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  • 标题:Social work misconduct may lead to liability.
  • 作者:Pollack, Daniel ; Marsh, James
  • 期刊名称:Social Work
  • 印刷版ISSN:0037-8046
  • 出版年度:2004
  • 期号:October
  • 语种:English
  • 出版社:Oxford University Press
  • 摘要: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
  • 关键词:Appellate courts;Child abuse;Social workers

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
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