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Sheldon v. Ruggiero, 2018 VT 125
By Elizabeth Kruska
The facts underlying this case are horribly sad.
As has been widely-reported in the news, Dezirae Sheldon, a toddler from Rutland, died in her family’s care, after having had DCF-related involvement. Here are the facts, and how we get to this particular civil case. I don’t know facts of the case other than what are recited in the opinion or what I have learned in the news. I also don’t know if there are any other lawsuits pending. If there are I wouldn’t be surprised. This particular case is fairly narrow in the grand scheme of what could be out there.
This all started in early 2013, when Dezirae was one year old. Her mom brought her to the hospital because her legs were broken. I assume here the hospital made a report to DCF, because a DCF investigation began. Mom gave multiple, conflicting accounts about how Dezirae’s legs got broken. Those accounts ranged from Mom saying she never did anything and didn’t see anyone do anything, to saying she dropped Dezirae onto her crib, to saying Dezirae fell down, to an explanation involving hitting her legs on a doorway.
DCF talked to an aunt who said Mom said she made up a story for DCF. They also talked to Mom’s boyfriend, Dennis Duby, who admitted that about a month before, he had dropped Dezirae, but she didn’t seem bothered by it. DCF interviewed multiple other people who gave other information about Mother and Duby, and which seemed to back up some of the reports they were getting. They also spoke to the doctors, who reported that the fractures to Dezirae’s legs appeared to have been caused by different kinds of trauma and done at different times.
That means this little girl got her legs broken in different ways on different days before her mom took her to the hospital.
Based on the information DCF gathered in its investigation, the state filed a CHINS case (I assume; the opinion doesn’t say as much, but it’s a reasonable inference that’s what happened). Temporary custody was granted to DCF, and Dezirae was placed with a family other than her mother.
I want to be clear here. At this point the DCF workers we’re referring to are DCF’s investigators. I don’t know how many people worked on this investigation, or who they were (they aren’t named). These people are NOT the defendant in this suit.
Mom was charged with cruelty to a child, and pled guilty to that charge. Mom was also substantiated by DCF for physical abuse and medical neglect of Dezirae. The CHINS case proceeded, Mom apparently did work with DCF, and ultimately was reunified with Dezirae. At this point, Mom was married to Dennis Duby.
Backing up just a little bit, pretty early on in the process, the initial DCF investigator substantiated the report of physical abuse and medical neglect against Mom. Mom, as she has the right to do, sought an appeal of the substantiation.
A substantiation appeal is meant to be a review of the record to determine whether the finding of substantiation should be rejected or accepted. The reviewer can also direct DCF to go back out and do further investigation. This review is done by an independent reviewer who has no direct contact with the case. In my experience, it’s often done by someone somehow affiliated with or contracted with DCF. Often that person is even from a different geographical area.
This isn’t a fresh investigation. And it’s not really a place for a person to try to plead their case. The question is whether the person who did the investigation did it properly and if the record itself supports the investigator’s findings. The reviewer can, and should, talk to the appellant. In this case, Mr. Ruggerio, the reviewer, talked to Mom. Mom continued to offer various, conflicting stories. She also included a version of facts that included Dennis Duby possibly causing the injuries. Recall that in the original investigation, the DCF investigator learned from a relative that Mr. Duby might have caused the injuries. It appears Mom is saying all the same things as were previously known.
Mr. Ruggiero went back and talked to the original DCF investigator. This isn’t how this is supposed to go. His goal was to learn more about Dennis Duby and to find out if he had been substantiated. He also wanted an opinion from the investigator about what story of Mom’s was believed to be accurate.
There is a very lengthy footnote about the process, and about how the procedure is not actually supposed to include the reviewer having this kind of ex parte communication with DCF. As a consumer of legal opinions, I appreciate a good footnote. This is a good footnote.
Ultimately Mr. Ruggiero decided to affirm the substantiation against Mom. The factors in affirming Mom’s substantiation included her admission that she lied to detectives initially, her inconsistent statements, the medical evidence about the nature and timing of the fractures, Mom’s admission that she was the sole caretaker for Dezirae and her admission that she knew the child was injured long before she did anything about it.
This is all taking place sort of parallel to the CHINS case and other things going on. A few months after the decision affirming Mom’s substantiation, Dezirae is sent back home. Shortly after that Dezirae is taken to the hospital with head fractures, and ultimately succumbs to those injuries. Dennis Duby—who at that point was her stepfather and living in the house with her—is charged with, and later pleads guilty to her murder.
