BILL ANALYSIS
SENATE JUDICIARY COMMITTEE A
Charles M. Calderon, Chairman B
1995-96 Regular Session
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3
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AB 1355 (Knowles)
As introduced
Hearing date: June 20, 1995
Government Code
MBS:cb
GOVERNMENTAL IMMUNITIES
SOCIAL WORKER IMMUNITY
HISTORY
Source: Author
Related Pending Legislation: SB 41 (Johannessen)
KEY ISSUES
SHOULD THE ABSOLUTE PROSECUTORIAL IMMUNITY FROM CIVIL SUIT ENJOYED
BY JUVENILE COURT SOCIAL WORKERS AND CHILD PROTECTION WORKERS
AUTHORIZED TO INITIATE INVESTIGATIONS OR PROCEEDINGS IN JUVENILE
COURT BE LIMITED TO THE QUALIFIED CIVIL IMMUNITY ENJOYED BY PEACE
OFFICERS?
1. WHAT IS THE LAW, GENERALLY, RELATING TO THE IMMUNITY OF PUBLIC
ENTITIES AND EMPLOYEES?
2. IS THERE A NEED FOR SOME LIMITATION ON THE ABSOLUTE IMMUNITY OF
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SOCIAL WORKERS?
PURPOSE
Relevant current statutory law:
1. Provides that no person who is the subject of an "accusatory
pleading" relating to child abuse may bring a defamation action
against the minor, parent, guardian or "witness" for any
statement made in "furtherance of the prosecution."
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[Government Code (GC) Section 48.7.]
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2. Provides that a public employee is not liable for injury
resulting from his or her discretionary acts or omissions, where
the acts or omissions were the result of discretion vested in
the public employee, whether or not the discretion was abused.
[GC Section 820.2.]
3. Provides that a public employee is not liable when acting to
execute or enforce a law, if they exercise due care. This
immunity does not apply to liability for false arrest or false
imprisonment. [GC Section 820.4.]
4. Provides that a public employee is not liable for injury caused
by his or her instituting or prosecuting any judicial proceeding
within the scope of his or her employment, even if the public
employee acts maliciously and without probable cause. [GC
Section 821.6.]
5. Confers an absolute immunity on various persons who are required
by law to file reports under the Child Abuse and Neglect
Reporting Act. Other persons who file reports under the Act,
but who are not required to do so, are liable only if the report
is false, and the person knew the report was false, or
recklessly disregarded the truth of falsity of the report.
[Penal Code Section 11172.]
6. Immunizes various persons who, in good faith, file reports under
the Child Welfare Services Act. It also immunizes the same
persons for "participation in any judicial proceeding resulting
from" such a report. [Welfare and Institutions Code Section
165113.]
Current case law relevant to this bill is as follows:
1. California courts apply the same absolute prosecutorial immunity
enjoyed by prosecutors to social workers, and interpret it to
include their investigations and decisions to intervene in child
abuse cases. They cite as justification that, absent such
protection from lawsuits, the willingness of social workers to
intervene to protect an endangered child would diminish due to
fear of retaliatory lawsuits. [ Jenkins v. County of Orange
(1989) 212 Cal.App.3d 278.]
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2. Federal courts have also extended absolute immunity from civil
rights suits to social workers. [ Myers v. Contra Costa Co.
Dept. of Social Services (9th Cir. 1987) 812 F.2d 1154.]
3. Peace officers enjoy only a qualified immunity from civil
liability, which shields them from liability for actions they
take in enforcing the law, but only for decisions made in the
good faith exercise of their official responsibilities. Their
actions must be found to have been "objectively reasonable."
[ Sellers v. Procunier (9th Cir. 1981)641 F.2d 1295; Pierson v.
Ray (1967) 386 U.S. 547.]
