The critics and plaintiffs’ attorneys are out there. They seethe with frustration in their assertion that there are child protection workers who are as dysfunctional and flawed as some of the abusive and neglectful parents they investigate. They feel mistreated, ambushed, without recourse to a neutral oversight authority, and fume that the courts will believe the word of child protection workers over their clients. And yet, when there is a credible allegation that a child protection worker has knowingly made misleading or false statements which resulted in the wrongful removal of a child, their criticism and anger seem justified. Such misrepresentations may involve highly contested issues of material fact that more properly should be examined by an agency supervisor or in court on the merits. The supervisor or court, inadvertently giving credence to the worker’s misrepresentation, may thereby be swayed in favor of the worker’s recommendations.
Guest Feature Article by Daniel Pollack, MSW, JD
Guest Feature Article by Daniel Pollack, MSW, JD
Legal Aspects of Immunity for Government Social Workers
It is an accepted principle that a parent has a constitutionally protected interest in the custody and care of his or her child. This interest does have exceptions, especially when the child may be in immediate or apparent danger. This is when child protection services gets involved. Crucial to every child protection investigation is to establish the facts and circumstances of the case. When these are presented to the court at a dependency hearing, the evidence may become proof.
The best professional judgment of child protection workers may, in hindsight, be wrong. For this and other reasons, child protection workers usually have some level of immunity from prosecution. [1] When individual government officials are sued for monetary damages they generally are granted either absolute or qualified immunity. The United States Supreme Court has stated that qualified immunity is the norm, absolute immunity is the exception. [2]
Should that immunity disappear when, in their official capacities as child protection workers, they make knowingly inaccurate or false statements which result in the wrongful removal of a child? California law provides for public employee immunity from liability for an injury caused by the employee instituting or prosecuting any judicial or administrative proceeding within the scope of their employment, even if he or she acts maliciously and without probable cause. [3] However, a public employee has no such immunity if he or she acted with malice in committing perjury, fabricating evidence, failing to disclose exculpatory evidence or obtaining evidence by duress.
Generally, whether an employee is acting within the scope of his or her employment is ordinarily a question of fact to be determined in light of the evidence of the particular case. Some courts hold that immunity for child protective workers exists as long as they act responsibly in the performance of their duties. The immunity applies even where a complaint alleges caseworker misconduct or intentional wrongdoing. [4] Others hold that the worker must be involved in a function critical to the judicial process itself. In either case, the more outrageous the employee's alleged tortuous conduct, the less likely it could be described as foreseeable, and the less likely the social service agency could be required to assume responsibility for the act as a general risk of doing business.
Recent Cases
In Doe v. Lebbos, [5] the Ninth Circuit held that a social worker was entitled to absolute immunity for allegedly failing to investigate adequately the allegations of abuse and neglect against a father and in allegedly fabricating evidence in a child dependency petition because those actions had the "requisite connection to the judicial process' to be protected by absolute immunity (at 826)." In Van Emrik v. Chemung County Dep't of Soc. Servs., [6] the court found that child protective caseworkers were entitled to qualified immunity in connection with the removal of a child from the custody of her parents during a child abuse investigation. In the Sixth Circuit and the District of Columbia Circuit the type of immunity depends on the particular task the worker is doing. In Gray v. Poole, [7] the court held that qualified immunity covers social workers acting as investigators, while social workers testifying as witnesses are protected by absolute immunity. In Rippy ex rel. Rippy v. Hattaway, [8] the court ruled that absolute immunity protects social workers who initiate proceedings on behalf of a child. In Austin v. Borel, [9] the court ruled that child protection workers were not entitled to absolute immunity when they filed an "allegedly false verified complaint seeking the removal of two children" from the family home (at 1363).
Ethical Considerations
There is, of course, a difference between misrepresentation of a piece of physical or verbal evidence and the actual creation of false evidence. Misrepresentation involves the willful giving of a misleading representation of the facts. Creation of false evidence involves the act of improperly causing a ‘fact’ to exist. More often, critics and attorneys accuse workers of a willingness to misrepresent, selectively quote, and misconstrue information to support their claims and therefore to present an entirely misleading case. Rather than sticking to agency protocols and training the workers sensationalize their documentation and findings in a misleading fashion.
