"I am not unmindful that some of you have come here out of great
trials and tribulations. Some of you have come fresh from narrow
cells. Some of you have come from areas where your quest for freedom
left you battered by the storms of persecution and staggered by the
winds of police brutality (or judicial bias). You have been the
veterans of creative suffering. Continue to work with the faith that
unearned suffering is redemptive." - Martin Luther King


'In a recent U.S. Court of Appeals case, Currier v. Daran (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"'

Be informed. Know the law. If you are confused and don't know your
rights then research them. Every state has information online about
the rights of custodial and non-custodial parents. The U.S.
Government has the U.S. Constitution and all amendments online for
you to view any time. If you feel you are being victimized, do
something about it. Make an arguement, file in court. There are those
of you who feel exhausted, strung out, confused, and this is
certainly understandable, however there is help if you want it. There
are many groups for non-custodial parents online that offer resources
for estranged fathers and mothers who are trying to make some kind of
connection with their children. All you have to do is reach out and
someone will help. If you cannot find anyone in your own state ask
for referrals from national organizations. You can certainly email
admin@... for referrals to organizations that can help
you achieve your goals.

It is a growing opinion that vindictive custodial parents who use the
courts and their children to "get even" with their ex spouses are if
fact mentally ill. Borderline personality disorders (BPD) are
sometimes hard to detect but they reveal themselves during times of
stress or anxiety, such as divorce and custody battles. It is
important to remember that BPD can effect both men and women, and
that women do get victimized by the court system the same as men.

Many parents, such as Clara Harris who ran over and killed her
husband when she found he was having an affair along with Deborah
Geisler who manipulated her ten year old son into murdering his
father, would have you believe that this is an excuse. After all,
these women are suffering from medical disorders and deserve our
sympathy, right? Not in my mind. These women may have psychological
disorders but they are just as capable as you or I in determining
right from wrong. Perhaps they need to exercise more control or
contemplate their actions a little longer, but to say they are not
responsible for their actions is just ludicrous. It is time to let
our leaders know that we will not suppport judges or courts that are
biased towards either the female population or custodial parents.
Your vote can send a strong message to court rooms across the
country. Vote for those who are fair and reasonable. Campaign against
those who are biased and corrupt. If you do nothing you are more a
part of the problem than a part of the solution. The time is now, not
next week or month, not closer to election time, now. There are
already a few groups out there in some states targeting judges that
are biased. If you know of a judge that is level headed, fair, non-
biased, and reasonable please send their name to me so I can compile
a list. Individually our voice may be weak but together we are a
force to be reckoned with.

**********************************************************************
**********************************


Please join Help Stop PAS Inc. to have parent alienation officially
recognized by the American Psychological Association by signing the
petition at www.helpstoppas.com under the "Help Stop PAS" tab.


While I am sympathetic to those with severe mental illness, I have
great contempt for those who use it as an excuse for their illegal
behavior. It is time to start calling a spade a spade. What is it
about some of these judges that make them so gullible? Why do they
believe that the mother was "distraught" and that is why she made
false allegations or lied about her ex, and why she should go free
with no sanctions?? C'mon. Enough is enough. It's time for each of us
to make a difference. No matter if it is an online letter to the APA
or our elected officials, or a law suit filed against a biased judge
or inept social worker you can and must do something .... now.


*********************************************************************


Social Work Misconduct May Lead to Liability


Contents
Complaints of Negligence
Qualified Immunity
Practice Tips
References
"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. Daran (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 plaintiffs 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
plaintiffs 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 (Archterhof v.
Selvaggio, 1989; Huffman 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 be 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; Scoff 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.
Original manuscript received February 4, 2002

Final revision received December 4, 2002

Accepted December 16, 2002

© 2004 National Association of Social Workers, Inc.

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).

??? Huffman 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).

~~~~~~~~

By Daniel Pollack, JD, MSW and James Marsh, JD