CHAPTER 17

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CHAPTER 19

LIABILITY

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Liability 305

CHAPTER 19

LIABILITY

19.1. RISK EXISTS; BUT IT IS LOW

In our litigious society lawsuits are common. It is the price we pay for open

access to the courts. It is one thing to file a suit, however. It is another thing

altogether to win a financial recovery. As this chapter will discuss, there are

important legal rights at stake for both children and family members in child

protection. Yet, the legislature and the courts recognize the fundamental

importance of child protection and foster care and have extended immunity to

child welfare professionals against all but grossly negligent or reckless behavior.

19.2. FUNDAMENTAL LIBERTY INTERESTS AT STAKE

Child protection investigations are, by their very nature, an invasion of personal

privacy and civil liberties of parents and children. In child protection,

government agents inquire and intervene into the most private relations between

parent and child -- often without court supervision or authority. Despite this

threat to personal liberty, our State and federal laws give considerable discretion

and protection to caseworkers and others who follow established procedures for

child protection investigations. Our laws reflect a societal concern that children

be protected from harm and a public policy choice that family privacy must yield

to child protection concerns. Nonetheless, workers and others need to be

constantly and carefully aware that child protection actions have the potential to

violate family privacy and other constitutionally protected liberty interests of

parents and children. Workers should respect the family privacy and integrity of

their clients as a matter of good professional practice.

Parents have a fundamental liberty interest in the care, custody, and management

of their children.

This liberty interest has also been called a "right of privacy,"

particularly in the areas of freedom of choice in intimate matters such as marriage

and childbearing.

The family itself is not beyond regulation in the public

interest, however.

Parents' privacy interest in familial relations is limited by the

compelling governmental interest in the protection of minor children, particularly

in circumstances where the protection is considered necessary as against the

parents themselves.

Children themselves have rights in this process. Children

have a constitutional right to be protected from harm when in foster care.

. Santosky v. Kramer, 455 U.S. 745 (1982)

. Harris v. McRae, 448 U.S. 297, reh den 448 U.S. 917 (1980)

. Moore v. City of East Cleveland, 431 U.S. 494 (1977)

. Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Myers v. Morris, 810 F.2d 1437 (8th Cir. 1987)

. Meador v. Cabinet for Human Resources, 902 F.2d 474 (6

Cir. 1990)

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Workers should proceed cautiously, out of respect for the families involved, but

also because serious violations of civil rights could result in legal liability.

19.3. POTENTIAL LIABILITY

Theoretically a child welfare caseworker could be sued for a range of possible

shortcomings, including deprivation of civil rights, violation of a statutory duty,

and professional malpractice. In Williams v. Coleman the Michigan Court of

Appeals upheld a $900,000 judgement against DSS foster care workers who failed

to report a case of suspected child abuse and neglect to child protective services.

Foster care workers have a duty under the child protection law to file such reports,

the court said.

Recently in Thomas v. St. Vincent & Sarah Fischer Center, the federal court in

the Eastern District of Michigan was asked to address whether the social workers

at a private agency could be considered state actors for purposes of liability under

42 USC § 1983.

In Thomas, a "special needs" child named Joshua was placed under the

supervision of the FIA, [now DHS], with his maternal grandmother. A

year later, he was ordered into foster care because his grandmother could

no longer care for him. Monitoring of his foster care case was transferred

from the FIA to St. Vincent & Sarah Fisher Center, Inc. (St. Vincent), a

private agency that contracts with FIA to provide foster care. Not long

after social workers allegedly received reports of him being abused,

Joshua died as a result of physical injuries inflicted by his foster parent.

In reaching the decision that the social workers from St. Vincent were state actors

for purposes of liability, the Thomas Court held that because the social workers

performed a function statutorily reserved to the State and Joshua had no choice

concerning the placement and supervision he received, St. Vincent social workers

were state actors and potentially liable for Joshua's injuries.