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4. In Deshaney v. Winnebago Social Services (1989) 109 S. Ct. 998,
the U.S. Supreme Court ruled that a state's failure to protect
an individual against private violence does not constitute a
violation of the Due Process Clause. In that ruling, the
Supreme Court commented:
"Should we hold that a state or a social worker acting
within the scope of his or her employment is not absolutely
immune from suits arising from the voluntary intervention to
protect a child, we would directly eliminate the protection
afforded to children. The state's interest in preventing
child abuse will be diminished due to fear of retaliatory
lawsuits."
5. In Superior Court v. Goodfriend (1993) 169 Cal.App.4th 169, the
Fourth District held that the Act (specifically Penal Code
Section 11172) "... is a reporting statute and its protection
runs to reporting: it does not apply to activities that
continue more than two years after the initial report of abuse
by parties who are not acting as reporters." [p. 174.]
The Goodfriend case arose from the Wade family's experience with
the dependency system and has become infamous as an example of
how much emotional and financial harm the current system can
cause to a child and her family. The following account is taken
from the Fourth District's opinion:
On the morning of May 9, 1989, eight-year-old Alicia Wade
complained of pain when she went to the bathroom. Her parents
brought her to the Navy medical unit by 8:30 a.m. The family
was then escorted to Children's Hospital where staff determined
that Alicia had been raped and sodomized, and filed a report
under the Act. Alicia stated that a man had come through her
bedroom window and hurt her.
Late that afternoon, a hospital worker and detective accused
Alicia's father of the molest. In an attempt to prove the
father's innocence, the parents agreed to have their home
searched and talk with the police, and the father submitted to a
rape test, a DNA test and three polygraph tests.
By May 11, the Department of Social Services (DSS) filed a
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dependency action and the following day had Alicia placed in
temporary foster care. Meanwhile, DSS investigative employee
Diane Anderson interviewed the parents and referred them to a
private family counselor, Kathleen Goodfriend. At her first
session with the family on May 11, Goodfriend accused the father
of the assault.
In July 1989, the family's attorney advised them to plead nolo
contendere to a charge of neglect and assured them all other
charges would be dropped. The attorney added that, assuming the
parents passed a psychological evaluation and found a
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24-hour caretaker, Alicia would be home within a week. The parents
reluctantly accepted the plea bargain in order to get their daughter
home and put the experience behind them. Notwithstanding that the
psychological exam was favorable and the family had provided the
names of three 24-hour caretakers, counselor Goodfriend refused to
cooperate and DSS later backed out of the agreement.
For over a year after her attack, Alicia stood firm in her
insistence that her father was not the assailant. Further, the
same month that Alicia was attacked, a man entered the bedroom
window of a four-year-old girl living across the street from the
Wades, abducting the girl and attempting to rape her. The man,
Carder, a registered sex offender, was arrested in June, 1989
and by August was charged with four criminal cases involving
minors, but not with the Wade case. Goodfriend, the District
Attorney and DSS were all aware of the Carder cases.
Goodfriend and the foster-parents put continuing pressure on
Alicia to "confess" that her father was the one who assaulted
her. Directing Alicia to say her father was guilty, Goodfriend
repeatedly told the child: (1) she knew Alicia's father had
molested her; (2) Alicia would feel a lot better if she admitted
it; (3) the "story" Alicia had been telling was not believable;
(4) Alicia's mother had been assaulted by Alicia's grandfather;
and (5) if she wanted to go home, Alicia would have to say her
father was the perpetrator. At Goodfriend's direction, every
night when she was put to bed, the foster-mother told Alicia
"over and over again" that Alicia's father had raped her.
During all this time, Alicia was completely cut off from her
family. Her mother did not see her for a full year and her
father did not see her for two years.
Finally, Alicia yielded in June 1990, finally stating that her
father was guilty. She testified against her father in July.
In September, Alicia, her mother and brother entered "conjoint"
therapy with Goodfriend. By November, the mother was so
overwhelmed that she attempted suicide and was placed in a
locked ward until January, 1991. Alicia's father was arrested
in December, 1990.
New counsel for father had Alicia's nightgown, worn the night
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she was raped, tested and the DNA test proved that her father
could not have committed the rape and, instead, Carder was among
the nine percent of the population whose DNA would have matched
that found on Alicia's nightgown.
