Connecticut’s highest court will hear oral arguments about whether the Department of Children and Families (DCF) should be immune from a lawsuit involving a four-year-old child who died while under the care of a family member the agency had granted guardianship.

Background

Toni Genovese was born on April 23, 2008, to parents Jamie Genovese and Ashley Bardell. According to a complaint filed by Jamie Genovese, from her birth to January 2011, Toni was the subject of several DCF investigations over allegations of abuse. In April 2011, Toni, her mother, and her infant brother moved outside Connecticut, leading DCF to close the case.

In June 2011, Toni, her mother, and her infant brother returned to Connecticut. April Steele, Toni’s maternal aunt, filed an application in the probate court to gain immediate temporary custody of Toni and to remove her parents as her guardians.

While immediate temporary custody was given to Steele and to Lorri Bardell, Toni’s adoptive maternal grandmother, the probate court requested DCF to begin an investigation into guardianship. The court found insufficient evidence in the record to make a determination about Toni’s best interests. Both Toni’s parents were incarcerated at the time, according to the court’s request.

Genovese informed the probate court that he had no objection to the appointment of the temporary guardianship but sought court ordered visitation.

In December 2011 DCF filed its report with the probate court. It found a number of problems, based on past DCF investigations and reports, with a number of people residing in the home with Steele and Bardell. While the report expressed concerns about the housing situation, it found Steele to be an appropriate caretaker and appointed her as guardian. The report also supported the removal of Toni’s parents as guardians.

In July 2012, Toni’s body was found unresponsive in a neighbor’s pond. She was under Steele’s care at the time of her death.

Jamie Genovese, who was appointed the administrator of Toni’s estate, sued DCF in February 2022, alleging the agency failed to conduct a proper investigation, failed to follow up on claims of neglect, and failed to follow its own policies. The complaint pinned Toni’s death on the agency’s neglect and sought authorization to sue the state, seeking $15,000 in damages.

However, the state filed a motion to dismiss the lawsuit on the grounds it is “entitled to absolute judicial immunity for its activities integral to the judicial process under the private person standard” and because Genovese had “no viable cause of action because his complaint does not present any issue of law or fact under which the state, were it a person, could be liable.”

Sovereign Immunity

The state of Connecticut can’t be sued without consent. This isn’t a law particular to Connecticut. It’s rooted in the common law doctrine of sovereign immunity.

Connecticut has, however, created the Office of the Claims Commissioner within the Department of Administrative Affairs, which hears and determines claims against the state. Anyone who wishes to challenge the state’s immunity can file a claim with the Office of the Claims Commissioner, which then delivers the claim to the attorney general’s office. The attorney general reviews claims and makes determinations about whether they should be represented by that office or by any state agency involved in a claim. Claims are then generally heard during hearings before the claims commissioner makes a decision.

When the claims commissioner gives permission for a lawsuit to move forward, the state’s rights are generally treated like those of a private person.

Genovese’s Suit

In the context of Genovese’s suit, Waterbury superior court judge Robert D’Andrea who issued a decision in the suit noted that this immunity applied to the case would mean “[i]f a social worker performing an investigation for the Probate Court is entitled to absolute immunity, the state acting through its employee and stepping into the private person shoes, would have the same immunity.”

Genovese’s lawsuit was granted permission to move to court by the claims commissioner but was dismissed by the superior court because it found that a three-part test established by the United States Supreme Court was met. The test looks at whether an official’s function is comparable to one who would have traditionally been granted absolute immunity under common law, whether the likelihood of intimidation or harassment from a finding of personal liability is likely to interfere with an official performing their duties, and whether there are existing procedural safeguards that protect against an official’s improper conduct.

D’Andrea found all three elements were met in the case because the state’s obligation in Toni’s case was to “investigate the parents and the proposed guardians and make a report to the Probate Court so that it could enter orders in the best interest of the children.” This meant, D’Andrea noted, that DCF was functioning as an arm of the court in the same way a social worker, probation officer, or guardian ad litem might.

D’andrea also found there was a likelihood of harassment if DCF was found liable. Lastly, he found there are safeguards in place to protect against abuse.

“The Probate Court petition was subject to adversarial proceedings and removal to the Superior Court if requested by a court or a party.” the D’Andrea noted.

The decision further noted that if Genovese had sued the social worker involved in the case, she would have been immune under state law. And, under the doctrine that the state should have the same liability under a private person in similar circumstances, D’Andrea concluded that DCF was immune from the lawsuit.

The state was acting as an “arm” of the Probate Court when it complied with the order for an investigation and report. The state, put in the place of a private person, should be granted absolute immunity preventing it from ongoing litigation.” the D’Andrea concluded, dismissing the case on the grounds of quasi-judicial immunity.

He further likened Genovese’s suit to Gross v. Rell, a 2012 case decided by the Second Circuit U.S. Court of Appeals, where a conservator acting under the approval of the probate court was subject to semi-judicial immunity because they were carrying out a specific function at the direction of the court.

Genovese appealed the decision to the appellate court and the case was transferred to the state supreme court, which has fully briefed the case and will hear oral arguments.

According to a summary of the case, Genovese is making three claims. The first is that the state is not entitled to immunity because they waived this when the claims commissioner allowed the suit to move ahead. The second is that Genovese’s case should not be compared to the Gross ruling because that involved a private citizen and Genovese’s claims are against government agents acting in their second capacity. The third is that the trial court misapplied the state statute that grants state employees personal liability.

DCF is arguing that the trial court’s judgment can be “affirmed on the alternative ground that the plaintiff’s claims are barred by the litigation privilege.”

Litigation privilege grants lawyers immunity from civil liability for statements they make about cases in which they are involved and which may injure the opposing party.

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