Intake Specialized Track Legal Session Carrie Wayno, AAG

Legal Basis for Intervention Constitution Federal law State law WAC Department policy Authorized intervention Exception to duty to investigate

Constitution Parents have a constitutionally protected interest in the care and custody of their child. When the rights of a child conflict with the rights of a parent, the rights of the child prevail. State intervention in parents’ right to care and custody of their children must be narrowly tailored to the legitimate state purpose of protection of child safety.

Federal law States must make reasonable efforts to preserve and reunify families Imposes timeframes within which reasonable efforts must occur, after which the state must pursue permanency options other than reunification with parents Reasonable efforts tied to federal funding

State law You can’t intervene in a family’s life without authorization to do so When you act it’s within the confines established by the Legislature State law requires DSHS to investigate allegations of abuse or neglect State law also requires DSHS to investigate reports of serious physical or emotional harm to children, or a report that such harm is imminent

Regulations Washington Administrative Code (WAC) Passed by DSHS with authority of Legislature You are required to comply with them More specific to issues that come up in your cases

Department Policy Not law! You are required to follow policy in your decision- making Does not apply to others – parents, courts, children

Authorized Intervention To offer family reconciliation services based on finding of harm or imminent risk of harm Offer child protective services based on finding of abuse or neglect Accept custody of children Provide temporary shelter to runaways admitted to CRC’s

Exception to Duty to Investigate Investigation is not required of accidental injuries which are clearly not the result of a lack of care or supervision by the child's parents, legal custodians, or persons serving in loco parentis

Intake Identity of referent Department authority In loco parentis Mandatory reporters Non-mandatory reporters Protections and prohibitions Department’s obligation Background checks

Identity of Referent Required to make reasonable efforts to learn the name, address, and telephone number of each person making a report of abuse or neglect. Make assurances of confidentiality, but be aware that if this ends up in the courts, court rules may require release of this information. If you don’t learn the contact information of the referent, you may only continue to investigate when you believe there is a serious threat of substantial harm to the child, the report indicates the child is about to be the victim of a criminal offense, or your records indicate that a member of the child’s household has been founded for abuse or neglect within three years of the new referral.

Department Authority The Department can only investigate those allegations in which the subject is a parent or caregiver or was acting “in loco parentis”, or the subject works for an agency licensed by DSHS or DEL Abuse or neglect by someone who was not a parent or caregiver or who is not licensed by DSHS or DEL should be referred to the appropriate agency and/or law enforcement Note that if an intake indicates that a child was abused by someone not acting in loco parentis, but the parent’s lack of care or supervision allowed the abuse to occur, this would screen in as neglect by the parent and not as abuse by the person who was alleged to have abused the child. Inquiry can’t stop at who did it – but at whether the parent or guardians’ lack of care or supervision resulted in the abuse or neglect. Torts has one significant case in which numerous referrals were screened out because the subject of the referral was a third party, a non-care giver, but common sense would have indicated that the reason that dangerous person had access to the child was the fact that the care giver was neglecting the child. It would be helpful to find the reasoning behind the screen out documented more thoroughly than a simple note that the referral “concerned a third party.”

In Loco Parentis Persons who are in loco parentis are those with day- to-day responsibilities to care for and financially support a child Includes: parents, stepparents, guardians and legal custodians Policy will need to be handed out because it is still in draft form waiting management approval.

Mandatory Reporters Listed in RCW 26.44.030 Required to report to the Dept. or law enforcement when they have reasonable cause to believe a child has suffered abuse or neglect Report must be made at the first opportunity but never longer than 48 hours after the referent had reasonable cause to believe the child suffered abuse or neglect Report must include identity of accused, if known. Refer to the “Guide to Mandated Reporting”

Non-Mandatory Reporters Any other person who has reasonable cause to believe that a child has suffered abuse or neglect may report such incident to the proper law enforcement agency or to the Department.