That takes us to this case. The Estate of Dezirae realizes that the DCF reviewer, Mr. Ruggiero, was told by Mom that possibly Mr. Duby was either a source or the source of her original injuries. Because of his role, he’s a mandated reporter. But he didn’t make a report about this alleged earlier abuse by Mr. Duby. And then she died at Mr. Duby’s hand. The estate filed suit.
The estate’s argument is that when Mr. Ruggiero decided to go off-script and do some additional investigation with the DCF worker, that he actually invited a greater duty of care to Dezirae. They argue that he essentially created a right of action against himself by taking on this informal investigation. By investigating, they say he learned the Dennis Duby information, which he should have reported.
Mr. Ruggiero moved for summary judgment, which was ultimately granted. His legal argument was that the mandated reporter law doesn’t create a private right of action. He also argued that he wasn’t obligated to make a report because Dennis Duby wasn’t a new suspect; DCF already knew about him from their original investigation. Further, he argued that it was on DCF because they failed to act when they learned of the Dennis Duby allegation. Last, he argued that he didn’t undertake to render services to Dezirae in such a manner that increased the risk of harm to her.
The trial court agreed, and granted summary judgment to Mr. Ruggiero. The estate appeals, and SCOV affirms. Here’s why.
SCOV doesn’t actually address whether or not the mandated reporter statute creates a private right of action. They don’t address this because they find that Mr. Ruggiero didn’t have a reasonable reason to make a report in the first place. The information he got from Mom wasn’t different than the information already known to DCF through its initial investigation.
The requirement to report happens when a mandated reporter has “reasonable cause to believe that any child has been abused or neglected” within 24 hours of learning the information. Mr. Ruggiero wasn’t learning new information, he was reviewing the original investigation. Saying he would also have to make a report is like saying that an EMT dispatched to a car accident would also be required to call 911 to report that same car accident. Maybe this isn’t the best analogy, but it sort of fits. It might be different if, during Mr. Ruggiero’s review, whole new allegations were shared that needed to be investigated. But that isn’t what happened. Mom gave her same story (or stack of stories) to Mr. Ruggiero that she gave to the prior investigators and to the police, including information about Dennis Duby.
The estate also argues alternatively that a special relationship was created between Mr. Ruggiero and Dezirae, and that as a result of that breach, the legal standard is one of negligence per se.
SCOV disagrees with this argument as well. Essentially, there would have to be an existing duty between Mr. Ruggiero and Deizrae. The problem is that in order for the estate to show that, it would have to show that Mr. Ruggiero violated the mandated reporter statue by not making a report. SCOV already found that he wasn’t required to do so based on the information available to him.
Last, the estate argues that Mr. Ruggiero created a duty of care to Dezirae when he decided to take on the ex parte investigation. SCOV disagrees with this.
Negligent undertaking happens when someone undertakes—for free or for compensation—services to another person or that person’s property, and in doing so is somehow negligent in a way that causes damage. That could be if the undertaking party somehow increases the risk of harm, or takes on a duty owed to the other person, or harm is suffered because the person relied on the person undertaking the duty.
I think where this tends to come up is with respect to Good Samaritan acts. If I see someone having a heart attack, I’m calling 911 and doing CPR until professionals get there. If I break that person’s ribs, I’m really sorry that happened, and maybe when I undertook to do CPR this was an unwanted consequence of my actions. (This is why we have Good Samaritan laws; so people don’t get sued for stuff like this. We want to believe the world is good and that we can help one another without threat of suit.)
The thing is, in order for there even to be a negligent entrustment claim, there has to be an undertaking. The threshold for that is fairly low, but it still hast to be shown that the defendant actually undertook the specific task he was accused of having done negligently. The scope of the defendant’s undertaking is what defines the scope of the liability.
The difference in this case is that, as a matter of law, there isn’t enough evidence to show that Mr. Ruggiero initiated an undertaking to even get to the point of such undertaking to be negligent. His job was to review the investigation to decide whether or not to uphold Mom’s substantiation. Yes, he extended his investigation a little bit. But that’s not enough to show that as a result that he increased the risk of harm to Dezirae based on his undertaking. Nobody was in a position to rely on his investigation.
So, this case is affirmed.
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