               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                   March 10, 2009 Session

                CANDACE MULLINS v. STATE OF TENNESSEE

                       Appeal from the Tennessee Claims Commission
                   No. T20060653    Stephanie R. Reevers, Commissioner



                     No. M2008-01674-COA-R3-CV - Filed May 15, 2009


This is a claim filed against the State by a minor-decedent’s mother for the wrongful death of her
child based on T.C.A. § 9-8-307(a)(1)(E) (Negligent Care, Custody and Control of Person). The
child was murdered while in the care of a relative after he had been removed from the mother’s home
by the Tennessee Department of Children’s Services. The mother contended that if the caseworker
assigned to her son’s case had properly investigated an earlier allegation of abuse at the home in
which the child had been placed, the child would have been removed from the placement before the
murder occurred. The Claims Commission held that it did not have the subject matter jurisdiction
to hear the mother’s claims under T.C.A. § 9-8-307(a)(1)(E) because the child was not in the care,
custody, or control of the State at the time of the alleged negligence. The mother appeals. We affirm
the judgment as modified.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission
                            Affirmed as Modified; Remanded

JOHN W. MCCLARTY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
D. MICHAEL SWINEY , J., joined.

Phillip L. Davidson, Nashville, Tennessee, for Appellant, Candace Mullins.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and P.
Robin Dixon, Jr., Assistant Attorney General, Nashville, Tennessee, for Appellee, State of
Tennessee.

                                            OPINION

                                       I. BACKGROUND

       This case arises from the tragic death of Carlyle Mullins, minor son of Candace Mullins
(“Mother”). Carlyle was born on April 25, 2000. Just a few days short of Carlyle’s fifth birthday,
the Tennessee Department of Children’s Services (“DCS”) received a referral when Mother and her
infant son, C.H.,1tested positive for cocaine. As a result of the investigation, Mother’s three sons,
including Carlyle, were removed from their home and placed in foster care on April 18, 2005.

        The next day, a team decision meeting (“TDM”) was conducted to consider temporary
placement of the children. According to the testimony of Sue Burfield of DCS, present at the
meeting were Mother; the father of one of the other siblings; Lolitha Crook (Mother’s aunt) and her
husband; Latara Williams (Mrs. Crook’s daughter); and several DCS officials and caseworkers,
including Stephanie Hall, the case manager for Carlyle. Ms. Hall testified that Mother requested at
the TDM that the children be placed with Mrs. Crook. She recalled that Mother said nothing at that
time about Ms. Williams being mentally challenged, even though she was aware that Ms. Williams
lived with the Crooks. At the TDM, Ms. Williams’ CPR qualifications were discussed, as well as
her employment history. Ms. Hall acknowledged that Ms. Williams was not individually
interviewed by the DCS team to determine if she posed any threat to the children. At the conclusion
of the TDM, the team concurred with Mother’s request and recommended to the Davidson County
Juvenile Court that the children be placed in the temporary custody of Mrs. Crook. The juvenile
court subsequently awarded such custody to Mrs. Crook on April 20, 2005.

        Mother testified that she did not initially complain about Ms. Williams because she had no
reason to believe that Ms. Williams would be taking care of her children. She stated that she had
requested that her children be placed in the care of Mrs. Crook – rather than leaving them with her
mother or in foster care – because she thought her aunt would be the sole person caring for them.

       Ms. Burfield testified that before DCS recommended that Carlyle be placed in Mrs. Crook’s
home, she performed a criminal background check, sex offender registry review, felon check, and
TennKids and SSMS history search.2 Further, Child Protective Services went out to check the home.
She noted that after the children were placed with Mrs. Crook, DCS and Foster Care closed out their
cases on the children. Ms. Burfield asserted that, to her knowledge, DCS has no duty to supervise
the home environment in this type of placement with a family member.

        Less than a month after the placement of the children, Mother called Ms. Hall to inform her
that Mrs. Crook was away from the home as much as twelve hours a day and that the children were
being cared for by Ms. Williams, who, according to Mother, was mentally incapable of caring for
three young boys. Mother indicated that Ms. Williams had been in Special Education classes and
previously had set fire to the kitchen in the Crook home. Additionally, Mother reported to Ms. Hall
that Carlyle had received a burn while at the Crook home and that she had been unable to determine
how the burn had occurred. Ms. Hall instructed Mother to call in an official referral. According to
the DCS investigative report, “[t]he referral contained allegations of Substantial Risk of Physical


        1
            Initials will be used to protect the anonymity of the siblings of the deceased child.

        2
          SSM S is an acronym for “Social Services Management System.” It is one component of a monitoring system
used by Child Protective Services and Foster Care. TennKids is a newer computer system designed to integrate the
information currently maintained in four systems into one child and family database.

                                                            -2-
Injury to the children because they were being cared for by Latara Williams . . . .” On the same day
the referral was received, Ms. Hall went to the Crook home to investigate the claims.

