Foster care and legal issues

Social workers as expert witnesses in child welfare cases

Lawyers are increasingly calling upon social workers to serve as expert witnesses in cases involving children and families. Roles for social workers are emerging in the courtroom as expert witnesses in such areas as wrongful death, foster care, guardianship, forensic issues, child abuse and neglect, commitment hearings, education, and family custody evaluation. As society gets more specialized and complicated, the courts are using the testimony of expert witnesses to help resolve cases. Whether defending social workers or agencies, or litigating on behalf of a client, having the right experienced expert witness can make the difference between winning or losing an important case. How social work experts can aid the court

image A social worker who is called as an expert witness may be asked to provide:

  • An in-depth analysis of the events and issues in question. For instance, in many states social workers are permitted to make diagnostic assessments.
  • A thorough analysis of the procedures, policies and practices used by the social workers and agency to determine their appropriateness, legality, and conformity with current practice (e.g., were child abuse investigation procedures appropriately carried out?).
  • A thorough analysis of the strengths and weaknesses of the case from many perspectives (e.g., clinical, administrative, managerial, supervisory).
  • Reviewing pertinent documents, evaluating their findings, and developing conclusions regarding the evidence.
  • Trial preparation and assistance during the discovery and trial phases.
  • A familiarity with relevant and applicable case law.
  • Testimony which is ethical, accurate and persuasive. Contrary to popular myth, expert witnesses are sworn to be completely truthful—they cannot ‘fudge.’ It is important to remember that they are not advocates; their primary duty is to the court, not to the person who retained the expert.
  • Special qualifications to testify in a specific case (i.e., Does the witness have any unique publications regarding the issues at bar? Does the witness demonstrate any bias for the plaintiff or defendant? Does the witness offer previous testifying experience? For whom? Which specific cases?

Assessing qualifications

image Who can be an expert witness and what is required to become an expert witness? Expert witnesses   are usually expert consultants who testify under oath about the specifics of a case. They relate their conclusions and opinions about the actions in question. More than ever, social work issues in litigation require the services of expert witnesses. Experts are needed to inform judges and juries on technical matters and national standards of care for human services issues related to the cases brought before them.

When choosing a social worker as an expert witness, lawyers should look for people with qualifications that will help them accurately identify best practice standards, thus adding credibility to their position or allegations. Remember, social workers’ expertise has limits. For instance, the Massachusetts Supreme Judicial Court recently found in Commonwealth v. Frangipane, 744 NE2d 25 (MA 2001) that a social worker was improperly allowed to testify about memory loss and recovery.

The witness was called to discuss traumatic memory in the context of sexual abuse. She did not review any case records, nor did she assess the alleged victim. Rather, she articulated a phenomenon known as “dissociative memory loss,“ using her clinical experience and background of attending seminars on traumatic memory.

The Massachusetts Supreme Court did not take issue with the trial court’s admitting her testimony on child abuse or trauma victim experience, but did find reversible error in allowing her to testify about how traumatic memories are stored and retrieved in the brain, which depended on advanced scientific knowledge of brain function. It held that these were physiological matters about which the social worker was not trained and was not expert.

Generally, witnesses must testify to facts, not opinions. The exception to this rule is for expert witnesses. Indeed, an expert witness is on the witness stand to offer an opinion. For this reason a social worker can be qualified as an expert witness only if she has special knowledge, skill, experience, training, or education.

 

Attorneys should look for social workers who have real work experience and an academic or theoretical background. Because a case can be won or lost depending upon how well the expert witness delivers information in court, it is important that the experts can speak with authority and know how to communicate effectively. As soon as the expert witness takes the stand, the judge and jury begin to draw conclusions. So, the stature and appearance of an expert witness is crucial in establishing credibility.

Lawyers should seek effective expert witnesses who understand how a lawsuit unfolds through the pleadings, written discovery, depositions, hearings, and trial. The expert is a more valuable asset when there is an understanding of the overall court process, whether it is in criminal court, civil court, or before an administrative body.

Lawyers should especially seek social workers as expert witnesses whose responses to questions are succinct, and who can communicate confidence, sincerity and professionalism. Social workers as expert witnesses should never volunteer information outside their area of expertise; doing so can quickly weaken their credibility. One primary purpose of opposing legal counsel is to undermine the credibility of the expert witness, which can then nullify their testimony.

