004) (quoting In re Santa Fe Pac. Corp.
S’holder Litig, 669 A.2d 59, 69 (Del. 1995)). Greenfield had an opportunity to amend her
complaint, and it would be inappropriate for courts in an adversarial justice system such as ours to
consider unincorporated documents without justification. Greenfield has not provided such
justification; even so, the conclusions the Majority reaches in this opinion would not be altered by
our consideration of them.



                                                    20
the reporting and investigation of child abuse and neglect, 16 Del. C. § 906,53 assigns

nondiscretionary duties to the DFS Defendants. Before addressing this contention,

we would do well to explain the distinction our law draws between ministerial and

discretionary acts in this context.

       In Sussex County v. Morris,54 after noting that courts have struggled to

distinguish discretionary acts, which are subject to qualified immunity under

10 Del. C. § 4001, from ministerial acts, which are not subject to immunity, we

adopted the definition of ministerial act set forth in the Restatement (Second) of

Torts. Under that definition, acts are called “ministerial” or “operational” if the act

“involves less in the way of personal decision or judgment or the matter for which

judgment is required has little bearing of importance upon the validity of the act.” 55

An act is discretionary if it is not ministerial.

       As we have observed, the “distinction between discretionary and ministerial

acts is always one of degree,”56 but our case law helps to illustrate the distinction.



53
   The Complaint also refers to 29 Del. C. § 9003, which is the section of the Delaware Code
generally setting forth the “powers, duties and functions” of the Department of Services for
Children, Youth and Their Families, and 16 Del C. §§ 901 and 902, the general purpose and
definitional sections that introduce Title 16’s subchapter covering reports and investigations of
child abuse and neglect. But the complaint’s only particularized negligence allegations are tied to
16 Del. C. § 906. Likewise, Greenfield’s briefs on appeal focus on the purported duties created
by § 906.
54
   610 A.2d 1354, 1359 (Del. 1992)
55
   Restatement (Second) of Torts § 895D cmt. h (1979).
56
   Sussex Cty., 610 A.2d at 1359.



                                                   21
In Sadler v. New Castle County,57 we held that state rescuers’ decision to carry the

plaintiff across a river rather than up the riverbank after the plaintiff suffered a fall

was discretionary. 58 In Sussex County,59 a Sussex constable was transporting a

mental patient in the back seat of constable’s family car when the patient jumped out

of the car and was seriously injured. This Court held that the constable’s “selection

and equipment of the car,”60 which was “indisputably ill-equipped for the

transportation of mentally ill passengers,”61 was effectively a ministerial act because

it had “little bearing of importance upon the validity of his official conduct,” i.e.,

transporting the passenger.62      In Hughes ex rel. Hughes v. Christiana School

District,63 this Court held that a teacher’s decision to allow a sick student to go to

the nurse unescorted was a discretionary decision, noting that “no facts support” that

the teacher should have necessarily engaged in another particular course of action. 64

Rather, the Hughes teacher had a number of apparently reasonable options and chose

among them. 65 As these cases show, a duty is discretionary if and only if the state

actor faced a range of reasonable choices while performing those duties.


57
   565 A.2d 917 (Del. 1989).
58
   Id. at 922.
59
   610 A.2d 1354 (Del. 1992).
60
   Id. at 1359.
61
   Id.
62
   Id.
63
   2008 WL 2083150, 950 A.2d 659 (Del. 2008) (Table).
64
   Id. at *3.
65
   Id. at *2–3.



                                               22
          Keeping this distinction in mind, we turn back to Greenfield’s claim that § 906

imposes ministerial duties on the DFS Defendants. Greenfield directs our attention

to three of § 906’s subsections, but none of them are ultimately availing.

          Greenfield first directs our attention to subsection (b) of § 906,66 which, in

relevant part, states that “[i]t is the policy of this State that the investigation and

disposition of cases involving child abuse or neglect shall be conducted in a

comprehensive, integrated, [and] multidisciplinary manner[.]” By its very terms,

this subsection is a statement of policy written at such a high level of generality that

discretion is unavoidably part of the execution of its provisions. We do not see—

and Greenfield does not tell us—how this portion of § 906 could be carried out

except through a considered exercise of professional judgement.                          Simply put,

§ 906(b) does not prescribe any ministerial duties relevant to Greenfield’s

negligence claims.