        Ms. Hall testified that upon arriving at the Crook home, she interviewed Carlyle in a room
separate from the rest of the family and observed the child’s body from the waist up. She saw scars
and a mark that looked like a bite on his back. Ms. Hall remarked that, with the exception of the
burn, the marks appeared to be old. The child reported that the burn on his body had occurred when
he accidently bumped against a hot iron in his closet while reaching for some clothes. Ms. Hall
examined the closet and found an iron on a shelf at the level of the burn on Carlyle’s body. At trial,
she recalled asking the child how he came to have the scars and bite marks on him, but she admitted
that evidence of the inquiry was nowhere in any report, and she did not testify as to his response.
She did not take any photographs or make a drawing of the marks. She testified that Mrs. Crook
advised her that the marks were present on Carlyle when he arrived at her home. Based on that
information, Ms. Hall conducted an online search of the TennKids database and found that Mother
had a previous history of physical abuse.3

        According to the investigative report of record, Ms. Hall related to the Internal Affairs
Division of DCS that, during her interview with him, Carlyle was walking without any visible
impediment, answered all of her questions, and did not seem to be in any type of fear. Ms. Hall
claimed that if she had suspected abuse, she would have never left Carlyle at risk. In her deposition
prior to trial, Ms. Hall described Carlyle’s demeanor during her final interview with him as “still
happy.” She noted that he was “walk[ing] fine.” She recalled that she did not observe any
immediate danger during her time at the Crook home.

        During her trial testimony, Ms. Hall noted that while she had made a basic visual inspection
of Carlyle’s younger brother, C.H., she did not interview Carlyle’s older brother, M.M., or check his
body for any signs of abuse. Ms. Hall acknowledged that she did not separate Ms. Williams from
the rest of the family to interview her, but asserted that, to her knowledge, it was not alleged in the
referral that Ms. Williams was abusing Carlyle. She further commented that she did not recall the
referral stating that Carlyle had been told by Ms. Williams to not tell anybody about how the burn
occurred.4 Ms. Hall noted that Mrs. Crook denied that her daughter had been in Special Education
classes, asserted that Ms. Williams was a CPR-certified lifeguard, and declared that the kitchen fire
occurred accidently. Ms. Hall admitted that it had appeared to her that Ms. Williams was “mentally
delayed.” However, after discussing her findings with her supervisor, based on Carlyle’s non-


         3
          W hen Carlyle was two years old, DCS received a referral indicating that Mother’s minor sons had cigarette
burns, bruises, and bite marks on their bodies. M other claimed at trial that after the 2002 investigation, the allegations
of abuse were thrown out. She further asserted at trial that when Carlyle was taken from her home in April 2005, he had
no bite marks, bruises, or scars.

         4
          In the State’s Responses to Claimant’s Request for Admissions and Interrogatories, the State admitted to an
interrogatory that stated “The referent told DCS that Carlyle had a burn and could not tell her what had happened because
Latara would not let him.” Mother later testified at trial, however, that Carlyle had never actually told her how his arm
got burned and that she really did not know any circumstances of the burn.

                                                           -3-
disclosure of abuse, Ms. Hall determined that the allegations concerning the burn were unfounded
and concluded that there was no evidence that Carlyle was in immediate risk of harm. She testified
that at no point during the investigation of the referral regarding the Crook home did she see
anything that gave her a reason to believe that Carlyle was at risk. The investigation was closed on
May 17, 2005, and no follow up investigation was conducted.

       In response to questions from Mother’s counsel, Ms. Hall further testified as follows
regarding her investigation of the referral:

       Q. Ms. Hall, when you arrived at the Crook home, it was your responsibility to
       protect Carlyle Mullins from any dangerous condition or any condition there that was
       a danger to his safety at the Crook home, wasn’t it?

       A. True.

       Q. And, in fact, when you came to the Crook home that night you had every
       intention to protect Carlyle Mullins from anything . . . that put him in danger, didn’t
       you?

       A. True.

       Q. Now, you also had the authority to remove him at that point if you determined
       that he was in any type of danger, didn’t you?

       A. With supervisor approval.


       Ms. Hall provided the following testimony upon questioning by the State:

       Q. Now, to your knowledge, is there any DCS policy or procedure that requires you
       to keep supervising a home environment after a court has placed custody of a minor
       to a family member and after the case file is closed?

       A. Not to my knowledge.

                                               ***

       Q. Now, when Ms. Mullins called you about the allegations, you told her that you
       couldn’t just go to the home without a referral, that she needed to make an official
       complaint; is that correct?

       A. Correct.



                                                -4-
       Q. And that was because the case file had already been closed –

       A. Correct.

       Q. – that she had to start from scratch?

       A. Correct.

       Q. And as a result, you had to approach this referral as you would an entirely new
       case, right?

       A. Correct.


        On May 26, 2005, Carlyle was admitted to Vanderbilt’s Children’s Hospital, where he was
diagnosed with a right-sided subdural hemorrhage due to head trauma. He was pronounced dead the
following day. An autopsy revealed that the child also had small scars that appeared to be healing
burns on his right back, right shoulder, behind both ears, and a patterned abrasion on his back that
resembled a bite by a human. Carlyle had multiple compression fractures of his thoracic vertebra
which had caused severe injury to his spinal cord. The record reveals that the Medical Examiner
determined the cause of death was inflicted head trauma and that the manner of death was homicide.
Three months later, Ms. Williams was arrested and charged with first-degree murder and aggravated
child abuse.5

        Subsequent to Carlyle’s death, an administrative inquiry conducted by DCS identified several
concerns with how the investigation of the May 17, 2005, referral had been handled. Those concerns
included: no attempt to corroborate or negate concerns about Ms. Williams’ mental capacity; non-
action regarding the past healing injuries; and failure to conduct a perpetrator interview with Ms.
Williams. The official report revealed the following violations of the Tennessee Department of
Personnel Rules and Regulations; Chapter 1120-10-.06 Disciplinary Offenses:

       1. Inefficiency or incompetence in the performance of duties. CM2 Hall
       demonstrated incompetence by not carrying out required investigative tasks during
       the investigation and failing to corroborate or negate all issues/allegations brought
       forth in the narrative of the May 17, 2005 referral.

