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



SUFFOLK, ss                                                                                                                                    SUPERIOR COURT

  1. 1784CV00586





                                        THERESE JONES and MAXWELL JONES





                                           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).


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 findings of neglect by caretakers have been upheld in similar circumstances.  See, e.g., Lindsay v. Department of Social Services, 439 Mass. 789, 798-800 (2013) (upholding finding of neglect against caretaker who left child in a car for two to three hours); K.M. v. Department of Children & Families, 81 Mass. App. Ct. 1102, 2011 WL 6094762 at * 1-2 (2011) (Unpub. Rule 1:28 Decision) (upholding finding of neglect where caretaker left two-year old child alone in classroom for 15-25 minutes).

Plaintiffs likewise allege that a more assiduous investigation would have revealed that Ms. Jones had no criminal record or history with DCF.  Yet the Complaint nowhere suggests that the failure to discover these facts was in any way material to the reasonableness of  DCF’s investigation or its decision to take Maxwell into emergency custody.  Nothing in either the law or common sense precludes DCF from taking action to protect a child from first-time abusers; and the cases are legion in which reviewing courts have upheld actions of the agency doing just that.  The allegations in the Complaint, therefore, appear to be deficient both as to the putative negligence of DCF and the causal link between the omissions of the agency and the harm suffered by the plaintiffs.

That being said, the Court need not reach the question of whether the allegations pleaded in the Complaint state viable negligence claims (the resolution of which it would ordinarily defer to a Rule 56 motion after the development of a fuller evidentiary record).  This is because the MTCA claims plaintiffs have put forward are barred by the “discretionary function” exemption of Section 10(b) of the statute.


Mass. G.L. c. 258, _ 10(b) sets forth an exemption from the waiver of sovereign immunity that otherwise allows public employers to be held liable for injuries caused by the negligent or wrongful conduct of public employees acting within the scope of their employment.  See G.L. c. 258, _ 2.  That exemption provides that public employers shall not be liable for “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused.”  G.L. c. 258, _ 10(b).  The purpose of this exemption is to shield government entities and their personnel from civil liabilities associated with the inherently challenging policy determinations and judgment calls that must be made in connection with their work.  See Pina v. Commonwealth, 400 Mass. 408, 413-15 (1987).

In the leading SJC case expounding the discretionary function exemption, Sena v. Commonwealth, 417 Mass. 250 (1994), the Court held that the exemption barred negligence claims challenging the investigative and prosecutorial decisions of law enforcement personnel.  Id. at 256.  The Court found that police officers exercise “quintessential discretion” when making these kinds of decisions, because they must “rely on their own judgment, based on their experience and their knowledge of the law[,] to determine what evidence to seek, how to gather that evidence, and whether and when to apply for warrants.”  Id.  Such decisions, in turn, call for the protection of the Section 10(b) exemption because they are “based on considerations of, and necessarily affect, public policy.”  Id.

Two decisions of this Court have applied the teaching of Sena to bar negligence claims asserted against DCF and its predecessor agency in analogous circumstances.  In Suarez v. Belli, No. CA96-00748, 1997 WL 39918 (Mass. Super. Ct. Jan. 13, 1997) (Hely, J.), the plaintiff alleged that DCF social workers had conducted a “procedurally inadequate, faulty, and unfair investigation,” and had “engaged in unspecified negligence in the course of [its] care and protection investigation and proceedings.”  Id at * 4.  Relying on Sena, the Court dismissed the negligence claims as barred by the discretionary function exemption of Section 10(b).  Noting DCF’s quasi-prosecutorial role, the Court wrote:

“The functions of the Department employees in this

case in deciding ‘whether, when, how, and whom’

to investigate and whether and when to initiate


court proceedings are similar in many important

respects to the investigative functions of the

police officers in Sena.  The discretionary function

immunity applies as a matter of law to the allegations

of negligence by Department employees in this



Id. (allowing motion to dismiss).


Similarly, in Serrano. Mass. Department of Social Services, No. 022538A, 2007 WL 1631010 (Mass. Super. Ct. May 8, 2007) (Fecteau, J.), the Court applied Section 10(b)’s discretionary function immunity to bar a claim of negligence against DCF’s predecessor in connection with the placement of a child in its care into a residential facility.  The Court wrote that “[DCF] must be able to freely exercise its discretion when making often difficult and complex decisions about child placement without fear of liability.”  Id. at 7.