66
     16 Del. C. § 906(b) provides that
         [i]t is the policy of this State that the investigation and disposition of cases involving child
         abuse or neglect shall be conducted in a comprehensive, integrated, multidisciplinary
         manner that does all of the following:
                   (1) Provides civil and criminal protections to the child and the community.
                   (2) Encourages the use of collaborative decision-making and case management to
                   reduce the number of times a child is interviewed and examined to minimize further
                   trauma to the child.
                   (3) Provides safety and treatment for a child and his or her family by coordinating
                   a therapeutic services system.
                   (4) Requires a multidisciplinary team response for all multidisciplinary cases. The
                   State, with assistance from the Child Protection Accountability Commission, shall
                   implement a memorandum of understanding among agencies and entities to ensure
                   implementation of the multidisciplinary response to such cases.



                                                        23
       Next, in her opening brief on appeal, Greenfield argues that “[a]nother

important non-discretionary duty is found in § 906(c)(1)(c),”67 which requires “the

Investigation Coordinator . . . [w]ithin 5 days of the receipt of a report concerning

allegations of child abuse or neglect by a person known to be licensed or certified

by a Delaware agency or professional regulatory organization, forward a report of

such allegations to the appropriate Delaware agency or professional regulatory

organization.” But Greenfield did not mention § 906(c)(1)(c) in her Complaint.

What is much more, the Complaint does not name any individual performing the

role of Investigation Coordinator as that term is defined in the statute, 68 nor does it

allege that a report of abuse or neglect of the type described in this subsection was

ever received. Therefore, regardless of whether § 906(c)(1)(c) creates a ministerial

duty, Greenfield’s reliance on it is unavailing.

       Finally, Greenfield relies on § 906(e), which lists numerous duties that may

fairly be characterized as ministerial. For instance, § 906(e) requires that DFS must

“[r]eceive and maintain reports” of abuse and neglect, conduct investigations of

those reports, and conform to various reporting requirements within DFS and to



67
   Second Am. Opening Br. 15.
68
   According to 16 Del. C. § 902(20), “‘Investigation Coordinator’ means an attorney licensed to
practice law in this State employed by the Office of the Child Advocate, who is authorized to
independently track each reported case of alleged child abuse or neglect within the Department’s
internal information system and who is responsible for monitoring each reported case involving
the death of, serious physical injury to, or allegations of sexual abuse of a child from inception to
final criminal and civil disposition.”

                                                    24
other state agencies. For her part, Greenfield focuses on subsection (e)(8), which

instructs DFS to:

          At a minimum, investigate the nature, extent, and cause of the abuse or
          neglect; collect evidence; identify the alleged perpetrator; determine the
          names and condition of other children and adults in the home; . . . assess
          the home environment, the relationship of the subject child to the
          parents or other persons responsible for the child’s care, and any
          indication of incidents of physical violence against any other household
          or family member; perform background checks on all adults in the
          home; and gather other pertinent information.

          Greenfield places special emphasis on § 906(e)(8)’s requirement that DFS

caseworkers assess the home environment during any child abuse investigation. And

we agree that, if DFS caseworkers simply did not conduct such an assessment, they

would have failed to perform a ministerial duty. But according to the Complaint, the

DFS Defendants discharged all of the duties in § 906(e)(8) that might legitimately

be characterized as ministerial. As the DFS Defendants point out, Greenfield’s own

complaint alleges that Smith and Bradley met with Tanasia, Ford, and Autumn at the

family’s home during their respective investigations. After those investigations,

Smith thought Ford was “well-cared for,”69 while Bradley concluded that the

children’s housing was a risk.70 It is true that Smith might ultimately have performed

that home assessment poorly and that Bradley might have failed to properly follow



69
     Complaint, supra note 4, at ¶ 13.
70
     Id. at ¶ 20.



                                                 25
up on their home assessments, but analyzing whether social workers conducted

home assessments or follow-ups poorly entails analyzing the exercise of discretion

of those social workers.71 In brief, we agree with the Superior Court’s conclusion

that the DFS Defendants’ investigative activities and response were quintessentially

discretionary. 72

     ii.      Gross Negligence

           As mentioned, the DTCA will also permit a plaintiff to recover against a

public-employee tortfeasor even where her actions were discretionary if the plaintiff

can show that the tortfeasor acted with gross or wanton negligence. 73 Greenfield

argues that she has pleaded sufficient facts supporting a pleading-stage inference that

Smith and Bradley were grossly negligent.



