Case Workers’ Entitlement to Qualified Immunity: The Cyclical Nature of Mistreatment in a Flawed Child-Welfare System

I. Introduction

Nearly all children who have entered the child-welfare system have experienced some form of trauma, whether it be from their natural parents’ or guardians’ conduct, or from being removed from their families.^[1] Separating children from their families becomes necessary when child protective service agencies determines that it is not safe for a child to remain with their legal guardians as a result of abuse or neglect.^[2] These circumstances call for children to be placed away from their families immediately.^[3] However, in numerous cases, children have been moved from one unsafe environment at home to an unsafe foster placement under the supervision of the state.^[4] These unfortunate placements have subjected foster children to further abuse, neglect, mistreatment, and—in extreme cases—death. Further, it is relatively difficult for foster children or their natural families to prevail in an action against the state or careless state employees because of the state workers’ protection against civil liability.^[5] The doctrine of qualified immunity is a judicial principle courts apply to protect state and local officials from liability in civil suits when performing within their discretionary functions.^[6] This same immunity applies to state employees in child protective services who erroneously place foster children in foster homes, where they sometimes are neglected and abused while in their foster placements and suffer violations of their constitutional rights.

Denying a state actor qualified immunity is difficult because most officials tend to perform their duties within their discretionary functions. However, there are particular cases where state officials, including social workers, are denied immunity in civil lawsuits for performing outside of their discretionary functions while monitoring or investigating foster child placements, especially when foster children are wrongfully harmed or killed while in the care of their foster families. While qualified immunity may protect state actors and enable them to reasonably perform their duties to ensure the safety and wellbeing of children under the state’s supervision, these same immunities may also leave children and their natural parents without redress for social workers’ misconduct. This article explores the application of qualified immunity protections to the misconduct of state officials against whom Section 1983 claims were filed in courts within the Fifth Circuit, alleging foster children were wrongfully placed in unsafe foster homes. This article also compares the Fifth Circuit cases to cases in other circuits.

Part II of this article will trace the origins of the doctrine of qualified immunity when the Supreme Court began to apply 42 U.S.C. § 1983 to state and local officials, often police officers. The second part will also illustrate how the statute applies to state officials such as social workers. Part III will focus on the application of qualified immunity by other courts when they consider principles of clearly established law, the objectively reasonable standard, and the deliberate indifference standard. Part IV will examine the limitations of the doctrine of qualified immunity and how plaintiffs occasionally defeat its protections when state officials’ conduct is sufficiently egregious. Part V will evaluate the different solutions different circuit courts and states have proposed to remedy these ongoing issues, with varying levels of success. Finally, Part VI will entertain potential remedies to the issue of qualified immunity protections as a way for foster children and their natural parents to recover damages for state officials’ misconduct.

II. Section 1983 and the Supreme Court Cases that Defined Qualified Immunity Protections

A. Statute

When state and local government officials are sued for a constitutional violation under federal law, they may assert the affirmative defense of qualified immunity.^[7] This defense arose from an interpretation of our principal federal civil rights statute, 42 U.S.C. § 1983, now known simply as § 1983.^[8] Section 1983 allows a person to recover damages from an actor who deprives an individual of constitutional or other federal rights while acting under the color of state or local law.^[9] Although this statutory provision allows individuals to sue state actors when a child is harmed, such provisions are often not sufficient to bring in a win for family members who have suffered from the injury or death of their child under the state’s supervision, thanks to Supreme Court precedent.^[10] Holding government social welfare agencies, or individuals, accountable for their misconduct when children are injured or killed while in the care of foster parents is an arduous undertaking that rarely results in a win for the afflicted families or children, despite Section 1983’s authority for individuals to sue state actors.^[11] While the grant or extension of qualified immunity to social workers in some form may be necessary to enable them to adequately perform their role in protecting children from abuse and neglect, such a position sometimes leaves individuals without redress even though they have been genuinely injured through social worker neglect or misconduct.^[12]

B. Supreme Court Cases

1. Harlow v. Fitzgerald and the Origins of Qualified Immunity

The Supreme Court case that set the precedent for civil cases involving state-actor liability for misconduct was Harlow v. Fitzgerald, which reasoned that, without qualified immunity, officials exercising discretion would naturally hesitate to act when faced with potential civil liability if a court later determines their behaviors infringed on some right. The Harlow court determined the doctrine of qualified immunity shields government officials performing discretionary functions from liability for civil damages.^[13] These protections were implemented to allow government officials to perform their duties without interference or threat of liability as long as their conduct remained within the bounds of their discretionary functions.^[14] These same immunities apply to state and local government officials, including social workers and case workers, as long as they have not violated an individual’s constitutional or other federal rights while performing their duties as child-welfare employees.^[15] Furthermore, Harlow also established a two-pronged test to determine if state officials are entitled to qualified immunity based on their conduct by asking if the officials had (1) violated a “clearly established” federal statutory or constitutional right, and (2) if a “reasonable official” would have believed the actions to have been lawful at the time of the violation.^[16] This test is used in various civil cases involving the question of whether social workers have performed within their discretionary duties in cases where children are harmed while in the care of their foster placements.

