Why Qualified Immunity Should Protect Employees of Child Protective Service Agencies from Criminal Liability
Unqualified for Prosecution: Why Qualified Immunity Should Protect Employees of Child Protective Service Agencies from Criminal Liability
Neal Shechter, J.D. Candidate
Marchella Brett-Pierce’s mother Carlotta has gone to trial for murder. Earlier this month, the New York media watched as Marchella’s eight-year-old brother testified against Carlotta and accused her of malnourishing and abusing her children. Meanwhile, social workers Chereece Bell and Damon Adams have been arguing pre-trial motions while awaiting charges of criminally negligent homicide in the related case. But noticeably absent from the entire discussion of the Brett-Pierce media coverage is the fact that New York fails to extend any form of immunity from civil or criminal prosecution to social workers who fail to investigate—or satisfactorily investigate, as in the Brett-Pierce case—reports of child abuse.
In context, the lack of immunity for social workers who are either employed by the government or working under a government contract is unusual and somewhat unique. Generally, government workers engaging in official duties which require discretionary decision-making are protected by either absolute or qualified immunity under common law for actions within the scope of their employment. Absolute immunity is an unconditional protection from prosecution for “official action . . . which involves the exercise of discretion or expert judgment in policy matters.” Qualified immunity, by contrast, requires a showing that the official acted in good faith or met certain other conditions in order to be protected from prosecution. In addition, immunity can also be granted by statute, and many states have enacted statutes granting immunity to reporters of child abuse.
I. Common Law Immunity
Some state courts, including the Ohio Supreme Court, have held that employees of child protection agencies have qualified immunity under the common law from prosecutions arising from the exercise of discretionary duties – such as whether or not to remove a child from a family’s home. Qualified immunity protects a social worker in Ohio if the individual’s actions were within the scope of their authority, involved the exercise of discretion and judgment, and the actions were made in good faith.
Similarly, New York has extended qualified immunity to government officials “[w]hen official action involves the exercise of discretion or expert judgment in policy matters, and is not exclusively ministerial.” New York courts analyze whether such actions “inherently entail the exercise of some discretion and judgment.” In Barnes v. Nassau County, a New York appellate court held that some actions of social workers “do not implicate the kind of planning or quasi-judicial acts which are embraced within the area of governmental discretion.” The Barnes court distinguished the discretionary decision of whether to “entrust the children to one of the parents rather than bring them before the Judge” from the non-discretionary obligation to place a child in a foster home which meets statutorily acceptable conditions. That distinction has been recognized by other state courts, including the South Carolina Supreme Court in Jensen v. South Carolina Department of Social Services,which specifically noted that“in the usual case, the scope of the investigation and the decision to close a file are matters involving discretion which are shielded by official immunity.”
The Barnes and Jensen courts therefore recognized that some of the obligations of a social worker are discretionary and even quasi-judicial. Discretion must be exercised when opening or closing an investigation, the mode and manner of that investigation, and in recommending or declining to recommend removal of a child. And under Barnes, if the good faith decision not to remove a child from a parent’s home is protected by qualified immunity, a good faith investigation which reveals no evidence of abuse should similarly be protected from negligence actions, as in Jensen. But the distinction that the Barnes court drew has been lost on subsequent New York courts. Chereece Bell and Damon Adams will not be shielded from criminal liability as a result of qualified immunity – a significant expansion of personal liability for social service providers that stands in contrast to the common law immunity granted to such providers in other states.
II. Statutory Immunity
Nearly all states have also enacted statutes that extend qualified immunity to individuals who report instances of child abuse—even where such claims are later proven false, as long as the report was made in good faith. Some states also immunize those who participate in any child abuse investigation following the report.And in a few states, “caseworkers are specifically mentioned as entitled to good faith immunity.” However, “although an initial reading of these statutes would indicate that caseworkers would be immune from liability, courts have construed these provisions to the contrary.”