71
   See Gutierrez v. Advanced Student Transp., Inc., 2015 WL 4460342, at *4 (Del. Super. July 14,
2015) (“[T]he duty to supervise students is ministerial; however, the manner
and particular methods of supervision are discretionary”) (internal quotations and footnotes
omitted).
72
   This conclusion finds support in cases from other jurisdictions. See, e.g., James ex rel. James v.
Friend, 458 F.3d 726, 731–32 (8th Cir. 2006) (applying Missouri law to determine that a
requirement for social workers to keep team members “informed of significant changes in status
of the case” required the exercise of discretion in order to determine what constituted significant
changes and the urgency of giving notice); Georgia Dep’t of Human Servs. v. Spruill, 751 S.E.2d
315, 321 (Ga. 2013) (despite social services department policy requiring “an immediate to 24–
hour response” to certain abuse allegations, social worker’s responses to family’s unavailability at
their home required the exercise of discretion); Ortega v. Sacramento Cty. Dep’t of Health &
Human Servs., Cal. Rptr. 3d 390, 399 (Cal. App. 4th 2008) (notwithstanding the rule of Johnson
v. State, 447 P.2d 352, 361 (Cal. 1968), social worker was entitled to discretionary acts immunity
because investigation required exercise of discretion). But see Johnson, 447 P.2d at 361 (ordinarily
discretionary decisions receive no immunity “if, in a given case, the employee did not render a
considered decision”).
73
   Supra note 50.



                                                    26
       Gross negligence is an “extreme departure from the ordinary standard of

care.”74 In assessing whether a defendant’s acts were grossly negligent, courts look

to the reasonableness of a defendant’s actions given the conditions at that time and

not whether hindsight would shed more light upon whether any conditions could

have served as red flags.75           Gross negligence claims must be pleaded with

particularity. 76 Judging the conduct of the DFS Defendants against this yardstick,

the particular facts as pleaded do not support an inference that they acted with gross

negligence.

       For her part, Smith began investigating Tanasia and Ford because Ford tested

positive for marijuana at birth. Her investigation disclosed the reason for the positive

test—Tanasia had smoked marijuana during her pregnancy to combat her

accompanying nausea. Presumably, the balance of her investigation focused on the

quality of care provided to Ford and, relatedly, on whether Tanasia continued to use

marijuana, possession of which was at the time still unlawful. According to the

Complaint, “Smith attempted twice to schedule a meeting with [Tanasia] for a drug


74
   Browne v. Robb, 583 A.2d 949, 953 (Del. 1990). We have noted the functional equivalence of
gross negligence to criminal negligence as defined in 11 Del. C. § 231. Jardel Co. v. Hughes, 523
A.2d 518, 530 (Del. 1987). Under § 231, “[a] person acts with criminal negligence with respect
to an element of an offense when the person fails to perceive a risk that the element exists or will
result from the conduct. The risk must be of such a nature and degree that failure to perceive it
constitutes a gross deviation from the standard of conduct that a reasonable person would observe
in the situation.”
75
   McCaffrey v. City of Wilmington, 133 A.3d 536, 550 (Del. 2016).
76
   Super. Ct. Civ. R. 9.



                                                    27
evaluation; however, a drug screen was never completed.” 77 The Complaint does

not tell us, even on information and belief, why the drug screen was not completed.

But more to the point, after conducting a home visit, Smith concluded that Ford “was

well-cared for” in the home.78 Perhaps Smith should have been more persistent in

her efforts to schedule a drug screen, but we do not think her bare failure to do so in

the absence of allegations of other troubling behavior on her part represents an

extreme departure from the ordinary standard of care.

       Likewise, the allegations of gross negligence on Bradley’s part are lacking.