Individuals may be sued for unauthorized disclosure of client confidences. An

abrogation of privilege and confidentiality in child protection cases based on the

Child Protection Law does not necessarily extend to other legal proceedings. The

legal theories that have been found to support such action are:

(1) a breach of implied contract of secrecy;

. Williams v. Coleman, 194 Mich.App. 606 (1992); See also, Becker-Witt v. Board of Examiners, 2003

Mich.App. Lexis 247 (The ALJ revoked a social worker’s license for failure to report suspected child

abuse. The ALJ found that petitioner’s failure to comply with the Child Protection Law constituted both

gross negligence and in competence as defined by the occupational code, MCL 339.604(e) and (g).)

. Thomas v. St. Vincent & Sarah Fischer Center, 2006 U.S. Dist. LEXIS 58556 (E.D. Mich. Aug. 21,

2006)

. Doe v. Roe, 400 N.Y.S.2d 668 (1977); Clark v. Garaci, 208 N.Y.S.2d 564 (1960); Hammonds v. Aetna

Casualty & Surety Co., 243 F.Supp. 793 (N.D. Ohio 1965)

Liability 307

(2) a breach of statutory duty to preserve

confidences of a client;

(3) a tort of defamation;

and

(4) a tort of Invasion of Privacy.

Nevertheless, the chances of lawsuit being successfully brought for unauthorized

disclosures of confidential information remain slight. First, a plaintiff would have

to show that a duty of confidentiality existed. We have reviewed at length the

considerable exceptions and possible waivers to any duty of confidentiality.

Second, the plaintiff would have to show that an existing duty was breached or

violated. Third, the plaintiff would have to show that the breach of duty, i.e.,

unauthorized release of confidential information actually was the cause of

measurable damages.

Risks of a lawsuit are also increased by communication of inaccurate information

that raises the possibility of suit for defamation. Thus, information communicated

orally and in written form must be accurate.

Note also that a criminal misdemeanor penalty may attach to anyone who permits

or encourages unauthorized dissemination of information in protective services

reports and records.

Any person, including a protective services worker, who

improperly discloses the name of the person filing a report of suspected child

abuse or neglect may also be held criminally liable.

Therefore, the risk of legal liability for breach of confidentiality, although present,

is not substantial. Ethics, a sense of fair play, and respect of clients' integrity and

privacy is more likely to motivate human services professionals to carefully

control the dissemination of private information about their clients than is the

formal sanction of law.

19.4. IMMUNITY FROM FEDERAL LAW CLAIMS

Balanced against the theoretical possibilities of lawsuits is the fact that child

protection workers and, to a somewhat lesser extent, foster care workers, are

extended considerable immunity from lawsuits. The rationale for this protection

is that social workers should not feel intimidated in their important work of

protecting children from harm. If social workers were constantly fearful of being

second-guessed through lawsuit, their capacity to protect children from harm

could be adversely affected.

. See, e.g., Doe v. Roe, Id.

. 73 ALR2d 325

. 20 ALR3d 1109

. Id.

. MCL 722.633

. Id., Op. Atty. Gen. 1980, No. 5915, p. 1075

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As to potential federal law liability, even if the legislature chose to do so, State

law cannot protect against violations of federal constitutional rights and such

federal suits in child welfare are not uncommon. When child protection

caseworkers have been sued for alleged violations of federal civil rights, federal

courts have extended an absolute immunity from suit for acts that are judicial or

prosecutorial in nature – such as filing and prosecuting petitions in juvenile court

and seeking immediate apprehension of a newborn from her natural mother.

Federal courts have not extended absolute immunity for federal civil rights claims

for investigatory and administrative acts.

In Achterhof v. Selvaggio the court

held that opening a child abuse case, investigating it, and placing a parent’s name

in the central registry concerning child abuse are not quasi-prosecutorial activities

for which absolute immunity applies. Rather these activities are administrative or

investigative.

In Rippy v. Hattaway, the court defined social workers' functions that are entitled

to absolute immunity as those "intimately associated with the judicial phase of

proceedings."

Examples of where social workers were entitled to absolute

immunity included: for claims arising out of the appointment of guardians ad

litem; failures to ensure representation of the child; failures to inform the parents

of their right to counsel; the content of their investigations and recommendations

done to aid the court in making removal determinations; and, for determining the

requirements of the plan under which the child will be returned. However, a

social worker is not entitled to absolute immunity where she promulgates and

enforces her own policies.

Additionally, the federal court in the Eastern District of Michigan in Thomas v. St.