To what extent are such allegations true? Do workers consciously or unconsciously misrepresent evidence, and selectively engage in systematic distortion? How often do they may make deliberate efforts to mislead, deceive, or confuse their own supervisor or the court in order to promote their own personal or ideological objectives? How frequently are workers omitting or concealing material facts? Under the guise of vigilance, are there child protection workers whose adherence to rules and procedures is purposely excessive?
From a social work, legal, or judicial perspective, making a knowing misrepresentation in a child protection case is a serious ethical breach. The NASW Code of Ethics, 4.01(c), notes that: “Social workers should base practice on recognized knowledge, including empirically based knowledge, relevant to social work and social work ethics.” At 4.04 the Code goes on to state: “Social workers should not participate in, condone, or be associated with dishonesty, fraud, or deception.” Dishonesty, shading the truth, or a lack of candor cannot be tolerated in child protection services, a field of endeavor built upon trust and respect for the law. Whether or not child protection workers deserve immunity from prosecution when they misrepresent or fabricate evidence is a question each states’ courts are dealing with. Similarly, each court must decide whether such misconduct warrants setting aside the decision to remove the child from his or her home. In the final analysis, the question might soon find itself before the U.S. Supreme Court.
A worker’s misrepresentation or fabrication of evidence is particularly pernicious because it puts the whole field of child protection in a negative light. Whether or not immunity is granted, there is simply no excuse for this kind of willful and egregious conduct.
Endnotes
[1] See, e.g., Abdouch v. Burger, 426 F.3d 982 (8th Cir. 2005) and Babcock v. Tyler (884 F.2d 497 (9th Cir. 1989) (absolute immunity shields social workers to the extent that their role is functionally equivalent to that of a prosecutor); but see Burton v. Richmond, 276 F.3d 973 (2002) (when a state department of human services affirmatively places children in an abusive foster care setting, the state may be liable for damages); Gray v. Poole, 275 F.3d 1113, (D.C. Cir. 2002) (qualified immunity covers social service workers acting as investigators, but when testifying as witnesses they are protected by absolute immunity). Qualified immunity is often afforded if the social work is involved in a “discretionary function” unless his or her conduct is clearly a violation of a statute or constitutional principle (Snell v. Tunnell, 698 F. Supp. 1542 (W.D. Okla. 1988).
[2] Harlow v. Fitzgerald, 457 U.S. 800 (1982) (absolute immunity is appropriate in limited circumstances -- judicial, prosecutorial, and legislative functions-- whereas executive officials usually receive qualified immunity).
[3] Cal. Gov't Code ยง 821.6
[4] Cunningham v. Wenatchee, 214 F. Supp. 2d 1103 (E.D. Wash. 2002).
[5] 348 F.3d 820 (9th Cir. 2003).
[6] 911 F.2d 863, (2d Cir. 1990).
[7] 275 F.3d 1113 (D.C. Cir 2002).
[8] 270 F.3d 416 (6th Cir. 2001).
[9] 830 F.2d 1356, 1363 (5th Cir. 1987).
This article originally appeared in the APSAC Advisor: Do child protection workers deserve immunity when they misrepresent or fabricate evidence?, American Professional Society on the Abuse of Children Advisor, 21(2), 18-19.
Daniel Pollack, MSW, JD is full professor at Yeshiva University School of Social Work in New York City and is a frequent expert witness and contributer to this blog.
It is an accepted principle that a parent has a constitutionally protected interest in the custody and care of his or her child. This interest does have exceptions, especially when the child may be in immediate or apparent danger. This is when child protection services gets involved. Crucial to every child protection investigation is to establish the facts and circumstances of the case. When these are presented to the court at a dependency hearing, the evidence may become proof.
The best professional judgment of child protection workers may, in hindsight, be wrong. For this and other reasons, child protection workers usually have some level of immunity from prosecution. [1] When individual government officials are sued for monetary damages they generally are granted either absolute or qualified immunity. The United States Supreme Court has stated that qualified immunity is the norm, absolute immunity is the exception. [2]
Should that immunity disappear when, in their official capacities as child protection workers, they make knowingly inaccurate or false statements which result in the wrongful removal of a child? California law provides for public employee immunity from liability for an injury caused by the employee instituting or prosecuting any judicial or administrative proceeding within the scope of their employment, even if he or she acts maliciously and without probable cause. [3] However, a public employee has no such immunity if he or she acted with malice in committing perjury, fabricating evidence, failing to disclose exculpatory evidence or obtaining evidence by duress.
