Prickly World for Alabama DHR Staff

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):

  1. Whether Gowens was immune from any suit in connection with his work for DHR under Ala. Code § 26-14-9, which purports to extend immunity to designated persons who investigate child abuse or neglect.
  2. Whether Gowens was immune from suit by these plaintiffs (the children) because he owed them no duty.
  3. 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 § 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?

306 comments

  1. concerned citizen says:

    Comment regarding #300: I too am interested in how Ms. Beverly will respond to that question. Does the general public know that you have case aids who come to your house every day to do major chores and take care of the kids? Does the general public know who is paying for all those services? Weren’t all your adoptions subsized adoptions? Who in your family has a full time job? If you were actually at home being a “Mom” to all these kids and taking care of their needs, you would not have so much time to spend on the internet and in every court room in the state where the judge will allow you to just come and sit. Why do you attend church so far from where you live? Is it because the people in that church have deep pockets and big hearts and have fallen for your line?

    General comments:
    I very often get frustrated with DHR, but at the same time I also get frustrated with the system as a whole. When we talk about the poor job DHR is doing, we must also look at the judicial part of the child protective system. For example, GAL attorneys with far too many cases, judges who sometimes make decisions that are often so far “off the wall” that everyone (including DHR) is in shock when they leave court, parents who will not take responsibility for their own actions, kids who need services but never get them, attorneys who not attend ISP’s, etc. I could go on for hours, but I think the picture is pretty clear. All the training in the world is not going to change some things. People make mistakes because we are human. But I think there must be more accountability at all levels if there is going to be significant change.

    I’m tired of hearing parents complain because DHR “took” their kids. Some of them think it’s fine to keep kids out of school, beat the hell out of them, starve them, leave them alone for days or leave them with someone who is a known sex offender while they are out there doing whatever their “thing” for today is. Too many kids, even pre-school aged kids, come into the system knowing about sex acts, crack, weed, porno, etc. In therapy and counseling they disclose that they learned these things at home or from Mom’s newest boyfriend. Then these “wonderful” parents don’t show up for scheduled supervised visits with the kids. It is then the social worker or case aid who transported the kid to deal with the kid on the long ride back home. When you are complaining about DHR, think about those workers and how heavy their hearts must be when that happens.

    While I writing, I also have a few complaints about foster parents. For the most part, Alabama has a lot of good, dedicated, caring foster parents. Many have been foster parents for years and are doing a remarkable job. I praise each and every one of you who takes a child you do not even know into your home, knowing that the child is there only for a short while. Knowing that you will become attached, and will ultimately have to let go. I could not do it. Thank God there are people who can and will. Recruiting new foster parents is extremely difficult. I can see several reasons for that. Foster kids today have many more problems than we saw ten or even five years ago. Young people who care about kids are just not equipped mentally or emotionally to handle a seven year old who tries to stab you or a four year old who screams at the top of his lungs all night long with no tears or a ten year old who has attempted suicide. Regardless of what we tell ourselves, love is simply not enough for some of these kids. The board payments are so low that fostering such a child is not worth the risk to their family. Then I see foster parents who are on drugs taking care of kids who were removed from their parents because of drugs. And then there are those foster parents who will do almost anything to keep a foster child from going back home. They forget what the law says about foster care. I have never been through foster parent training, but I would like to think the definition is covered in depth. If so, it appears some missed that part. We want foster parents to love and care for foster kids and to give them the best home possible while they are not able to live at home. But that does not include working to prevent a child and parent from being reunited.

    I have these very important questions for DHR, judges, attorneys and child advocates:
    1. How often are foster parents or family placements tested for drugs? Are they ever tested?
    2. How extensive is the background check that DHR does for non-foster care placements (family members, for example)? Or do
    they even do background checks on these people?
    3. Does a background check include criminal background checks?
    4. If records checks are actually done, does DHR wait for the results before recommending a placement to the court?
    5. Do judges ever ask DHR if they completed a background check or drug testing on potential placements for kids?
    6. How many GAL attorneys have actually seen the child they represent? How many have seen the place where they live now or
    they home they came from (the one DHR wants to return them to)?