Protections and Prohibitions Good faith reporters are immune from liability arising out of reporting or testifying A person who intentionally and in bad faith knowingly makes a false report of abuse or neglect shall be guilty of a misdemeanor

Department’s Obligation Investigate (gather info) and provide CPS with a report Report to LE in reports that involve a child death, non- accidental physical injury, or sexual abuse Central Intake (CI) Does not send LE reports - local office protocol. In an emergency – when a child’s welfare is endangered – notify law enforcement within 24 hours of receipt of report Other cases – notify law enforcement within 72 hours of receipt of report Initial report to law enforcement may be oral, but must be followed within 5 days by written notice Central Intake does not send out Law Enforcement Reports. Torts has a case now where they are finding it difficult to document the fact that a required referral was actually made to law enforcement. Law enforcement denies seeing it. Discuss importance of documenting referral to LE.

Background Checks The Department may conduct background checks to investigate and respond to allegations of child abuse and neglect, as authorized by federal and state law. All adults residing in a home in which the Department is placing a child must have a background check Intake may assist in placement of a child on emergent situation ONLY – Info only slide. If intake is assisting in placement of a child on an emergent basis, be aware that a background check must be done on all adults residing in the home – to include national name-dob check, WA criminal history check, and WA ca/n check.

Child Abuse and Neglect General definition Handout

General Definition of Abuse or Neglect Injury, sexual abuse, sexual exploitation of a child by any person under circumstances which cause harm to the child's health, welfare or safety, excluding lawful physical discipline; or Negligent treatment or maltreatment of a child by a person responsible for or providing care to the child. See handout for more specific definitions

Risk Assessment Intake risk assessment Substance abuse Prior CPS history

Intake Risk Assessment The Dept. is required to use a risk assessment process when investigating alleged CA/N. The Dept. must present the risk factors at all hearings in which the placement of a dependent child is an issue. Substance abuse is a risk factor.

Substance Abuse When, as a result of a report of alleged CA/N, an investigation is made that includes an in-person contact with the person who is alleged to have committed the abuse or neglect, there shall be a determination of whether it is probable that the use of alcohol or controlled substances is a contributing factor to the alleged abuse or neglect When considering whether a clear and present danger exists, evidence of a parent's substance abuse as a contributing factor to negligent treatment or maltreatment is to be given great weight

Prior CPS History There is increased risk when a background check indicates that a parent has a founded or inconclusive finding of abuse or neglect in the past "Founded" means that based on available information it is more likely than not that child abuse or neglect did occur The Department can no longer issue inconclusive findings, but they are still in the records. "Unfounded" means that based on available information it is more likely than not that child abuse or neglect did not occur As the Department is required to maintain a log of screened- out non-abusive cases. May exist in historical records. FamLink does not have "Inconclusive“, which means that based on available information a decision cannot be made that more likely than not, child abuse or neglect did or did not occur. Screened out non-abusive cases are a part of the case history. CPS Workers: CPS must assess all reports that meet the definition of child abuse or neglect using a risk assessment process to determine level of risk and response time. CPS must provide an in-person response to alleged victims and must attempt an in-person response to the alleged perpetrator of child abuse and neglect in referrals assessed at moderate to high risk. CPS may refer reports assessed at low to moderately low risk to an alternative response system.

Removal Voluntary Placement Agreement Protective custody Pick-up order Hospital hold

Voluntary Placement Agreement (VPA) A legal contract between a parent and the Department Places the child within the custody and care authority of the Department VPA - may be revoked at any time

Protective Custody A law enforcement officer may take, or cause to be taken, a child into custody without a court order if: there is probable cause to believe that the child is abused or neglected and that the child would be injured or the child could not be taken into custody if it were necessary to first obtain a pick-up order

Pick-up Order The court may enter a pick-up order if: a dependency petition is filed alleging that the child's health, safety, and welfare will be seriously endangered if not taken into custody; an affidavit or declaration is filed by the Department evidencing reasonable grounds that the child's health, safety, and welfare will be seriously endangered if not taken into custody and at least one of the grounds set forth demonstrates a risk of imminent harm to the child; and the court finds reasonable grounds to believe the child is dependent and that the child's health, safety, and welfare will be seriously endangered if not taken into custody.