The ideal social work expert witness will have significant frontline and administrative experience and come across as someone who is neutral. Indeed, many attorneys look for an expert witness who has testified as often for plaintiffs or prosecution as for defendants. The expert should be someone who is known and respected in the wider social services community and has written extensively in professional journals.


Costs

The cost of retaining social workers can vary considerably. They are usually paid by the hour. The hourly fee typically covers reviewing documents, interviewing key people in the case, travel expenses, and any other time spent working on the case. Rates for being deposed or testifying in court are usually higher than for other kinds of preparatory work. Conclusion

The growing use of social workers as expert witness will likely continue. Social workers who serve in this role will play an important part in litigation and dispute resolution. Retaining a social work expert witness will not necessarily result in a victory in the courtroom. A credible expert witness, however, can offer invaluable information that can be used to present a more comprehensive case. This commentary originally appeared in Children’s Rights Litigation Committee Report (2005), 7(2), 8-9.


Child trafficking and international adoption: Different as night and day

 

image Following the recent devastating earthquake, and concerned about the potential for child trafficking, Pakistan’s Prime Minister Shaukat Aziz, ordered that all earthquake orphans be registered and taken into government care. None of them would be put up for adoption.

In a grotesque way, international child trafficking and international adoption seem to have much in common, but one is an evil disease and the other is a welcome cure.  The legitimate international adoption system may, in rare instances, be the vehicle through which trafficking takes place.  Despite our best efforts to safeguard the system, the child traffickers, like criminals everywhere, will use legitimate channels to accomplish their ends.  Because they are sometimes successful, does this mean we should shut down international adoptions?  Certainly not.


Child trafficking is an affront to any definition of human rights. According to UNICEF, approximately 1.2 million children are trafficked every year. The International Labor Organization (ILO) believes that 12.3 million people are enslaved in forced labor, bonded labor, forced child labor, sexual servitude, and involuntary servitude at any given time.  A recent UNICEF report catalogs trafficking information from 53 African countries.  It analyzes “the patterns, root causes, and existing national and regional policy responses and effective practices.”  It concludes that trafficking occurs when “a child’s protective environment collapses from such things as conflict, economic hardship, and discrimination.”  These same explanations justify why international adoptions are so necessary!


When an unwanted child anywhere in the world is spared a devastating, neglected life, clearly the adoptive parents, no matter where they reside, are doing an act of great love and kindness.  Let’s continue to do our part in helping legitimate adoptive parents provide a loving home to a lonely child.

Daniel Pollack is Professor, Wurzweiler School of Social Work, Yeshiva University, New York City and Senior Fellow, Center for Adoption Research, University of Massachusetts Medical School, Worcester, MA.

Individual liability of social work supervisors

image Supervisors are often named as defendants in lawsuits even though they have no direct involvement in the event itself. Individuals alleging discrimination or other wrongful behavior in the workplace frequently sue both the agency and their supervisors. Such allegations may be made because plaintiffs seek to impute the supervisors’ actions to the agency. Notwithstanding such allegations, claims may also be made against supervisors in their individual capacities.

Some state and federal laws prohibit plaintiffs from suing their supervisor in their individual capacity. In other circumstances, personal liability is a realistic result. For instance, there are numerous federal statutes barring discrimination and other wrongful actions against individuals in the employment context: the Americans with Disabilities Act of 1990 (“ADA”); Title VII of the Civil Rights Act of 1964 (“Title VII”); the Age Discrimination in Employment Act of 1967 (“ADEA”); the Fair Labor Standards Act of 1938 (the “FLSA”); and the Family Medical Leave Act of 1993 (the “FMLA”).

Each state has similar legislation – and this just covers the area of employment discrimination! Other statues address defamation (slander and libel), intentional infliction of emotional distress, and intentional interference with contractual relations.

A number of federal and state courts have held that certain conduct will support claims against human services defendants in their individual capacity. However, they have struggled, and differ, over the exact parameters of the covered conduct. Still very much undecided is the nature of action or inaction which will form a basis for such liability. Some of these decisions have explored the exact reach of the statute, while others have merely decided the matter with little or no discussion.

