-: SJC-13666
Jaklin Suzeth Gotay et al
versus Juliann Creen et al.
-: Okay, attorney.
(Justice coughs) Attorney Dirks.
-: Good morning.
And may it please the court, Katherine Dirks
for the four social worker appellants.
What happened in the foster home of Kimberly Malpass
in August, 2015 is a tragedy.
And Ms. Malpass's neglect
of Samara Gotay is a terrible thing.
It should have never happened.
In the interest of time,
I would like to first make clear two points
that my clients agree with.
First, we agree that substantive due process applies
to children in state foster care
who are entitled to having their basic human needs met,
including reasonable safety.
Two, we agree that as to social workers,
the law did clearly establish a version
of the substantive due process test.
I'd like to spend my time this morning
on the three areas of disagreement.
One, what that test is or should be.
Two, whether that test was clearly established,
and three, whether that test can be satisfied here,
where the material facts are not in dispute.
Turning first, your Honors to what the test is or should be.
Based on our review of the persuasive authority,
there is no controlling authority.
What was clearly established is
that a foster child's due process rights are violated
when a social worker shows deliberate indifference
to a known substantial risk of severe harm
in a way that shocks the conscience.
-: Why treat children
under the care of DCF the same as prisoners?
-: The courts have acknowledged
that there is obviously some difference
between children and prisoners, obviously.
-: Substantial. -: Yeah.
-: [Justice Wendlandt] Thank you for acknowledging that.
But why not adopt
as I think the 10th Circuit has,
the Youngberg standard?
-: That's right. Youngberg is interesting, your Honor.
And Youngberg is also very different from this case.
Youngberg involved a state mental hospital
and whether a developmentally disabled adult
should be physically restrained.
And the defendant in that due process test
was not a social worker.
It was the administrator of that state hospital.
So when the Supreme Court articulated
the professional judgment standard that's there,
and that in some ways is being advocated by the plaintiffs,
the Supreme Court defined what it meant by professional.
I would point the court to footnote 30
of the Youngberg decision,
which talks about training expertise.
It talks about nursing and the medical facility.
And, for some reason, the 10th Circuit decided to apply
that professional specialized set of standards
that applied to a state mental hospital
and applied it to social workers.
-: Right.
And the reason the 10th Circuit articulated was
that children deserve at least
or better care, a better standard,
a better test than prisoners.
And I'm guess I'm wondering why the state's position
in this case is that that rationale doesn't hold sway.
-: The reason I find that language
in the 10th Circuit puzzling, your Honor, is
because it suggests that prisoners are somehow not entitled
to incredibly robust 8th Amendment
and 14th Amendment protections.
And they are. They're absolutely entitled to-
-: But the question isn't about
whether or not prisoners are entitled to.
The question I'm asking is whether
or not children under the state's care are entitled
to any better protection,
which the 10th Circuit decided they are, than prisoners.
It's not, you're flipping the question.
Prisoners of course have an 8th Amendment right.
And the test under that is deliberate indifference.
I'm wondering why the state's position is
that children should be subject to the same test?
-: A few responses to that, your Honor.
First of all, we're talking about individual defendants,
not the obligations on DCF more generally.
And with respect to individual defendants
facing constitutional rights violations,
the authority across the country is consistent.
That is a deliberate indifference standard.
Whether the harmed individual is in prison
or in state custody through the childcare system,
the, I'm sorry, the foster care system.
The question that must be posed
to an individual set defendant is the same.
So one, if this court were to branch off
in the same way that the 10th Circuit has,
that would not be clearly established.
So that would be a new type of test.
So setting that aside,
the reason that test should not be applied here is
because if that were to,
if this court were to adopt a professional standard test
for something like social worker decisions
where the child is not necessarily
under the day-to-day scrutiny and control
of a state facility as in Youngberg,
then the test would very quickly collapse
into a negligence standard.
And the Supreme Court has said
that substantive due process cannot be negligence.
In fact, I point the court
to some language in Youngberg itself.
This is Youngberg, page 321.