Hospital Hold A hospital administrator or licensed physician may detain a child without consent of a person legally responsible for the child whether or not medical treatment is required, if he/she has reasonable cause to believe that return home would present an imminent danger to that child's safety Administrator or physician must notify law enforcement or CPS no more than 72 hours later Kevin will write up and send to you!

Liability What is a tort? What if a Social Worker is sued? What types of torts can result from intake decisions? What is a “negligent investigation” claim? What really leads to litigation? How can you best manage this risk?

What is a Tort? Civil wrong for which the law may award compensation damages Examples: Negligence – The failure to exercise ordinary care, doing some act which a reasonably careful person would not have done, which then causes harm to a person that results in damages. Intentional torts Civil rights violation - typically requires a showing that the agency employee was deliberately indifferent to the child’s safety

What if a Social Worker is Sued? State employees are defended by the Attorney General and all costs of representation and resolution are paid by the State when the acts or omissions of the employee were in “good faith” and within their scope of employment or official duties. Representation can be denied if the employee engaged in misconduct or personal business, for example drunk driving in state car, criminal behavior, intentional violation of agency policies, procedures or regulations.

What types of torts can result from intake decisions? Improper investigative process, violating the subject’s right to privacy or fourth amendment rights Failure to provide court with all material information, leading to a harmful removal or placement Improper or inadequate background checks, leading to a harmful placement or removal In one Torts case, the file was marked “administrative,” meaning that a screen was in place because, somewhere within CA, an employee had a relationship to the family. The designation could also simply mean a high profile case. The result of this was that the social worker assigned to the case did not have access to the files on all family members, including past referrals from other regions. The case was closed before access was ever granted. A huge payout was made because the child nearly starved to death and warning signs were missed. Intake personnel may have some responsibility for making sure administrative files get “unlocked” or at least that the assigned worker knows of the issue.

What is a “negligent investigation” claim? Harmful placement or separation occurs (failure to remove from abusive home or wrongful removal from non-abusive home or placement in an abusive home after removal) Due to a faulty CPS investigation Cause of action is available to children, parents, guardians Improperly screening in or out. Screening out leads to greater liability! Improperly assessing the known (or reasonably knowable) risks to the child, both of which result in foreseeable harm to the child (not placed or improperly placed) Judicial process – court is “misled” by DSHS Coercion in obtaining “voluntary” services by DSHS, leading to family separation

What really leads to litigation? Failure to investigate a referral Failure to follow-up on leads available in own file, especially third party leads Inability to wrestle the facts to the ground based on information in own files Lengthy referral history and little measurable outcome for child Multiple serious referrals – multiple opportunities to do it right and little measurable outcome Multiple placements with bad outcomes Lack of coordination with others (especially public agencies) also involved with the child No critical thinking Failure to know the contents of own DSHS files Missed home and safety visits Lack of documentation or inadequate documentation of visits that occurred. In one Torts case, two different sources made a referral on a family on two separate occasions. The social worker was unable to detect from the referrals, and did not figure out, that the two referents were two different neighbors. He conducted an adequate investigation of the first referral and concluded that the complaint was from a neighbor feuding with the family. When the second referral came in, his investigation was biased by his earlier impression and he assumed that it was another complaint by the same neighbor who was not credible. In fact it was from a different neighbor who should have been interviewed and would have cast doubt on the parent’s story.

How can you best manage this risk? Gather all available information. Accurately assess the information. Document your actions. Make collateral contacts necessary for sound decision-making Do not exceed your statutory authority Ensure proper staffing with your supervisor when necessary Remember – Solid, defensible mistakes will occur. Apply critical thinking at key decision points (screening in, risk assessment). Following DSHS policies and procedures is critical. Risk tags of certain levels require certain actions, and failing to identify those risk tags at the beginning could lead to the actions being delayed or never occurring, which could harm a child and possibly result in liability.

Why Intake Matters… The work that you do, the opinions that you form, and the decisions that you make will affect the life of each child that you’re involved with. Your involvement forms the foundation for further state intervention in these families’ lives, for better or worse. Your good social work decisions can continue to benefit these families down the road.

Thank you! For your hard work For your patience For your professionalism For protecting children