Vincent & Sarah Fischer Center, reiterated that social workers are entitled to

absolute immunity only where there actions relate to judicial and prosecutorial

functions, or are otherwise "intimately associated with the judicial phase of

proceedings."

The court extended qualified immunity to the defendants in Achterhof.

Qualified immunity means that the defendant would only be held liable upon

proof of violating a “clearly established statutory or constitutional right of which a

. Salyer v. Patrick, 874 F.2d 374 (6th Cir. 1989), (social workers filing a juvenile abuse petition which

resulted in a temporary emergency custody order were entitled to absolute immunity); Kurzawa v. Mueller,

732 F.2d 1456 (6th Cir 1989), (social workers involved in prosecuting neglect and delinquency petitions in

the Michigan courts leading to the removal of a child from his parents’ home were entitled to absolute

immunity as was the guardian ad litem; Accord, Vosburg v. Department of Social Services, 884 F.2d 133

Cir. 1989); Hoffman v. Harris, 7 F.3d 233 (6

Cir. 1994), cert.den. 114 S.Ct. 1631, (Justices Thomas

and Scalia dissenting). Achterhof v. Selvaggio, 886 F.2d 826 (6th Cir 1989); Coverdell v. Department of

Social and Health Services, 834 F.2d 758, 764 (4

Cir. 1989)

. Achterhof v. Selvaggio, 886 F.2d 826 (6th Cir 1989)

. Rippy v. Hattaway, 270 F.3d 416, 422 (6

Cir. 2001)

. Thomas v. St. Vincent & Sarah Fischer Center, 2006 U.S. Dist. LEXIS 58556 (E.D. Mich. Aug. 21,

2006)

Liability 309

reasonable person would have known,” or, if the law is not clearly established,

and the alleged violation was undertaken in good faith, upon proof of gross

negligence or deliberate indifference to a known risk and a violation of clear

standards of law.

A social worker for a private agency was extended qualified immunity in a South

Dakota case in which a child sued for violation of civil rights when she was

separated from her father as a result of investigation and subsequent neglect legal

proceedings.

The federal appeals court for the Sixth Circuit, which includes

Michigan, has also extended qualified immunity to private agency staff

The worker’s vulnerability to suit is greater in foster care cases where children

enjoy a clearly established right to be protected from harm.

“The cases

analogize the state’s role in placing children in foster homes to the mental

institution and prison settings in which state liability has been clearly established

for ‘deliberate indifference’ to the plight of individuals in detention.”

The U.S. Supreme Court rejected the proposition that the State owes an

affirmative constitutional duty to protect a child not in state custody.

DeShaney, the Wisconsin child protective services left Joshua DeShaney in the

custody of his father who inflicted irreparable brain injury on the child. Because

Joshua was not in State custody and even though there was an active CPS

investigation, the U.S. Supreme Court held that the State had no affirmative

constitutional duty to protect one citizen from another unless the citizen is in

government custody. Although DeShaney precludes suits against CPS for failure

to protect a child based on constitutional rights violations, it does not preclude

suits where failure to remove a child was grossly negligent nor does it preclude a

constitutional rights case against an agency responsible for supervising a foster

home. Child protection caseworkers are government agents, and can be held

personally liable if they act in an unconstitutional way.

. Harlow v. Fitzgerald, 457 U.S. 800 (1982); Doe v. NYC Dept of Social Services, 649 F.2d 134, 146.

See also K.H. v. Morgan, 914 F.2d 846 (7

Cir. 1990) (Illinois child welfare workers not entitled to

qualified immunity from liability for placing child in custody of foster parent state knew or suspected to be

a child abuser.) Rippy v. Hattaway, 270 F.3d 416 (6

Cir. 2001) (Tennessee child welfare workers entitled

to absolute immunity from liability for refusing to return child to parent after it was determined that it was

safe to do so.)

