IN RE: DEMITRUS M. T., A CHILD UNDER 18 YEARS OF AGE, ET AL. (Tenn. Ct. App. March 14, 2011)
This is a wrongful death action filed in the Tennessee Claims Commission ("the Commission") by the parents and brother ("the Claimants") of six month old Demitrus M. T. ("the Infant" or "Demitrus"), individually and on behalf of Demitrus, after he drowned in a bathtub while in the care of Sherika Hamilton, a friend of the family identified in a Tennessee Department of Child Services ("DCS" or "the Department") safety plan as the "placement caretaker." There is no dispute that Hamilton left the Infant unattended in the bathtub while she was otherwise occupied in an adjacent room.
The primary disputes at trial before the Commissioner, and on appeal, are whether the Infant was in the "care, custody and control" of the Department so as to provide jurisdiction to the Commission; whether the Department's "Case Recordings," some of which were made more than a month after the event they purport to record, are inadmissible hearsay; and whether it was foreseeable to the Department that Hamilton would leave the helpless Infant unattended in a bathtub and let him drown. The Commission found that it had jurisdiction because the Department had control of the Infant even though it did not have custody, that the Case Recordings were admissible, and that the Department was not negligent because it could not have foreseen this tragic event. The Claimants appeal. We affirm in part, reverse in part, and vacate the dismissal on the merits.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/demitrust_031411.pdf
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Showing posts with label Children. Show all posts
Showing posts with label Children. Show all posts
Monday, March 14, 2011
Friday, September 17, 2010
Supreme Court Reviews a Wrongful Death Claim in a Case Involving the Death of a Child
CANDACE MULLINS v. STATE OF TENNESSEE (Tenn. September 17, 2010)
The issue presented in this appeal is whether the Tennessee Claims Commission had subject matter jurisdiction to hear a claim against the State of Tennessee arising from the death of a young child who had been removed from his mother's home and placed in the custody of the mother's aunt by order of the juvenile court.
The child and his two brothers were removed from their mother's care because of her use of cocaine. At the mother's request and after an investigation, the Department of Children's Services recommended to the juvenile court that custody of the children be awarded to the mother's aunt. Less than a month after the court entered the order of custody, the mother reported concerns about the children's well-being to the Department. A case worker investigated the aunt's home and found no basis to remove the children. Ten days later, one of the children, a five-year-old boy, died from extensive injuries allegedly inflicted by the aunt's nineteen-year-old daughter who lived in the home.
The child's mother filed a wrongful death claim against the State alleging negligence on the part of the Department. The Claims Commissioner denied the claim, finding that the Claims Commission did not have subject matter jurisdiction to hear the claim pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(E) (1999 & Supp. 2009) and that, in any event, the mother had failed to prove negligence by the Department. We hold that the Claims Commission did not have subject matter jurisdiction to hear the claim because the child was not in the care, custody, and control of the State.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/mullinsc_091710.pdf
The issue presented in this appeal is whether the Tennessee Claims Commission had subject matter jurisdiction to hear a claim against the State of Tennessee arising from the death of a young child who had been removed from his mother's home and placed in the custody of the mother's aunt by order of the juvenile court.
The child and his two brothers were removed from their mother's care because of her use of cocaine. At the mother's request and after an investigation, the Department of Children's Services recommended to the juvenile court that custody of the children be awarded to the mother's aunt. Less than a month after the court entered the order of custody, the mother reported concerns about the children's well-being to the Department. A case worker investigated the aunt's home and found no basis to remove the children. Ten days later, one of the children, a five-year-old boy, died from extensive injuries allegedly inflicted by the aunt's nineteen-year-old daughter who lived in the home.
The child's mother filed a wrongful death claim against the State alleging negligence on the part of the Department. The Claims Commissioner denied the claim, finding that the Claims Commission did not have subject matter jurisdiction to hear the claim pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(E) (1999 & Supp. 2009) and that, in any event, the mother had failed to prove negligence by the Department. We hold that the Claims Commission did not have subject matter jurisdiction to hear the claim because the child was not in the care, custody, and control of the State.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/mullinsc_091710.pdf
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