       2. Negligence in the performance of duties. CM2 Hall neglected to carry out all
       required investigative tasks during her investigation on May 17, 2005.

       12. Participation in any action that would in any way seriously disrupt or
       disturb the normal operation of the agency, institution, department or any other

       5
           The record contains no information as to the outcome of the charges against Ms. Williams.

                                                         -5-
       segment of the State service or would interfere with the ability of management
       to manage. CM2 Hall, by her inability to carry out appropriate investigative actions
       during this case, caused the disruption of proper child protective services to the
       citizens of Tennessee.

       15. Acts that would endanger the lives and property of others. By not
       conducting a perpetrator interview, child interview with sibling [M.M.] and by failing
       to carry out a complete investigation of all allegations in the referral received on May
       17, 2005, CM2 Hall left the Mullins children at risk of further possible abuse at the
       hands of the alleged perpetrator who resided in the Crook household.


         Mother subsequently filed a claim before the Commission alleging that DCS was negligent
in its care, custody, and control of Carlyle pursuant to T.C.A. § 9-8-307(a)(1)(3) by committing the
following acts of negligence:

       1. Failing to maintain proper supervisory control over the actions of Mrs. Crook and
       the care [Carlyle] received in the Crook home;

       2. Failing to conduct an adequate investigation of the environment [Carlyle] was
       being placed into in the first place;

       3. Failing to insure that [Carlyle] was not being subjected to abuse by third parties
       living in the Crook home; such as screening third parties.

       4. Failing to protect [Carlyle] when it was notified of potential danger to him, such
       as remove him from the environment.

       5. Failing to make an adequate investigation to determine how [Carlyle] had been
       injured, thus removing him from the Crook home.


        A trial was held before a Commissioner on October 4, 2007. Upon the finding that no
subject matter jurisdiction existed to consider the claims, Mother filed a timely appeal.


                                             II. ISSUE

       The issue before us is restated as follows:

       Whether, as a matter of law and fact, the negligent conduct and omissions by DCS
       in regard to Mother’s deceased child established subject matter jurisdiction before



                                                 -6-
        the Claims Commission pursuant to T.C.A. § 9-8-307(a)(1)(E), “negligent care,
        custody and control of persons.”6

                                        III. STANDARD OF REVIEW

       Our review of decisions of individual claims commissioners and those of the Claims
Commission are governed by the Tennessee Rules of Appellate Procedure. T.C.A. § 9-8-403(a)(1).
Decisions by the Commission are reviewed pursuant to the standard of review for non-jury cases.
Tenn. R. App. P. 13(d). The factual findings of the Claims Commission are reviewed de novo with
a presumption of correctness. The presumption must be honored unless this court finds that the
evidence preponderates against those findings. Beare Co. v. State, 814 S.W.2d 715, 717 (Tenn.
1991). Questions of law are reviewed de novo, without a presumption of correctness. Crew One
Prods, Inc. v. State, 149 S.W.3d 89, 92 (Tenn. Ct. App. 2004).


                                                IV. DISCUSSION

                                                 JURISDICTION

         In 1984, the General Assembly enlarged individual rights for seeking monetary redress
against the State. T.C.A. § 9-8-307 waived the State’s sovereign immunity in certain limited
situations and created the Tennessee Claims Commission. Stewart v. State, 33 S.W.3d 785, 790
(Tenn. 2000). The Commission has “exclusive jurisdiction” over monetary claims against the State
based on the acts or omissions of State employees falling within certain categories. Id. The purpose
of the Commission is to transfer legal liability to the State from its employees. Walker v. Norris, 917
F.2d 1449, 1458 (6th Cir. 1990). The categories of claims over which the Commission has
jurisdiction are set forth in T.C.A. § 9-8-307. If the claim falls outside the categories specified, “then
the state retains its immunity from suit, and a claimant may not seek relief from the state.” Stewart,
33 S.W.3d at 790; T.C.A. § 9-8-307(a)(1). The statute expresses that “[i]t is the intent of the general
assembly that the jurisdiction of the claims commission be liberally construed to implement the
remedial purposes of this legislation.” T.C.A. § 9-8-307(a)(3). The Stewart Court recognized that,
“although we have traditionally given a strict construction to the scope of the Commission’s
jurisdiction, we also recognize that our primary goal in interpreting statutes is ‘to ascertain and give
effect to the intention and purpose of the legislature.’” 33 S.W.3d at 791. Thus, the Court
determined that when deciding whether the Commission has jurisdiction to hear a claim under the
statute, the courts must give a liberal construction in favor of jurisdiction, “but only so long as (1)


        6
            The Supreme Court has explained that the statute should be interpreted in the disjunctive:

        [I]t is difficult to conceive that the legislature intended to deny jurisdiction in cases where negligent
        control of a person by a state employee resulted in injury, even though the injured person was not
        actually within the care or custody of the state employee.

Stewart v. State, 33 S.W.3d 785, 792 (Tenn. 2000).

                                                           -7-
the particular grant of jurisdiction is ambiguous and admits of several constructions, and (2) the
‘most favorable view in support of the petitioner’s claim’ is not clearly contrary to the statutory
language used by the General Assembly.” Id.