. Lux v. Hansen, 886 F.2d 1064 (8

Cir. 1989)

. Bartell v. Lohiser, 215 F.3d 550 (6

Cir. 2000)

. Meador v. Cabinet for Human Resources, 902 F.2d 474 (6

Cir. 1990); Norfleet v. Arkansas Dept of

Human Services, 989 F.2d 289 (8

Cir. 1993); Taylor v. Ledbetter, 818 F.2d 791 (11

Cir. 1989)

. Lintz v. Skipski, 25 F.3d 304; 1994

. DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1980)

. O'Donnell v. Brown, 335 F. Supp. 2d 787, 2004 U.S. Dist. LEXIS 18976 (W.D. Mich. 2004)

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310 MICHIGAN CHILD WELFARE LAW

19.5. IMMUNITY FROM STATE LAW CLAIMS

First, the Child Protection Law provides for immunity from civil or criminal

liability for persons acting in good faith under the Act

A person acting in good faith, who makes a report, cooperates in an

investigation, or assists in any other requirement of this act shall be

immune from civil or criminal liability, which might otherwise be incurred

thereby. A person making a report or assisting in any other requirement of

this act shall be presumed to have acted in good faith. This immunity

from civil or criminal liability extends only to acts done pursuant to this

act and does not extend to a negligent act which causes personal injury or

death or to the malpractice of a physician which results in personal injury

or death.

Caseworkers' recommendations to the court, as well as their investigation

leading up to those recommendations relating to the initiation of the

judicial proceedings, are protected by absolute immunity.

But, carrying

out the removal of a child is not considered judicial functions, and is

neither protected by absolute immunity nor qualified immunity.

Michigan law provides immunity from tort liability for government employees in

the course of employment

(2) Except as otherwise provided in this section, and without regard to the

discretionary or ministerial nature of the conduct in question, each officer

and employee of a governmental agency, each volunteer acting on behalf

of a governmental agency, and each member of a board, council,

commission, or statutorily created task force of a governmental agency is

immune from tort liability for an injury to a person or damage to property

caused by the officer, employee, or member while in the course of

employment or service or caused by the volunteer while acting on behalf

of a governmental agency if all of the following are met:

(a) The officer, employee, member, or volunteer is acting or

reasonably believes he or she is acting within the scope of his or

her authority.

(b) The governmental agency is engaged in the exercise or discharge

of a governmental function.

not amount to gross negligence that is the proximate cause of the

injury or damage.

. MCL 722.625; See also Awkerman by Awkerman v. Tri-County Orthopedic Group, P.C. (1985) 143

Mich.App. 722; O'Donnell v. Brown,

335 F. Supp. 2d 787, 2004 U.S. Dist. LEXIS 18976 (W.D. Mich.

2004)

. Id.

. O'Donnell v. Brown, 335 F. Supp. 2d 787, 2004 U.S. Dist. LEXIS 18976 (W.D. Mich. 2004)

. MCL 691.1407

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Notice that the legislature has not protected government employees from “gross

negligence,” however. The difference between “gross negligence” and “ordinary

negligence” comes across in this classic example. Assume that Driver D (D is for

distracted) is proceeding down a busy street at the posted speed limit, say 35 mph,

and momentarily loses concentration. Maybe Driver D is listening to the radio or

thinking about whether the Tigers might ever have a winning season again.

Driver D runs a red light and causes an accident. Pretty dumb. The behavior is

negligent -- but not necessarily reckless or grossly negligent. This level of

negligence is called “ordinary negligence.” Now compare Driver B (B is for

beer) who after two six packs decide to proceed down the same busy street at 75

mph – 40 mph over the posted limit. At the same intersection Driver B whizzes

through the red light and also causes an accident. Driver B’s behavior is beyond

ordinary negligence. It is grossly negligent or reckless. It is reckless behavior of

this sort, demonstrating a substantial lack of concern for whether an injury results,

that is not protected against and could expose a worker to liability.

In Martin v. Children’s Aid Society, the Michigan Court of Appeals extended

absolute immunity to a private agency under contract to the Michigan DSS.

The plaintiffs' infant daughter was removed from their custody by the DSS after

hospital tests revealed numerous broken bones in various stages of healing. The

DSS placed the child with Children's Aid Society (CAS). CAS contracted with the

DSS to provide services to neglected and abused children. CAS placed the child

in a foster home. Following several years and many hearings, the parents regained

custody after submitting medical evidence that the child suffered from a disease

that caused her injuries. The parents filed an action alleging negligence, breach of

statutory and contractual duties, bad faith and violation of constitutional rights

against CAS and various social workers for CAS and the DSS. The court

recognized in Martin that many federal courts had extended absolute immunity to

child protection caseworkers for suits alleging deprivation of constitutional rights

under 42 USC 1983. However, the court noted that it did not intend to create

"blanket absolute immunity."

