Hand down list

Mississippi Department of Human Services and Richard Berry, in His Capacity of Executive Director of MDHS v. D.C., by and through his Next Friend and Natural Mother, Georgia Morin –  suit against DHS for sexual abuse by foster parent – D.C. sued MDHS after he was sexually abused by his foster parent Jason Case.  Jason Case applied with DHS to be a foster parent. He passed the requisite background checks but he was later accused of having sexually abused two  brothers who had been placed in his care.   DHS determined that the allegations of physical abuse were unsubstantiated. It then placed D. C. in Case’s care.   DHS filed motions for summary judgment which were denied.  DHS sought an interlocutory appeal which was granted.  The MSSC affirms in part and reverses in part.  It finds that the circuit court erred in denying DHS summary judgment for D.C.’s claims that stem from DHS’s licensing of the foster home, given the immunity DHS and its officers have under Section 43-15-125.  The circuit court, though, did not err in denying DHS summary judgment under Section 11-46-9(d)(1) (discretionary function immunity)   because DHS did not meet its burden to show that no genuine issue as to any material fact existed. “D.C. made multiple allegations outside of the context of the licensure of the foster home.  D.C. argued that DHS ‘fail[ed] to establish and enforce proper and adequate procedures, policies and practices relating to children in the custody and control of []DHS’ and ‘fail[ed] to protect [D.C.] from har[m] perpetrated by agents of []DHS who had the responsibility for the care and custody of [D.C.].’  Also, Count Four alleged that DHS failed “to adequately and properly oversee and monitor the care and treatment of’ D.C.  Further, Count Five argued that DHS failed ‘to monitor [D.C.]’s care and treatment.’  Similar allegations of the lack of care and treatment of foster children have been recognized as actionable under the MTCA.  See Miss. Dep’t of Human Servs. v. S.W., 974 So. 2d 253, 259–60 (Miss. Ct. App. 2007) (finding that discretionary immunity did not bar suit when DHS did not ‘adhere to the minimum contact requirements[,] . . . .  terminate[d] an investigation without fully performing the outlined duties’ and  ‘failed to ensure that [the foster child] actually received the counseling for quite some time.’).    

  DHS’s motion for summary judgment failed to demonstrate that there was no genuine issue of any material fact on these claims.  While DHS did allege in its motion that it followed ‘[a]ll policies and procedures,’ there was no support for this allegation outside of the context of licensure of the foster home.”

 The Court grants cert in Sharon Mark v. City of Hattiesburg, Mississippi, Mayor Johnny Dupree, Kim Bradley, Deborah Denard Delgado, Carter Carroll, Dave Ware and Henry E. Naylor (the link is to the COA opinion) – Sharon Mark started working for the City in 1991 as a records clerk.  In 2004 she became the city clerk. In 2012 rumors began circulating that there were problems in the municipal courts.  Some of these rumors involved Mrs. Mark. She sued claiming the defendants slandered her and released confidential medical information (Mrs. Mark was ill  and had taken some leave during the summer of 2012).  The trial court granted summary judgment to the City and then a directed verdict for the individual defendants. Mrs. Mark appealed.  The COA affirmed.  Mrs. Mark’s cert. petition