        The jurisdiction granted under the statutes that permit suits against the State, being in
derogation of the State’s inherent exemption from suit, cannot be enlarged by implication. Beare
Co. v. Olsen, 711 S.W.2d 603 (Tenn.1986) (citing Hill v. Beeler, 199 Tenn. 325, 286 S.W.2d 868
(1956)). The Supreme Court stated in Stewart as follows:

        If the legislature intends that its statutes waiving sovereign immunity are to “be
        liberally construed,” then the courts should generally defer to this expressed intention
        in cases where the statutory language legitimately admits of various interpretations.
        A policy of liberal construction of statutes, however, only requires this Court to give
        “the most favorable view in support of the petitioner’s claim,” Brady v. Reed, 186
        Tenn. 556, 563, 212 S.W.2d 378, 381 (1948), and such a policy “does not authorize
        the amendment, alteration or extension of its provisions beyond [the statute’s]
        obvious meaning.” Pollard v. Knox County, 886 S.W.2d 759, 760 (Tenn.1994).
        Moreover, “[w]here a right of action is dependent upon the provisions of a statute we
        are not privileged to create such a right under the guise of a liberal interpretation of
        it.” Hamby v. McDaniel, 559 S.W.2d 774, 777 (Tenn.1977).

Stewart, 33 S.W.3d at 791.

        Mother’s complaint relies upon T.C.A. § 9-8-307(a)(1)(E) -- negligent care, custody and
control of persons -- as its jurisdictional basis. Mother contends that because DCS has a statutory
duty to screen all reports of alleged child abuse and/or neglect and to investigate referrals when
appropriate, it exercised some form of control over her son, even if he was not under the State’s
direct care, custody and control at the time of his death. See T.C.A. § 37-1-401, et seq. She further
argues that DCS was responsible for supervising Carlyle’s environment in the Crook home for the
juvenile court. According to Mother, because DCS was required to actively supervise Carlyle’s
temporary placement, it assumed a duty to act when the Crook home was investigated upon the
referral, thereby becoming subject to the Commission’s jurisdiction. She asserts that the holding in
Stewart supports her position.

        In Stewart, the Tennessee Supreme Court considered whether, under T.C.A. § 9-8-
307(a)(1)(E), jurisdiction could be asserted outside of institutions maintained by the State. Id. The
Court had to determine if a state trooper “had a legal duty to control local police authorities at an
arrest scene – irrespective of whether he had actual care and custody over the deputies – and if he
was negligent in the fulfilment of that duty.” Id. at 792. The Stewart Court first said that no statute,
regulation, or case law decision established a state trooper’s legal duty to supervise local law
enforcement officials at an arrest scene. The Court then held that the state trooper could have a duty
to protect a plaintiff, however, if he assumed such a duty. In construing § 9-8-307(a)(1)(E), the
Stewart Court held that if a state trooper had a legal duty – irrespective of whether he had actual care,


                                                  -8-
custody, and control over the individual – and if he was negligent in the fulfillment of that duty, the
Commission had jurisdiction to hear the case. Id. Therefore, if a State employee assumes a duty to
control a situation and is negligent, the Claims Commission may assume jurisdiction. Id. at 793.

        In its answer to Mother’s complaint, the State asserted the affirmative defense that

        [t]he Claims Commission does not have subject matter jurisdiction over this claim.
        Specifically, the claim does not fall within any of the categories enumerated at Tenn.
        Code Ann. § 9-8-307(a)(1) conferring jurisdiction in the Claims Commission.

The State maintains that Carlyle was not in DCS’s care, custody, or control at the time of the alleged
negligence. Rather, according to the State, Carlyle was in the legal and physical custody of a relative
– his aunt, Mrs. Crook – and she was responsible for his care and control. The State also asserted
that “[t]o the extent that the state employees relied upon the orders of the juvenile court which
reviewed the case and approved the placement of the minor with Lolitha Cook, the state is entitled
to quasi-judicial immunity.7 Tenn. Code Ann. § 9-8-307(d).” The State contends that it was the
juvenile court that placed legal and physical custody of Carlyle with Mrs. Crook’s household – not
DCS.

        In this case, the State relies on holdings in Draper v. State, No. E2002-02722-COA-R3-CV,
2003 WL 22092544 (Tenn. Ct. App. E.S., Sept. 4, 2003) (no application for permission to appeal
filed) and Holloway v. State, No. W2005-01520-COA-R3-CV, 2006 WL 265101 (Tenn. Ct. App.
M.S., Feb. 3, 2006) (permission to appeal granted - Tenn. Aug. 21, 2006).8 In those cases, there was
no proof or allegation that the State had taken the child into its custody, care, and control. The
substance of the complaints in those cases was that the State should have removed the child and
placed it in State custody. Under those facts, this court found that there is no jurisdiction under
T.C.A. § 9-8-307(a)(1)(E) when there is no showing of control, care, or custody of any person that
was exercised negligently:

        [P]laintiff’s interpretation of the statute does not comport with the language adopted
        by the Legislature. While plaintiff relies upon the construction utilized in Stewart,
        the Stewart Court concentrated mainly on the issue of whether there could be state
        control of a person without that person actually being in the care and custody of the
        state. But the Court said, if the state trooper in Stewart has a legal duty to control the
        deputies at the scene, or if he voluntarily assumed such a duty, and was negligent in
        the exercise of that control of persons, then the state could be liable (but the court
        ultimately found that no such duty existed.). Id. There is no similarity between this
        limited factual scenario which the Stewart Court entertained and this case, because


        7
            The order of the juvenile court is not of record.

        8
         Although permission to appeal was granted, the appeal was subsequently dismissed after claimant filed a
motion for voluntary dismissal reflecting that the parties had reached a settlement.