2. DeShaney v. Winnebago County Department of Social Services and the Extension of Qualified Immunity to Social Workers

The most significant case pertaining to federal immunities protecting state actors such as social workers is DeShaney v. Winnebago County Department of Social Services, in which social-services employees became involved in the case of a young child severely abused by his natural father whose violent behavior left the boy permanently mentally impaired.^[17] Prior to this incident, the Winnebago County Department of Social Services (“DSS”) investigated multiple abuse allegations against the child’s father, finding insufficient evidence of child abuse to place the child in the custody of the state. The child’s mother brought action under Section 1983 against DSS and the caseworkers involved in the investigations, alleging her child’s due process rights under the Fourteenth Amendment were violated because the state officials failed to intervene to protect him against any risk of violence of which they knew or should have known, given the father’s history of abuse.^[18] Section 1983 provides individuals with the right to sue local and state government employees for civil damages when they violate the Constitution or federal law.^[19] The Supreme Court determined whether a state’s failure to protect an individual against private violence constituted a violation of the Due Process Clause of the Fourteenth Amendment; the Court found no violation.^[20] The Court reasoned the Due Process Clause did not impose any special duties on the state to provide services to protect individuals from private violence if the state itself did not create such violence.^[21] Social workers often use this exception to protect themselves from liability in the placements of children in private settings.

III. Lower Courts’ Application of Qualified Immunity in Child-Welfare Cases

As established in Harlow, qualified immunity applies to local and state actors, including child-welfare workers employed by the state.^[22] The Supreme Court noted the risk of trial for state actors may distract them from their duties, inhibit discretionary action, deter public service, and disrupt the workplace, thus justifying state officials’ ability to invoke qualified immunity as an affirmative defense to liability under Section 1983.^[23] Although the doctrine of qualified immunity is more closely associated with the conduct of police officers, child-welfare employees such as social workers are also entitled to qualified immunity protections so long as their conduct does not violate clearly established federal statutory or constitutional rights. While qualified immunity is used to protect state and local officials while exercising their discretionary duties, these protections often prevent current and former foster children, as well as their natural families, from recovering damages for mistreatment suffered.

A. Clearly Established Law

The language of § 1983 enables the Supreme Court to analyze and evaluate the functions performed by state officials rather than their titles to determine whether and to what extent they should be entitled to qualified immunity.^[24] The most prominent feature of Harlow’s two-prong test for qualified immunity is the “clearly established law” standard.^[25] Under the Court’s qualified immunity test, state officers are entitled to qualified immunity unless their conduct violates federal law or an individual’s federal constitutional rights, and is “clearly established” at the time the offense occurs.^[26] Essentially, public officials may be shielded from liability even if their actions violate an individual’s constitutional right.^[27] As established in Harlow, the “clearly established” law standard is highly objective, as the Supreme Court announced government officials performing their discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.^[28] Therefore, a state or local official is granted immunity from civil suits if the official’s actions have not violated “clearly established” law. If the law is clearly established, the immunity defense–ordinarily–should fail because a reasonably competent public official should have known the law governing the subject conduct.^[29]

Due to the Court’s creation of and failure to explain what “clearly established” constitutes, lower courts considered the question of what it means for one’s rights to be identified as such following Harlow. It was not until Anderson v. Creighton,^[30] a Supreme Court case decided five years after Harlow, that the Court determined the “clearly established” law standard could not be defined at a high level of generality. Instead, for a right to be “clearly established”, the Court held “the contours of the right must be sufficiently clear that a reasonable official would understand what he is doing violates that right.”^[31] Adopting this specific requirement made it clear the Court was more focused on protecting the interests of local and state officials than protecting potential plaintiffs. Unfortunately, this concept has insinuated itself into the context of child-welfare employees who receive qualified immunity after erroneously placing foster children in abusive and neglectful foster placements.

Under DeShaney, state officials generally are under no obligation to investigate abuse allegations involving children who are not in the state’s custody and may be victims of private violence.^[32] Additionally, no affirmative obligation to protect foster children exists for state child-welfare employees because such state employees do not have a clearly established duty to protect children from abuse after they are placed with foster families, making it difficult to overcome the immunity defense.^[33] In Hunt v. Montano,^[34] a toddler under the supervision of a foster family was found dead. At that time, the toddler and her siblings were in the care of another respite worker employed by the foster parents after several neglect allegations against the respite worker were discovered by New Mexico Children, Youth, and Families Department (“CYFD”) employees, which she disregarded prior to the toddler’s demise. The children’s representatives brought action against the CYDF employees under § 1983 for violating the children’s substantive due process rights by approving the child’s placement with a foster family who erroneously gave responsibility to a respite worker with a history of neglect allegations. Further, the foster parents were only licensed as respite care providers as opposed to full-time foster parents for multiple children under the age of three, which required additional training they did not receive prior to the children’s placement. The district court found the CYDF employees were not entitled to qualified immunity, and the state employees appealed.

