In "Ministerial Versus Discretionary Acts or Omissions in Child Welfare Litigation," an article recently published in an online law review journal, authors Andrea MacIver and Daniel Pollack note that children, especially foster children, are often failed by the social welfare system and, being a most vulnerable population, are at risk of harm. In fact, 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.” MacIver and Pollack identify a system-wide failure based upon several recurring and increasing problems, particularly: "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." Co-authors MacIver and Pollack discuss the viability of tort claims for injuries that occur when a child is harmed while under the care of child welfare services.
The article focuses on claims made in state court where the plaintiff must plead his or her claim in avoidance of the defendants (the state agency and its employees) statutory defense of governmental immunity. As the authors point out, each state’s immunity provisions differ and many states offer immunity where the act or omission of the state employee is discretionary, as opposed to an act or omission that is ministerial. The distinction between acts that are discretionary vs acts that are ministerial is explored. The distinction "is key because in many states, official immunity does not shield officials from liability arising from negligent performance of ministerial acts or functions (i.e., directives the officials are required to follow and involve no discretion on the part of the employee). Conversely, an official acting with discretion may be found immune from liability."
The authors state that, based upon a review of published case law, "where a social worker completely fails to perform a regulation or mandate (i.e., an omission), plaintiffs have fared better in avoiding governmental immunity on their state claims, and have been more successful in having their claims decided at trial. However, where plaintiffs have not fared well is when a mandate is performed, but performed negligently or even incorrectly. Thus, although acts or omissions on behalf of state welfare workers both have the potential to cause harm to children in state care, a harm caused by an omission is more likely to fall outside the scope of state immunity provisions."
The conclusion reached by the authors is as follows: "Ultimately, whatever tasks are deemed ministerial, or whatever analysis each state imposes in determining governmental immunity, the importance of abiding by the laws, regulations, and manuals which impose specific obligations on child welfare workers, supervisors, and administrators in the scope of their work cannot be overstated."
Download a PDF of the article here: MacIver, Andrea, JD, and Daniel Pollack, M.S.S.A. (M.S.W.), J.D.,. "Ministerial Versus Discretionary Acts or Omissions in Child Welfare Litigation." Capital University Law Review 44, no. 1 (February 2016): 103-25. Accessed February 28, 2016. http://law.capital.edu/Volume44Issue1/.
Andrea MacIver, J.D., DePaul University College of Law. Appellate Judicial Clerk for the Honorable Nathaniel R. Howse, Jr.
** Daniel Pollack, M.S.S.A. (M.S.W.), J.D., Professor at the School of Social Work, Yeshiva University in New York City, and a frequent expert witness in cases involving child welfare and developmental disabilities. Contact information: firstname.lastname@example.org; (212) 960-0836.