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State prevails in neglect complaint, relatives sued in deprived twins case

Relatives sued in deprived twins case

Tessa Zelek

Tessa Zelek

photo

James McCart

ATLANTA — Georgia Supreme Court has overturned a Court of Appeals ruling against a child protective services worker at the center of a deprivation case involving twin brothers.

The 1-year-old babies were underweight and failing to thrive, their pediatrician reported to officials in early November 2007.

Eric Jackson, a caseworker with Clayton County Department of Family and Children Services, went to the family home to investigate Nov. 13, 2007. Jackson found the babies dressed in full-body jumpers and one wrapped in a blanket.

The veteran caseworker watched the parents, James McCart and girlfriend Tessa Zelek, interact with the babies and discussed concerns from the pediatrician.

However, he didn’t pick up the babies and did not undress them to conduct a visual examination. Instead, he prepared a safety plan and left the babies with the couple.

The parents successfully passed drug screenings the next day, but a week later, the babies were admitted to a children’s hospital in Atlanta.

Doctors there declared the babies to be “within hours to days” of death. The parents then admitted to not feeding their sons for five days and subsequently failed drug tests.

Zelek, 30, was convicted of child cruelty and went to prison in December 2009 to serve 70 years. McCart, 29, testified against her and got 30 years on the same charges.

The babies were placed with their paternal grandmother, Denise Spruill, and paternal great-aunt Lisa Scroggins. The women sued Georgia Department of Human Resources, claiming Jackson was negligent in the investigation.

The department filed a motion to dismiss on the basis of sovereign immunity, which was granted by Clayton County State Court Judge Aaron Mason. Mason determined that Jackson’s actions were discretionary and the department was therefore immune from liability.

The women appealed the ruling to the Court of Appeals, which reversed Mason’s decision. The higher court found that Jackson’s decisions were not governmental policy decisions that are insulated from judicial review. Instead, they were matters of a routine investigation of reported child neglect that do not fall within the discretionary function exception.

The department appealed that ruling to the Georgia Supreme Court, which reversed the Court of Appeals, essentially agreeing with Mason’s original decision.

“The high court has determined that under the Georgia Tort Claims Act, the Court of Appeals was wrong,” stated the opinion. “Here, Jackson’s decisions about how to investigate the pediatrician’s report required Jackson to balance competing policy considerations, and the trial court did not err when it determined that Jackson’s choices were rooted in the consideration of policy factors.”

The women have the right to appeal the Georgia Supreme Court’s decision.