    Far too many kids who are being returned to foster care after being returned home or being placed with a relative. Removing a child from home and placing him or her in foster care is traumatic. However, being returned to foster care is even more traumatic. We must do a better job of protecting our kids. Again it is about accountability.

    If we continue doing the same things, we will continue getting the same results. The kids will continue to suffer and so will the taxpayers.

  2. beverly says:

    Honey, my foster care license wasn’t “revoked” but it sounds like you are a disgruntled social worker instead of a “former foster mom”. If you think you know a deep, dark secret about me, go ahead and tell everyone. I willingly gave up my license so that I could help others. You can “dig” around and find out if you like. DHR sent me children even when I was fighting them in court. I find that rather strange, if I am such a bad person. There are SOME social workers with some sense.

    I see that your signature is “former foster mom”. Did DHR take YOUR license and you are bitter? Some people just aren’t cut out to be good foster parents.

    What makes you think I’m only getting one side of the story? How would I NOT get both sides when I am talking to so many people about the case, and doing it the correct way and NOT revealing confidential information in the process like the chief DHR counsel. Of course DHR is usually afraid to let me in the ISP’s in St. Clair County, so it’s hard to get DHR’s side there. I do get both sides in other counties, because they are not afraid to let me into the ISP. That is usually where I get the truth.

    YOU can construe my information any way you want to, but it is NOT legal advice, ONLY information. Are you an attorney??? Oh sorry, you’re a “former foster mom”. If not, then how would you know? Would you please tell everyone here, what the legal advice is that I’m giving? I’d like to see it.

    I love that you have seen my disclaimer on my emails. It means that you are getting important information that I send out. You probably need it.

    I also appreciate the fact that you admitted that DHR “slants” their side of the story. I don’t know why it bothers so many social workers (and former foster parents) when I help others. It seems strange that it would upset you that I give people the information that DHR is supposed to be giving them. What’s the big secret here?

    “As long as you’re being so open and honest here, can I ask exactly why your foster care license was revoked? I actually already know the answer to that one, but I’m curious about just how honest you’re really going to be on the issue.” I’m sure the information you think you’ve got on me isn’t going to be one of those things where one side “slanted” the information, huh? Oh, of course not.

    Don’t blow a blood vessel, but I’m about to send some very good information that everyone needs. Even you!! So be sure and read it and learn “former foster mom”. People like you amuse me.

  3. Lee Borden says:

    Okay. That’s enough. I will approve no further comments on this note and no further comments on this blog dealing with criticisms or defenses of DHR, its methods, or its staff. I can certainly accept that many of you desire to say more about it; I’m just going to insist that you not do it here.

  4. KR says:

    Mr. Borden,
    A future topic you may be interested in for discussion on your blog is the subject of special needs children and divorce and what the responsibilites are for divorced parents of that child once the child becomes an adult. I am the defendant in one of the many, many divorces you handle. In my case, my husband, the plaintiff and your client, refers to my 28 year old autistic son as an emancipated adult. This is not the case as he cannot and will never be able to take care of himself.

    I think a lot of people may be unaware or ill-informed about this. Apparantly, my husband is, at least I hope that’s the case. He failed to mention that to you and I hope he didn’t do that on purpose.

    Sincerely yours,
    KR the defendant.

  5. Lee Borden says:

    I don’t know who you are and don’t need to know. What I can tell you is that my work is exclusively in cooperative divorce, which means that nothing will happen with the papers I prepared in your case unless and until you sign them. If you believe the agreement your husband has prepared isn’t appropriate, you shouldn’t sign it, and you should obtain your own counsel to advise you.

    I’ve allowed this comment because of its extraordinary nature. Please don’t submit any more comments to this thread; as noted above, I won’t allow them.

  6. Kenny G. says:

    Can anyone please direct me to Alabama DHR policies. Particularly “Out-of-Home Policies and Procedures?”

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