                                                            -9-
        there has been no showing of control, or care, or custody of any person that was
        exercised negligently.

Draper, 2002 WL 22092544, at *3.

        The plaintiff in Draper filed a claim for the wrongful death of a minor child, contending that
the failure of a DCS employee to remove the child from a home led to the child’s death. Id. The
plaintiff also insisted that the State should be held liable for negligently failing to take the child into
state care and/or custody, based upon the statutory obligation to protect abused children. Id. This
court agreed with the finding of the Claims Commissioner that there was a lack of subject matter
jurisdiction under T.C.A. § 9-8-307(a)(1)(E) to review the State’s failure to remove the child or to
take the child into custody:

        We agree with the Commissioner in the instant case that there is neither allegation
        nor proof that the deceased child in this case was ever in the care, custody and control
        of the State. To the contrary, Appellant's action is premised on the failure of the State
        to take care, custody and control of the minor decedent.


The Draper Court also concluded that to the extent that the plaintiff alleged there was liability
because the State has a statutory duty to protect abused children, there was no jurisdiction under
T.C.A. §9-8-307(a)(1)(N), relative to negligent deprivation of statutory rights, because the statute
dealing with removal of abused children does not grant a private right of action for the State’s
negligent failure to remove.

        In Holloway, a T.C.A. § 9-8-307(a)(1)(E) claim was filed against the State by a minor-
decedent’s father alleging that DCS failed to properly investigate several referrals and to take
appropriate action to prevent abuse by the mother which led to a child’s death. The Claims
Commission found that the State did not have care, custody, and control of the minor and, thus, that
it lacked jurisdiction to hear the claims. Id. On appeal, the plaintiff argued that the State had a
statutory duty to conduct a proper investigation regarding a referral concerning his son and was
negligent in the fulfillment of that duty. Id. at *5. The Holloway court held as follows:

        In Draper, as in the case at bar, there was no proof nor allegation that the State had
        taken the child into its custody care and control. The substance of the complaint was
        that the State should have done so. This Court not only noted that there was not a
        grant of proper right of action for the State’s failure to remove, but also found that
        the statute does not confer jurisdiction under Tenn. Code Ann. § 9-8-307(a)(1)(E)
        when the child was not taken into custody by the State.

        We agree with the Commissioner in the instant case that there is neither allegation
        nor proof that the deceased child in this case was ever in the care, custody and control



                                                   -10-
       of the State. To the contrary, Appellant’s action is premised on the failure of the
       State to take care, custody and control of the minor decedent.


Id. at *4. The State therefore contends that because Carlyle was in the custody of a relative and not
in foster care, the reasoning utilized by the courts in Draper and Holloway applies in this case as
well.

        In this case, unlike Draper and Holloway, there is a period of time that the State had taken
custody of the child. When Carlyle was initially removed from Mother’s home by DCS, he was
clearly in the care, custody, and control of the State. In T.C.A. § 37-2-402 (5), “foster care” is
defined as

       the temporary placement of a child in the custody of the department of children’s
       services or any . . . home, whether public or private, for care outside the home of a
       parent or relative (by blood or marriage) of the child, whether such placement is by
       court order, voluntary placement agreement, surrender of parental rights or otherwise.
       ...

The one claim of Mother’s that falls within this time frame is the contention that DCS was negligent
in its investigation of the Crook home prior to Carlyle’s placement there. In its Judgment, the
Claims Commission held, in pertinent part, as follows:

       Ms. Mullins contends that DCS was negligent in that no interview or evaluation of
       Latara Williams was conducted to determine whether she posed a danger to the
       children prior to DCS’s recommendation to the juvenile court that they be placed in
       the Crook home. Defendant argues that DCS is entitled to quasi-judicial immunity
       with respect to its recommendations to a court relative to a child’s custody
       placement, since it performs an essential role in the custody proceedings.

                                                ***

       Social workers acting in an advisory role to a juvenile court are entitled to quasi-
       judicial immunity. Rippy v. Hattaway, 270 F.3d 416 (6th Cir. 2001), cert. denied,
       537 U.S. 812, 123 S.Ct. 72, 154 L.Ed.2d 15 (2002). In Rippy, the Court considered
       whether social[] workers charged with making a recommendation to a juvenile court
       as to whether a child who has been committed to DCS was ready to return home are
       entitled to quasi-judicial immunity. Equating the role of a social worker making a
       recommendation to a juvenile court to a probation officer making a sentencing, the
       Rippy Court noted that:

               The function of making such recommendations, including the
               underlying investigation, is similarly intimately related to the judicial


                                                 -11-
               phase of the child custody proceedings. Social workers involved in
               the investigation or recommendation are, therefore, entitled to
               absolute immunity with respect to claims arising from such
               recommendations and investigations.

       Rippy v. Hattaway, 270 F.3d 416, 422-423. Like Rippy, the proof here is that the
       ultimate decision of where to place the Mullins children was the juvenile court’s.
       DCS, however, was required to make a recommendation relative to that placement,
       and that recommendation and the investigation attendant to the recommendation were
       intimately tied to the judicial process. Therefore, the State, which may raise this
       immunity pursuant to Tenn. Code Ann. § 9-8-307(d), has quasi-judicial immunity.