The court of appeals held the district court was wrong to find the “clearly established” prong of qualified immunity waived because the action erroneously shifted the children’s representatives’ burden to the CYFD employees.^[35] The court also found no affirmative link between the toddler’s death and placement with the foster parents because the children’s representatives had failed to plausibly allege the children being placed with the foster family, and the respite worker, by extension, directly resulted in the toddler’s death. The court held the placement of the children itself did not directly cause the children’s injuries at the respite worker’s hand. Additionally, because there was no affirmative link between the alleged misconduct and the abuse the children in the placement suffered, the “clearly established prong” did not apply.^[36] Therefore, the appellate court ruled the employees were entitled to qualified immunity.^[37]

Hunt illustrates how the doctrine of qualified immunity works in favor of state officials while also establishing the notion that state officials shown to be acting in furtherance of their duties may not be held liable for their conduct in civil suits where a foster child is harmed. However, once qualified immunity has been established, the burden shifts to the plaintiff to demonstrate the defense does not apply.^[38] As established by both cases, the “clearly established law” standard is a difficult standard for plaintiffs to overcome because the standard is rooted in upholding the protective immunities designated to local and state officials.

B. Objective Reasonableness Standard

In addition to applying the requirement that for a right to be “clearly established” for purposes of removing qualified immunity protections, a court must apply the “objective reasonableness” standard, in which a reasonable official in the state actor’s position should have understood the official’s conduct violated a statutory or constitutional right.^[39] According to the Supreme Court, “the contours of the right must be sufficiently clear that a reasonable official would understand what he is doing violates that right.”^[40] Harlow’s objective reasonableness standard gives ample room for mistaken judgments because officials asserting qualified immunity do not have to correctly determine their conduct violates clearly established law to benefit from the affirmative defense.^[41] Additionally, this standard allows officials seeking qualified immunity protections to make the wrong guess about the constitutionality of their conduct without incurring liability under § 1983, so long as their misconduct is objectively reasonable.^[42] In other words, while child-welfare employees’ evaluations of the constitutionality of their actions must be objectively reasonable, they do not need to be “right.”

An example of the paradoxical nature of the objective reasonableness standard exists in the case White by White v. Chambliss,^[43] in which a foster child died from blows to the head while in the care of her foster parents. Her death was ruled a homicide, but law-enforcement officials were unable to determine who had struck the child.^[44] Because of lack of proof, law enforcement did not file any charges.^[45] White’s natural mother brought suit against the officials of the South Carolina Department of Social Services (“DSS”) for violating her daughter’s constitutional rights by placing her in an unsafe foster placement.^[46] The district court denied the DSS employees’ motion for summary judgment based on qualified immunity, and the employees appealed to the Fourth Circuit.^[47] Chief Judge Wilkinson determined the DSS workers involved were entitled to qualified immunity because the court was unable to find their behavior transgressed the standard of objective reasonableness applied to the actions of public officials.^[48] Wilkinson asserted the “availability of [qualified] immunity cannot be judged solely by tragedies that later occur, or by mistakes that later come to light” when determining whether the DSS workers involved were entitled to qualified immunity.^[49] Because the child’s death was unforeseeable, there was no evidence that the social workers who assigned her to the foster parents could have acted with objective unreasonableness sufficient to defeat the qualified immunity standard.^[50] Furthermore, the court held the social workers did not have a clearly established duty to protect the child from abuse in her foster parents’ care because her foster parents were private actors, and the state had no affirmative constitutional obligation to protect individuals from private violence.^[51]

One of the most significant cases concerning state-actor liability in cases where a foster child was wrongfully harmed or killed while in a foster placement is the Fifth Circuit case Hernandez ex rel. Hernandez v. Texas Dept. of Protective and Regulatory Services.^[52] Child Protective Services (“CPS”) workers removed an infant from his mother’s custody and placed him with a foster family–the Clauds–with an alleged history of negative reports concerning child care. The infant was later found dead from positional asphyxia. The child’s natural parents brought civil action against the state CPS officials involved in the child’s placement with the Clauds. The district court held the defendants were not entitled to qualified immunity, finding summary judgment improper because a genuine issue of material fact existed as to whether these defendants perceived a substantial risk of harm to any foster child placed in the care of the Clauds.^[53] The defendants appealed.

The Fifth Circuit reversed and remanded the district court’s holding, finding the state employees acted with objective legal reasonableness regarding the child’s safety in light of clearly established law at the time of the incident.^[54] Both social workers conducted investigations into the Clauds’ alleged abuse towards previous foster children and “reasonably believed” any injuries sustained by the previous foster children were not the result of any acts of abuse on the part of the foster family.^[55] The court ruled the plaintiffs had failed to present any evidence demonstrating that no reasonable official in the state social workers’ positions would have acted in the same manner as they did when investigating the alleged mistreatment under similar circumstances.^[56] Because the plaintiffs failed to prove a violation of the objective reasonableness standard, the social workers were entitled to qualified immunity. The court ruled the White and Hernandez cases illustrated, in the context of the objective reasonableness standard, that a child-welfare employee need only act with “objective” legal reasonableness when investigating child-abuse allegations to adhere to the second prong of the qualified immunity test while demonstrating entitlement to qualified immunity.

C. Deliberate Indifference

The Fifth Circuit and other courts often utilize the arduous deliberate indifference standard when determining objective reasonableness in civil suits where foster children are mistreated by their foster parents.^[57] A state actor such as a child-welfare employee may demonstrate deliberate indifference if a child’s risk of harm while in a foster placement is obvious, or may be easily inferred from known facts that the actor consciously disregards.^[58] In other words, if the risk of harm is obvious or can be easily inferred from known facts, one may assume the state actors involved have consciously disregarded such facts, thus proving that deliberate indifference existed; if it did exist, then their behavior was not objectively reasonable.^[59] This deliberate disregard for foster children’s health and wellbeing may appear sufficient to defeat a social worker’s qualified immunity protections. Still, the standard of deliberate indifference is a difficult standard for plaintiffs to overcome. The following cases convey the notion that although child-welfare employees may not be the ones directly inflicting the abuse or neglect, their actions, or inactions, may be substantial factors in the abuse that does occur if they are deliberately indifferent to the foster child’s wellbeing.

