Ministerial Versus Discretionary Acts or Omissions in Child Welfare Litigation

MINISTERIAL VERSUS DISCRETIONARY ACTS OR OMISSIONS IN CHILD WELFARE LITIGATION A NDREA M AC I VER * & D ANIEL P OLLACK ** I. INTRODUCTION Too often the child welfare system fails our children, especially foster children, leaving our most vulnerable population at risk of harm. 1 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.” 2 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. 3 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. 4 Copyright © 2016, Andrea MacIver & Daniel Pollack. * 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: dpollack@yu.edu; (212) 960-0836. 1 See Nelson Hincapie, Op-Ed, The Foster-Care System Has Failed Our Children , MIAMI HERALD (Dec. 8, 2014), http://www.miamiherald.com/opinion/op-ed/article4371831 .html. 2 Roger J.R. Levesque, The Failures of Foster Care Reform: Revolutionizing the Most Radical Blueprint , 6 MD. J. CONTEMP. LEGAL ISSUES 1, 6–7 (1995) (“Although there are several reasons for the failures, three have been particularly determinative: (1) an upsurge in the number of children in need of care, (2) an overburdened system and agencies, and (3) an inadequate number of foster parents.”). 3 See Marci A. Hamilton, The Time Has Come for a Restatement of Child Sex Abuse , 79 BROOK. L. REV. 397, 421 (2014). 4 See Carolyn A. Kubitschek, Holding Foster Care Agencies Responsible for Abuse and Neglect , 32 HUM. RTS. 6, 6–7 (2005). 104 CAPITAL UNIVERSITY LAW REVIEW [44:103 When a child is harmed while under the care of child welfare services, that child may have a viable cause of action in state or federal court. 5 Although some argue the children may fare better in federal court, which would still be an uphill battle, 6 this article focuses on state claims. When pursuing state claims against a state agency, the first challenge a child will face is whether the state agency and its employees are immune from liability in the matter. 7 Although each state’s immunity provisions differ, 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. 8 This 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). 9 Conversely, an official acting with discretion may be found immune from liability. 10 Although the distinction between an act or omission that is discretionary and one that is ministerial may be difficult to determine in practice, 11 the rationale and justification behind granting state employees or officials immunity for discretionary acts or omissions may help clarify why courts have found it so important to make the distinction in the first place. First, “[i]f the government and its employees are subject to tort liability [any time they] exercis[e] their discretion” in decision-making, the potential for an overwhelming amount of lawsuits could “stifle vigorous decision-making and thus lower the quality of the ultimate decision.” 12 5 See Sharon Balmer, From Poverty to Abuse and Back Again: The Failure of the Legal and Social Services Communities to Protect Foster Children , 32 FORDHAM URB. L.J. 935, 940 (2005). 6 See id. 7 See id. at 941. 8 See, e.g. , OHIO REV. CODE ANN. § 2744.03 (West 2012). 9 See, e.g. , id. § 2744.03(A)(2) (state actors not immune for negligent conduct “required by law or authorized by law”). 10 See, e.g. , id. § 2744.03(A)(3) (providing for immunity where the action or failure to act “was within the discretion of the employee”). 11 See, e.g. , Charron v. Thompson, 939 S.W.2d 885, 886 (Mo. 1996). 12 Laura Huber Martin, Comment, Caseworker Liability for the Negligent Handling of Child Abuse Reports , 60 U. CIN. L. REV. 191, 204 (1991). See also Steven G. Carlino, The History of Governmental Immunity in Ohio , 32 OHIO N.U. L. REV. 59, 87–88 (2006). The public service would be hindered and the public safety endangered if the state and its political subdivisions would be subjected to monetary ( continued ) 2016] MINISTERIAL VERSUS DISCRETIONARY ACTS 105 Second, separation of powers dictates that courts should not review the discretionary decisions made by state employees or officials. 13 When a state employee or official is not using any discretion in his or her decision-making (i.e., where the act or omission is ministerial) these rationales for immunity cease to exist. 