       Even if DCS employees are not entitled to absolute immunity for acts taken in
       connection with the recommendation to the juvenile court to place the Mullins
       children in the Crook home, the Commission finds the evidence does not
       preponderate in favor of a finding of negligence as to this issue. The proof
       demonstrated that DCS conducted the required criminal and background
       investigation and met with all of the interested parties, including Ms. Mullins, Ms.
       Crook and Latara Williams. There is no evidence that Ms. Williams had any
       previous history of abusive or assaultive behavior that would have been uncovered
       by a more thorough investigation. Although Ms. Mullins stated in her referral on
       May 17, 2005, that Williams had been in special education classes and that she had
       the maturity level of a thirteen year old, there is no proof before the Commission that
       further investigation would have revealed these claims to be accurate or whether in
       fact they were accurate. Nor is [it] clear that either fact would render it more likely
       that Williams would have abused or assaulted Carlyle Mullins.

       The proof established that Ms. Crook’s home was considered as a placement at Ms.
       Mullins[’] request. Ms. Mullins wanted the children to be placed with her aunt,
       despite the fact that she knew Latara Williams and knew that she lived with her aunt.
       None of the other parties at the TDM voiced any concerns relative to Williams.
       Based upon the facts submitted at trial, the Commission cannot conclude that Ms.
       Mullins sustained her burden of demonstrating that DCS’s conduct with respect to
       its recommendation of the Crook household fell beneath the standard of care, such
       that it breached the duty that it owed claimant’s son.


        Despite the fact that she ultimately concluded erroneously that the Commission lacked
jurisdiction to rule on this claim, the evidence does not preponderate against the findings of the
Commissioner. The Court of Appeals may affirm a judgment on different grounds than those relied
upon by the trial court when the trial court reached the correct result. In re Estate of Jones, 183
S.W.3d 372, 378 n. 4 (Tenn. Ct. App. 2005).



                                                -12-
       T.C.A. § 37-2-402 further notes as follows:

       Foster care shall cease at such time as the child is placed with an individual or
       individuals for the purpose of the child’s adoption by the individual or individuals
       or at such time as a petition to adopt is filed, whichever occurs first, or at such time
       as the child is returned to or placed in the care of a parent or relative.

(Emphasis added.). By this definition, upon the juvenile court’s placement of Carlyle with Mrs.
Crook -- a relative -- he left foster care and the care, custody, and control of the State at that time.
Because Carlyle was no longer in the care, custody, and control of the State after he was placed with
his relative, Mrs. Crook, the holdings in Draper and Holloway -- relating to situations where DCS
has been called to the home of a parent or relative upon a referral -- are applicable as to Mother’s
remaining claims. Accordingly, the Claims Commission had no subject matter jurisdiction over
those claims. The Commissioner noted as follows:

       The proof showed that Carlyle Mullins had been placed in the custody of Lolitha
       Crook by the juvenile court and DCS had closed its file and ended its involvement
       in the matter at that time. As in Draper, supra, Carlyle was not in the care or custody
       of the State at the time of the alleged negligent failure to investigate the abuse or to
       remove him from the Crook home. There was no proof that DCS had any continuing
       supervisory duty with respect to Ms. Crook’s custody.

       Ms. Mullins argues, however, relying on Stewart v. State, supra, that Hall had a
       statutory duty to properly investigate abuse and to protect the child when abuse is
       disclosed. In Stewart, the Court held that under section 9-8-307(a)(1)(E), “care,
       custody, and control” is not limited to persons confined in institutions maintained by
       the State, but rather may also include a person whom a State official has a legal duty
       to control, even if the person is not actually within the control of the State official at
       the time of the incident. Stewart, 33 S.W.3d at 792. This argument, however,
       appears to be identical to the one rejected by the Court of Appeals in Draper, where
       the Court noted:

               While plaintiff relies upon the construction utilized in Stewart, the
               Stewart Court concentrated mainly on the issue of whether there
               could be state control of a person without that person actually being
               [in] the care and custody of the state. But the Court said, if the state
               trooper in Stewart had a legal duty to control the deputies at the
               scene, or if he voluntarily assumed such a duty, and was negligent in
               the exercise of the control of persons, then the state could be liable
               (but the court ultimately found that no such duty existed.). Id. There
               is no similarity between this limited factual scenario which the
               Stewart Court entertained and this case, because there has been no



                                                 -13-
               showing of control, or care or custody of any person that was
               exercised negligently.

       Draper v. State, 2. Furthermore, the Draper Court determined, an argument that the
       state owed and breached a duty to protect a child under the child abuse statutes, is
       essentially a claim for negligent deprivation of a statutory right, Tenn. Code Ann. §
       9-8-307(a)(1)(N). That statute, however requires “that the general assembly
       expressly conferred a private right of action in favor of the claimant against the state
       for the state’s violation of the particular statute’s provisions[.]” Tenn. Code Ann. §
       9-8-307(a)(1)(N) (emphasis added). Because Ms. Mullins has not identified a private
       right of action expressly conferred upon her for the State’s violation of [t]his statute,
       there is no subject matter jurisdiction under this provision.

        Additionally, prior to trial, in an order denying the State’s motion to dismiss, the Claims
Commissioner observed that while Mother had cited no statute, rule, or policy with respect to her
claim that DCS had a duty to supervise temporary placements for the juvenile court, the State had
not directly addressed whether it has such a duty. Thus, the Commissioner found that a duty to
supervise the temporary placement, if established, could constitute control within the meaning of
Stewart and T.C.A. § 9-8-307(a)(1)(E). In that order, however, the Commissioner specifically ruled
that Ms. Hall, when she investigated the referral on May 17, 2005, had not voluntarily undertaken
to act where she had no responsibility and that she could not be deemed to have assumed a duty. In
the final judgment, the Commissioner ruled as follows:

       Ms. Mullins also distinguishes this claim on the basis that Ms. Hall assumed the duty
       to act and protect the child. The evidence relied upon for this assertion is Ms. Hall’s
       testimony that she knew and understood that she had a responsibility to protect
       Carlyle Mullins and further that it was her intent to protect him when she came to the
       home on May 17, 2005.