The deeply upsetting case of Davis v. Washington State Department of Social and Health Services is a recent case that addresses the deliberate indifference standard as it applies to cases where a child’s substantive due process rights have been violated.^[60] In Davis, various elementary school teachers and staff members observed a five-year-old foster child’s physical injuries and heard his verbal reports of abuse. The child was being fostered by his aunt following the deaths of his parents. Washington State Department of Social and Health Services (“DSHS”) was not sufficiently informed of these observations. The child’s aunt allegedly beat him to death, and his grandmother brought action against the DSHS employees, alleging they had been deliberately indifferent to her grandson’s foster placement with his aunt. The district court held the social workers assigned to the child’s case did not engage in conduct a reasonable official would have perceived as violating the child’s substantive due process rights under the deliberate-indifference standard.^[61] Moreover, because school personnel did not report the child’s injuries to DSHS, the social workers did not have sufficient information from which any reasonable official would have inferred that a substantial risk of serious harm existed.^[62] The DSHS employees’ actions, which included documenting and expressing their concerns regarding the health and safety of the foster child during their visits with the child prior to his death, did not rise to the level of deliberate indifference to the degree that it deprived the social workers of their qualified immunity protections.^[63] Therefore, the court ruled the social workers were entitled to qualified immunity.^[64]

In Faye v. Mississippi Department of Human Services,^[65] toddler siblings were removed from their natural mother’s custody and placed in the custody of Mississippi Department of Human Services (“MDHS”), which eventually assigned the siblings to a foster home. However, other unidentified individuals, of whom MDHS personnel were unaware, also resided in the foster home.^[66] While under the foster parent’s care, the toddlers were rushed to the hospital by a MDHS worker to be tested for gonorrhea, for which they both tested positive.^[67] Because gonorrhea is only transmitted sexually, the children in MDHS custody were found to have been sexually assaulted.^[68] Faye, the toddlers’ natural mother, sued the MDHS employees, alleging substantive due process violations.^[69] The district court declared a social worker’s failure to properly screen and inspect a foster child’s foster home did not violate the child’s substantive due process rights.^[70] A plaintiff seeking to assert a substantive due process claim must provide proof the defendants acted with deliberate indifference.^[71] However, because there were no allegations that either social worker had prior knowledge of the foster children’s sexual abuse at the hands of the non-licensed individuals residing in the foster home, or knew there was a danger of abuse, there were no allegations of deliberate indifference aside from unsupported assertions they had acted with deliberate indifference.^[72] Because Faye failed to assert the state officials had violated her and her children’s due process rights, the court found the MDHS employees were entitled to qualified immunity. ^[73]

Hall v. Smith is another devastating case involving the death of a child in foster care and the alleged deliberate indifference of the child-welfare agents supervising the child’s placement.^[74] Jasmine Hall was born prematurely and required an endotracheal tube to help her breathe.^[75] Medical personnel made it clear to her mother that the removal of the tube would be detrimental to Hall’s health, and that the infant required surgery to have a tracheostomy tube inserted so she would be able to breathe better.^[76] Hall’s mother refused the surgery, and Texas Department of Family Protective Services (“TDFPS”) was notified.^[77] Hall was removed from her mother’s custody and placed in a foster home, where she soon died after her tube was accidentally removed.^[78] Hall’s mother sued Smith, the TDFPS employee assigned to her case, as well as other state employees involved in her child’s removal and foster placement, alleging violations of § 1983.^[79] The district court granted summary judgment to Smith and the other employees, and Hall’s mother appealed.^[80] The Fifth Circuit found Smith was not deliberately indifferent to the foster child’s rights to personal security and reasonably safe living conditions during her foster placement.^[81] The court found the case worker was not deliberately indifferent to the child’s medically fragile state because she observed, on numerous occasions, that there was no substantial risk to Hall’s wellbeing while she was in the foster home.^[82] Moreover, Smith’s failure to do more than ensure the child’s tracheostomy surgery occurred prior to the child’s death did not constitute deliberate indifference.^[83] Therefore, the court found Smith was entitled to qualified immunity.^[84]

IV. Defeating qualified immunity is possible (but rare)

Social workers may not be stripped of their immunity protections often; however, there are cases where a child-welfare employee’s conduct may be so shockingly egregious that absolutely no protections from the doctrine of qualified immunity apply to them. This section addresses the extreme cases where courts deny qualified immunity because of egregious circumstances arising from social workers’ misconduct, and how both foster children and their natural parents may recover damages in these situations.