Bradley, it should be recalled, met with Tanasia and the children “multiple times”

during the course of the fourth and final investigation of the family and

supplemented those meetings with ten telephone calls. 79 Moreover, our reading of

the Complaint leads us to conclude that Bradley succeeded in securing at least some

medical treatment for the children. 80 To be sure, the Complaint alleges that Bradley

did not interview residents of the motel or “other collateral contacts” 81 and did not

record any examination of the bodily marks that Tanisha’s sisters had reported. But

those alleged deficiencies—admittedly indicative of ordinary negligence—must be

viewed against the backdrop of Bradley’s multiple contacts with Tanasia and the


77
   Complaint, supra note 4, at ¶ 13.
78
   Id.
79
   See id. at ¶ 19 (“Defendant Bradley reportedly spoke with [Tanasia] by phone six (6) additional
times, but four (4) subsequent attempts to reach her by phone were unsuccessful.”).
80
   Id. at ¶ 20.
81
   Id. at ¶ 19.

                                                   28
children and her referral of the case to treatment based on her concerns. Despite

Greenfield’s pleading to the contrary, the specific factual allegations relating to

Bradley’s role in this sad case, even when viewed in a light favorable to Greenfield,

do not give rise to a pleading-stage inference of gross negligence.

       As for Craighton and Zebroski, the allegations of their “direct involvement”

mirror those alleged against their subordinates, Smith and Bradley. Accordingly, we

likewise find that the allegations that Craighton and Zebroski were directly involved

in the identification of risk factors and in the closing the cases are insufficient to

support a claim of gross negligence.

       Our conclusion that the acts that form the predicate of Greenfield’s tort claims

against Smith, Bradley, Craighton, and Zebroski were discretionary acts and that the

Complaint’s description of those acts does not support a pleading-stage inference of

gross negligence mandates the dismissal of those claims under 10 Del. C. § 4001.

In reaching this result, the Majority adheres to this Court’s view that because

“[q]ualified immunity is ‘an immunity from suit rather than a mere defense to

liability,’”82 “it is important to resolve immunity issues at the earliest possible stage

of the litigation. Otherwise, the benefits of such immunity [including the avoidance

of burdensome discovery] are lost.”83


82
   Pearson v. Callahan, 555 U.S. 223, 237 (2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526
(1985)).
83
   McCaffrey v. City of Wilmington, 133 A.3d 536, 546–47 n. 43 (Del. 2016).

                                                  29
     B. State-created danger

       Greenfield also argues on appeal that the Superior Court erred when it ruled

that she had failed to make a prima facie state-created danger claim, a theory of

recovery that this Court has not previously considered. 84 Although most of the

federal Circuit Courts of Appeal have adopted some variation of the state-created

danger doctrine,85 the United States Supreme Court has never ruled on its merits,

and some circuits have rejected it outright. 86 Even though Greenfield waived her

other due process claims from Count II of her Complaint, Greenfield briefed and

preserved her state-created danger claim from Count III of her Complaint.

       Without passing on the validity of state-created danger claims in general, we

reject Greenfield’s claim as alleged here. The state-created danger claim as alleged




84
   We examine this matter as an issue of federal law because Greenfield brought her state-created
danger claim under 42 U.S.C. § 1983, Complaint, supra note 4, at ¶¶ 29–30 (Count III), and §
1983 is a federal statute that only provides redress for violation of federal law, see Maine v.
Thiboutot, 448 U.S. 1, 5 (1980); Slawik v. State, 480 A.2d 636, 640 (Del. 1984). In contrast, Count
II of Greenfield’s Complaint alleged civil rights violations under the United States and Delaware
Constitutions, but the Superior Court found that Greenfield waived that claim, and she did not
appeal that ruling.
85
   See Pena v. DePrisco, 432 F.3d 98, 107–10 (2d Cir. 2005); Sanford v. Stiles, 456 F.3d 298, 304
(3d Cir. 2006); Robinson v. Lioi, 536 F. App’x 340, 343 (4th Cir. 2013); Kallstrom v. City of
Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998); Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir.
1993); Forrester v. Bass, 397 F.3d 1047, 1057–59 (8th Cir. 2005); Kennedy v. City of Ridgefield,
439 F.3d 1055, 1061 (9th Cir. 2006); Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995); Butera
v. District of Columbia, 235 F.3d 637, 648–51 (D.C. Cir. 2001); see also Doe v. Rosa, 795 F.3d
429, 439 (4th Cir. 2015).
86
   See J.R. v. Gloria, 593 F.3d 73, 79 n.3 (1st Cir. 2010); Estate of Lance v. Lewisville Indep. Sch.
Dist., 743 F.3d 982, 1001 (5th Cir. 2014); Vaughn v. City of Athens, 176 F. App’x 974, 976 n.1
(11th Cir. 2006).