The quote from the case is, "It is not appropriate
for the courts to specify which
of severally professionally acceptable choices
should have been made."
So in this context, it would be very difficult for a court
to look at the complex decisions
that social workers have to make on very specialized facts
that often involve
very difficult credibility determinations.
And to prescribe a rule
as to which of different professional acceptable choices
is the best choice.
-: Well, I thought the Youngberg rule was that
if there are these variety
of different professional choices, no liability.
-: That's right, your Honor. And what-
-: So why would that standard devolve
to negligence as you say?
I mean, I thought Youngberg specifically said
this is not negligence.
-: Yes, your Honor.
So if you have a context of professional environment
where there is a clear professional path forward, right?
There is a clear professional standard,
and it would be very, very easy for any professional
within that context to know
what would constitute an abdication,
an extreme deviation from that professional standard,
then you could apply that test.
But here where you're talking about a moment in time
where you have different individuals making competing
and conflicting statements about the facts of a foster home.
That plaintiffs do not put forward
what professional judgment would have required.
Would it have required once a week visits,
would it have required a certain number
of unannounced visits?
There's nothing in the expertise
and training that social workers provide
that would've defined exactly
what to do in a situation like this
where the allegations were found unsubstantiated,
where you have an investigation
that occurred over 17 days.
-: But you are now applying the test.
I thought your first point
in oral argument was gonna be what test?
-: Yes, your Honor. -: Okay.
-: And turning back to Youngberg specifically,
there's a reason, the reason
that the deliberate indifference test has been applied here
is because of the, I was using this as an illustration,
but the challenges that individual social workers face.
Now, it is true that there are cases
that have talked about the responsibilities on the social,
on the foster care agency,
and that's what Connor B. is, which gets to why this is not
so clearly established at times
because the First Circuit
in Connor B. did talk about Youngberg.
That was not a damages case.
It was not an individual social worker liability case.
They were grappling with what remedial actions were required
of the agency going forward.
And they talked about the Youngberg standard.
But when the First Circuit then turned
to the individual social worker obligations,
it then reverted to the deliberate indifference standard
and explored some of those reasons.
I would recommend to the court the K.H. decision
written by Judge Posner in the Seventh Circuit,
which really grappled with some of this
and really explored why qualified immunity is appropriate
in these circumstances and why knowledge
of harm is the grounding factor in these circumstances.
And Judge Posner articulates it much better than I could.
-: Can you address the causation issue?
'Cause from what I understand this, everyone,
the tragedy here is this 2-year-old turns up the thermometer
while everyone's asleep or passed out drunk.
But I'm not sure I understand exactly
how this plays out.
Because if this were a case
where this guy was a domestic abuser and you put him
or he, it's a case where a kid, a guy abuses children
and you were, you didn't screen him carefully enough
and he abuses the child,
whether we're doing the deliberate indifference
or the Youngberg standard, the results are same.
But here we got this complicated causation issue, right?
That the cause of the injury is not the danger
presented by the man, is it?
And how do we, what's the causation standard in this area?
-: The Second Circuit answered that question to some extent.
It talked about proximate cause
as being embedded in the substantive due process analysis
when it comes to individual social workers.
That's the Doe case cited in our briefs.
Justice Kafker: So how does that apply here?
-: So we would, I wanna make clear
that we would not continue,
we would not maintain that
the specific event would have to be anticipated.
It's not, in order to hold a social worker liable,
you wouldn't have to say
that they contemplated the thermostat being changed.
But what would have to be contemplated is a risk
of this type of gross neglect, gross abandonment.
And that's not part of the causal chain here.
When you have an allegation of phys,
a and a single instant of physical harm
inflicted by Mr. Mallett.
-: But the foreseeable risk here,
if I'm doing approximate cause,
is that putting this man
in this house presents a reasonable,
a foreseeable risk of what?
That he is going to neglect the child?
But, right? I'm just, I'm getting-
Katherine: I suppose that's what plaintiffs would argue.
I mean, I, the best I could do if I were plaintiffs.