A. Del A. v. Edwards

In the case of Del A. v. Edwards, qualified immunity was not granted to Louisiana Department of Health and Human Resources (“DHHR”) employees who violated a foster child’s substantive due process rights.^[85] Multiple Louisiana foster children brought actions against DHHR and its employees, alleging failure to adhere to the requirements of the Child Welfare Act, which provides that each child receiving foster care payments must have a case plan ensuring the “permanent placement of the child”; these case plans must be logged in an information system for inventory purposes.^[86] The foster children involved in this case were placed in foster and group homes that were restrictive, with improper care and supervision, including instances of sexual abuse by a foster parent, and many of the foster children were never given case plans that assured permanent placements.^[87] The Fifth Circuit affirmed the district court’s finding that no reasonable official could have believed such inaction on the part of the Louisiana DHHR employees was lawful.^[88] Because qualified immunity is designed to protect discretionary functions of state officials, the court reasoned, its protections are not available to officials when they act in such a way that their actions, or failures to act, clearly violate established legal principles.^[89] Therefore, the officials were not entitled to qualified immunity.

B. Roes v. Florida Department of Children and Family Services

In a deeply upsetting case, a social worker’s failure to diligently investigate a foster family’s credentials and home life resulted in neglect and the egregious sexual abuse of siblings in the foster family’s care.^[90] The five Roes siblings did not adapt to their new foster home and developed concerning behavioral problems as a result of their stay with the family.^[91] The Florida Department of Children and Family Services (“DCF”) employees involved in the placement and supervision of the siblings continuously failed to investigate any concerns or allegations of abuse the siblings faced. Despite having prior knowledge of two separate sexual abuse incidents that occurred in the Lynch household, the employees determined the children should not be removed from this foster family.^[92] Mrs. Lynch’s daughter from a previous marriage was sexually abused by her biological father, Mrs. Lynch’s former husband, whom DCF was aware of.^[93] In a separate incident, the natural son of Mr. and Mrs. Lynch was previously convicted of indecent assault and sexual performance by a child for videotaping himself and an underage girl having sex.^[94] He continued to live in the same home as the Roes siblings, where he sexually abused and molested the female Roes child.^[95] The siblings sued DCF, including the individual state employees, alleging failure to investigate and supervise their foster care placement in violation of their constitutional rights, which resulted in the abuse they suffered from their foster family.^[96] The district judge held the actions of the foster parents’ natural child should have had significant ramifications on the fitness of the foster parents to be licensed foster parents, but the foster parents suffered no consequences.^[97] Furthermore, the district judge found the employees exhibited deliberate indifference to the known risks posed by the natural child of the foster parents, and deliberately disregarded the risk of harm that would arise from having the foster children live with a sex offender.^[98] The district judge denied qualified immunity protections to four of the five state employees involved in the Roes’ placement.^[99]

C. Schwartz v. Booker

Another case involving the denial of qualified immunity protections to social workers for erroneous child placement in foster homes is Schwartz v. Booker.^[100] In this horrific case, a seven-year-old foster child was found in a locked closet in an emaciated state in his foster father’s home.^[101] The child died from cardiac arrest caused by starvation and severe dehydration.^[102] The natural parents filed suit against the two county human services departments (and their employees) responsible for monitoring and investigating the child’s foster placement.^[103] The district court denied the state employees’ qualified immunity protections, and the employees appealed.^[104] The Tenth Circuit affirmed the district court’s ruling, establishing the state employees engaged in conduct reasonable officials in their position would have perceived as unlawful through a violation of the child’s substantive due process rights.^[105] The natural parents clearly established that the case workers’ failure to investigate child abuse referrals and their dismissal of the child’s case without investigation violated the foster child’s substantive due process rights to be reasonably safe from harm, resulting in the child’s death at the hands his foster father.^[106] Thus, the court affirmed the denial of the state employees’ immunity from liability.^[107]

V. Courts’ and Legislatures’ Recent Efforts to Address Qualified Immunity and Failures of the Child-Welfare System

A. Texas

While M.D. by Stukenberg v. Abbott does not explicitly address the doctrine of qualified immunity, it is significant because it illustrates the stressed and mishandled Texas child-welfare system and the consequences it has on the foster children who depend on it.^[108] The Fifth Circuit determined the state was deliberately indifferent to the risks posed by DFPS policies and practices toward caseload management, monitoring, and oversight.^[109] However, the court also determined that while the state was indeed deliberately indifferent to the risks posed by DFPS policies involving the workloads and turnover rates of its employees, DFPS’s inadequate placement array did not violate foster children’s substantive due process rights, nor was DFPS deliberately indifferent to the safety of the children placed in foster group homes.^[110] The court called for widespread targeted changes to Texas’s foster care system to improve the conditions of its state employees and the lives of the children in its care.^[111] Court-appointed special masters made eight recommendations to remedy the lack of oversight plaguing the Texas foster care system. Some of these recommendations included an integrated data system that would reduce the time caseworkers would spend sifting through data and make locating them much more efficient, as well as a specialized hotline foster children would have access to twenty-four hours a day so they could report abuse without fear of retaliation from their foster families.^[112] Following the groundbreaking Fifth Circuit case of M.D., the State of Texas and the Fifth Circuit have called for widespread reform efforts to remedy the flawed state foster care system and to improve working conditions for child-welfare employees and living conditions for children in the Texas foster care system. The system has been under constant scrutiny since the M.D. ruling, requiring the state child-welfare system to implement strict oversight practices with the goal of tackling abuse and neglect in state foster homes.