The New York abuse-reporting statute (similar to that in many other states as well as the Model Penal Code) reads:
Any person, official, or institution participating in good faith in the . . . the making of a report, the taking of photographs, the removal or keeping of a child pursuant to this title, or the disclosure of child protective services information . . . shall have immunity from any liability, civil or criminal, that might otherwise result by reason of such actions.
In Doe by Hickey v. Jefferson County, the United States District Court for the Northern District of New York, analyzing New York State law, held that statutory immunity applied only to those who in good faith report an instance of suspected child abuse, and not to those who in good faith chose not to make a report based on sound professional judgment. But such a reading is not obvious from the text. Another plausible reading of this statute is that qualified immunity extends to officials who act based on a good faith choice about whether or not to report a suspected instance of child abuse.
The Doe by Hickey court read Sec. 419 in light of N.Y. Soc. Serv. Law § 420, which provides that “[a]ny person, official or institution required by this title to report a case of suspected child abuse or maltreatment who willfully fails to do so shall be guilty of a class A misdemeanor.” The court reasoned that if Sec. 420 imposed liability to all persons for failure to report abuse, Sec. 419 could not extend immunity to government officials in such situations.
But again, such a reading of the text is neither obvious nor consistent with the purpose of the two statutes. To begin with, Sec. 420 imposes liability only for a Class A misdemeanor. It is preposterous to assert that a statute imposing liability for the misdemeanor offense of failure-to-report strips away qualified immunity from a broad range of much more serious prosecutions, such as criminally negligent homicide.In other words, statutory liability for the misdemeanor offense of failure-to-report should not negate for social workers the broad range of qualified immunity offered to other government officials who exercise similar discretionary duties.
In addition, Sec. 420—imposing liability for failure-to-report—explicitly refers only to cases of “suspected child abuse” and does not impose any blanket liability for a failure to discover information which would lead to suspicion of abuse. Thus, statutory qualified immunity should still apply to good faith efforts by social workers to investigate cases they are presented with – to look for abuse where none is originally suspected.
And that is exactly what happened in the case of Chereece Bell and Damon Adams. When they were presented with Marchella Brett-Pierce’s case-file there was no evidence of abuse from the doctors and nurses who cared for Marchella, and the State of New York had labeled the case as one requiring further inquiry, but not as a case of suspected abuse.
III. The Public Policy Argument
New York State is not alone in declining to extend qualified immunity by statute or under common law to social workers like Damon Adams and Chereece Bell. Courts in Arizona, Oregon, and Florida have also declined to grant qualified immunity to caseworkers. These courts have simply reached the wrong outcome. In the interest of sound public policy, social workers should receive qualified immunity for actions committed in good faith pursuant to statutory objectives.
In many states, social workers can be held personally liable in civil negligence cases for wrongful removal of a child from the parent’s home. Thus, social workers are caught between a rock (civil liability to parents) and a hard place (criminal liability to the state) for abuse and/or false reports which are committed by third parties. Personal liability in general is anathema to the objective of recruiting bright and responsible social workers into a field which is in dire need of both people and resources. But the combination of civil and criminal liability for actions committed by others casts a shadow over the field which discourages recruitment and leads to the practice of defensive social work.
Our goal as a society seeking the twin aims of both protecting children and preserving the privacy of the home and the rights of families should be to encourage child protective service workers to exercise sound professional judgment and discretion as opposed to mechanical and defensive reactions to complex domestic situations. Personal liability in the absence of bad faith discourages the exercise of judgment and leads to the problem of “over-intervention”—unnecessary protective actions which can scar young children and invade family privacy. In other words, “[w]hile a caseworker might react to a situation in the best way to minimize his or her risk to liability, that reaction may not be in society's best interest.”
Scholars have also noted that social workers are not the least cost avoider in situations of potential child abuse. The threat of personal liability for a single social worker does not by itself encourage the state to correct errors in a broken system. And to the extent that we are concerned with the possibility of negligent social work practice, it should be noted that social workers will continue to be guided by complex laws and regulations which govern the manner and method of child abuse investigations.