-: Well, no, I'm,
I would think you'd be arguing this hard
because he doesn't, whether if he had fallen asleep
or she had fallen asleep, right?
This tragedy would've happened anyway.
I'm just confused by why you're not focused on,
I understand why he may not be,
but I'm confused why you're not focused
on the causation issue.
Katherine: Well, we do argue it in the brief
and we cite the Doe case.
I, you know, there are many things we have to focus on.
And, I wanna make, you know, to some extent,
I'm wanna make clear
that the legal issues here are dispositive.
But even in the record, we have a situation
of where there no material disputed facts.
That the sequence of events from March, 2015
with this 51-B report
and the August, 2015 thermostat issue are simply
too attenuated.
Let's say that Mr. Mallett had not been in the home,
this could have occurred anyway.
She could have hired a babysitter and gone out
and come back intoxicated.
Now, can we say, as a matter of-
-: Or say she wasn't intoxicated,
she just went to bed like a normal person.
How would she have known?
I'm just trying to understand this.
That's what I don't get exactly.
I you're, this is an extremely subtle difference
between these two tests,
whether it's Youngberg or deliberate indifference,
and there's not, this is clearly some negligence
on the part of the social workers.
But the causation thing is, seems to be the 600-pound,
you know, gorilla in the room.
I just don't see the connection yet.
-: Well, I think it's all embedded
into the knowledge element, your Honor,
which is the only piece of this test
that has been clearly established
as a matter of persuasive authority.
Which is that did they know this was going to happen?
Not even this specifically,
did they know that the foster carer was going
to abdicate her duty in this way?
What happened in August was contrary
to everything they knew about Ms. Malpass.
This is in the record, and this is in our briefs.
She had a record of positive performance evaluations,
not only from Ms. Peterson and Ms. Creen,
but from two other social workers as well.
The dictation is there from Ms. Creen.
It shows that she was consistently raising medical issues
about these children and making sure they got
to their doctor's appointments.
The house appeared to be in order.
There were abs, the only allegation that occurred
during her time as a social, as a foster parent
that was about maybe abuse
or neglect was this one 51-A, 51-B from March, 2015,
which was found to be unsubstantiated.
And if the court were to read one part of the record,
your Honor, on this point, on this causation point,
it would be the 51-B itself.
And that's in volume two of the record appendix.
It's 20,27 pages,
pages 189 to 206.
Plaintiff's claim is hooked on that investigation report.
It, the only way plaintiffs could succeed is to say
that something in that report made it clear,
compelled knowledge on these individual social workers part
that these children were in danger.
And there's nothing in the report that would compel
that kind of conclusion.
-: Well, I mean, to be fair,
the report does say that Mr. Mallett was present
at the home a lot more than Malpass indicated.
It includes the CORI for Mr. Mallett,
which includes a long criminal history,
including assault and battery and robbery.
So that is tagged
to your client's knowledge.
Why would not, why wouldn't that have been a sort
of a known risk that they're placing
or continuing to place kids in an environment
with a woman who is not being forthcoming
and whose partner is got this criminal,
lengthy criminal history and he's around these kids a lot?
-: Well, to clarify the record, your Honor,
the finding wasn't that he was in the home a lot.
It was that he had- -: A lot more
than she had said.
-: I believe the phrase "a lot" does not appear.
The phrase is that he was in the home more often
than she had reported. -: And nobody followed up
on that. -: Yeah.
I'll contest that, your Honor.
But I'd also just like to clarify that also in the record,
also in that report was that he says
he had not been in the home
when the foster children were there.
So there's nothing in the report
saying that he had had any contact with the foster children.
There, what there was is that they clearly had some sort
of relationship, whether it was romantic or not.
He had been in the home more often
than she had previously reported.
And then the investigator said he confronted Ms. Malpass
about that.
She claimed that she had not understood the DCF policy
requiring approval of individuals who are frequent visitors.
And he said this happens a lot with foster parents.
They often don't understand.
She understands it going forward.
Basically, we've cleared this up. She now knows the rules.
