Social work misconduct may lead to liability.
Pollack, Daniel ; Marsh, James
"It is as much the duty of Government to render prompt justice
against itself, in favor of its citizens, as it is to administer the
same between private individuals" (President Abraham Lincoln, First
speech to Congress, 1861).
In a recent U.S. Court of Appeals case, Currier v. Doran (2001),
the court ruled that state-employed social workers can be held liable
for the acts of others when those social workers "created the
danger" that caused the harm. To establish a proper danger creation
claim, a plaintiff must demonstrate that
* the state agency and the individual social workers created the
danger or increased the plaintiff's vulnerability to the danger in
some way
* the plaintiff was a member of a limited and specifically
definable group
* the defendants' conduct put the plaintiff at substantial
risk of serious, immediate, and proximate harm
* the risk was obvious or known
* the defendant acted recklessly in conscious disregard of that
risk
* such conduct, when viewed in total, is shocking to the
conscience.
The plaintiffs in this federal civil rights lawsuit were two minor
children who were abused by their father. The defendants were three
social workers and a supervisor at the Children, Youth and Families
Department of the State of New Mexico. The U.S. Court of Appeals
dismissed the case against two of the social workers while allowing the
case against one social worker and the supervisor to proceed.
In this case the children alleged that their Fourteenth Amendment rights were violated when state child welfare social workers removed
them from their mother's custody and then placed them in the
custody of their abusive father. The children also alleged that the
social workers violated their Fourteenth Amendment rights by failing to
protect them while they were in state custody and by failing to protect
them once they were placed in the custody of their father.
The social workers argued that the children's claims are
barred by DeShaney v. Winnebago County Department of Social Services (1989) and that they were entitled to qualified immunity. In DeShaney
the Supreme Court considered the Fourteenth Amendment claims of Joshua
DeShaney--a victim of severe child abuse--against the local child
welfare agency. Joshua, who lived with his natural father, was removed
from the home after several allegations of abuse, only to be returned
when social workers and other professionals decided there was
insufficient evidence of child abuse to retain Joshua in state custody.
For the next six months the assigned caseworker was notified of several
factors indicating that Joshua was being abused, but the child welfare
agency took no action. Joshua was eventually beaten so violently that he
fell into a life-threatening coma.
The DeShaney court rejected Joshua's claim that the child
welfare agency and its employees had violated his constitutional rights
by "failing to intervene to protect him against a risk of violence
at his father's hands of which they knew or should have known"
(p. 192). The court stated that the Due Process Clause "generally
confer[s] no affirmative right to governmental aid, even where such aid
may be necessary to secure life, liberty, or property interests of which
the government itself may not deprive the individual" (p. 196).
The court, however, also stated the following:
While the State may have been aware of the
dangers that Joshua faced in the free world, it
played no part in their creation, nor did it do
anything to render him any more vulnerable
to them. That the State once took temporary
custody of Joshua does not alter the analysis,
for when it returned him to his father's custody,
it placed him in no worse position than
that in which he would have been had it not
acted at all; the State does not become the permanent
guarantor of an individual's safety by
having once offered him shelter. Under these
circumstances, the State had no constitutional
duty to protect Joshua. (p. 201)
In the Currier case, the children were removed from their
mother's custody and placed with their father. In DeShaney, Joshua
was removed from his father's custody and then returned to his
father. These children would not have been exposed to the dangers from
their father except for the affirmative acts of the state; the same
cannot be said for Joshua in DeShaney.
The court considered the social workers' theory that they were
shielded by DeShaney because the children were placed in the custody of
their natural father. In Ford v. Johnson (1995), the U.S. District Court
for the Eastern District of Pennsylvania considered the constitutional
claims of the mother of a child who had been beaten to death by his
father. The child had been in state custody before being placed with her
father by court order after an investigation and recommendation by state
social workers. The court decided that the mother had stated a
constitutional claim by alleging that the social workers failed to
investigate the father and failed to report information to the juvenile
court that would have disqualified the father from gaining custody. The
court stated that just because "the child is placed with a parent
as opposed to a foster parent should not change the standards by which
social agencies and their employees conduct their investigations"
(p. 233).
Thus, neither DeShaney nor other authorities shield the state
social workers in the Currier case. The court held that when the state
affirmatively acts to remove a child from the custody of one parent and
then places the child with another parent, DeShaney does not preclude
constitutional liability.
