The Law Offices of Daniel S. Williams
Child Welfare Agencies Potential Malpractice Liability for Inadequately Protecting a Child
States have enacted laws requiring the filing of reports of suspected child abuse and neglect, and most states have specialized child protective agencies to investigate these reports. The organization of the agencies varies greatly from state to state. Child protective agencies should essentially perform the same functions. Some of those functions include:

  • Receipt and screening of reports.
  • Investigation of reported abuses.
  • Determination of whether protective measures need to be taken.
  • Determination of the potential resolution for the situation.
  • Take court action if the parents are unwilling to cooperate with the agency.

Liability for the failing to properly and adequately protect a child may be established on various different grounds including:

  • Failure to accept a report for investigation purposes.
  • Failure to adequately investigate a reported incident.
  • Failure to place a child in protective custody when required.

The plaintiff, either a child or a parent, must also show that the agency had a special relationship with the child or owed a duty to the child. Further, the plaintiff must show that the agency breached their duty and that breach resulted in the proximate cause of the child's injury. Whether a child's subsequent maltreatment may have been caused by the agency's or caseworker's improper or inadequate performance depends upon the specific situation. If the agency or caseworker is found liable, civil or criminal liability may result.

Liability Established

Liability is established through proof that the agency or the caseworker breached a duty owed to the child, and that this was the proximate cause of the child's subsequent injury. The agency's duty may be established by way of state law because courts do not recognize a general duty of public agencies to act to prevent harm. In the alternative, the agency's duty may be established by showing that a special relationship existed.

Caseworkers cannot be deemed liable merely on the basis of whether the child suffered subsequent injury. Subsequent maltreatment does not necessarily mean that greater protective measures should have been taken. So long as the caseworker followed the proper investigative procedures, she will most likely not be found liable for malpractice.

Specific Instances of Potential Malpractice

As mentioned above, the agency or caseworker may be found liable for malpractice in three specific instances. The agency or caseworker may be liable for malpractice if they failed to accept a report for investigation. After receiving a report, the agency or caseworker should investigate the report on the same day that it was received or shortly thereafter. The agency or caseworker should accept and investigate all reports. The agency or caseworker may reject a report if it seems clear by the facts that an investigation was not warranted.

The agency or the caseworker may also be liable for malpractice if they fail to adequately investigate a report of abuse or neglect. With this type of claim, the plaintiff usually claims that although the agency or caseworker was given reason to suspect that the child was in a bad or dangerous situation, the agency or caseworker failed to adequately investigate the claim. The elements of what exactly constitutes an "adequate and proper" investigation are unclear and vary from case to case. In addition to any statutory and administrative guidelines, courts may also look at the professional standards or practices of other professionals in determining whether the agency or caseworker did not properly or adequately investigate a report.

Last, the agency or caseworker may be liable for malpractice if they failed to place the child in protective custody. This is a very difficult decision to make. If the agency or caseworker places the child in protective custody and the child should not have been placed in such custody, the agency or caseworker may be civilly or criminally liable. On the other hand, if the agency or caseworker fails to place the child in protective custody and the child suffers further maltreatment, the agency or caseworker may be civilly or criminally liable. Situations that may suggest that a child needs to be placed in protective custody include:

  • Severe assault on the child.
  • Systematic torture of the child.
  • Reckless disregard for the child's safety that has resulted or could result in serious injury.
  • Severe and demonstrable mental or physical disabilities of the parents or caregiver.
  • Abandonment of the child.
  • Fear that parents or caregiver may flee with the child.

Copyright 2007 LexisNexis, a division of Reed Elsevier Inc.


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