Jones, et al. v. Massachusetts Department of Children & Families (Lawyers Weekly No. 09-001-18)

COMMONWEALTH OF MASSACHUSETTS   SUFFOLK, ss                                                                                                                                    SUPERIOR COURT 1784CV00586                                                 THERESE JONES and MAXWELL JONES                          BY HIS MOTHER AND NEXT FRIEND, THERESE JONES                                                                                v.                                              MASSACHUSETTS DEPARTMENT OF                                                        CHILDREN & FAMILIES                                           MEMORANDUM OF DECISION AND ORDER                                         ON DEFENDANT’S MOTION TO DISMISS       This case arises out of the decision of defendant Massachusetts Department of Children and Families (“DCF”) to take emergency custody of minor plaintiff Maxwell Jones (“Maxwell”).  This decision followed a statutorily mandated investigation in which DCF learned that plaintiff Therese Jones (“Ms. Jones”) had left her three-year old son sleeping alone in a Marriott hotel room while she drank with friends at the hotel bar.  Plaintiffs’ Complaint concedes that Ms. Jones left the infant Maxwell alone in her hotel room when she “ran into a few work friends and had a few drinks,” but insists that she “checked in on her son every ten to fifteen minutes.”   Plaintiffs have brought negligence claims against DCF, asserted under the Massachusetts Tort Claims Act, G.L. c. 258 (the “MTCA”).  Plaintiffs contend that Ms. Jones “ha[d] never been arrested, had no criminal record, and had no previous contact or investigation with DCF,” facts that DCF purportedly “failed to investigate.”  In these circumstances, plaintiffs charge, the decision to take Maxwell into emergency custody and remove him from the care of his mother was “wrongful.” DCF has now moved to dismiss the Complaint, both for failure to state a claim pursuant to Mass. R. Civ. P. 12(b)(6) and for lack of subject matter jurisdiction pursuant to Mass. R. Civ. P. 12(b)(1).  DCF maintains that the Complaint sets forth no facts plausibly suggesting negligence on the part of DCF.  DCF alternatively argues that even otherwise viable negligence claims of the type asserted by the plaintiffs in this case must be dismissed, because they fall within the MTCA’s “discretionary function” exemption, G.L. c. 258, _ 10(b). DISCUSSION At the outset, the Court expresses doubt that the plaintiffs have stated viable claims for negligence, as the facts pleaded in the Complaint do no more than attach conclusory labels – viz.,  a “failure to investigate” and a “wrongful” decision to assume custody of the minor child – to the conduct of the defendant.  Beyond such labels, the Complaint sets forth no facts permitting a plausible inference that DCF’s investigative actions and decisions were improper in any respect.  Plaintiffs stress that Ms. Jones “checked in on her son every ten to fifteen minutes,” but do not dispute that Ms. Jones left the child unattended in a strange hotel room for substantial periods of time while she consumed alcohol in a bar.  DCF […]

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