The court stated that the immunity granted was

"limited to the facts of this case, in which the close oversight of the social

worker's

placement recommendations by the probate court is especially

noteworthy."

Further, although the court noted the basis of the plaintiffs’ case in Martin was

not a federal claim, rather state law claims, it adopted the reasoning of the federal

cases cited above in extending the protections to private agencies. The rationale

is worthy of an extended quotation here

Federal appellate courts have extended absolute immunity to social

workers initiating and monitoring child placement proceedings and

placements in cases similar to the instant case. Babcock v. Tyler, 884 F.2d

. Martin v. Children’s Aid Society, 215 Mich.App. 88, 544 N.W.2d 651 (1996)

. Martin, 215 Mich.App. at n.5.

. Id.

. Id. at 95-97

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312 MICHIGAN CHILD WELFARE LAW

497 (CA 9, 1989); Vosburg v. Dep't of Social Services, 884 F.2d 133

(CA4, 1989); Coverdell v. Dep't of Social & Health Services, 834 F.2d

758 (CA9, 1987); Meyers v. Contra Costa Co Dep't of Social Services,

812 F.2d 1154 (CA 9, 1987); Kurzawa v. Mueller, 732 F.2d 1456 (CA 6,

1984).

These precedents recognize the important role that social workers play in

court proceedings to determine when to remove a child from the home and

how long to maintain the child in foster care. They also recognize that, to

do that difficult job effectively, social workers must be allowed to act

without fear of intimidating or harassing lawsuits by dissatisfied or angry

parents. Kurzawa, supra at 1458.

Caseworkers need to exercise independent judgment in fulfilling their

post-adjudication duties. The fear of financially devastating litigation

would compromise caseworkers' judgment during this phase of the

proceedings and would deprive the court of information it needs to make

an informed decision ... . There is little sense in granting immunity up

through adjudication ... and then exposing caseworkers to liability for

services performed in monitoring child placement and custody decisions

pursuant to court orders. Babcock, supra at 503.

Accord Coverdell, supra at 765, "To permit the [social] worker to become

'a lightning rod for harassing litigation . . .' would seriously imperil the

effectiveness of state child protection schemes."

***

When a court is involved, granting immunity from civil suit does not mean

that the parents of a child taken from their home are without recourse to

contest wrongful conduct by a social worker. "The parent of the

apprehended child is not left remediless--he or she may always attack the

court's order directly or on appeal." Id. Accord Vosburg, supra at 136

"Safeguards against . . . misconduct were built into the . . . adjudication

process itself."

Although we have found no Michigan precedent regarding this question,

we find convincing the decisions granting absolute immunity to social

workers. As the CAS defendants persuasively point out in their brief,

absolute immunity is necessary to assure that our important child

protection system can continue to function effectively:

No more heinous act can be alleged than the physical abuse of a

helpless infant by an adult. The volatile mix of accused parents,

deprived of the custody of the baby, observing it in the care of

foster parents, finding themselves in the unfamiliar confines of the

court system, required to retain counsel at great cost, subject to the

social services bureaucracy and its necessary interrogation and

probing of the most intimate aspects of the family psyche, is

Liability 313

almost guaranteed, rightly or wrongly, to produce resentment and a

desire for retribution by the parent. Many parents in this situation

are seriously psychologically disturbed.

Professional assistance to the Probate Court is critical to its ability

to make informed, life deciding judgments relating to its

continuing jurisdiction over abused children. Its advisors and

agents cannot be subject to potential suits by persons, aggrieved by

the Court's decision vindictively seeking revenge against the

Court's assistant as surrogates for the jurist. Faced with such

liability, the social worker would naturally tend to act cautiously

and refrain from making difficult decisions, delay in intervening to

protect the child, avoid confronting the aggressive parent with the

necessity of changing his attitudes and seeking psychiatric help to

do so. Such an atmosphere defeats the function of the continuing

jurisdiction of the Probate Court in the abstract, and in reality

poses the potential for death for an abused child who is not

protected because the social worker exercised excessive caution in

arriving at a judgment as to whether there is sufficient evidence of

abuse to merit action on his or her part.