       Ms. Hall did not in fact remove Carlyle Mullins from custody and testified that she
       personally lacked the authority to remove the child. While one who affirmatively
       acts, even though not required to, may be required to exercise due care, Ms. Hall’s
       subjective thoughts and intentions are insufficient bases for concluding that she
       assumed a duty to act or that liability should ensue from its breach. Based upon the
       decisions in Draper and Holloway, the Commission concludes that claimant’s
       allegation that DCS was negligent in its care, custody and control of Carlyle Mullins
       because it failed to insure that he was not being subjected to abuse in the Crook home
       is not within its subject matter jurisdiction.


     We conclude that the evidence does not preponderate against the findings of the Claims
Commissioner that she lacked subject matter jurisdiction to consider Mother’s remaining claims.



                                                 -14-
                                         NEGLIGENCE

        Even though the Commissioner held that the Claims Commission did not have jurisdiction
to hear Mother’s claims, a finding was made that negligence on the part of DCS had not been
established. The Commissioner noted as follows:

       [E]ven assuming that the allegations made here came within the Commission’s
       jurisdiction, Ms. Mullins must still prove that DCS’s negligence was the proximate
       cause and cause in fact of the injuries alleged. It is well settled that “proof of
       negligence without proof of causation is nothing.” Mosley v. Metropolitan
       Government of Nashville and Davidson County, 155 S.W.3d 119 (Tenn. Ct. App.
       2004). “A negligence claim requires proof of two types of causation: causation in
       fact and proximate cause.” Hale v. Ostrow, 166 S.W.3d 713, 718 (Tenn. 2005).
       Both must be proven by the plaintiff by a preponderance of the evidence.” Kilpatrick
       v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993). If testimony in a lawsuit leaves a
       determinative fact unresolved, then the evidence does not preponderate. See Reserve
       Life Ins. Co. v. Whittemore, 442 S.W.2d 266, 275 (Tenn. Ct. App. 1969).

       Thus, Ms. Mullins bears the burden of proving that the negligence alleged -- the
       failure to fully investigate the referral received from Ms. Mullins on May 17, 2005 --
       was the cause in fact and proximate cause of the injuries alleged. These are different
       inquiries. Cause in fact requires a determination of the cause and effect relationship
       between the defendant’s breach of the duty of care and the plaintiff’s injury.
       “Causation, or cause in fact, means that the injury or harm would not have occurred
       ‘but for’ the defendant’s negligent conduct.” Willis v. Settle, 162 S.W.3d 169 (Tenn.
       Ct. App. 2004), citing Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993).

       In order to be considered a cause in fact of an injury, the defendant’s conduct must
       be shown to have been a “necessary antecedent” to the plaintiff’s injury. Waste
       Management, Inc. of Tennessee v. South Central Bell Telephone Co., 15 S.W.3d 425,
       432 (Tenn. Ct. App. 1997). Tennessee’s courts have consistently recognized that
       conduct cannot be a cause in fact of an injury when the injury would have occurred
       even if the conduct had not taken place. Id. at 430-431.

       In addition to showing that the defendant’s conduct was the cause in fact of his
       injury, a plaintiff must also prove that his injuries were proximately caused by the
       defendant’s conduct. In Tennessee, there is a three-pronged test for proximate
       causation: (1) the tortfeasor’s conduct must have been a “substantial factor” in
       bringing about the harm being complained of; and (2) there is no rule or policy that
       should relieve the wrongdoer from liability because of the manner in which the
       negligence has resulted in the harm; and (3) the harm giving rise to the action could
       have reasonably been foreseen or anticipated by a person of ordinary intelligence and
       prudence. McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991). Thus,


                                               -15-
proximate cause, or legal cause, concerns a determination of whether legal liability
should be imposed where cause in fact has been established. Bennett v. Putnam
County, 47 S.W.3d 438, 443 (Tenn. Ct. App. 2000).

Ms. Mullins relies upon the IAD Investigative report and the concerns and violations
of department rules and regulations identified in that report as proof of negligence.
Thus, a finding of liability on the part of the State must necessarily rest upon a
finding that had there been no rule violations, Carlyle Mullins’ death would not have
occurred. The facts, however, do not support this conclusion.

There are a number of facts, which although sad and disturbing, must be considered.
First, Carlyle Mullins was removed from an abusive home in which he lived with a
drug-addicted mother and two siblings on April 18, 2005, and was taken into foster
care. There was at least one prior unconfirmed report of physical abuse while he was
in his mother’s care known to DCS. At his mother[’s] request, Carlyle was placed
in the custody of an aunt, Lolitha Crook, on April 20, 2005. He remained there until
he was admitted to Vanderbilt on May 26, 2005, having been subjected to fatal abuse
at the Crook home.

There is no documented record of any wounds or scars that Carlyle Mullins may have
had at the time of his placement with Ms. Crook. Ms. Mullins denies that he had any
marks when he was removed from her custody. However, Ms. Mullins’ role as
claimant in this matter and the fact that a contrary response would have been
personally incriminating casts doubt on her credibility as to this issue. The
Commission considers the question unresolved.