14 State child welfare laws, regulations, and manuals are voluminous and can run many hundreds or even thousands of pages. 15 But is every sentence of a specific directive nature to be defined as a ministerial action? From a plaintiff’s perspective, the compulsion is to answer “yes.” The manual instructs an action be taken and it was not. The state’s perspective is much less certain. All would agree every directive in the state’s child welfare manual is not created equally. Ensuring a criminal background check is completed before issuing a foster care license is not comparable to ensuring a clothing reimbursement voucher is signed in exactly ten days. 16 Nevertheless, a plaintiff will want to characterize a criminal background check and any other specific directives as ministerial to avoid immunity of the actor. 17 Failing to do any one act may not necessarily result in a finding of negligence, but, depending on its importance, and assuming a convincing causation case can be made, it certainly might. From the state’s perspective, does the public child welfare agency itself have the authority to definitively designate which directives are ministerial and which are discretionary? Probably not. The way in which damages at the instance of every claim made by a citizen. It is necessary that judges, scholars, and legal practitioners abandon the fiction that governments and their officials can “do no wrong” and replace it with the understanding that the modern reasoning for governmental immunity is for the protection of the citizenry. Id. 13 See id. at 203 (“[T]he judiciary should not oversee and evaluate the appropriateness of a policy decision by a coordinate branch.”). 14 See id. at 203–04. 15 See, e.g. , KAN. DEP’T FOR CHILDREN AND FAMILIES, PREVENTION AND PROTECTION SERVICES POLICY AND PROCEDURE MANUAL (2015) (containing over 600 pages of directives). 16 As one example, compare the language of the requirement for criminal records checks and fingerprinting in OHIO REVISED CODE ANN. § 2151.86 (West 2012) with the regulations for reimbursing foster care costs in OHIO ADMIN. CODE 5101:2-47-11 (2012). 17 See, e.g. , OHIO REV. CODE ANN. § 2744.03(A)(3) (immunizing state actors where the action “was within the discretion of the employee”). Conversely, ministerial, or non-discretionary, acts do not immunize the actor from liability. See, e.g. , id. 106 CAPITAL UNIVERSITY LAW REVIEW [44:103 a directive is phrased will have great weight, but the characterization of a duty as ministerial or discretionary is determined by the nature of the action, not by the agency or department of the one performing the action or omission. 18 Courts have found that “[a] duty is discretionary if the government actor is required to exercise his or her judgment or discretion in performing the duty.” 19 On the other hand, “a duty is ministerial and not discretionary if it is imposed by law and its performance is not dependent on the employee’s judgment.” 20 The Supreme Court of the United States explained that “[t]he requirement of judgment or choice is not satisfied if a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,’ because ‘the employee has no rightful option but to adhere to the directive.’” 21 In assessing whether a function is discretionary or ministerial, courts generally conduct a case-by-case determination, weighing “such factors as the nature of the official’s duties, the extent to which the acts involve policymaking or the exercise of professional expertise and judgment.” 22 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. 23 This complexity does not allow for categorical 18 See, e.g. , Nebraska v. Ellis, 77 N.W.2d 809, 813 (1956) (describing an official ministerial duty as one which “is absolute, certain, and imperative,” and describing the character of the duty as “determined by the nature of the act to be performed”). 19 Miss. Dep’t of Human Servs. v. S.W., 974 So. 2d 253, 258–59 (Miss. Ct. App. 2007). See also Dancy v. E. Miss. State Hosp., 944 So. 2d 10, 16 (2006) (citing T.M. v. Noblitt, 650 So. 2d 1340, 1343 (Miss. 1995)); Hawkins v. Holloway , 316 F.3d 777, 789 (8th Cir. 2003). 20 Miss. Dep’t of Transp. v. Cargile, 847 So. 2d 258, 267 (2003) (citing Mohundro v. Alcorn County , 675 So. 2d 848, 853 (Miss. 1996)); see also...