                                                    30
in Greenfield’s complaint is a subset of federal due process claims. 87 But there can

be no state-created danger claim where the United States Supreme Court has stated

that there is no due process violation. And because the United States Supreme Court

has explicitly stated that no due process claim lies under facts that are nearly

identical to the alleged facts in this case, Greenfield can have no state-created danger

claim, at least under federal law, 88 whatever the contours of those claims may be.

       In DeShaney v. Winnebago County Department of Social Services,89 the

United States Supreme Court rejected a plaintiff’s due process claim where social

workers did not permanently remove a child from his abusive father’s custody even

though social workers were repeatedly notified of injuries indicative of abuse and

the father eventually beat the child so severely he fell into a coma. 90 The United

States Supreme Court held that “[a]s a general matter . . . a State’s failure to protect

an individual against private violence simply does not constitute a violation of the

Due Process Clause.”91 The Court held that there was no violation even though

social workers had “actually undertaken to protect [the child] from [the] danger”

posed by the child’s father. 92



87
   Bright v. Westmoreland Cty., 443 F.3d 276, 282 (3d Cir. 2006).
88
   We need not decide and do not decide whether a state-created danger claim may be available
under the Delaware Constitution as such a claim was not raised.
89
   489 U.S. 189 (1989).
90
   Id. at 191–193.
91
   Id. at 197.
92
   Id.

                                                31
         We see no relevant distinction between DeShaney and this case. This case

involves an abusive parent and social workers who allegedly knew or should have

known that the parent was abusive, just like in DeShaney. Greenfield has alleged

that an abusive parent injured Ford after the social workers’ inaction, just like in

DeShaney. And the Complaint does not allege any affirmative action by DFS to

prevent others from acting on behalf of the child, just like in DeShaney. Even though

DeShaney did not address state-created danger claims in particular, it clearly

foreclosed state-created danger claims in those circumstances given that state-

created danger claims are a subset of due process claims, which DeShaney explicitly

held did not exist under that case’s circumstances.

         Greenfield argues that DFS’s assertions that they would protect Ford induced

her to “refrain from taking further steps to protect [Ford] herself,”93 thus creating

liability when Ford was injured after DFS did not in fact protect Ford. But that is

exactly the sort of argument that DeShaney rejected: “The affirmative duty to protect

arises not from . . . [the state’s] expressions of intent to help him, but from the

limitation which it has imposed on his freedom to act on his own behalf.” 94 Simply

because Greenfield relied on DFS to protect Ford does not mean DFS limited




93
     Second Am. Opening Br. 33.
94
     DeShaney, 489 U.S. at 201.



                                             32
Greenfield’s freedom to act on her own. And because there is no contention here

that DFS limited Greenfield’s freedom to act,95 we cannot accept her claim.

                                   IV.      CONCLUSION

       The Majority recognizes that, to many, the dismissal of Greenfield’s

complaint on Ford’s behalf will be an unfitting conclusion to this tragic case. After

all, who among us does not wish to help Ethan Ford? But under our law, which

places a value on relieving public employees from private liability for acts involving

the exercise of discretion that are performed in good faith and without gross

negligence, we require that legal complaints based on those acts state particularized

allegations leading to an inference of gross negligence.                    Unfortunately, such

allegations are absent from the Complaint here, and accordingly, we AFFIRM the

decision of the Superior Court.




95
   We reject Greenfield’s attempt at oral argument to recharacterize the Complaint to suggest that
she had alleged such action. See Oral Arg. 21:07–19:57 (Mar. 6, 2019) (“[DFS said], ‘hey, we got
this; we’re looking into this; we’re gonna take care of this; you back off, aunt.’” (emphasis added)).

