CHARLESTON – The West Virginia Supreme Court of Appeals ordered the dismissal of a lawsuit against the state Department of Health and Human Resources over the death of an infant.

The lawsuit was filed by the father of a 3-month-old who was killed when the baby’s mother rolled over on her while under the influence of drugs and alcohol.

Justice Beth Walker authored the opinion, which was filed on Jan. 31.

Eric Gillispie, the administrator of his daughter’s estate, filed a wrongful death action against the West Virginia Department of Health and Human Resources, arguing that the DHHR’s investigation of allegations made about the care of his daughter was not sufficiently thorough.

The DHHR argued, among other things, that the circuit court should have granted its motion for summary judgment on the basis of qualified immunity because the complained-of conduct involved discretionary functions and there was no violation of a clearly established statutory or constitutional law.

“We agree with DHHR’s position and reverse the order of the Circuit Court of Kanawha County and remand with instructions to enter summary judgment in favor of DHHR,” Walker wrote.

On April 19, 2010, Child Protective Services received an anonymous call alleging that Leslie Boggs, who was involved in a dispute with Gillispie regarding their daughter, Raynna Boggs, was unable to care for the child as needed because she was a recovering addict and alcoholic and continued to abuse substances.

The anonymous reporter, which was later identified as Gillispie, also alleged the mother’s current boyfriend was a convicted felon with a history of domestic violence.

The following day, Erica Garcia attempted face-to-face contact with Leslie Boggs and Raynna Boggs at the home of Donna Boggs. Garcia knocked on the door, heard voices and saw two women leaving the house by car. When she stopped the car and asked if either of the women were Leslie Boggs, both denied they were her and she gave them her card and they left.

Ninety minutes later, Donna Boggs called Garcia and told her that they had lied about their identities because they wanted to confirm that she was a CPS worker and not someone attempting to serve papers. During the call, they set up an interview for April 22, 2010.

During the interview, Garcia and another worker, Sarah Flowers, observed Leslie Boggs and Donna Boggs and interviewed them separately. They reported that Leslie Boggs attended to Raynna Boggs during the visit, acted appropriately with her and had the basic knowledge of how to care for her.

Leslie Boggs also denied abusing any substances, said that she drank socially—but not while her children were present—and Donna Boggs likewise reported that Leslie Boggs did not abuse drugs or alcohol. The CPS workers did not find any evidence of alcohol or drug abuse during the home visit and determined that no present danger conditions existed to justify removing Raynna Boggs from the home at that time.

On May 6, 2010, Garcia met with her supervisor, Pamela Ingram, to report on the face-to-face visit and her conclusion that no present danger existed. Ingram concurred in Garcia’s findings.

While Garcia continued the investigation into whether or not continued CPS intervention was necessary, she was informed that Raynna Boggs had died under suspicious circumstances on May 10, 2010.

Leslie Boggs is currently incarcerated for the death of Raynna Boggs in Lakin Correctional Center. She pleaded guilty in 2012 to child neglect causing death and was sentences to up to 15 years in prison.

At that hearing, Circuit Judge Paul Zakaib Jr. said that Leslie Boggs showed no remorse for the child’s death.

In December, Kanawha Circuit Judge Carrie Webster refused to dismiss the lawsuit, and the DHHR appealed to the state Supreme Court.

The Supreme Court justices unanimously said Gillespie’s lawsuit should be dismissed, and ordered Webster to do so.

Walker wrote that the justices are wary of allowing a party to overcome qualified immunity by cherry-picking a violation of any internal guideline irrespective of whether the alleged violation bears any causal relation to the ultimate injury.

Therefore, in the absence of allegations tying the alleged violations to Raynna Boggs’ death, the court is unable to view the case.

“Although we are struck by the resoundingly devastating facts of this case, we are bound to faithfully apply the law,” Walker wrote.

The court reversed the order of Kanawha Circuit Court denying the DHHR’s motion for summary judgment and remanded the case for the entry of an order granting the DHHR’s motion for summary judgment and dismissing the action against it.

“Raynna’s tragic death perhaps epitomizes this temptation, but we find that Mr. Gillispie has failed to demonstrate a violation of a clearly established statutory or constitutional law sufficient to strip DHHR of its qualified immunity,” Walker wrote.

W.Va. Supreme Court of Appeals case number: 17-0025

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