Generally, whether an employee is acting within the scope of his or her employment is ordinarily a question of fact to be determined in light of the evidence of the particular case. Some courts hold that immunity for child protective workers exists as long as they act responsibly in the performance of their duties. The immunity applies even where a complaint alleges caseworker misconduct or intentional wrongdoing. [4] Others hold that the worker must be involved in a function critical to the judicial process itself. In either case, the more outrageous the employee's alleged tortuous conduct, the less likely it could be described as foreseeable, and the less likely the social service agency could be required to assume responsibility for the act as a general risk of doing business.
Recent Cases
In Doe v. Lebbos, [5] the Ninth Circuit held that a social worker was entitled to absolute immunity for allegedly failing to investigate adequately the allegations of abuse and neglect against a father and in allegedly fabricating evidence in a child dependency petition because those actions had the "requisite connection to the judicial process' to be protected by absolute immunity (at 826)." In Van Emrik v. Chemung County Dep't of Soc. Servs., [6] the court found that child protective caseworkers were entitled to qualified immunity in connection with the removal of a child from the custody of her parents during a child abuse investigation. In the Sixth Circuit and the District of Columbia Circuit the type of immunity depends on the particular task the worker is doing. In Gray v. Poole, [7] the court held that qualified immunity covers social workers acting as investigators, while social workers testifying as witnesses are protected by absolute immunity. In Rippy ex rel. Rippy v. Hattaway, [8] the court ruled that absolute immunity protects social workers who initiate proceedings on behalf of a child. In Austin v. Borel, [9] the court ruled that child protection workers were not entitled to absolute immunity when they filed an "allegedly false verified complaint seeking the removal of two children" from the family home (at 1363).
Ethical Considerations
There is, of course, a difference between misrepresentation of a piece of physical or verbal evidence and the actual creation of false evidence. Misrepresentation involves the willful giving of a misleading representation of the facts. Creation of false evidence involves the act of improperly causing a ‘fact’ to exist. More often, critics and attorneys accuse workers of a willingness to misrepresent, selectively quote, and misconstrue information to support their claims and therefore to present an entirely misleading case. Rather than sticking to agency protocols and training the workers sensationalize their documentation and findings in a misleading fashion.
To what extent are such allegations true? Do workers consciously or unconsciously misrepresent evidence, and selectively engage in systematic distortion? How often do they may make deliberate efforts to mislead, deceive, or confuse their own supervisor or the court in order to promote their own personal or ideological objectives? How frequently are workers omitting or concealing material facts? Under the guise of vigilance, are there child protection workers whose adherence to rules and procedures is purposely excessive?
From a social work, legal, or judicial perspective, making a knowing misrepresentation in a child protection case is a serious ethical breach. The NASW Code of Ethics, 4.01(c), notes that: “Social workers should base practice on recognized knowledge, including empirically based knowledge, relevant to social work and social work ethics.” At 4.04 the Code goes on to state: “Social workers should not participate in, condone, or be associated with dishonesty, fraud, or deception.” Dishonesty, shading the truth, or a lack of candor cannot be tolerated in child protection services, a field of endeavor built upon trust and respect for the law. Whether or not child protection workers deserve immunity from prosecution when they misrepresent or fabricate evidence is a question each states’ courts are dealing with. Similarly, each court must decide whether such misconduct warrants setting aside the decision to remove the child from his or her home. In the final analysis, the question might soon find itself before the U.S. Supreme Court.
A worker’s misrepresentation or fabrication of evidence is particularly pernicious because it puts the whole field of child protection in a negative light. Whether or not immunity is granted, there is simply no excuse for this kind of willful and egregious conduct.
Endnotes
[1] See, e.g., Abdouch v. Burger, 426 F.3d 982 (8th Cir. 2005) and Babcock v. Tyler (884 F.2d 497 (9th Cir. 1989) (absolute immunity shields social workers to the extent that their role is functionally equivalent to that of a prosecutor); but see Burton v. Richmond, 276 F.3d 973 (2002) (when a state department of human services affirmatively places children in an abusive foster care setting, the state may be liable for damages); Gray v. Poole, 275 F.3d 1113, (D.C. Cir. 2002) (qualified immunity covers social service workers acting as investigators, but when testifying as witnesses they are protected by absolute immunity). Qualified immunity is often afforded if the social work is involved in a “discretionary function” unless his or her conduct is clearly a violation of a statute or constitutional principle (Snell v. Tunnell, 698 F. Supp. 1542 (W.D. Okla. 1988).