And then with respect to your second point, your Honor,
about no one following up, it's also undisputed
that they did follow up.
That Ms. Creen did have a conversation with her
after this to explicitly and clearly say
that he was not allowed in the home.
And we have evidence that Ms. Peterson,
who was not the social worker assigned to the home,
but rather to Samara, that she actively looked for evidence
of a male presence in the home and that she found none.
-: So what is the deliberate indifference
to a known risk of harm?
Because I was with Justice Kafker on the causation thing
because the risk of harm here that was foreseeable
from Mallett was that he would do some sort
of abusive behavior against the kids.
And, so when you say the social workers did not know
of a known risk of harm,
what are you referring to in your brief?
That Ms. Malpass was grossly negligent?
-: Yes, your Honor. -: Okay. Thank you.
-: I think you could all, even if the harm
that had occurred was that he had abused Samara,
that he had injured an, you know,
inflicted an injury similar to what was alleged in the 51-B-
-: [Justice Wendlandt] You still think
your client would get qualified immunity?
-: I think so, your Honor,
because it was not known necessarily
in the report that he had done that.
Now, recall that the test here isn't knowledge of a-
-: [Justice Wendlandt] Well, the report pulls his CORI,
right? And so- -: Pardon me, your Honor.
-: Yeah, the report pulls is CORI,
so you know what he's done in the past,
which is including assaultive behavior.
I'm? -: Yes, your Honor.
-: [Justice Wendlandt] That's a question. Yeah. Okay.
-: So if it had been known that he was living in the home,
and that might be different,
there might still be qualified immunity,
but maybe we wouldn't be here
on summary judgment, your Honor.
Maybe we'd be here after a jury verdict.
But, that's not this case.
So what we have is a knowledge of a risk
that he was in the home more often
or the some, knowing that he was in the home more often
than had been reported.
Not knowing that he was living there.
Maybe some non-zero chance that the allegation
that he had injured this other child was true,
but not more likely than not, right?
Because you have an investigator
who said that he didn't find that credible.
So you have this sum of maybe non-zero risks,
but that aren't more likely than not.
And could you add those together
to somehow prove that these social workers knew
these children were in danger?
There's simply no case that has found that.
And I would point the court to several decisions
that have faced very similar circumstances
and ruled in the social worker's favor
on qualified immunity grounds at the summary judgment stage.
-: If the social workers, as I understood
at least one theory of the plaintiff's case is
that the social workers failed to take the steps necessary
to adequately inform themselves
of what was going on in the house,
the situation in the house.
If that theory is a sustainable theory,
then the fact
that they don't know things doesn't really seem to me
like a firm basis
on upon which to give them immunity.
Right? It'd be like rewarding them for turning a blind eye.
I'm wondering how you would distinguish
or how your theory would square
with not allowing immunity for workers
who just turn a blind eye
to the risk of harm?
-: I think that's a concern, that's a through line
in all of these cases, your Honor.
The employee who holds their ears and say, "I can't know it
because I'm not letting you tell me."
In a way that's a tension
that's found in all immunity cases, right?
Are we going to allow certain behavior to go unchecked
because it falls on a certain line?
But on the other hand, imagine the social worker,
your Honor, who has good faith, is a public servant.
These aren't CEOs of Fortune 500 companies.
They're social workers.
They're presented with complex facts.
Maybe they don't follow up on certain leads.
Maybe they look at a foster parent
who seems like a pretty good foster parent.
She does some extra work for DCF,
she calls the social workers a lot.
They end up believing her, maybe.
Maybe they weren't as skeptical of her
as they should have been.
The question is really for that good faith social worker,
are we going to allow social workers in Massachusetts
to face jury trials
and potentially ruinous financial liability
for their failure, maybe to follow through
as well as they could have?
And courts that have addressed
that exact tension have consistently found that on balance,
we need to provide qualified immunity
to those types of social workers.
I'll just give the case names in the interest of time.
I see 'em far over my time.
But Lintz versus Skipski,
that's out of the Sixth Circuit, cited in the briefs.
