This is one of those Alabama supreme court cases that makes you cry for nearly everyone involved. Gowens v. Tys. S., Case No. 1041341, 1041413 (Ala. May 3, 2006). It’s all about whether a DHR investigative social worker can be sued by the people he or she is charged with protecting. The short answer is yes.
Jefferson County DHR became involved with this family when the mother delivered a child at UAB Hospital, and both mother and baby tested positive for cocaine. when a social worker at the hospital reported the presence of cocaine to DHR, DHR began an investigation. Supervisor Rose assigned the investigation to investigative social worker Gowens.
Even though a preliminary report mentioned there were two other children living in the household, Gowens developed a “safety plan” with the mother at the hospital that made no mention of the other children. In violation of the DHR manual, Gowens failed to verify the number of children in the household with an outside source, taking only the mother’s word for it that the newborn child was the only one in the household. Had he done so, presumably, he would have learned that the mother had two other children at home and would have (also as required by the DHR Manual) actually talked with those children. Had he done so, he might have learned more about how dangerous the home environment was both to the newborn baby and the older children.
Gowens set up a “safety plan” with the mother, using her mother (the grandmother of the children) as a person who had information about the children. Gowens learned a month or so later that the mother had made statements to him about her substance abuse that turned out to be untrue. He tried to visit the mother at her home but was unable to find her.
Tragedy followed about three months after that, when fire broke out in the residence. In that fire, one of the older children received third degree burns on her body, and fingers of one her hands had to be amputated. When he reopened the investigation, Gowens learned about the other children, learned that grandmother had a history of child neglect charges through DHR, and learned that the children had been unable to escape the fire because the grandmother had locked them in the house alone when she left for work.
There was no evidence or allegation that Gowens ever acted in bad faith. Instead, the evidence is of his failure to follow the DHR Manual.
The supreme court had several questions before it, all presented on interlocutory review (asking for appellate guidance while a case is ongoing):
- Whether Gowens was immune from any suit in connection with his work for DHR under Ala. Code Â§ 26-14-9, which purports to extend immunity to designated persons who investigate child abuse or neglect.
- Whether Gowens was immune from suit by these plaintiffs (the children) because he owed them no duty.
- Whether Gowens was immune from suit by these plaintiffs because his actions were not the proximate cause of their injuries.
The supreme court dealt with the first argument easily, perhaps too easily. Here’s what Ala. Code Â§ 26-14-9 says:
Any person, firm, corporation or official, including members of a multidisciplinary child protection team, quality assurance team, child death review team, or other authorized case review team or panel, by whatever designation, participating in the making of a good faith report in an investigation or case review authorized under this chapter or other law or department practice or in the removal of a child pursuant to this chapter, or participating in a judicial proceeding resulting therefrom, shall, in so doing, be immune from any liability, civil or criminal, that might otherwise be incurred or imposed.
The supreme court said that although the statute does indeed grant absolute immunity, the immunity does not arise unless the suit contains within it a charge that Gowens did one of the three acts. That’s not what the statute says. It says that any person participating in one of the three acts will be entitled to the immunity. I can accept that the legislature may not have intended the broad result Gowens advocated, but the plain language of the statute says that, and it should be up to the legislature to amend the statute, not up to the court to impose its own limitations.
Next the supreme court dealt with whether Gowens was immune from suit by these plaintiffs because he owed them no duty – also called “state-agent immunity.” The supreme court said that Gowens was clearly acting within the scope of his authority but that he forfeited the state-agent immunity when he failed to follow the procedures prescribed in the DHR Manual (he failed to verify the number of children in the household from an outside source). Had he followed the DHR Manual and learned that there were other children at the mother’s home, the supreme court speculated, he would have interviewed those children (also as prescribed in the DHR Manual) and might have learned the extent of the mother’s deception.
The DHR Manual simply does not confer upon the investigator of a CAN report the judgment or discretion to limit this crucial inquiry to asking questions of the alleged perpetrator. The mandates of the DHR Manual in this regard are precisely the sort of “detailed rules or regulations” that State agents cannot ignore, except at their peril. For these reasons, Gowens is not entitled to State-agent immunity.
Finally the supreme court turned to the issue whether Gowens was entitled to immunity because his action were not the proximate cause of the plaintiffs’ injuries. Observing that the question of proximate cause is one of fact, the supreme court said that there was no controlling question of law for the court to review. “We decline, therefore, to review this fact-specific issue.”
Lee’s thoughts: So what is a DHR investigator to do? Let’s consider those who are planning now to become investigators like him. They know they will be paid relatively poorly and will be swamped with work. They know they will be spending their working hours with parents like the mother of these children, on the margins of society and resenting DHR and all its employees for intruding in their private lives. And now they know that anything other than the most scrupulous adherence to every list of tasks in the DHR Manual places them at risk of ruinous personal liability.
No matter that they were trying to do a good job; no matter that they had the best interests of the children at heart. “Gotcha! You missed task #26, so now you’re on the hook.” Forget for a moment whether it’s fair. It sounds like a doomed policy, because I don’t know of anyone of basic competence who would choose to live with that risk.
I certainly don’t face it, and I make better money than most DHR investigators. Lawyers are extraordinarily forgiving of themselves for minor transgressions. Why do we choose to be more strict, more demanding, and more condemnatory of those we need more and reward less?