In the recent West Virginia Supreme Court case of R.L.D. v. W.Va. Dep’t of Health & Human Res., 2018 WL 6040310 (November 19, 2018), the Court upheld summary judgment as a matter of law in favor of Child Protective Services (“CPS”) workers who were sued for allegedly kidnapping a minor child from his grandparents. The grandparents were the child’s legal guardians at the time. CPS is a division of the West Virginia Department of Health and Human Resources (“DHHR”). The grandparents alleged that the CPS workers committed fraud, were guilty of “child concealment,” intentional infliction of emotional distress, and “constitutional and statutory violations,” in the course of a child neglect investigation which resulted in the child being removed from the custody of the grandparents. The Court unanimously held that the CPS workers were immune from liability because they are entitled to a significant amount of discretion in their work of protecting children, and that they are liable for damages only when they are plainly incompetent or knowingly violate the law. They are not liable for carelessness or negligence in the course of performing their duties. 

This case was unanimously decided by the newly-constituted Supreme Court, which as of November includes new Justices Armstead and Jenkins. The Court cited to a long line of recent West Virginia cases applying qualified immunity to discretionary actions of state employees. We anticipate that the Supreme Court as currently constituted will continue to support and possibly expand qualified immunity. To read the full Supreme Court decision, click here.