The Wade family sued and the trial court sustained the demurrers
of the defendants based upon the various immunities provided in
law. In their petition for writ of mandate, the family argued
that, "the courts have moved beyond the Child
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Abuse and Neglect Reporting Act, Penal Code sections 11164 et seq.,
to come full circle so those who abuse children in the name of
preventing abuse are immunized by the very law meant to protect
children." [p. 173.]
In finding liability on the part of Goodfriend and the
foster-parents, the Fourth District noted that they came onto
the scene after the initial reporting of abuse and "voluntarily
assumed roles of those who, having received the report and
determined the identity of the perpetrator, search for
corroboration and/or attempt to pressure a witness to get a
conviction." [p.176.]
The demurrers to all causes of action against the social worker
and DSS were sustained because of the statutory immunity.
This bill provides that, notwithstanding any other provision of law,
the civil immunity of juvenile court social workers, child
protection workers, and other public employees authorized to
initiate investigations or proceedings pursuant to Welfare and
Institutions Code Chapter 2 (this includes juvenile dependency and
juvenile delinquency cases) shall be that same as the civil immunity
provided by law to peace officers.
COMMENT
Should the absolute prosecutorial immunity from civil suit enjoyed
by juvenile court social workers and child protection workers
authorized to initiate investigations or proceedings in juvenile
court be limited to the qualified immunity enjoyed by peace
officers?
1. What is the law, generally, relating to immunity of public
entities and employees?
Under the common law theory of sovereign immunity, a
governmental entity could not be sued for torts committed by the
entity or an employee of the entity. Over the years, statutory
changes and judicial decisions limited the concept of sovereign
immunity so that a governmental entity and its employees were
immune from suit while performing a governmental function
[ Dillwood v. Riecks (1919) 42 Cal.App.602; Western Assur. Co. v.
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Sacramento & San Joaquin Drainage Dist. (1925) 72 Cal.App. 68],
but could be held liable when performing a proprietary act.
[ People v. Superior Court (Pierpont) (1947) 29 Cal.2d 754;
Schwerdtfeger v. California (9157) 148 Cal.App.2d 335].
In 1963, California enacted a comprehensive set of governmental
liability statutes, generally referred to as the Tort Claims Act
(Act) and repealed much inconsistent legislation. The
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revision gave legislative approval to the judicial repudiation of
sovereign immunity and also eliminated the common law liabilities of
the State and local entities for proprietary acts.
Now, all public entities, state and local, are liable in tort to
the extent declared by statute and have certain statutory immunities
and defenses. [Witkin, Torts.]
Under the Act, prior to determining liability on the part of an
entity or employee, there must first be determined to be a duty of
care owed. [ Davidson v. Westminster (1982) 32 Cal.3d 197; Williams
V. California (1983) 34 Cal.3d 18.]
Except as otherwise provided in statute, a public entity is not
liable for an injury resulting from an act or omission of an
employee of the public entity where the employee is immune from
liability. [Govt. Code Section 815.2(b); Sava v. Fuller (1967) 249
Cal.App.2d 281.] Further, the public entity is subject to any
defenses that would be available to a private person. [Govt. Code
Section 815(b); Heieck & Moran v. Modesto (1966) Cal.2d 229.]
A public entity is liable for injury proximately caused by an
act or omission of an employee of the public entity within the scope
of his or her employement if the act or omission would, apart from
this section have given rise to a cause of action against that
employee or his or her personal representative. [Govt. Code Section
815.2(a).]
In addition to the vicarious liability imposed above, where a
public entity is under a mandatory duty imposed by statute that is
designed to protect against the risk of a particular kind of injury,
the public entity is liable for an injury of that kind caused by its
failure to discharge that duty unless the public entity establishes
that it exercised reasonable diligence to discharge the duty.
[Govt. Code Section 815.6.]
A public employee is liable for injury caused by his or her act
or omission to the same extent as a privat eperson and is subject to
any defenses that would be available to a private person. [Govt.
