The Question: Whether DSS CWS Policy and Procedures procedures manual section
require 31-320 requiring monthly face to face visits between children in foster care homes and a social worker is MANDATORY for the purposes of Gov. Code § 815.6.
Where Cal. Gov. Code § 815.6 provides that "Where a public entity is under a mandatory duty imposed by an enactment 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 proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty."
The court found that monthly face to face meetings are MANDATORY and the social worker and the county were held liable.
A little background: In Scott v. County of Los Angeles, there is no discussion of the Federal/State relationship in child abuse prevention. Nor is this by any means an exhaustive discussion of these relations. However, a little background is useful to better understand the nature and the source of the “mandatory” character of DSS Regulationsw upon those individuals involved in California Child abuse and Neglect cases.
The source of this relationship is federal funding with strings, a federal effort to effect standards regarding the protection of children throughout the States.
This effort is accomplished through numerous sources, including The Adoption Act, which establishes a federal reimbursement program for certain expenses incurred by the States in administering foster care and adoption services. The Act provides that States will be reimbursed for a percentage of foster care and adoption assistance payments when the State satisfies the requirements of the Act. 42 U. S. C. §§ 672-674, 675(4)(A)
To participate in the program, States must submit a plan to the Secretary of Health and Human Services for approval by the Secretary. § 670, and § 671.
Section 671(a) lists numerous qualifications which state plans must contain in order to gain the Secretary's approval. As relevant here, the Act provides:
"(a) Requisite features of State plan
In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which….
(3) provides that the plan shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them…”
California participates in this program, and the “State Plan” is found in trhe DSS policy and procedures manuals referenced in Scott v. County of Los Angeles. They are mandatory pursuant to 42 U. S. C. § 671(a)(3)
The mandatory character of these DSS procedure manuals implicates a cause of action under Gov. Code § 815.6 [FN 1], a cause of action for injuries resulting from the failure to perform a mandatory duty, which is the underlying basis in Scott.
Now, about the Case:
The County of Los Angeles and Zsa Zsa Maxwell, a children's services worker (CSW) in the County's department of children's services (DCS) were found guilty of negligent supervision of Jimmee Scott, a seven year old, resulting in abuse and physical harm while in a foster care placement.
The negligence claim stems from the failure of Maxwell to maintain monthly face to face visits, mandated by section 30-342 of the DSS plolicies and Procedures manual. [Now 31-320]
"Jimmee was awarded $1,191,692 in economic damages and $1,040,000 in general noneconomic damages, for a total of $2,231,692..."
The reasoning:The mandatory character of these DSS procedure manuals implicates a cause of action under Gov. Code § 815.6 [FN 1], a cause of action for injuries resulting from the failure to perform a mandatory duty, which is the underlying basis in Scott.
Now, about the Case:
The County of Los Angeles and Zsa Zsa Maxwell, a children's services worker (CSW) in the County's department of children's services (DCS) were found guilty of negligent supervision of Jimmee Scott, a seven year old, resulting in abuse and physical harm while in a foster care placement.
The negligence claim stems from the failure of Maxwell to maintain monthly face to face visits, mandated by section 30-342 of the DSS plolicies and Procedures manual. [Now 31-320]
"Jimmee was awarded $1,191,692 in economic damages and $1,040,000 in general noneconomic damages, for a total of $2,231,692..."
1. That "Regulation 30-342, its successor regulation 31-320, and other regulations applicable to this case are regulations duly promulgated by the DSS pursuant to section 16501 of the Welfare and Institutions Code [a.k.a. The "State Plan" approved by the Secretary as required for federal reimbursements.] [FN 2], and the regulation imposes a mandatory duty upon local agencies."
2. "[t]hat public entities are liable under section 815.6 of the Government Code for injuries to children in foster care which occur as a result of any violation of those duties"
3. That "such public entities and their employees are not immune under Government Code sections 815.2 and 820.2 for violations of those duties." [FN 3]
4. "[t]hat functions performed by a county welfare agency pursuant to Welfare and Institutions Code section 16500 and following are separate and distinct from those quasi-prosecutorial functions in connection with proceedings under Welfare and Institutions Code section 300, which are commonly delegated to county welfare departments pursuant to Welfare and Institutions Code section 272.
Thus, a county and its employees are not immune under Government Code sections 815.2 and 821.6 for negligence in the performance of such functions.
The Limitations of Scott:
Scott v. County of Los Angeles appears to limit its holding to the failure of a social worker to meet face to face, monthly, with children in foster homes resulting in harm to the child, as required by 31-320.
Other cases regarding violations of other portions of the DSS Regs are available... and will be added here in the next day or so.
If you can't wait... you may like reading Alejo v. Alhambra 75 Cal.App.4th 1180 (2nd Dist., 2000). Alejo addresses the failure to investigate (as opposed to a negligent investigation). and possible liabilities for the failure of mandated reporteres to report abuse, the failure to investigate when required by law...
If you have a (California) case you think should be included in this topic, drop me an email.
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[FN 1] Gov. Code § 820.2 states: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.
[FN 2] DSS Manuals are online, here are the links...
Division 31 Child Welfare Services Program.
Chapter 31-000 General Requirements.
Chapter 31-100 Intake
Chapter 31-200 Case Plan
Chapter 31-300 Service Delivery
Chapter 31-400 Placement
Chapter 31-500 Special Requirements
[FN 3] Gov. Code § 815.2 (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 employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee. (b)... except where the employee is immune from liability.
Gov. Code § 820.2 grants immunity, unless otherwise proivded for by law, to a public employee for injuries resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.
NOTE: The leading authority as to the meaning of discretionary acts for the purposes of §820.2 is Johnson v. State of California (1968) 69 Cal.2d 782, maintained in Barrier v. Leeds (2000) 24 Cal.4th 676; Perez-Torres v. State 42 Cal.4th 136 (2007)
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