IV. Objectives of Criminal Law
As a matter of criminal law, by holding social workers personally and criminally responsible for abuse committed by other persons without any determination of good faith or intent, we are potentially punishing both non-culpable and even non-negligent conduct. Punished conduct is potentially non-culpable because social workers serve as a social safety net to protect children who are not protected by those primarily responsible for their well-being: the parents.
As long as a social worker meets his or her statutory obligations in pursuing an investigation and comes to an informed, good faith decision about how to proceed, it serves no objective of criminal law to personally punish that government employee for the failure of the safety net to catch every single case of parental abuse. That is punishment of non-culpable conduct.
It may also be punishment of non-negligent conduct. Although there are always situations in which a more thorough investigation might have uncovered evidence of abuse and led to a child’s removal, the determination that one method of investigation or another might have fixed the situation is negligence-by-hindsight and subjects professional social workers to juries who may or may not understand the complexities and obligations of the profession.
For example, a social worker is charged with the case of an adult woman who is addicted to crack-cocaine. The social worker schedules the required monthly appointments and home visits to check-in on the case, but the addict either skips appointments or doesn’t answer the door over a three month period. Here, there is nothing which would suggest negligence on the part of the social worker – at a certain point it is difficult to help someone who refuses to be helped. Should the social worker be held personally and criminally liable if child abuse was taking place in the household during that period?
Note that this example isn’t too different from the Brett-Pierce case. Damon Adams alleges that he visited the crack den that served as the Brett-Pierce household at least once and no one answered the door. It is unclear whether Adams met his statutory obligations to Carlotta’s case, but if he did, how can we say that his conduct was criminally negligent?
Finally, to the extent that negligent conduct occurs within the social work field such that we need a criminal deterrent, the good faith standard already provides a remedy. The requirement of good faith also ensures that willful misconduct and “gross” negligence will continue to be punished. It simply protects the ability of social workers to exercise sound judgment in their work.
V. The Solution
State courts are divided across the country about the scope of qualified immunity in the social work profession – both under common law and by statute. The only solution may be for legislatures to specifically immunize caseworkers as the Louisiana, Minnesota, and South Dakota legislatures have done. Other scholars have argued that another solution could be to require the state to bear the burden for civil negligence liability when the child protective system fails in a particular case. The state has the greater ability to absorb and spread the costs of liability, and the state is also the least cost avoider in its ability to fix cracks in a broken system.
Either way, a legislative solution is needed to a problem that will only grow in importance as prominent cases of child abuse lead to future prosecutions of government employees. The inconsistent efforts by state courts to determine the issue of qualified immunity for social workers has led to a patchwork system in which social workers are protected in one state from liability for actions that in another state could lead to criminal prosecution and imprisonment. This result serves neither the objectives of sound public policy in preventing child abuse, nor the objectives of criminal law to serve as a useful deterrent against negligent professional conduct.
Doe by Hickey v. Jefferson County, 985 F. Supp. 66, 70–71 (N.D.N.Y. 1997)
Brodie v. Summit County Children Servs. Bd., 554 N.E.2d 1301 (Ohio 1990).
Id. at 1307.
Haddock v. City of New York, 75 N.Y.2d 478, 484 (1990).
Bartels v. Westchester County, 429 N.Y.S.2d 906, 910 (1980).
377 S.E.2d 102, 107–08 (S.C. Ct. App. 1988).
Laura Huber Martin, Caseworker Liability for the Negligent Handling of Child Abuse Reports, 60 U. Cin. L. Rev. 191, 219 (1991)
985 F. Supp. 66.
Susan Lynn Abbott, Liability of the State and Its Employees for the Negligent Investigation of Child Abuse Reports, 10 Alaska L. Rev. 401, 415 (1993)
Id. at 425.
Martin, supra note 9, at 214.
Id. at n.127.
Id. at 218.