James versus Friend, that's out of the Eighth Circuit
and Cox versus Department of Social and Health Services,
that's out of the Ninth Circuit.
All of them involved some indications
that may be physical harm had occurred.
Again, back to the causation question.
It was indications of physical abuse
that weren't substantiated.
It turns out physical abuse had been occurring
or sexual abuse, that close tether.
And even there, the issue was that the social workers
could have done more,
they could have done a better job.
And even there that was not enough to rise to a substantive,
to the level of a substantive due process violation.
-: Okay. -: I'm far beyond my time.
Thank you very much.
I rest on the papers. -: Thank you.
Okay, attorney Russcol.
-: Thank you, your Honors.
May it please the court, David Russcol for the plaintiffs.
We are here today because two children were injured
and a third one died because DCF
and the four appellants knew of the risk presented
by a dangerous person with a history of violent crimes
and restraining orders being present in the foster home.
They discussed measures to take
in order to address that risk.
And then they just didn't do those things for months.
What they did instead was cover
for the foster mother who volunteered-
-: Can I push you a little bit?
If he had harmed the kids himself
or if he were selling drugs and someone broke into the home
and hurt the children, easy case to me for you.
But the injury here comes
from a 2-year-old turning up a thermometer.
Connect me to that, the known risk
of him not being the right person to be in the house
and the actual injury here.
Doesn't there have to be a causal connection
between the two?
-: Absolutely, Justice Kafker.
And I do, I did want to address the causation issue
that was raised.
So the risk that we're talking about is the risk
that a person who is disqualified by DCF regulations
and policies from being a frequent visitor
or living in the foster home was there
and was there more than the foster mother disclosed.
And she lied about it, you know, all that.
But, the risk is that one,
that the foster mother would neglect the children
by leaving them with this unsuitable person.
And one of the 51-A allegations was that he was a caregiver,
even a primary caregiver of the children.
So they were aware of that risk.
And two, that he- -: Was that supported?
-: That was not supported in the 51-B,
but that was an allegation that they were aware of
and that they discussed.
The second is the risk
that Mr. Mallett would neglect the children.
And the way it actually played out
as far as everyone could tell from the inquest
is that Ms. Malpass neglected the children
by leaving them with an unsuitable person, Mr. Mallett.
He was the sole adult in the home at that point.
She came home drunk and unable to care for them.
And then he neglected the children
by saying, "This is your problem.
I'm gonna take two Xanax and go to sleep."
And then she slept in
and didn't check on the kids until noon.
And during that 12 plus hour time period
where the children were left unattended
and having been put to bed by Mr. Mallett,
or I think there's evidence in the record suggesting
that he had a third grader help put the children to bed,
they were left in this vulnerable position
where tragedy could happen.
And so the causation is,
the risk is this unsuitable person is here
and either the foster mother or the boyfriend
or both will neglect the children.
And that is what happened.
That is the causation. -: Is there any evidence
in the record that the boyfriend,
whether a boyfriend, I don't know, was in the house
at the time the mother was,
the foster mother was approved to be a foster mother?
The time when the children were initially placed there?
What's the earliest that the, maybe another way of put,
I'll ask you now a fourth question.
What's the earliest that the record would support a finding
that the boyfriend was present in the house more
than just a occasional visitor?
-: I believe when he was questioned
after the tragic incident, he told the state police
that he'd been there,
been living there for a year and a half.
So I believe- -: But that wouldn't
have been known to the, okay.
So just what would be the earliest
that would put any of the DCF employees on notice?
David: On notice that he was living in the home?
-: Yeah. That he was there more than as a casual visitor.
-: Well, the 51-A certainly had allegations
that he was there frequently.
And then the 51-B report- -: That was in March of the?
How long was that before?
That was what triggered the 10 person meeting, correct?
-: That's right. -: Okay, so.
that would be the earliest notice to DCF workers
that the, a man was present in the house
more than he should without being approved.
-: That's right. -: Okay.
