Child in care, custody, or control of State between removal from parent’s home and entry of custody order by juvenile court.

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.

In its analysis, the Court of Appeals cited lengthily from two previous cases which together showed that a child is likely not within the custody of the State once a court order regarding custody is entered, but would be considered within the custody of the State during the time between removal from a parent’s home and the entry of the court order. (See Mullins v. State, 320 S.W.3d 273 (Tenn. 2010) and In re Demitrus, No. E2009-02349-COA-R3-CV, 2011 WL 863288 (Tenn. Ct. App. Mar. 14, 2011)). The Court ultimately determined that while the child in this case was not in the State’s care, custody, or control at the time of his death, the negligence complained of in this instance was the negligent review of the grandparents’ home and negligent decision to place the children there despite the unsafe findings. At the time of those actions, the child was in DCS’s care, custody, or control.

The Court reasoned:

[I]n the instant action, Parents asserted a claim of negligence by DCS with regard to its investigation of Grandparents’ home and its recommendation that the Child be placed there despite the fact that DCS employees had knowledge that Grandparents’ home was unsuitable. As such, this claim is based on alleged negligence that occurred during the timeframe between the Child’s removal from Mother’s home and the transfer of custody to Grandparents by the juvenile court. The Child was clearly in the care, custody, or control of DCS during that timeframe. …Parents contend that by virtue of the IPA and placement of the children in the home of Grandparents, DCS was in control of the children for the purposes of Tennessee Code Annotated § 9-8-307(a)(1)(E). We agree. …[T]he IPA demonstrates a significant amount of DCS involvement and control concerning the Child. …As explained in Demitrus, the fact that DCS initiated removal of a child out of the care of the parents and placement in another home, however temporary, and however parental friendly, will invoke jurisdiction of the Claims Commission. Here, DCS initiated the IPA that placed the Child in Grandparents’ home, an agreement contemplating that the Child would remain there pending further action by DCS or the juvenile court, thereby demonstrating DCS’s control over the situation. In addition, DCS clearly maintained a duty to investigate Grandparents and their home before such placement occurred and to continue to monitor the situation, at least until such time as custody was transferred to Grandparents by the juvenile court. By reason of these circumstances, DCS maintained control over the Child during the relevant timeframe pursuant to Tennessee Code Annotated § 9-8-307(a)(1)(E)’s requirement that the State exercise “care, custody and control of persons.” We reiterate that inquiry is made in the disjunctive; the State need not have exercised all three functions.

(internal citations and quotations omitted).

Based on this analysis and the finding that the Child was in the State’s care, custody or control at the time of the alleged negligence, the ruling that the Claims Commission lacked subject matter jurisdiction was reversed and the case was remanded for further proceedings.

The holding of this case is rather narrowly tailored to defining when a child is in the State’s care, custody or control after being removed from a parent’s home by DCS. The analysis utilized by the Court of Appeals, however, could potentially be informative in other cases where this section of the law is an issue.

Note:  Chapter 98, Section 2 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.

Day on Torts: Leading Cases in Tennessee Tort Law contains  summaries of leading cases on over 500 topics and citations to more than 1500 additional cases.  The 500,000+ word book  (and two others, Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Cases) is available by subscription at and is continually updated as new decisions and statutes impact Tennessee law.  Click on the link to see the book’s Table of Contents.

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