Ministerial Versus Discretionary Acts or Omissions in Child Welfare Litigation

• Author: Andrea MacIverDaniel Pollack
• Position: 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...
• Pages: 103-125

MINISTERIAL VERSUS DISCRETIONARY ACTS OR

OMISSIONS IN CHILD WELFARE LITIGATION

ANDREA MACIVER* & DANIEL POLLACK**

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 b een 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)