Suarez and Serrano rightly recognize that, when conducting an investigation and making the statutorily mandated determination of whether to take custody of a child who has been the subject of a Section 51A report of abuse or neglect, DCF is thrust into a complex role that combines features of law enforcement and policy construction.  Agency staff are called upon to exercise professional judgment, weigh competing evidence, make assessments of credibility, and interpret principles of law as they apply to the question of whether there is “reasonable cause” to believe a child’s continued placement with particular parents exposes him/her to an immediate risk of abuse or neglect.  See G.L. c. 119, _ 51B(c).  Indeed, the inherently discretionary and interest-balancing nature of DCF’s mandate in this regard finds clear expression in the statement of policy set forth in the agency’s enabling statute:

“It is hereby declared to be the policy of the commonwealth

to direct its efforts, first, to the strengthening and encouragement


of family life for the care and protection of children;

to assist and encourage the use by any family of all

available resources to this end; and to provide substitute

care of children only when the family itself or the

resources available to the family are unable to provide

the necessary care and protection to [e]nsure the rights

of any child to sound health and normal physical, mental,

spiritual and moral development.”


Mass. G.L. c. 119, _ 1.


In the case at bar, the Complaint’s negligence claims, on their face, assail the adequacy of DCF’s investigation and the reasonableness of its determination to take emergency custody of Maxwell.  Such claims represent a direct challenge to the exercise of discretionary functions by DCF staff; and, in accordance with the foregoing authorities, they fall squarely within the sweep of the immunity conferred by Section 10(b).

In opposition to DCF’s Motion to Dismiss, the plaintiffs assert just two arguments.  First, the plaintiffs contend that, while DCF’s determination to take custody of Maxwell might reflect the exercise of discretionary function, the mechanics of its underlying investigation (purported to have been negligently performed) do not.  The Court does not agree.  The child custody determination and the agency investigation precipitating it are, in fact, part and parcel of the same exercise of professional judgment.  The two cannot be segregated in the manner plaintiffs suggest.  Regardless, how DCF carries out an investigation, what leads to pursue, whom to interview, what considerations to assign greatest and least weight, and with what degree of alacrity to make its custody call are every bit the matters of discretion that the ultimate determination itself is.  Suarez is precisely to this effect.


In the alternative, the plaintiffs maintain that the applicability of Section 10(b) immunity turns on the specific facts of each case, and must therefore be deferred to a Rule 56 motion that can be evaluated on a fuller evidentiary record.  Plaintiffs are half-right.  The Section 10(b) determination does entail a fact-specific inquiry into the nature of the claims being asserted; but it is simply not the case that this inquiry cannot be made in the precincts of Rule 12.  Numerous claims under the MTCA have been dismissed on Section 10(b) grounds at the motion to dismiss stage.  See, e.g., Jones v. Office of Suffolk County D.A., 82 Mass. App. Ct. 1101, 2012 WL 2159258 (Unpub. Rule 1:28 Dec.) (2012); LeBlanc v. Commonwealth, 75 Mass. App. Ct. 419, 420 (2010).  Indeed, the statutory immunity itself would be of marginal value to the public entities and employees it seeks to protect if barred claims could only be dismissed following the completion of costly discovery.[1]


In accordance with the foregoing, plaintiffs’ negligence claims are barred by the statutory immunity conferred upon agents of defendant DCF exercising discretionary functions.  The Complaint, therefore, shall be, and hereby is, DISMISSED.



Robert B. Gordon

Justice of the Superior Court




Dated:     January 19, 2018





[1]To the extent the plaintiffs’ quarrel is with the reasonableness of DCF’s actions – investigational and decisional – on the merits, they had every opportunity to pursue the same within the agency under the fair hearing procedures of Chapter 119, or through the courts under the administrative review procedures of Chapter 30A.  Plaintiffs’ explanation for having abjured such recourse – the inability to recover money damages therein – will obviously not rescue their negligence claim from the bar of the MTCA’s discretionary function exemption.

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