Failure to Report Abuse Can Result in Liability

A social worker who intentionally or maliciously leaves a child in a foster home, and who refuses to accept evidence of abuse, is potentially liable under federal civil rights laws, according to a decision issued yesterday by the Tenth Circuit Court of Appeals.

In Estate of BIC v. Gillen, ___ F.3d ___ (10th Cir. December 19, 2012) (citation pending), the parents of a baby placed in foster care alleged the social worker had an “intense hatred” for the family and refused to listen when the parents notified her of abuse at the foster home.  According to the allegations, the social worker failed to report an incident of abuse to law enforcement, while claiming the incident was a law enforcement matter, and further refused to report or investigate evidence of abuse submitted by the family, school personnel, and others.  The baby subsequently died from Shaken Baby Syndrome.

In holding that the social worker could be liable under the Due Process clause of the Fourteenth Amendment, the Tenth Circuit clarified the standard for proving state-created danger and held that while it requires something more than inaction alone, the social worker’s refusal to accept evidence of abuse and her attempts to discourage others from reporting abuse constituted affirmative acts.  The court went on to affirm that an “intentional or spiteful failure to act to protect a child in one’s care could be an action sufficient to shock even the conscience of a federal judge.”

The case reaffirms the social worker’s duty to protect children placed under their supervision.  The decision further erodes the ability of social workers and others with a special relationship to those under their supervision from raising apparent inaction as a defense to liability.  For example, the court recognized that a failure to report abuse can represent an affirmative act where that failure prevents others from protecting the abused child.