Where a child was removed from his parents’ custody by the Department of Children’s Services (DCS) and placed in a home that DCS’s own investigation had found to be unsafe, and the child later died while in that home, the Claims Commission had subject matter jurisdiction of the parents’ negligence claim because the child was in the care, custody, or control of the State when the negligent inspection and recommendation for placement was made.
In Green v. State of Tennessee, No. M2020-01244-COA-R3-CV (Tenn. Ct. App. Dec. 15, 2021), plaintiffs were the parents of three minor children. After receiving a report of abuse and/or neglect concerning the children, DCS removed the children and the mother signed an Immediate Protection Agreement (IPA) stating that temporary custody would be given to the children’s grandparents. Ms. McSwain was the DCS case manager assigned to the case, but a DCS staff member in the grandparents’ county visited the home and found it to be unsafe, specifically noting that there was not “sufficient furniture for safe sleep.” Despite that finding, Ms. McSwain placed the children in the grandparents’ home, and she never visited the home or followed up to see if any changes had been made. A court order granting temporary custody to the grandparents was eventually entered. Four months after being placed with the grandparents, one of the children died “from co-sleeping in a recliner with [the grandmother].” Ms. McSwain and her supervisor “were subsequently terminated by DCS for negligence.”
Parents brought this negligence suit against the State pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(E), and the State filed a motion to dismiss asserting that the Claims Commission did not have subject matter jurisdiction of the case. The State argued that because there was a court order granting temporary custody to the grandparents in place when the child died, the child was not in the State’s “care, custody, and control,” which is required by the statute. The Claims Commission agreed with the state, finding that the case did not fall within the subsection cited by plaintiffs, that governmental immunity was therefore not waived, and that it accordingly did not have subject matter jurisdiction. This holding was reversed on appeal.