Consequently, you should take appropriate steps to protect yourself from personal liability and to help your fellow supervisors in your agency do the same.
No matter how careful you are lawsuits can be brought against even the most vigilant supervisor. There are certain steps to avoid or limit your liability. Of prime importance is to understand the different kinds of claims that can be brought, and avoid behavior which may be fertile ground for filing a lawsuit. You don’t have to spend thousands of dollars to take the following preventive measures:

      Listen to your conscience. Be mindful of your own actions and those of your supervisees. Even if you are personally blameless in a moral sense, your oversight of what occurs around you and under your supervision may, at a future time, be alleged as the basis for your liability.


      Adhere to your policies. Do you need clarifications or interpretations of your agency’s policies? Do you in fact have a policy manual? The failure to have written policies is an open invitation to the allegation that no policy existed or that the policy was different than you claim. You may need to approach your supervisor or counsel to confirm or even formulate written policy on important matters.

      Stay updated. State and federal laws change daily. Policies that were legal or “best practice” one month may later subject you to claims of personal liability.

      Consult with your supervisor, agency attorney, and colleagues. Doing so will confirm that you did not act in a unilateral, impulsive way.

      Keep records. As a supervisor, you should keep written documentation pertaining to all major decisions and the reasons for those actions. In the event a lawsuit is initiated, it may not be resolved for years. Consequently, you may need to refer back to these records. Make sure your documents are detailed and complete.

      Stay cool. If you are sued, immediately seek legal counsel. This person may not be the same as the counsel for the agency. Continue to communicate with your counsel after your initial contacts. Update your attorney on developments as they occur.



There are many potential defenses to individual liability. Among others, they include:

  • Contributory negligence—this is where you can show that the plaintiff was also negligent, and contributed to their own injury or damage.
  • Comparative negligence—this is when the court decides on a percentage split (say 60-40) in terms of who is negligent. This defense tends to mitigate, or reduce the size of the monetary award.
  • Assumption of risk—this is when the court decides that the plaintiff engaged in behaviors that assumed the risk of damages or injuries, and cannot expect to sue the human service agency to recover.
  • Good faith, absolute or qualified immunity—this is a defense covering duties of a discretionary nature.

In human services, the doctrine of individual liability is clearly expanding in some jurisdictions. It’s still an exclusive club, but you don’t want to become a member!

This commentary originally appeared in Policy & Practice, (September, 2005), 63(3), 26.

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Intercountry adoption: Who are the good guys?

image The January 5, 2005 CNN headline read, “Trafficking a threat to tsunami orphans.” Within days after the tsunami hit, Indonesia had begun putting into place policies which prohibited any child under age 16 from leaving the country. Why? The Indonesian Embassy’s press secretary in Washington explained that ““the government would like to protect the children from potential traffickers.” It had cause for concern – estimates of children trafficked each year range from a half a million to four million.

Is this concern sufficient to interfere with legitimate intercountry adoption? Indeed, is intercountry adoption an act of unparalleled altruism, or is it a sly way of kidnapping a poor country’s children? International child advocates are engaged in finger pointing at each other. One side confidently asserts that, but for intercountry adoptions, the few children who are saved would be destined to be untouchables in the back rooms of institutions in their native countries. The other side claims that cultural genocide and unofficial baby buying is what is really going on. So, who are the good guys?

According to the National Adoption Clearinghouse, Americans adopted 21,600 children from abroad in the year 2003. Many of them had confirmed health problems, among them HIV/AIDS, developmental disabilities, malnutrition, congenital defects, tuberculosis, and hepatitis.

Intercountry adoption raises many general questions: Are such adoptions really in the best interest of the child? Are birth parents relinquishing their babies under economic or cultural duress? Do we know, from valid studies, if the adopted child will adjust satisfactorily to a new culture? Is there an element of classism and imperialism when Americans and Western Europeans secure babies from developing countries?

Modern-day adoption statutes and international conventions balance the interests of children, birth parents, adoptive parents, states, cultures, and countries. Indeed, intercountry adoption is not a topic which can be easily divorced from the swirl of geo- politics. Intercountry adoption implicates the international reciprocal rights and duties that people claim for and from each other. But to limit human interactions to those based solely on duties and rights is to overlook the most essential aspect of being human - genuine concern for one another. Focusing on this communal aspect enhances our most human virtues.

