A lawsuit claiming the Shenandoah County Department of Social Services withheld an adopted boy’s history of committing sex offenses continues to move through the court system.
Defendants through their attorneys recently responded to the complaint filed in Shenandoah County Circuit Court. Nancie Williams, of the Front Royal law firm Williams and Bell filed the complaint on behalf of the couple who adopted the boy identified in the lawsuit. Rosalie Pemberton Fessier, of the Staunton firm TimberlakeSmith, represents Shenandoah County DSS Director Carla Taylor, Beth Delullo and Michelle Cantner.
The complaint names Taylor and former department director John T. Ayers; employees Delullo, formerly known as Beth Oliff, and Bridget Diehl; and former employees Judy Bell, Michelle Cantner and Mary Westcott as defendants.
A judge recently granted a defense request for more time to file documents in the case, Williams said by phone Friday.
Parents claim in the complaint that the boy they adopted sexually assault other children in their care. The Northern Virginia Daily is not publishing the names of the plaintiffs because the complaint alleges some of the children residing with the plaintiffs were victims of sexual assault committed by the adopted boy.
Taylor has known for more than a year that the plaintiffs intended to file legal action against the county Department of Social Services. Williams notified Taylor by letter dated Oct. 23, 2017, that the plaintiffs intended to file a lawsuit against the department pertaining to the allegations in the complaint. The letter also served as notice instructing the department to not destroy any potential evidence in the case. The department received the letter by mail Oct. 25, 2017.
Taylor was not available for comment Friday.
The complaint alleges the defendants committed fraud, intentional infliction of emotional distress, negligence and breach of contract. The plaintiffs claim the department workers illegally and fraudulently failed to properly disclose background, psychological and medical records.
The plaintiffs are seeking $8 million in damages from the defendants.
Fessier has since filed a demurrer for Taylor, Delullo and Cantner - a document in which the defendants dispute the claims in the plaintiffs’ complaint. By filing the demurrer, the defendants asked the court to dismiss the plaintiffs’ claims with prejudice.
The defense demurrer reiterates the allegations stated in the complaint, then goes on to argue in support of the request to dismiss the claims made in the lawsuit. The defense argues that the plaintiffs did not state a fraud claim against the defendants, the demurrer notes. The plaintiffs allege that the defendants “collectively made false representations regarding their knowledge of medical, psychological and background information and withheld information material to their decision to adopt.”
Fessier argues that the plaintiffs’ allegations did not state a claim of fraud with any specificity. General, non-specific allegations do not state a valid fraud claim, Fessier goes on to argue. The defense attorney adds that a statement serving as a foundation for action in fraud must represent an existing fact and not the expression of opinion.
“Here, there are no allegations of any misrepresentations made by Defendants Taylor or Cantner upon which Plaintiffs relied when they adopted (the child),” Fessier states. “Defendant Taylor is not alleged to have communicated with the (adoptive couple) at any time. Defendant Cantner’s involvement came years later and again did not involve any misrepresentations of fact. Consequently, the fraud claim against Taylor and Cantner should be dismissed with prejudice.”
The plaintiffs allege Delullo knew of misconduct prior to adoption when the claim of sexual battery against another child was reported to her in May 2011, Fessier states. The only statements attributable to Delullo were those that she could not disclose the boy’s history due to confidentiality, Fessier argues. But the claim contains no allegations that Delullo made any statements or misrepresentations to the plaintiffs of any kind after she became aware of the report into the boy’s history in May 2011.
Fessier also argues in the demurrer that the plaintiffs failed to prove their claim that the defendants intentionally inflicted emotional distress. The plaintiffs must allege four elements to support intentional infliction of emotional distress: the wrongdoer’s conduct was intentional or reckless; the conduct was outrageous or intolerable; there was a connection between the conduct and the emotional distress; and the distress was severe. Fessier argues the plaintiffs failed to prove its claim.
The defense attorney argues that the plaintiffs failed to state a claim of fraud against Delullo or a breach of contract against the three defendants.
The defendants also argue the plaintiffs failed to state a claim for punitive damages. Fessier states in her filing that the plaintiffs seek $2 million from each defendant in their case - a total of $14 million in punitive damages. But Fessier argues that the plaintiffs must support their allegations that the defendants acted with willful and wanton negligence.
“Here there is not a single allegation that these Defendants acted with the requisite malice or willfulness,” Fessier argues.
The claim for punitive damages should be reduced to $350,000 against all defendants as required by state code, Fessier notes.
Defendants Taylor, Delullo and Cantner also entered pleas of sovereign immunity that bars the plaintiff’s claim of simple negligence, according to Fessier. The defense attorney argues that local departments of social services are entitled to sovereign immunity.
The defense attorney also contends that the plaintiffs failed to file their claim within a statute of limitations for such a lawsuit. Fessier contends the two-year time frame began Nov. 7, 2014. The plaintiffs did not file the lawsuit until February 2019.