So if that's the case, then how do any of the,
I'm just gonna call them lapses,
you may call them failures or shortcomings
of the placement investigation at the outset.
How can they, how do they fit into the theory?
How do they help support liability?
Because the ultimate risk
that you're talking about is the risk
that the foster mother would leave the child
in the care of this unsuitable person
or that he would be,
have care of the children.
So if there's no notice to them
that this is an issue before that 51-B report,
then how do you get in
and how do any of the early acts matter?
-: Well, in terms of the placement decision,
the earlier acts, they're there partly for context,
but also for the fact
that the home was inappropriately approved
for as many children as were there.
Based on the size of the home,
it should have had no more than one female foster child.
It had three or four at the time of this incident.
-: [Justice Wolohojian] I get that.
But that, doesn't that really have a causation problem?
-: I think for purposes of this claim,
and I think we're focusing
on primarily starting at the 51-A
and the notice that this man was in the house
and then proceeding from there.
So the rest is valuable context for the later lapses.
-: Okay. So.
All right.
So if that's the case,
do the earlier shortcomings that you've identified,
then, are they pertinent to the qualified immunity calculus?
-: They're relevant to the state of mind,
particularly of Ms. Creen and Ms. Johnson-Cruz.
And the degree to which, you know,
to the extent that this court believes
that deliberate indifference is the standard
or relevant consideration.
The lack of care and the lack of caring
that those individuals displayed continuing
from before the 51-A to the end of the story.
So it is relevant to that extent.
One other thing that I wanted to point out is in terms
of what Ms. Creen knew at, you know,
from the very beginning, from the 51-A,
her dictation reflects that she spoke with Ms. Malpass.
And the initial story we got, she got was,
"I barely know the guy. I dated him 10 years ago.
You know, I don't have any relationship with him."
They go to the meeting, there are photos of on Facebook
of the two of them with hearts together.
And then she's telling the 51-B investigator, "Oh, well,
you know, he was here,
but not at the home when the foster kids were there.
And yeah, we went on vacation together."
And that further put the defendants on notice
that they needed to do something.
So the question was raised before,
what did professional judgment require?
Professional judgment required that they do something
to address the risk that this man was in the home.
And in fact, Ms. Creen
and Ms. Johnson-Cruz developed a plan
of what they believed was necessary.
They believed it was necessary
for, between the different social workers
who were coming to the home,
to have weekly visits.
And then they just didn't do that.
In five months after the 51-B,
Ms. Creen visited the home three times.
My understanding is she was supposed
to do that at least monthly.
That she had, you know, not visited
as often as she was supposed to before that.
-: You deal with the JR case? -: Absolutely.
So the JR case is a situation
where the defendants knew that there was a man in the home
who had not been subjected to a background check,
but that's all they knew about him.
Actually to the extent they,
the defendants there had more information about the man,
it was positive information.
They knew that he had been involved
in the care of these kids
and had gone with them to appointments.
They didn't have red flags
of this man has a disqualifying CORI,
which is what the defendants here had in the 51-B.
They knew about the violent charges,
about the 6209-A orders with different women.
They knew that there were reasons why he was disqualified.
That is, so not conducting a background check in JR.
That was negligent, that was a violation of state law,
but that wasn't a constitutional deprivation
because there wasn't more
to put the social workers on notice
that they needed to inquire more.
I mean, in this case, two other social workers believed
that removing another child was required right away.
That, you know, we gotta get JE outta this home right now.
And they did that on the day of that meeting
or the next day.
These defendants subjectively recognized that meetings need,
that visits needed to be stepped up.
They didn't do that.
They had information in the 51-B that-
-: [Justice Wendlandt] Did they talk to Ms. Malpass?
-: I'm sorry? -: Did Creen talk
to Ms. Malpass about Mr. Mallett not being allowed
in the home when the children were there?
-: She had a discussion with Ms. Malpass.
I think there's disputed evidence in the record
about the content of that conversation.
There's evidence
that what she told her was, "Get that information
off Facebook.
It's incriminating.
You don't need people seeing your business."