The social worker with the greatest liability first became involved
in the case before the initial custody hearing that granted physical
custody to the father. At the hearing the worker failed to alert the
court to the father's history of financial irresponsibility. A
short time later, the worker noticed bruises on the children and did not
investigate further after being told the bruises were the result of
falls. Three times during that summer, the mother made allegations that
the father and his girlfriend were abusing the children, including the
very specific accusation that the children were dunked in a bathtub full
of water as punishment. The worker did not investigate these
allegations. Soon after, the social worker was responsible for the
court's decision to grant the father legal custody, through either
his failure to investigate and report to the court or through his
affirmative recommendation. The court upheld the action against this
social worker.
The children argued that another worker, who instructed the mother
to stop making allegations of abuse, is liable under the danger creation
standard. Because of this conduct the mother was discouraged from
reporting additional signs of abuse, and the risk to the children
intensified. After an examination of similar cases in other circuits,
the court concluded that the social worker did commit a constitutional
violation.
Although reiterating the basic holding of DeShaney--that the
government is under no constitutional obligation to protect private
citizens from harm--the court held that the state can be liable when it
affirmatively places private citizens in harm's way by removing
what would otherwise be safety precautions. In general, government
liability exists only where the decision maker possesses final authority
to establish policy with respect to the action ordered. The fact that a
particular official--even a policymaking official--has discretion in the
exercise of particular functions does not result in liability based on
an exercise of that discretion. The official must also be responsible
for establishing final government policy respecting such activity before
the official or the government can be held liable.
The court has also declared that the state creates danger when it
cuts off potential sources of private aid. By discouraging the mother
from reporting additional indications of abuse, the worker increased the
children's vulnerability to the father's abuse. The court,
however, dismissed the case against this worker because a
"reasonable official in her position would not have understood that
her conduct created a claim under the danger creation theory" (p.
908).
Finally, the children alleged that the supervisor "knowingly,
recklessly, or with deliberate indifference toward and callous
disregard" for the children's rights, "failed to
instruct, supervise, control, and discipline on a continuing basis [the
social workers] in their duties" (p. 909) so as to refrain from
depriving the children of their constitutional and statutory rights. The
court held that when a superior's failure to train amounts to
deliberate indifference to the rights of people with whom his
subordinates come into contact, the inadequacy of training may serve as
the basis for constitutional liability.
Complaints of Negligence
To state a cause of action for typical negligence, a complaint must
allege facts that are sufficient to show the existence of a duty, a
breach of the duty, and an injury to the plaintiff proximately caused by
the breach. Whether a duty exists is a question of law to be determined
by the court. In deciding whether a duty exists in a particular case, a
court considers the foreseeability of the plaintiff's injury, the
likelihood of the occurrence, the magnitude of the burden of guarding
against it, and the consequences of placing that burden on the
defendant.
In defending against an allegation of professional negligence,
there is a distinction between the level of immunity afforded to social
workers when the duties performed are prosecutorial, judicial, or
otherwise closely related to the judicial process, and when those duties
are investigatory or administrative in nature (Archterhofv. Selvaggio,
1989; Hoffman v. Harris, 1993). This line of reasoning follows key
Supreme Court precedents, including decisions in Buckley v. Fitzsimmons
(1993) and Forrester v. White (1988) in which the court stressed a
functional approach to determining absolute immunity. The court said it
would look to the "nature of the function performed, not the
identity of the actor who performed it" (Buckley v. Fitzsimmons, p.
229).
Qualified Immunity
Public officials generally are entitled to assert the defense of
qualified immunity for discretionary acts occurring in the course of
their official duties (Harlow v. Fitzgerald, 1982). The officials are
shielded from liability for civil damages for those actions if their
conduct does not violate a clearly established statutory or
constitutional right of which a reasonable person would have known
(Davis v. Scherer, 1984). The first inquiry in examining a defense of
qualified immunity is whether the plaintiff has alleged "the
violation of a clearly established constitutional right (Siegert v.
Gilley, 1991, p 226). For a constitutional right to he clearly
established the "contours of the right must be sufficiently clear
that a reasonable official would understand" (Anderson v.
Creighton, 1987, p. 640) that what the official is doing violates that
right. Thus, a constitutional right is clearly established if "in
light of pre-existing law the unlawfulness is apparent (Anderson v.
Creighton, p. 640). The issue is therefore an objective one.