Code Section 820.]
However, except as otherwise provided by statute, a public
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employee is not liabale for an injury reslulting from his or her act
or omission where the act or omission was the result of the exercise
of discretion vested in him or her, whether or not that discretion
was abused. [Govt. Code Section 820.2.]
A public employee is not liable for injury caused by his or her
instituting or prosecuting any judicial or administrative
proceedings within the scope of his or her employement, even if he
or she acts maliciously and without probable cause. [Govt. Code
Section 821.6.]
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Neither a public entity nor a public employee is liable for
failure to establish a police department or otherwise provide police
protection service or, if police protection is provided, to provide
sufficient police protection [Govt. Code Section 845], nor for the
failure to make an arrest [Govt. Code Section 846].
2. Is there a need for some limit on the absolute immunity of
social workers?
The name of the game is the protection of children: should it
matter whether the protection is needed from harm caused by a loved
one or from harm caused by one who acts under authority of the state
or county?
The author believes that the absolute immunity of social
workers, when coupled with their power and influence in a dependency
case, has created a lack of checks that is needed to maintain an
appropriate balance between these two types of harm. The author
states it is his intent, in AB 1355 to provide that needed balance.
The concern raised by opponents to this bill, and noted by the
courts prior to Goodfriend, is that any limitation on their immunity
would make social workers too fearful of lawsuits to appropriately
intervene to protect an endangered child.
Opponents state that the decision to remove a child from his or
her home, in the first instance, is made with little that is
immediately verifiable in the way of information and the possibility
of harm to the child may be such, that a social worker would
generally err on the side of caution and remove the child.
AB 1355 proposes replacing the "absolute" immunity of social
workers with the "qualified" immunity afforded to peace officers.
Opponents, however, argue that social worker immunity in the
child dependency arena is akin to the prosecutorial immunity
afforded to district attorneys, not the qualified immunity held by
peace officers.
Opponents further argue that:
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" AB 1355 is based upon the faulty premise that social
workers actually make the decisions concerning children in
the dependency system. Outside emergency removals (and
then, in only some counties), social workers are not the
decision-makers for these children. Their recommendations
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are scrutinized by a battery of attorneys and judges. In those
isolated cases where the best interest of the child was not
protected, the social workers were not the only parties involved
in the system."
Opponents appear to argue first, that they do not actually make
decisions regarding the child, with the possible exception of
the initial decision to remove the child from the home, and
second, that there is already a sufficient system of checks on
the social worker, in the form of a battery of attorneys and
judges.
In a perfect world, this might be true. However, one of the
ongoing problems within the dependency system has been the issue
of competent counsel. AB 783 (Lockyer), passed into law in
1994, attempted to ensure competency of counsel in dependency
cases. It took two years for the bill to pass, and when it did,
it was in a significantly watered-down state.
Testimony on that bill was that court-appointed counsel for
parents in dependency cases was often woefully inadequate. The
Children's Advocacy Institute, the sponsor of that bill,
testified to numerous cases in which parents met their attorneys
for the first time just before walking into the courtroom for
the jurisdictional hearing; of cases in which such attorneys
requested continuances for clients who were not present, when in
fact, the client was sitting in the courtroom; and of parents
unable to understand the nature of the charges against them, of
lack of notice of these charges until just before walking into
the hearing and then, having no one who one who took the time to
explain what the charges meant.
There also was testimony as to the tactic counseled by parents'
attorneys to plead guilty, regardless of whether or not they
were, as the best means of getting the child returned to the
home in the near future. This is because of the perception
inherent in the system that the parent is most likely guilty and
the only way to allow a child to return home safely is to ensure
that the "guilty" parent admits his or her guilt. A parent
unwilling to admit his or her guilt, has not yet come to terms
with their problem, and so, will not rectify their behavior.