Despite the reform efforts, there have been no significant improvements in the Texas child-welfare system following M.D. v. Abbott. Contrary to the hopeful outlook following M.D., the proposed solutions have been met with opposition and setbacks in the years following the Fifth Circuit case. While Texas and the Fifth Circuit have made noble attempts to improve foster care data collection, these practices have done little to prevent child abuse and neglect in practice.^[113] When abuse and neglect are brought to the attention of residential child investigation units employed by state child-welfare agencies, investigations into these reports do not always occur, especially if the case report indicates that no substantial risk to the child or children involved exists that would justify a removal from their home and placement with a foster family.^[114] Furthermore, in the context of the state employees themselves, caseworkers still carry caseloads above what is typically recommended by child-welfare agencies, and the child-welfare system suffers high turnover rates.^[115] These factors have placed additional burdens on state workers’ stressful occupations.

B. Tennessee

A federal district court in Tennessee has had both great success and great setbacks following its mandated foster care reform requirements for remedying Tennessee’s state child-welfare system. Historically, Tennessee’s child-welfare system has suffered workforce challenges within its Department of Child Services (“DCS”). State caseworkers have continuously struggled to keep up with child abuse and neglect investigations while managing an increasing number of children entering the foster care system amidst high turnover rates within DCS.^[116] In 2001, a Tennessee child advocacy organization, Children’s Rights, brought a class-action lawsuit against Tennessee’s mismanaged child-welfare system on behalf of the thousands of Tennessee foster children who suffered emotional and physical abuse during their placements in unsafe foster homes. ^[117] The complaint in the case of Brian A. v. Haslam alleged DCS failed to provide foster children with adequate care and supervision while they were in the state’s custody, a result of Tennessee’s overworked and overburdened system and caseworkers.^[118] Children’s Rights and Tennessee co-counsel proposed a series of mandated milestones the state would be required to overcome to effectively overhaul its neglected child-welfare system, which included drastic changes to state worker caseloads and DCS oversight.^[119] The United States District Court for the Middle District of Tennessee approved the parties’ proposed settlement agreement–the Brian A. Settlement Agreement–requiring comprehensive reform to Tennessee’s child-welfare system.^[120] Further, the court imposed strict federal court oversight of the state DCS, which would last until every mandatory provision of the settlement agreement was met.^[121]

Tennessee implemented drastic improvements in its foster care system following its mandated settlement agreement, attempting systemwide reform in its flawed child-welfare system,.^[122] DCS reportedly has increased training and support for child-welfare workers, implementing a number of strong initiatives to improve the quality of caseworker supervision; it has reduced caseloads, increased historically low DCS employee wages, and improved foster youth services.^[123] In 2016, Tennessee reportedly reached all its mandated milestones to remedy its state foster care system and requested an end to court oversight, which the court granted.^[124] Unfortunately, despite the state’s notable efforts to mend its child-welfare system following the Brian A. Settlement Agreement, the state has experienced widespread instability within its foster care system following the end of federal court oversight. The state’s child-welfare system, and the foster children dependent on it, have been plagued by caseworker shortages, high turnover rates, a lack of adequate foster placements, overcrowded group homes, and no place to put the children who rely on the state for stability and care in a system severely lacking in both.^[125] While the Brian A. case may have been instrumental in helping Tennessee turn around its child-welfare system, it is possible its short-lived success may only be attributed to federal oversight during the years-long period where the state actively worked to meet its final requirements for ending court surveillance.^[126]

C. New Mexico

New Mexico has also fallen behind on its commitments to overhaul its foster care system. In light of Kevin S. v. BLALOCK,^[127]a 2020 case that assessed the state had failed its foster children by systematically re-traumatizing them, the state-mandated foster care reforms in the form of settlement requirements aimed at preventing the thousands of children in state custody from suffering additional harm while in foster placements.^[128] The outcome of the Kevin S. complaint settlement, named after one of the plaintiffs, promised the creation of a “trauma-responsive” system of care that prioritized foster child placement with families who would meet their specialized needs, which has been delayed as of 2022.^[129] However, these settlement targets geared towards remedying the state’s child-welfare system, which closely mirrors that of Texas, have been underutilized and blocked by factors such as the COVID-19 pandemic.^[130] These delays have caused a lag in New Mexico’s implementation of such remedies, and the state’s foster children are still locked in a “vicious cycle of declining physical, mental, and behavioral health.”^[131]

New Mexico is also the second state to ban qualified immunity under state law for government employees in an effort to mitigate government officials’ infringement on individuals’ civil rights. Unlike Colorado, which banned the qualified immunity defense for police officers in 2020, New Mexico’s new state legislation allows all state officials to be held liable for their actions.^[132] In 2021, Governor Lujan Grisham signed the New Mexico Civil Rights Act, enabling New Mexicans to recover damages from the government when their constitutional rights are violated.^[133] This new law also incentivizes government employees to respect and uphold individuals’ constitutional rights.^[134] The new legislation implemented to ban qualified immunity in New Mexico state court may have been done to bypass law-enforcement officers’ federal immunities; however, because these same laws apply to all public officials, state child-welfare employees may now be held liable for their misconduct when they erroneously place a foster child in an unsafe foster environment that proves to inflict additional harm onto the child. Despite these recent developments in the state foster care system, New Mexico is still struggling to adhere to its court-mandated foster care reforms, and banning qualified immunity protections is just the beginning of the state’s efforts to repair its mismanaged child-welfare system.