Mere qualified immunity is not enough protection to prevent the

chilling effect of a potential suit on the exercise of a social

worker's professional judgment and discretion in operating as an

arm of the Probate Court to protect abused children. This litigation

is vivid proof of that. Judge Stephens has ruled that Cross-

Appellants have qualified immunity, but that has not prevented

years of litigation. The threat of a suit like this one could make any

social worker back off from making discretionary decisions that he

or she would otherwise believe to be in the child's best interest.

Two years after Martin, in Spikes v. Banks, the plaintiff became a ward of

the state when she was 13. She was placed with defendant Teen Ranch,

Inc., which in turn placed her in a foster home with defendant Annie

Banks (Banks).

While residing with Banks, the plaintiff was sexually

assaulted by Banks' 23-year-old nephew. The nephew impregnated her.

The plaintiff's complaint alleged Teen Ranch and Banks were negligent in

their care of her. The trial court granted summary disposition to Teen

Ranch, relying on absolute immunity created in Martin, supra.

More recently, in Beauford v. Lewis, the court again granted absolute

immunity to a social worker.

In Beauford, the plaintiff's daughter was

removed from her custody pending termination proceedings alleging

. Spikes v. Banks, 231 Mich.App. 341 (Mich. App. 1998)

. Beauford v. Lewis, 269 Mich. App. 295, 711 N.W.2d 783 (2005)

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314 MICHIGAN CHILD WELFARE LAW

possible sexual abuse of the child by the plaintiff's husband. Following

lengthy custody proceedings - in which the defendant social worker

investigated and recommended termination of the plaintiff's rights - the

plaintiff regained custody of her daughter. The plaintiff sued the social

worker, and the claim was summarily dismissed pursuant to Martin.

The plaintiff argued the trial court erred in granting immunity under

Martin, because Martin was limited to its particular facts (close oversight

by the probate court). The Beauford court held that the "close oversight"

referred to in Martin was satisfied in a situation in which the probate court

reviewed the defendant

social worker's findings and recommendations,

and took action as a result, at proceedings in which parents are able to

contest the recommendations.

The court held that the defendant "acted

as an agent to aid the court in its decision regarding termination of

plaintiff's parental rights, and her investigation and recommendations were

subject to review by the family division as part of its proceedings. . .the

court's failure to address the course and conduct of [her] investigation is

irrelevant."

19.6. DHS CASEWORKERS MAY BE HELD PERSONALLY LIABLE FOR

MONETARY DAMAGES

In O'Donnell v. Brown, the federal court in the Western District of

Michigan held that child protection caseworkers cannot claim they have

absolute immunity and/or qualified immunity from being individually

sued for monetary damages under state tort claims [such as for: false

imprisonment, gross negligence] if they violate a person's constitutional

rights.

The O'Donnell Court additionally held if caseworkers violate

persons constitutional rights, the individual worker can be held personally

liable for monetary damages under 42 USC § 1983, and the court

concluded that caseworkers cannot claim immunity from personal

monetary damages based on the Eleventh Amendment, which bars suits

against states absent consent or congressional approval.

. Beauford, 711 N.W.2d at 786.

. Beauford, 711 N.W.2d at 786-787.

. O'Donnell v. Brown, 335 F. Supp. 2d 787, 2004 U.S. Dist. LEXIS 18976 (W.D. Mich. 2004)

. Id.

Liability 315

19.7. WHAT TO DO IF YOU ARE SUED

Although the risk of successful lawsuit against child welfare workers is not great,

there is still some risk and workers and their agencies must know and carefully

abide by the legal limits of their power to investigate and intervene in families.

If you are sued for an activity that is within the scope of your employment with

the State, the Attorney General will represent you and does so very vigorously. If

your conduct was within the scope of your employment, the State will pay

damages if they are ordered. If you are faced with the possibility of a suit, consult

the Administrative Handbook for instructions.

. See "Governmental Immunity for the Child Care Social Worker: Has Michigan Gone Too Far for Too

Little?" 5 Cooley L. Rev. 763 (1988)

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