Practice Tips
Based on the court's holding, social workers should keep in
mind the following practice points:
* Courts are increasingly looking into the day-to-day ways in which
public agency social workers are doing their jobs. Although the concept
of qualified immunity is intact, social workers who blatantly fail to
heed warning signs of abuse or potential abuse will not be protected
from liability (Gelman, Pollack, & Auerbach, 1996; Mason &
Pollack, 1998). The courts have repeatedly held that it is unfair to
deny legal relief to victims of government negligence on the grounds of
government immunity (Artist M. v. Johnson, 1990; Scott v. County of Los
Angeles, 1994; Thurman v. City of Torrington, 1984).
* For purposes of liability, this court held that there is no
practical difference between an agency worker who improperly places a
child with a foster parent or with a natural parent (Cavanaugh &
Pollack, 1997; Legere, 2000).
* Although social workers may of necessity do abbreviated
investigations and plead that they are underfunded and overworked, this
will not be an adequate shield to a charge of professional malpractice.
As one judge wrote, "Understaffing is not a defense to a violation
of administrative law" (Salameda v. Immigration and Naturalization
Service, 1995, p. 452).
* Although in general public agencies are not required to prevent
harm to a child, civil lawsuits as well as criminal ones may succeed
when a child suffers maltreatment after the agency worker knew or should
have known that the child was improperly placed in a dangerous setting
(Ansay, 2001).
* A supervisor's failure to properly train his or her
subordinates may amount to "deliberate indifference" to the
rights of people with whom the social worker comes into contact.
* Although social workers must be given considerable discretion in
using their best judgment without fear of liability, there are
judicially established precedents of which they must be cognizant. These
are state specific and should be part of the annual training provided to
all government social workers.
References
Anderson v. Creighton, 483 U.S. 635 (1987).
Ansay, S. J. (2001). Integrating family visitation and risk
evaluation: A practical bonding model for decision makers. Family
Relations, 50, 220-229.
Archterhof v. Selvaggio, 886 F.2d 826 (6th Cir. 1989).
Artist v. Johnson, 917 F.2d 980 (1990).
Buckley v. Fitzsimmons, 509 U.S. 259 (1993).
Cavanaugh, K., & Pollack, D. (1997). Liability protections for
foster parents. Kansas Journal of Law and Public Policy, 6(3), 78-88.
Currier v. Doran, 242 F.3d 905 (2001), cert. denied, 112 S. Ct. 543
(2001).
Davis v. Scherer, 468 U.S. 183 (1984).
DeShaney v. Winnebago County Department of Social Services, 489
U.S. 189, 109 S. Ct. 998 (1989).
Ford v. Johnson, 899 F. Supp. 227 (1995).
Forrester v. White, 484 U.S. 219 (1988).
Gelman, S., Pollack, D., & Auerbach, C. (1996). Liability
issues in social work education. Journal of Social Work Education, 32,
351-361.
Harlow v. Fitzgerald, 457 U.S. 800 (1982).
Hoffman v. Harris, 511 U.S. 1060; 114 S. Ct. 1631; 128 L. Ed. 2d
354 (1993).
Legere, T. D. (2000). Preventing judicially mandated orphans.
Family and Conciliation Courts Review, 38, 260-279.
Lincoln, A. (1861). Cong. Globe, 37th Cong., 2d Sess., App. 2.
Mason, S., & Pollack, D. (1998). Prozac, families, and the law:
Implications for social work practice. Clinical Social Work Journal, 26,
317-332.
Salameda v. Immigration and Naturalization Service, 70 F.3d 447
(7th Cir. 1995).
Scott v. County of Los Angeles, 32 Cal Rptr. 2d 653 (1994).
Siegert v. Gilley, 500 U.S. 226 (1991).
Thurman v. City of Torrington, 595 F.Supp. 1521 (1984).
Daniel Pollack, JD, MSW, is professor, Wurzweiler School of Social
Work, Yeshiva University, 2495 Amsterdam Avenue, New York, NY
10033-3312; e-mail: dpollack@yu.edu, and senior fellow, Center for
Adoption Research, University of Massachusetts.
James Marsh, JD, is a practicing attorney in the State of New York
and senior fellow, Center for Adoption Research, University of
Massachusetts.
Original manuscript received February 4, 2002 Final revision
received December 4, 2002 Accepted December 16, 2002