Board of Claims dismisses lawsuit over toddler’s death; attorney files appeal

A Williamsburg attorney is asking a Whitley Circuit Judge to overrule an order by the Kentucky Board of Claims dismissing a claim made by a local father that blames the death of a Whitley County toddler in late 2013 on the failure of social workers to take action.

The case involves the death of Williamsburg toddler Madisyn Davis who was found dead in her bed Nov. 20, 2013. The girl’s mother, Trina White, 36, and live-in boyfriend Mark Hyden, 35, were arrested and charged with murder in the wake of an investigation into Davis’ death. Both have pleaded not guilty and are incarcerated awaiting trial in Whitley County Circuit Court.
Police believe Madisyn died of "blunt force trauma" to the head and asphyxiation.

Williamsburg attorneys John Reynolds and B.J. Foley filed the action before the Board of Claims on Nov. 19, 2014 on behalf of Davis’ biological father Jason Davis, who is also incarcerated on theft charges.

Reynolds said that Madisyn’s death was preventable had workers with Child Protective Services (CPS) done a proper investigation when local attorney Jim Wren called in a complaint to the CPS office two months before her death.
Child protective services argued in legal filings that when Wren called a complaint of possible neglect into a Child Protective Services intake worker, only sketchy information about "possible" abuse was given, but was not enough to be actionable.
Documents included in the case detail how White was a perpetual drug user who had an extensive criminal history that included 24 separate criminal charges, excluding the most recent murder charge, ranging from minor traffic offenses to one case, in 2011, where she was accused of manufacturing methamphetamine in a home with her daughter present. She also apparently lost custody of her first child in 2004.

The case was filed and proceeded before the Kentucky Board of Claims because government agencies cannot typically be directly sued in courts because of a legal principal called "Sovereign Immunity" which provides a shield from most legal claims. Instead, Kentucky law allows individuals harmed by state agencies to take their case to the Board of Claims. Monetary compensation with the Board of Claims is capped at $200,000.

On April 16, James F. Sullivan, chair of the Board of Claims, issued an order dismissing the case for failure to state a claim upon which relief can be granted.

Sullivan notes in the order that the board has jurisdiction over negligence claims against the commonwealth, but has jurisdiction over the negligent performance of ministerial acts only.

"The Board finds, however, that an intake worker for the Cabinet of Health & Family Services who screens abuse and neglect calls pursuant to KRS 62.040(1)(b) and (2)(b) is engaging in a prototypical discretionary function," Sullivan wrote.

Sullivan’s order quotes a Kentucky Supreme Court ruling that states discretionary acts or functions are those that necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued.

"In the instant claim, the Respondent’s employee used discretion in choosing which lawful course to pursue upon receipt of the verbal report and, as such, the Board finds that it has no jurisdiction over this matter," Sullivan wrote.

On May 29, Reynolds filed a notice of appeal in Whitley Circuit Court requesting that the court remand this case to the Board of Claims for further proceedings.

In his statement of appeal, Reynolds argues that the board of claims erred in finding that the acts and/or omissions of the intake social service worker were ‘discretionary" rather than "ministerial" there by granting qualified official immunity to public employees.

Reynolds argues in the appeal that discretionary acts are those involving the exercise of discretion and judgment, or personal deliberation, decision and judgment.

"Discretion in the manner of the performance of an act arises when the act may be performed in one of two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed," Reynolds wrote.

By contrast, a ministerial act is one that requires only obedience to the orders of others, or when the officer’s duty is absolute, certain and imperative, involving merely execution of a specific act arising from fixed and designated facts.

"The decision to accept or not accept a referral is a mandatory decision under the Cabinet’s Standard of Procedures (SOP) and unlike any other decision made during the intake process," Reynolds wrote.

"It can mean the difference between life and death for numbers of children in the Commonwealth each year. This decision is mandatory and imperative in that it ‘has’ to be made under certain circumstances and under the regulations, statutes and SOPs as promulgated by the state and federal governments. Claimant maintains that they are in place to keep this particular decision from becoming arbitrary in nature and then allowing the Cabinet to hide behind the cloak of immunity."

Reynolds contends that to find this decision is discretionary without enforcing the SOP’s related to it could lead to arbitrary decisions being made as occurred in Madisyn’s case.

There were several pieces of information gathered by the intake social service worker from their own records that were ignored, the appeal states.

"These items alone required acceptance of the referral pursuant to mandatory guidelines," Reynolds argued.

Among those records was information that White had a child taken from her by Child Protective Services based upon her substance abuse and neglect.

The Cabinet’s standard operating procedure mandates that the intake social service worker accept a report alleging risk of physical harm if a caretaker has a documented history of child or adult abuse, including a caretaker with a previous termination of parental rights judgment, the appeal stated.

"The SOP does not say that the referral ‘may be accepted," Reynolds wrote.

The appeal further alleged that Wren’s intake call referral established a "risk of harm’ to Madisyn based on White’s inappropriate disciplining her at a restaurant, and contained a substance abuse allegation.

"Claimant maintains that the substance abuse allegation, although it does use the word ‘may’, in and of itself, required that the referral be accepted," Reynolds wrote. "Substance abuse cases have a high degree of recidivism. This fact coupled with Trina’s history, as admitted to by the CPS in its own records, establishes that the injury or death of Madisyn at the hands of Trina, or some other person, was clearly foreseeable."

The appeal asks the court to remand the case back to the board of claims for further proceedings.

So far the cabinet has not filed a response to the appeal and no hearing date has been scheduled before Whitley Circuit Judge Dan Ballou.