BLACKWELL, Justice.
As a general rule, the sovereign immunity of the State and its departments is waived by the Georgia Tort Claims Act for "the torts of state officers and employees ... acting within the scope of their official duties or employment," OCGA § 50-21-23(a), but there are exceptions to the general rule. See OCGA § 50-21-24(1)-(13). This case concerns one of these exceptions, commonly known as the "discretionary function" exception. See OCGA § 50-21-24(2). Here, the guardians of two infant boys sued the Department of Human Services (DHS), alleging that the Clayton County Department of Family and Children Services (DFCS) was negligent in several respects in its investigation of a report that the boys were neglected by their parents.
On November 4, a grandfather of the boys visited the mobile home that McCart and Zelek shared. The grandfather observed that one of the boys "didn't look right," and it appeared to the grandfather that both McCart and Zelek were under the influence of alcohol or drugs.
The same day, the pediatrician made a report about the boys to Henry County DFCS.
When it received the referral, Clayton County DFCS assigned the report to Eric Jackson for investigation. Jackson, a field program specialist, had 17 years of experience with DFCS, including 12 years as a case manager. To begin, Jackson telephoned Henry County DFCS to confirm that he had received all available information about the case, and he telephoned the office of the pediatrician, only to learn that it was closed for the day. Jackson then arranged for an on-call DFCS social services worker to make an unannounced visit to the McCart-Zelek home that evening. The on-call worker went to the home, but no one responded when he knocked on the door and telephoned the home.
The same day — November 8 — Jackson made an unannounced visit to the McCart-Zelek home, knocked several times on the door, and heard no response. Jackson then telephoned Zelek, but he got no answer and left a voicemail message for her. Jackson also telephoned his supervisor to report on the status of the investigation. As Jackson was returning to his office, Zelek returned his call, explaining that the family was "at the family cabin" in North Carolina and would return home on November 12. According to Jackson, Zelek was "very articulate," and he had no concern that she was trying to avoid him. Jackson and Zelek made arrangements for Jackson to visit the family after they returned.
On the morning of November 13, Jackson visited the McCart-Zelek home, where he was greeted by McCart and found Zelek and the boys on a sofa. Zelek was seated, with one boy in her lap, and the other sleeping to her side, both wearing sleepers. Zelek said that she had just fed the boys, and Jackson saw two empty bottles on a nearby table. Jackson sat next to Zelek, and he watched as Zelek burped the boy in her lap and then rocked him to sleep. At that point, Zelek asked Jackson if McCart could put the boys to bed, and Jackson agreed. As McCart carried the boys to their bedroom, Jackson followed, and he inspected their bedroom, as well as most of the other rooms in the mobile home.
Jackson then discussed the concerns reported by the pediatrician with McCart and Zelek. When he asked about the small size of the boys, Zelek said that As. M. weighed approximately 11 pounds, 4 ounces, and she said that Av. M. weighed about 11 pounds. She added that she had her own concerns about their pediatrician, who had failed, she said, to get the boys enrolled in a State program known as "Babies Can't Wait."
At the end of his visit, Jackson prepared a safety plan, which identified the areas of concern for the boys, as well as the steps that McCart and Zelek promised to take to address those concerns, and McCart and Zelek both signed the plan. Jackson also told them that DFCS would work with them to address the needs of the boys, including by helping them to enroll in "Babies Can't Wait." Jackson also told them that DFCS would work with them to address McCart's medical needs. In the days that followed his
There is some dispute about what happened in the McCart-Zelek home in the days that followed the drug screen. According to Zelek, she became sick, and she took medications for her sickness, but, she says, only medications that had been prescribed for her. McCart, on the other hand, has acknowledged that he abused alcohol and drugs during that time. Both McCart and Zelek have admitted that they did not feed the boys between November 15 and November 20, and both have attempted to offer excuses for their neglect. McCart has claimed, for instance, that he believed that their grandmother fed the boys on November 16. The grandmother, however, has said that she did not feed the boys — she visited the McCartr-Zelek home on November 16, but she says that she did not go inside — but she recalls McCart feeding one of the boys that day. McCart also has claimed that a friend — described by Zelek as a "drug friend" of McCart — fed the boys during this period. Zelek has said that she believed that McCart was feeding the boys. In any event, it is undisputed that the boys were neglected between November 15 and November 20, and that is all we really need to know for purposes of this appeal.
On November 20, several relatives arrived at the McCart-Zelek home, where they found McCart and Zelek in a state that they described as "semi-conscious" or "unconscious." These relatives called an ambulance for McCart and Zelek, and they delivered the boys to their aunt, who agreed to care for them. After taking the boys, the aunt became increasingly concerned about their condition, and she telephoned their pediatrician. He advised the aunt to take the boys to the hospital, and early on the morning of November 21, they arrived at Children's Healthcare of Atlanta at Egleston. The boys were severely malnourished, emaciated, covered in sores, and "within hours to days" of death. As. M. weighed slightly less than 10 pounds, and Av. M. weighed barely nine pounds. They were admitted to the hospital and survived their ordeal, and their grandmother and great aunt later were appointed as their guardians.