                                                     33
STRINE, Chief Justice, concurring in part, dissenting in part:

       This is a sad and difficult case. I respect the decision of the trial court, and

my colleagues in the majority, that Greenfield, as next friend and guardian ad litem

of Ethan Ford, did not meet the understandably stringent pleading standard that

applies when a plaintiff seeks to hold public servants doing the difficult job of child

protection liable for making misjudgments. Facing burdensome caseloads, complex

human dynamics, and the requirement to balance the sometimes competing interests

of assuring the protection of children but not erroneously depriving them of the care

and love of a parent, the professionals who go to work every day doing these jobs

rightly deserve not to fear that some slip up in situational judgment will expose them

to liability. Not only that, I also agree with the majority that the trial judge was

required to address the complaint as it was pled, and not consider information that

was not properly incorporated into the complaint.96

       Acknowledging that, I respectfully dissent in part from the majority’s

excellent decision. Given the high bar that must be pled to state a claim against the

DFS Defendants,97 it is difficult, I suppose, to conclude that the caseworker who

conducted the initial Department of Family Services (“DFS”) investigation of


96
   I also concur in the majority’s determination that the defendants’ obligations under 16 Del. C.
§ 906 were discretionary, not mandatory or ministerial, and that Greenfield has failed to state a
state-created danger claim.
97
   I collectively refer to all of the individual defendants as the DFS Defendants.



                                                   34
Ethan’s mother (the “Mother”) and closed her case as “unsubstantiated with

concern,” can be determined to have breached her duty to investigate in a grossly

negligent manner, even as a pleading stage matter. 98 Gross negligence is a high

standard,99 and although it is troubling that a case would be closed without

compliance with the conditions DFS requested, 100 the Mother’s initial warning

signals did not involve any act by her of physical abuse of Ethan, but was based on

Ethan being born with marijuana in his system.101

       Where I depart from the majority is as to the DFS Defendants who were

involved in the Mother’s case after that. After the Mother was referred to DFS a

second time because both Ethan and his half-sister were found at 1:00 a.m.

wandering around outside in their diapers,102 the caseworker was in my view duty

bound to take account of the first investigation and the Mother’s failure to take

actions assuring DFS that the concerns that justified the first investigation were

addressed. Instead, the case worker noted that the children were developmentally

delayed and recommended that the Mother have the children evaluated. 103 But the

Mother failed to do so, and DFS never followed up. 104 Fifty-five days after the


98
   App. to Opening Br. at A80–81 (First Amended Complaint (March 24, 2017)).
99
   See Browne v. Robb, 583 A.2d 949, 954 (Del. 1990).
100
    See, e.g., App. to Opening Br. at A80–81 (First Amended Complaint (March 24, 2017)).
101
    Id.
102
    Id. at A81.
103
    Id. at A81–82.
104
    Id.



                                                 35
investigation was opened, DFS closed the second case as “unsubstantiated with

concern.”105

       This pattern repeated itself during the next two investigations. Reports would

come into DFS—that “the children were locked in a room for long periods of time

and could not communicate appropriately” 106 or that the children had marks on their

bodies107—the DFS investigators would speak to only the Mother and her children

and not interview any collateral sources, recommend some remedial actions, fail to

follow up when the Mother did not complete this follow up, and close the case as

“unsubstantiated with concern” less than two months after each investigation was

opened. 108 In the final investigation, which closed less than ten weeks before the

Mother beat her daughter to death in front of Ethan, the DFS investigators failed to

even investigate reports of marks on the children’s bodies. 109

       DFS employees have an affirmative duty to investigate potential “cases

involving child abuse or neglect.” 110 And those investigations “shall be conducted

in a comprehensive, integrated, multidisciplinary manner.” 111 A DFS employee

performs those duties in a grossly negligent manner when conducted with a


105
    Id. at A82.
106
    Id.
107
    Id. at A83–84.
108
    Id.
109
    Id.
110
    16 Del. C. § 906(b).
111
    Id. (emphasis added).



                                             36
“conscious indifference” or “I-don’t-care” attitude,112 which can include failing to

investigate allegations of neglect or abuse or disregarding red flags, patterns of

abuse, and evidence of danger to the child.113 And that is, effectively, what the

complaint alleges occurred here.

