Ministerial versus Discretionary Acts or Omissions in Child Welfare Litigation

Too often the child welfare system fails our children, especially foster children, leaving our most vulnerable population at risk of harm. Many children in the welfare system are injured or even killed because “[t]he system frequently fails to provide children with stable, secure care” and “fails to meet foster children’s basic medical, psychological, and emotional needs.” This system-wide failure is the result of several recurring problems, which are on the rise, including: inadequate investigation of prospective foster parents and their families, placing children in inappropriate homes, overcrowded foster homes, placing children with first-time foster parents who are inexperienced and become overwhelmed, and inadequate supervision of foster homes. These recurring problems have resulted in harm to those children under the care of the child welfare system, leading many of them to seek redress in the courts. In the field of public child welfare services, then, exactly which acts or omissions are ministerial, and which are discretionary? Each state has its own unique constitution, case law, statutes, regulations, child welfare manuals, and structure. This complexity does not allow for categorical rules on this subject matter, but this article nonetheless attempts to offer some meaningful guidelines on which state actions are discretionary and which are ministerial.

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The Role of Claims Adjuster and Defense Counsel in Human Service Litigation

When a human service agency is sued, litigation is usually resolved through settlement. Who pays the bill? Very often, it’s an insurance company. Claims that involve human service agencies vary widely. Whether dealing with a simple workplace accident, serious injuries and fatalities, or allegations of negligence or professional malpractice, an insurance company’s priority is to provide swift, effective resolution of every claim. The company evaluates which claims should be legally defended and which warrant early settlement. The person making these decisions will be an insurance company claims adjuster. Seemingly anonymous, claims adjusters are ultimately responsible for deciding how much money, if any, will be paid out in settlement. The claims process can be complicated. A good defense counsel must avoid any legal missteps while balancing the needs of the policyholder and the insurance company. All in all, this is not an easy assignment.

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Mediating Lawsuits Against Human Services Agencies

The vast majority of lawsuits against human services agencies do not go to trial. They are settled, many times through mediation. A mediation is a meeting, typically at the mediator’s office or the office of one of the attorneys, where the mediator assists the parties to resolve their differences so the lawsuit can be settled without going to trial. A mediation is not the same as a hearing or an arbitration. The mediator is an impartial negotiator who has no authority to decide the merits of the case. Instead, the mediator identifies aspects of the case that lend themselves to compromise and helps the parties reach a voluntary resolution. Neither party is coerced or forced to settle the case. If a voluntary settlement cannot not be reached the mediation concludes and the lawsuit continues.

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Social Work and the Courts (3rd edition)

Social Work and the Courts is a collection of important and cutting-edge court decisions in the field of human services, now in its third edition. Pollack and Kleinman present an array of legal cases in everyday language, with clear explanation of the facts and issues, and in-depth examinations of the reasoning and implications of each verdict. This new edition includes over twenty new cases, all of which happened between 2010 and 2014, making this one of the most significant and timely investigations of how social work and the law intersect. Special attention is paid to recent rulings in child welfare and social worker liability. The dissection and analysis of these influential cases makes this volume an excellent teaching tool and an essential resource for both social workers and policy makers.

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Novel Federal Civil Child Pornography Case Advances: Prejudgment Attachment Ordered and Stay Denied

[raw] On Friday, November 1, 2013, the federal court for the Western District of Washington in Seattle issued a groundbreaking ruling in a novel civil child pornography case which the Marsh Law Firm filed ten months ago on behalf of our client “Amy.”In this remarkable order, Judge Richard Jones granted our motion for prejudgment attachment of convicted sex offender Joshua Osmun Kennedy’s real and personal property. The claims of another of Kennedy’s victims known as “Vicky” were consolidated with Amy’s case, and her joint-motion was also granted. The ...

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Calculating Damages in Negligence Lawsuits against Departments of Human Services

[raw] Governments, be they city, county, state, tribal or federal, administer a wide range of social welfare services and have a duty to properly discharge those obligations. Professionals hired by government agencies, regardless of the tasks they do, are expected to exercise a reasonable degree of skill and care in their work. When a department of human services is legally negligent in delivering or overseeing those services, our tort system is designed in some cases to allow victims to make claims against it. Of course, negligence is a technical legal concept; not every ...

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A Big Win for Child Crime Victims

In a groundbreaking decision, a Florida federal court recently handed crime victims a significant victory, ruling for the first time that victims are entitled to confer with an assistant United States attorney before the Government enters a pre-charging, non-prosecution agreement with a defendant. Jane Doe v. United States, 08-cv-80736-KAM (S.D. Fla.). The case involved billionaire hedge fund operator Jeffrey Epstein, who induced minors to prostitute themselves, and then was granted what appears to be a special, sweetheart deal by the Feds without any victim notification ...

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