[2] Harlow v. Fitzgerald, 457 U.S. 800 (1982) (absolute immunity is appropriate in limited circumstances -- judicial, prosecutorial, and legislative functions-- whereas executive officials usually receive qualified immunity).
[3] Cal. Gov't Code ยง 821.6
[4] Cunningham v. Wenatchee, 214 F. Supp. 2d 1103 (E.D. Wash. 2002).
[5] 348 F.3d 820 (9th Cir. 2003).
[6] 911 F.2d 863, (2d Cir. 1990).
[7] 275 F.3d 1113 (D.C. Cir 2002).
[8] 270 F.3d 416 (6th Cir. 2001).
[9] 830 F.2d 1356, 1363 (5th Cir. 1987).
This article originally appeared in the APSAC Advisor: Do child protection workers deserve immunity when they misrepresent or fabricate evidence?, American Professional Society on the Abuse of Children Advisor, 21(2), 18-19.
Daniel Pollack, MSW, JD is full professor at Yeshiva University School of Social Work in New York City and is a frequent expert witness and contributer to this blog.
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I agree that it is an egregious offense when child protection workers misrepresent or falsify information that can lead to a wrongful removal of a child. However, how prevalent is this problem? Are we talking about a handful of instances or is the problem more widespread?
As someone who works in the field, I have never encountered a social worker who is trying to consciously "push his/her agenda" by lying or creating misleading information. Fortunately or unfortunately, the field is made of up imperfect human beings, who bring their own life experiences, values, and biases to the work. If anything, child welfare agencies need to be more aware of that, accept it, and provide quality supervision so that social workers are not using their own judgments and biases in making decisions about removing children. Additionally, quality supervision would hopefully alleviate any false documentation or misrepresentation of the case.
I don't think the prevalence matters all that much. Even one instance of misleading information can destroy a client's health and well-being. It can also lead to years of litigation to clear someone's good name. Additionally, false allegations of child abuse were the grounds of a very large class action suit in Illinois, DuPuy v. McEwen where parents, foster parents, nurses, teachers and other professionals alleged violation of their due process rights. Criminal defense costs and legal representation for administrative hearings can cripple a family financially.
In Illinois, a team of reporters looked at violations of the child welfare code of ethics by tracing reports concerning the preventable deaths of 53 children. The Belleville News-Democrat Lethal Lapses series can be found at http://www.bnd.com/236/. Since the journalist started their investigation, even more deaths attributable to poor agency practices have occurred and sadly, Illinois DCFS has a poor record of discipline and oversight according to the Office of Inspector General for DCFS's own annual reports. At worst, the social worker was "counseled" or put on a few days suspension. In some cases, the caseworker was promoted.
Perhaps all this seems like a small percentage of child welfare cases but one mistake can have horrible consequences.
One senator in Illinois is proposing legislation to limit the scope of social worker immunity. Poulos v. Lutheran Social Services of Illinois set a precedent when willful and wanton misconduct negated any statutory immunity. If a social worker acts in bad faith, the basis of social worker immunity is acting in good faith and immunity is not appropriate. There is a second unpublished Illinois Appellate Court opinion that follows the same line of reasoning.
Most of the case law cited in Professor Pollack's blog entry was federal, not state court.
I am trying to find a lawyer right now to handle my CPS case and they all say they are too busy for one more case - no matter what the cost. I was raised in foster homes and was beaten so bad by one foster mother she gave herself a gall bladder attack. That was hysterical!!! I am being accused of neglecting my 16 year old daughter because she ran away from home and I was UNABLE to drive 2.5 hours away to pick her up and because my couch is broken. "Refusing my parental responsibility" Seriously, that is all they have. But her caseworker lied to the judge a couple of times about giving me a document that he never gave me and they said they called my only relative which they didn't. Of course, my relative is not able to take her, but they didn't even call him and they brought up lies from a case 11 years ago. It's pretty bad when they actually believe their own lies. The paper from then says I beat my kids with hangers and yet there were no marks - hmmmmm. Common sense, or even physics, says if there are no marks then they weren't beaten by hangers and I was thrown off of welfare and thrown out of my apartment in the projects. I worked very hard to get off of welfare and move out of that apartment. But stupid me signed the paper and now it's haunting me. It happens all the time.