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This is exactly the catch-22 in which the Wades found
themselves. Mr. Wade did not "admit" he sexually molested his
daughter, so she could not be returned home. Once it was
determined by the social worker and therapist that Mr. Wade had
sexually abused his daughter, Mrs. Wade also was required to
accept and acknowledge his guilt before she could prove her own
parental fitness and lack of "guilt". Her failure to do so
meant Alicia could not be returned home "safely," because her
mother couldn't be trusted to adequately protect her from her
father.
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All of this makes sense in terms of child protection except for
one fact, Mr. Wade did not molest his daughter.
Thus, Alicia suffered immeasurable harm by not being returned
home to the only people who could help her through the trauma of
being raped. How does such a system "protect" a child, like
Alicia, from the harm of false allegations?
If it is not by the attorneys, then does the court provide
adequate protection?
Supporters of this bill and SB 86 (Haynes) argue that judges
simply "rubber stamp" the report and recommendations of the
social workers in these cases. Opponents of these bills argue
that the opposite is true. Reality may be somewhere in the
middle.
However, it is true, since the California Supreme Court case, In
re Malinda S. (1990) 51 Cal.3d 368, that a court in a dependency
case may make its decision at the jurisdictional hearing, based
solely upon the social workers report (regardless of the amount
of hearsay testimony used to support the report), with no
witnesses -- not even the social worker who prepared the report
-- required to be in front of the court.
Opponents do not argue that an appropriate system of checks and
balances should require courts do more than read their report
prior to making a decision as important to the well-being of a
child and his or her family. Rather, they argue parents have
the ability to compel the witnesses listed in the report, and
that this ability sufficiently protects the rights of the
parents.
Opponents do not see this as an issue of protection of the
rights of the child, and one must wonder if this is because of
their inherent tendency to believe that whatever a social worker
has determined to be the truth of the case, is, in fact, the
truth.
Opponents minimize the concern that parents do not receive the
report until just before the hearing, so that in order to
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subpoena witnesses the parent must request a continuance --
resulting in the child remaining out of the home even longer.
Once again, if the parent is presumed guilty, this is not a
major concern. However, if the parent is not guilty, then the
family and the child are being traumatized by the continued
separation.
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SB 86 attempts to provide some balance by requiring the social
worker make available the witnesses upon whose testimony they
have relied in making their report, if the parent receives the
report in a timely manner and makes a timely written request for
production of specific witnesses.
Opponents to this bill strenuously oppose SB 86 as well, arguing
that their ability to protect children will be compromised by
the requirement that they make their report available to parents
at least ten days before the hearing. Once again, they do not
address the issue of protecting those children who are brought
into the system erroneously.
A primary concern of opponents is the potential for a deluge of
unwarranted lawsuits being filed by angry or unhappy parents.
Regardless of the merits of the suits, they argue, the county
will incur the cost of investigating and defending them. In
order for the financially strapped counties to avoid this type
of liability, the incentive will be to use more caution in
acting and this, in turn, may well lead to endangered children
being left in abusive homes or being returned to abusive homes.
There are a number of ways that the system can be protected from
unwarranted, frivolous or harassing suits being brought, such as
providing a court with the ability to levy sanctions against a
parent who does so, or providing some form of pleading hurdle
which will remove such cases.
IT IS A QUESTION OF PUBLIC POLICY WHETHER TO LIMIT THE SOCIAL
WORKER IMMUNITY TO THE QUALIFIED IMMUNITY ENJOYED BY PEACE
OFFICERS.
Support: Child and Family Protection Association
Coalition of Parent Support
Fathers' Rights and Equality Exchange
Committee on Moral Concerns
Grandparents as Parents
98 individuals
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Opposition: County Welfare Directors
National Association of Social Workers
California State Association of Counties
California Independent Public Employees Legislative Council,
Inc.
Service Employees International Union, Calif. State Council
County of Sacramento
8 individuals
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Prior Legislation: AB 2140 (Honeycutt) and SB 1790 (Frizelle) in
1994; AB 2394 (Frizelle) in 1992; AB 1837 (Frizelle) and AB 2859
(Frizelle) in 1990; SB 783 (Lockyer) in 1994.
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