       When the subject of a child protection investigation is directed to take

remedial actions that provide assurance that she is not a danger to her children and

then fails to comply, that is the opposite of reassuring. To close the case then is

concerning, which makes even the termination of the first case a close call for

dismissal. You close a case because your concerns have been sufficiently addressed

and alleviated. You don’t close a case when the conditions you’ve imposed to ensure

the child’s safety have been flouted. When the subject engages in subsequent

conduct triggering successive investigations and DFS repeatedly closed those

investigations when the subject had not complied with the conditions the DFS

Defendants themselves imposed, that behavior involves, at the pleading stage, a

disregard of known risks so substantial as to support an inference of gross

negligence.


112
   McCaffrey v. City of Wilmington, 133 A.3d 536, 547 (Del. 2016).
113
    See Bass v. S.C. Dep’t of Social Servs., 780 S.E.2d 252, 260 (S.C. 2015) (finding that the
“failure to conduct a post-EPC investigation into the stated reason for the children’s removal from
the home” and the failure “to interview the children’s doctors, other medical staff at the hospital,
or their family doctor who initially treated the children, and the fail[ure] to investigate the
medication after being told that the children fell ill shortfall after [the Mother] administered the
[medicine] to them” constituted gross negligence).



                                                    37
       Most of all, Greenfield has stated a claim as to the Director of DFS during the

final three investigations. Although Greenfield has confusingly addressed the claims

against the Director of DFS and other DFS Supervisors,114 Greenfield has

consistently argued that the Director of DFS and the other DFS Supervisors

committed gross negligence by “repeated[ly] fail[ing] to use the tools available to

them to take meaningful action.” 115 To my mind, Greenfield is correct because one

of the jobs of a DFS director is to put in place systems to address situations like this,

where an individual is repeatedly investigated by DFS and where that individual,

rather than complying with DFS’s conditions and acting in a way that assures DFS

that the parent can safely remain in custody of her child, instead fails to comply with

the reasonable requirements set forth by the manager’s line caseworkers. Here,

nothing in the record of the Mother’s repeated contacts with DFS provides


114
    In her reply brief in this Court, Greenfield “concedes any argument as to the dismissal of her
negligent hiring, retention, and supervision claims against the individual Defendants in their
individual capacities.” Reply Br. at 9 n.6. But I read that concession, in the context of the DFS
Defendant’s answering brief and the Superior Court’s decision below, as a modest concession that
a negligent supervision claim can be maintained against only an employer—here DFS—and not
individual employees. Oral Argument at 44:00–44:45 (“We have not conceded that her [the DFS
director’s] direct involvement in this case in anyway is not being pressed. We solely concede that
we are unable to maintain a claim as to negligent hiring, retention, and supervision in solely in the
supervisory capacity because that implicates the State as employer. And so we are simply whittling
away the claims to those that can make it through the screen of immunity.”). Here, I thus
concentrate on what Greenfield has not dropped, which is her argument that the DFS director and
other supervisors were grossly negligent in addressing the Mother’s case because they undertook
no actions to assure that repeat cases involving investigated subjects who did not comply with
DFS’s recommended remedial actions were not repeatedly closed without any assurance that the
known risks justifying the investigation’s initiation were addressed.
115
    App. to Opening Br. at A87 (First Amended Complaint (March 24, 2017)).



                                                    38
reassurance that she was on the right path.            Instead, there is a pattern of

noncompliance with DFS’s reasonable requests for the Mother to get a drug

screening or get the children evaluated,116 and a pattern of DFS line workers reacting

to that, not by taking remedial action to address the Mother’s non-compliance, but

by closing the case.117

          For these reasons, I would reverse as to the claims against the DFS Defendants

involved in the last three investigations. I do so without enthusiasm, precisely

because I acknowledge how difficult the work that these defendants were required

to do is. In dissenting, I also underscore the reality that, as in any case, the fact that

a complaint states a claim is a far cry from a determination that the defendants in

fact fell short of the mark after all the evidence is heard. For present purposes,

however, I think that Greenfield should have the chance to seek discovery in aid of

proving out her claims against these defendants.




116
      See id. at A80–85.
117
      Id.

                                               39