At some point prior to his death, Carlyle received what appeared to be a bite mark on
his lower back. The autopsy report contains the following references to a bite mark:
“Human bite mark on the left lower back.” Autopsy Report, p.2. “The left side of
the lower back shows multiple abrasions in the pattern of a bite mark.” Autopsy
Report, p. 3. “The skin of the back showed a patterned abrasion consistent with a
bite mark.”

No information is contained in the report concerning the probable length of time that
the mark had been present or when it was made. No proof was offered that would
identify the person who inflicted the bite. There is no proof that Latara Williams
caused the bite marks.

Similarly, the Autopsy Report also reflects that Carlyle had a number of
hypopigmented healing scars on his body, which the medical examiner concluded
appeared to be healing burns. There is no information as to how or when the wounds
were made. Claimant offered no proof that the marks were caused by Latara
Williams.


                                        -16-
       Claimant’s argument asks the Commission to assume that had Ms. Hall’s
       investigation been free of the errors identified in the IAD Report, Carlyle would have
       been removed from the home. The IAD report reflects that Ms. Hall failed to carry
       out required investigative tasks and to corroborate or refute all of the allegations
       raised in the referral. Those allegations were: that Latara Williams was mentally
       incapable of caring for three small children while Lolitha Crook was absent from the
       home at work, completing an internship and attending foster care classes; that Latara
       had been in special education classes, had the maturity level of a thirteen year old,
       and had burned up the kitchen.

       Aside from Ms. Hall’s note reflecting her observation that Williams may have been
       “mentally delayed,” and Ms. Mullins’ statements that Williams had been in special
       education and “had the maturity of a thirteen year old,” little evidence was offered
       at trial about Williams other than her arrest for first degree murder and aggravated
       child abuse subsequent to Carlyle Mullins’ death. No evidence was offered
       concerning the issues raised in the IAD report, namely, whether Williams’ mental
       capacity was sufficient to permit her to care for three small children. Because there
       is no proof concerning her placement in special education classes, CPR certification,
       or whether she was in any way unqualified to care for the Mullins children, the
       Commission cannot say that further investigation into these facts would have resulted
       in the decision to remove them. Moreover, the relationship between some of these
       fact[s] and Carlyle[] Mullins’ injuries is not immediately apparent. There was no
       evidence offered that Williams’ placement in special education, her lack of CPR
       certification or lifeguard qualifications would make it more likely that she would
       subject Carlyle to blunt trauma sufficient to cause his death.

       Similarly, although Ms. Hall admitted that she did not examine or interview Carlyle’s
       older brother M.M., there is no proof that had she done so she would have
       determined that M.M. was also being abused or that he had knowledge of any abuse
       of Carlyle. Ms. Mullins bears the burden of proving causation by a preponderance
       of the evidence. Because there is only speculative proof that Carlyle Mullins would
       not have been abused but for Ms. Hall’s negligence with respect to the investigation
       of Ms. Mullins’ referral, the Commission cannot conclude that any negligence by the
       State was sufficiently causally related to his injuries to impose liability for his
       unfortunate death.

                                                ***

(Footnotes omitted).


       When the State is accused of negligence under T.C.A. § 9-8-307(a)(1)(E), its liability is based
on the traditional tort concepts of duty and “the reasonably prudent person’s standard of care.”


                                                -17-
T.C.A. § 9-8-307(c). Under Tennessee law, in order to recover under a theory of common law
negligence, a plaintiff must establish the following elements:

       (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the
       applicable standard of care amounting to a breach of that duty; (3) an injury or loss;
       (4) causation in fact; and (5) proximate, or legal, cause.

McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991).

        The State argues that it cannot be shown that the alleged negligence of DCS was the
proximate cause of Carlyle’s death. According to the State, Mother cannot establish that an
immediate risk of harm -- necessary for the emergency removal -- would have been revealed if Ms.
Hall or DCS had conducted a better interview and more comprehensive investigation. The State
notes that while it is undisputed that DCS found Ms. Hall’s actions in this matter to be
unsatisfactory, those findings, standing alone, do not prove that DCS was negligent.

        Upon careful review of the record and the applicable law, we are persuaded that even if
subject matter jurisdiction existed in regard to these claims, there could be no recovery as a matter
of law. The proximate cause of the death was apparently the actions of Ms. Williams, as opposed
to anything that the State may or may not have done. While, theoretically, an argument could be
made that the actions of DCS were, to some extent, responsible for Carlyle’s death,

       the rule is that where two distinct causes, unrelated in operation, one of them being
       the “direct cause” and the other furnishing the condition by which the injury was
       made possible, the former alone is to be regarded as the proximate cause of the result.

Ward v. Univ. of the South, 354 S.W.2d 246, 251 (Tenn. 1962). Thus, even assuming that the
actions of DCS were unsatisfactory, such actions were not the legal cause of Carlyle’s death.


                                        V. CONCLUSION

        With the exception of the claim concerning the investigation of the placement of the child
in the Crook home -- an event that occurred during the period of time that Carlyle was within the
care, custody, and control of the State -- we conclude that the evidence does not preponderate against
the findings of the Commissioner. On that claim, however, the Commissioner arrived at the proper
result. Accordingly, the decision of the Claims Commission is affirmed as modified. Costs on
appeal are taxed to the Appellant, Candace Mullins. This case is remanded to the Claims
Commission for further proceedings, pursuant to applicable law.


                                                       ___________________________________
                                                       JOHN W. McCLARTY, JUDGE


                                                -18-