VI. Proposed Solutions Based on Other States’ Conduct

Qualified immunity often does more harm than good when children and families are unable to seek redress for social workers’ misconduct and state actors continue to be protected from civil liability. Children continue to be mistreated in unfavorable foster placements, with some even dying while in the custody of their foster placements. Society has a social and moral responsibility to take care of at-risk children, and states are failing at that responsibility. The proposed solutions to mend the Fifth Circuit’s broken foster care system following M.D. v. Abbott have attempted to improve Texas’ child-welfare system, accomplishing little, if anything at all, to improve the conditions of the state actors assigned to monitor foster children. In order to remedy the flawed child-welfare system, Texas should take notice of other states and circuits that have made significant improvement regarding the doctrine of qualified immunity. Texas should draw inspiration from their efforts to alleviate the constant burdens plaguing social workers and foster children alike.

A. Arguments in Favor of and Opposing Abolishing Qualified Immunity

1. Arguments in Favor of Abolition

The lack of attention state child-welfare agencies pay to foster children’s interests contributes to the mistreatment these children often endure when erroneously placed in abusive or neglectful foster homes. Children and their families are frequently unable to recover from endured abuse, but the state actors assigned to their cases are protected from liability under qualified immunity protections. Arguably, qualified immunity cannot stand if it continues to deprive victims of remedies for case workers’ misconduct. Removing qualified immunity protections would allow local and state government officials to be held liable for their misconduct under § 1983. It would deter these state actors from engaging in activity that would constitute a violation of one’s statutory or constitutional rights. New Mexico has already made solid efforts to allow individuals to bring suit against state officials for their misconduct through its qualified immunity ban, allowing individuals wronged by their misconduct to seek damages.

Abolishing qualified immunity in Texas would enable state employees to be held liable for their actions when foster children are further injured while in their foster parents’ custody, especially if the state employees’ misconduct is clearly established. It would also encourage public accountability by ensuring these local and state child-welfare employees understand the severity of their actions, especially when foster children are abused, neglected, mistreated, and even killed. Removal of child-welfare employees’ immunity shields may be the action that properly motivates them to abide by their independent obligations and constitutional limitations.^[135] Furthermore, Section 1983’s language illustrates Congress’ intent to ensure public officials’ accountability at a structural level while also allowing individual victims to seek damages when state actors have violated their constitutional or statutory rights.^[136] Qualified immunity is entirely absent from the statute’s text; it does not include any information regarding federal immunities, qualified or otherwise. The total abolition of qualified immunity protections may be the one sure course of action necessary to allow wronged foster children and their families to seek redress after being mistreated by child-welfare employees if qualified immunity is no longer able to protect objectively unreasonable or deliberately indifferent state or local employees.

2. Arguments Against Abolishing Qualified Immunity

Removing child-welfare employees from qualified immunity could backfire, as potential employment candidates could be discouraged from applying for or accepting job opportunities with state foster care and social services agencies if they are no longer entitled to federal immunities. These issues are already being vocalized in Colorado following the state’s qualified immunity ban, with a study of the Colorado Association of Chiefs of Police and County Sheriffs of Colorado revealing that most law enforcement agencies are facing officer shortages believed to be attributed to the new state law.^[137] According to the study, numerous exit interviews suggest “public perception and risks of civil litigation are among the top concerns.” ^[138] Colorado’s qualified immunity ban has seen a decrease in police officer recruiting due to the revocation of qualified immunity in the state, and there may be a similar response from social workers if they no longer have protection against liability in civil suits.

In the context of child-welfare employees, child protective services agencies are continuously overburdened with heavy caseloads, high turnover rates, inadequate pay, and inadequate training of their staff members.^[139] In addition to being under immense pressure and stress from their job requirements and circumstances, the prospect of foster children and their families bringing civil action against social workers for erroneous misconduct, accidental or not, must add an additional layer of stress to their lives. Under such circumstances, the “threat of potential liability will likely deter child protection workers from exercising their best professional judgment in child abuse investigations” ^[140] if qualified immunity protections are revoked. Regardless of the existence of literature on employee reliance, abolishing qualified immunity is a partial remedy at best. Abuse and neglect of foster children will continue until there is a general reform in the system.

B. Practical Solutions to Solving the Qualified Immunity Problem

Abolishing qualified immunity may only do so much to rectify Texas and other states’ flawed child-welfare systems, as revoking immunity from civil suits could discourage state actors in the foster care system from continuing their employment with child-welfare agencies. Emulating Tennessee and New Mexico’s attempts to remedy their own child-welfare systems may only do so much as well, given those states’ current reform setbacks despite prior success with state legislative efforts to implement foster care mandates and revoke qualified immunity to state actors. Tennessee made remarkable progress while under court supervision but started regressing as soon as it was no longer supervised. Court supervision over a failing system generally occurs when state child-welfare agencies’ conduct is truly egregious, making it a temporary solution when a permanent one is needed. The practical solution to fix the issue of qualified immunity is for foster care agencies to implement mandatory remedial practices towards mitigating the impact high turnover rates and caseloads have on state foster care employees. Due to these high demands and general lack of oversight in the foster care system, foster children are at a significant risk of being erroneously placed in abusive or neglectful foster homes.