The guardians filed this lawsuit against DHS, alleging that Clayton County DFCS — specifically through the actions and inactions of Jackson — was negligent in its investigation of the report of the pediatrician. In particular, the guardians complain that Jackson failed to see the boys sooner, that when he saw them, he did not undress and physically examine them, and that he failed to visit the McCart-Zelek home unannounced. If only Jackson had conducted his investigation differently, the guardians contend, the boys might have been removed from the custody of their parents before November 15, and they would not have suffered the severe neglect that followed. Upon the motion of DHS, the trial court dismissed the lawsuit, concluding that the "discretionary function" exception applied to the investigation undertaken by Jackson, and DHS, therefore, had sovereign immunity from the lawsuit. As we noted earlier, the Court of Appeals reversed. Spruill, 317 Ga.App. at 228, 729 S.E.2d 654.
2. The Tort Claims Act preserves sovereign immunity from, among other things, "liability for losses resulting from ... [t]he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused." OCGA § 50-21-24(2). The Act defines a "discretionary function or duty" as a "function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration
The "discretionary function" exception serves to "prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort," id. at 682-683, 523 S.E.2d 571 (citation and punctuation omitted), and in light of its function, we have construed the exception to apply only to an exercise of discretion that amounts to "[a] governmental policy decision[]." Edwards v. Ga. Dept. of Children & Youth Svcs., 271 Ga. 890, 892, 525 S.E.2d 83 (2000). The exception does not extend, we have found, to an exercise of a more routine discretion, even if that discretion might be affected in some way by social, political, or economic factors. See Dept. of Transp. v. Brown, 267 Ga. 6, 7(1), 471 S.E.2d 849 (1996). That said, the exception is not limited to "policy and planning level employees," and it may properly extend as well to "employees who make day-to-day operational and management decisions." Brantley, 271 Ga. at 683, 523 S.E.2d 571 (citation and punctuation omitted). "It is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case." Id. (citation and punctuation omitted).
The Court of Appeals concluded that this case involves no "governmental policy decisions," reasoning that
Spruill, 317 Ga.App. at 228, 729 S.E.2d 654. In support of its conclusion, the Court of Appeals relied upon our decisions in Edwards and Brantley, as well as its own decision in Ga. Dept. of Human Resources v. Bulbalia, 303 Ga.App. 659, 694 S.E.2d 115 (2000). See Spruill, 317 Ga.App. at 227-228, 729 S.E.2d 654. Those cases, however, involved the routine care of children in the custody of the State and the decisions of their state custodians, who were acting in loco parentis. See, e.g., Edwards, 271 Ga. at 890, 525 S.E.2d 83 (claim that Youth Development Center personnel were negligent in failing to provide proper medical care to juvenile in their custody); Brantley, 271 Ga. at 679, 523 S.E.2d 571 (claim that foster parents were negligent in leaving two-year-old foster child alone in swimming pool); Bulbalia, 303 Ga.App. at 659-660, 694 S.E.2d 115 (claim that foster parents were negligent in failing to supervise eleven-year-old foster child, who was struck by a car).
The guardian-plaintiffs contend that the "discretionary function" exception does not apply in this case for two reasons. First, they say, DFCS policy did not afford Jackson discretion to make some of the choices that he made in the pursuit of his investigation. Second, they argue, even if Jackson did have some discretion, his exercises of that discretion were not sufficiently informed by "social, political, and economic factors" to amount to "government policy decisions."
(a) We first consider the extent to which DFCS policy afforded discretion to Jackson. According to the guardian-plaintiffs, Jackson had no discretion with respect to three aspects of his investigation. He was absolutely required, they contend, to see the boys within 24 hours of his receipt of the report of the pediatrician. He also was absolutely required, they argue, to visit the McCart-Zelek home unannounced. And when he visited the home on November 13, 2007, he was absolutely required, they say, to undress the boys and visually inspect their undressed bodies. DFCS policy, the guardian-plaintiffs urge, did not afford Jackson any discretion to do otherwise.
About seeing the boys sooner than Jackson did, DFCS policy requires "an immediate to 24-hour response" to a report of the maltreatment of a child less than five years of age. Within that time, the policy provides, DFCS personnel must lay eyes upon the child, and children too young to sit for an interview must be "observe[d] for physical indicators of maltreatment." But the policy also acknowledges that there sometimes may be "[j]ustif[iable] reasons for not meeting the response time," and it provides that DFCS personnel must document those reasons if they are unable to make contact with a child during the initial response period. In this case, Jackson arranged for an on-call worker to go to the McCart-Zelek home on the day that Clayton County DFCS received the report, and Jackson himself went to the home on the next day. Even if the family was inside the home on these occasions, the on-call worker and Jackson saw no indication that they were, and it is undisputed that both the on-call worker and Jackson properly documented the reasons why they were unable to visit the boys when they went to the home. In the circumstances in which Jackson found himself, that was a determination that was committed by DFCS policy to his discretion.