That she was giving her a warning
rather than actually addressing the issue.
And I believe Ms. Creen testified
that she didn't inquire of Ms. Malpass
how often Mr. Mallett had been there,
which was a really important issue,
a really important thing to have known.
And she didn't even ask that.
So what she told the 51-B investigator was,
"I think she made a mistake
by bailing this guy out of outta jail on a robbery charge.
But I like her."
And she did like her, and that clouded her judgment
so that she failed to exercise professional judgment.
And we've got the Wizewski affidavit
in the record that's really a roadmap
to all the different ways that the different defendants
failed to follow established policies and practices
and displayed an absence of professional judgment.
I want to, on the standard that applies,
I do want to say that I think Lewis
and Lewis's discussion of Youngberg
in particular really kind of answers the question
of what the standard is.
Lewis says, "Here's what we mean by shocking the conscience.
It's a spectrum. Mere negligence, that doesn't qualify.
Intentional infliction of harm, that does.
And in the middle, it depends on the circumstances.
And particularly, it depends
on whether there's time for deliberation."
And you know, obviously some
of the precedents deal with prisons.
If it is a prison official dealing with big questions
of conditions of confinement, they have time.
That is something where they have
to exercise professional judgment.
If they're dealing with a prison riot
and it's an emergency,
then we're gonna require a higher bar for liability.
Here, if we were talking only
about the decision on March 5th,
do we remove these children right now?
Then it might be
that there would be a higher standard for liability.
But here, there were months after that
where there could have been more visits,
should have been more visits.
They knew there should have been more visits,
and they did nothing to address the situation.
-: And more visits would've identified,
possibly him being in the home
if they were on.
They knew how many kids were in the home.
The visits identified, right?
The location of the kids' bedroom, where they slept.
I'm just trying to figure out
what the additional scrutiny would've shown.
It would've shown Malpass being there more often, but.
Because the, is the room itself part of the recklessness,
the way the room was set up?
It sounds to me, again, I'm back to causation a little bit
and you've made some good points
that okay, they slept until noon,
and do we know when do we have a medical reporter estimating
the time of death of this child?
Do we know? We don't have it.
David: I don't believe we have a time of death yet.
-: For sure.
So the negligence here is in certain ways,
I'm, again, I'm trying to connect it
to the death of the child.
So there are more,
you say there are more kids in the house
than there's supposed to be, -: Right.
-: The care tenders are sleeping 'til noon and drunk,
or on Xanax.
All of this contributes to the death.
And again, the negligence on the part of the DCF workers.
They weren't there often enough,
but again, they would've identified the location
of the cribs and stuff.
So, help me out a little bit more.
I'm starting to understand your causation theory,
but, flesh it out as much as you can.
-: Right.
So the things that the, that additional visits
or more thorough visits would've established were,
and particularly if they had done unannounced visits,
and I wanna get back to that in just a moment.
Would've uncovered that Mr. Mallett was there
when he wasn't supposed to be.
And also the factor of which was in the recertification,
the annual recertification of the foster home,
of how many kids are here?
Is there an adequate, is there adequate space?
In the recertification that was done in,
I believe January of 2015, Ms. Creen checked off,
"Is there enough space in the bedrooms?
Is there 50 square feet per child?"
I think it was, she checked off "No."
So she recognized that.
But nonetheless, the foster home was approved
to have as many children as it did.
Now, in terms of unannounced visits,
what the one thing that every, that all the defendants knew
as a result of the 51-B was
when an emergency response worker,
CES contract worker working in conjunction
with DCF came to the home late at night,
there was a man there fitting Mr. Mallett's description,
and Ms. Malpass refused to answer the door.
Now that's information that professional judgment says,
well, maybe we should think
about having an unannounced visit at some point
instead of letting them know ahead of time
so he can get his stuff out of there.
So that's also information that they had.
But the increased visits would've showed signs
that Mr. Malpass, that Mr. Mallet was there
and the adequacy of the sleeping arrangements.
No further questions. I see my time has expired.
Close to remediation.