Interestingly, many (though not all) of the most egregious issues within state foster care systems are arising in pro-life states, like Texas, Mississippi, and Tennessee. This observation highlights the irony that pro-life states are neglecting their foster care systems, which raises the question of whether taking care of foster children should be a higher priority for them. Because many of these states with poor foster care systems, such as Texas, are establishing stricter policies on privacy rights, such as abortion based on pro-life standards, it can be argued that state social worker funds ought to increase to reflect a pro-life stance for children after they are born. Perhaps in legislatures with strong pro-life views, one could argue that proper care of and protections for foster children are aligned with pro-life philosophy. Southern states’ strong positions on pro-life legislation drastically contrast with their failure to maintain state foster care systems ensuring foster child welfare and incentivizing foster care employees to fulfill their responsibilities. It should not be too burdensome to ask pro-life states to incentivize individuals to supervise foster children to ensure their well-being.

A potential counterargument to the idea that abolition of qualified immunity protections for state social workers deters prospective and current employees from starting or continuing their careers with state and local agencies is to indemnify these employees. Without qualified immunity, police officers’ assets may be at risk if individuals sue them for misconduct. However, if state and local government agencies adopt systems similar to Colorado’s by purchasing employee liability insurance, their assets have some protection. Under Colorado’s Senate Bill 20-217, also referred to as SB-217, law-enforcement employers are required to indemnify their officers, unless they are found to have acted in bad faith.^[141] However, SB-217 also holds that peace officers may be personally liable for up to $25,000, or five percent of a judgment, whichever is less, for any knowingly unlawful actions, or if they are found to have acted in bad faith when violating someone’s constitutional rights.^[142] In 2020, Colorado’s largest police union, the Colorado Fraternal Order of Police, announced a plan to create coverage for state police officers up to the $25,000 officers may be personally liable for.^[143] In addition to the Colorado police union’s efforts to offer state police officers security following the preclusion of qualified immunity defenses, in-state and out-of-state insurance companies have also offered liability insurance for Colorado officers following the passage of the police reform law.^[144]

New Mexico’s recent legislation geared towards remedying the lack of accountability for state actors closely resembles Colorado’s SB-217 and has similar implications for state and local government employers. Through the New Mexico Civil Rights Act, New Mexicans may sue any public official, not just a police officer who violates their constitutional rights.^[145] Unlike Colorado, New Mexico’s new house bill provides “complete and automatic” indemnification for state employees, allowing civilians to sue for damages paid by state taxpayers.^[146] The New Mexico Civil Rights Act extends the burden of responsibility for social workers’ actions not only to their employers, such as state social services and child-welfare agencies, but also to society as a whole. Section 7 of the New Mexico Civil Rights Act articulates that a public official acting within the “scope of the authority of the public body” shall be indemnified by the public body, thus expanding the responsibility of caring for the wellbeing of children in the state foster care system to society and not just the public official.^[147] As a result, state child-welfare agencies are backed by resources to indemnify employees and mitigate the loss of the qualified immunity defense.

The indemnification of state social workers is a solution to the response that fewer people will want to work for state child-welfare agencies if qualified immunity is abolished. Having state and local child-welfare agencies purchase errors-and-emissions insurance for their employees would offer substituted protection to the employees and simultaneously spread the responsibility of protecting the interests of state social workers to society as a whole if the insurance premium payments come straight from taxpayers’ pockets. This solution would also offer the families of children who have been mistreated because of their foster placements the right to seek damages for social workers’ misdeeds.

A general way to increase foster child safety is for caseworkers’ pay to increase and reflect the difficulty of their jobs. High turnover rates within the child-welfare system push additional duties and responsibilities onto other employees, increasing their caseloads beyond what is typically recommended by child-welfare agencies, all without additional pay.^[148] Incentivizing existing and prospective child-welfare employees may decrease the high turnover rates within their systems while reducing the number of cases individual actors would take on. Taxpayers and legislators should agree that increasing wages for social workers is a priority for mending their flawed foster care systems. Arguably, fewer errors involving foster child placement and investigations would occur if caseworkers had more time to devote to their assigned foster children, thus reducing child abuse and neglect rates within foster placements. While a speculative solution, an increase in numbers and pay for child-welfare actors may be the practical solution for reducing the number of child abuse, neglect, and death cases.

VII. Conclusion

The extension of qualified immunity protections to state social workers often deprives current and former foster children and their natural families of effective remedies for the injustices they have suffered. Various states have adopted different reform policies to combat these injustices within their child-welfare systems. Nonetheless, states need to make greater investments in their foster care systems and childcare, especially with foster children and their natural parents. One possible solution to this issue is the removal of qualified immunity protections from social workers to motivate state governments to improve their systems. However, this proposed solution could backfire because a lack of judicial immunity may deter qualified and caring social workers from accepting employment in underfunded and stressful systems. The practical solution to these issues is to correct the systemic failures of the broken system so the tragedies and injustices affecting children caught in these systems will cease. This solution will require states to prioritize these reforms when fully funding efforts to remedy these flawed systems, as Tennessee did. Without effective reform efforts working to correct the damaged child-welfare system, these issues are likely to keep occurring if no progress is made to remedy these flaws.