About making an unannounced visit, DFCS policy provides generally that DFCS personnel should "[p]roceed unannounced to the home setting," but it affords discretion to those personnel to determine — in consultation with their supervisors — how best to proceed when an initial attempt to contact a family is unsuccessful. And even as to the initial attempt, the policy affords a limited discretion to DFCS personnel to announce their visits.
Finally, with respect to undressing the boys, the guardian-plaintiffs point to a DFCS policy that requires personnel to "[u]ndress infants under age one year to determine whether there are any physical signs of child maltreatment" and to "[o]bserve all reported injuries." Their reliance upon these policies, however, is misplaced. As to the absolute requirement to undress children less than one year of age, the boys were not less than one year of age when Clayton County DFCS received the report of their neglect.
(b) We now consider whether the discretion exercised by Jackson amounts to a discretion to make "governmental policy decisions" based on "social, political, and economic factors." Like the Court of Appeals, the guardian-plaintiffs attempt to characterize Jackson's investigative decisions as "routine child care" decisions, and also like the Court of Appeals, they rely principally upon our decisions in Edwards and Brantley. But as we noted earlier, those cases are not much like this one.
The decisions as to which Jackson exercised discretion — how best to investigate the pediatrician's report, including how best to make initial contact with the boys, how best to assess the extent to which the boys were in danger, and whether to insist in his initial visit that the children be undressed for his inspection — were decisions that necessarily implicated a number of "social, political, and economic" policy considerations. The State indisputably has a strong and compelling interest in keeping the most vulnerable members of society from physical harm. See Stanley v. Illinois, 405 U.S. 645, 652(II), 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). See also Bendiburg v. Dempsey, 909 F.2d 463, 470 (11th Cir.1990). "This unquestionably compelling state interest, however, may not be used as a pretense for arbitrary governmental intrusion into the private affairs of its citizens." Doe v. Heck, 327 F.3d 492, 525(II)(B) (7th Cir.2003). After all, our Constitution secures the fundamental "right of parents to direct the upbringing of their children," Troxel v. Granville, 530 U.S. 57,
In every investigation of alleged parental neglect of a child, a balance must be struck between these competing interests, and DFCS policy acknowledges as much. For instance, the DFCS "Statement of Good Practice Principles" advises DFCS personnel to keep in mind not only that children are entitled to safety and security, but also that parents have a right not to be "unduly interfered with by the [S]tate." Likewise, DFCS policy acknowledges that DFCS personnel must make "critical judgments that assertively protect children from abuse and neglect, yet, which do not unduly hinder a parent's right to rear a child without government interference."
In addition, DFCS has only limited investigative resources, and its personnel charged with investigating reports of child neglect have only limited time. How best to allocate the limited resources and time available for investigation — when, for instance, DFCS personnel have tried unsuccessfully to make contact with a family — necessarily requires a policy judgment as well, weighing the limited resources and time available, the perception of the risk of harm in a particular case, the demands of other cases that must compete for the limited resources and time, and the enforcement and protective priorities of the agency. Striking such a balance inherently requires a consideration of social, economic, and political factors.
For these reasons, courts in other jurisdictions have applied similar "discretionary function" exceptions to exercises of discretion like that Jackson exercised in this case. See, e.g., Earle v. State of Vermont, 180 Vt. 284, 910 A.2d 841, 851-852 (2006) ("We hold that the child protection decisions made in this case in response to allegations of abuse... fall squarely within the intended scope of the discretionary function exception."); Olson v. Ramsey County, 509 N.W.2d 368, 371 (Minn.1993) (where county social worker declined to remove two-year-old child from custody of her mother, the "social worker was required to weigh the competing governmental policies of protecting the child from danger within the family and keeping the family together, a decision involving profound social considerations and, consequently, a decision at the policymaking level protected by discretionary function immunity"). See also Bolyard v. Kansas Dept. of Social Svcs., 259 Kan. 447, 912 P.2d 729, 735 (1996) (decision to leave children in custody of their mother was within the discretionary function exception and "involve[d] discriminating judgment between competing interests ..."); Washington Metro. Area Transit Auth. v. Tinsley, 202 Md.App. 115, 32 A.3d 75, 85 (2011) (decision about when to clean train platform involved the exercise of policy judgment). Our own Court of Appeals has held as well that the "discretionary function" exception applies to investigative and law enforcement decisions committed to the discretion of state officers and employees. See, e.g., Lewis v.
Judgment reversed.
All the Justices concur, except HUNSTEIN, J., who concurs in the judgment only.