Complicating the resolution of these general issues is the need for answers to three specific questions: Which data is really valuable in determining the best place for a child? What risks are there to a child in terms of abuse and exploitation in the care of an institution in the child’s home country versus those same risks if the child were adopted, whether it is within or outside of their home country? Is there more we can do to help the poorest countries become more efficient in finding homes within their own countries?

Given the large numbers of children who are in the care of orphanages around the world, and an intercountry total worldwide annual adoption rate that numbers only approximately 30,000 much rancor has ensued. Perhaps both sides of this debate should acknowledge elements of truth in the other’s position. When an unwanted child with or without medical or emotional problems is spared a devastating, lonely, neglected life, clearly the adoptive parents, no matter where they reside, are doing an act of great love and kindness. On the other hand, when a child is adopted by parents many thousands of miles away without the host country having made rigorous attempts to secure a permanent family for that child in its own country, there may be grounds to question whether the adoption is really in the best interests of the child or primarily in the best interests of the parents.

In order to achieve real-time positive results the international adoption community needs to have all the relevant facts and figures about the child in actual time. The ability to make decisions quickly based on reliable information is the key factor to success in the face of difficult situations faced by at-risk children. We need intelligent solutions that will provide us with relevant information and allow us to plainly see the risks and chances for success by either leaving the child in its country of birth or removing it and allowing it to be swiftly adopted.

An elementary school teacher told me the following story: She was watching the children in her classroom while they were drawing pictures. When she approached one girl who she knew had been recently adopted, she asked, “What are you drawing?” “I’m drawing a picture of love,” the girl replied. The teacher remarked, “But nobody knows what love looks like.” The girl shyly replied, “They will when I finish my picture.”

This commentary originally appeared in Policy & Practice, (March, 2005), 63 (1), 28.

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Representing Recent Immigrants


In the decade between 1990 and 2000, 11% of the American population was foreign born.  Many of our newest residents have endured extreme trauma just to get here.  The increase in immigrants is testing our health care and social service institutions’ goal of providing quality care and access for all. Human services workers in organizations involved with resettlement represent these new immigrants, sometimes even before they actually arrive.
Certain ethical concerns recur when an immigrant is assisted by a worker:
*      The family or sponsor may disagree as to what the immigrant needs.
*      There is a language barrier that is mediated with assistance from a relative.
*      Confidential information may be secured through the relative acting as an interpreter, yet the relative may not feel bound by principles of confidentiality.
*      The worker may not be able to accurately ascertain the immigrant’s mental capacity to make decisions.

These situations, among others, pose a challenge to the human services worker—to act on the client’s behalf while not inadvertently compromising the client’s best interest.  Of greatest importance is to remember that the immigrant, not the relative or friend, is the client.  Loyalty to the client clearly dictates that any differences of opinion between the parties must be resolved in favor of the client.  If there is a need to seek to mediate disputes between client and family, this should be undertaken carefully.  At all times, the worker is the client’s advocate, not merely an intermediary.  Failure at mediation may result in a loss of the client’s confidence and justified recrimination.  The more disagreement there appears to be between the client and the relative, the less the worker should act as mediator.

If there is a language barrier between the client and the worker, how can the worker be sure that the client is competent to make various decisions?  Communication problems should not be mistaken for incompetence.  In law, notwithstanding legal incompetence, a client “often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being.  Furthermore, to an increasing extent the law recognizes intermediate degrees of competence.”  (Rules of Professional Conduct)

The right to self-determination may still be viable despite a client’s diminished capacity.  There is no single, all-purpose competency test valid for all occasions.  Presumed competence is the rule.  Only when the employee objectively perceives that the client’s decision-making ability is in doubt in a particular circumstance should a client’s autonomy be questioned.  There must be a healthy respect for cultural differences, idiosyncrasies, and eccentricities.  To do otherwise is to risk slipping into the murky paternalism of substituted judgment.
As the National Association of Social Works (NASW) Code of Ethics states:
* The social worker’s primary responsibility is to clients.
* The social worker should make every effort to foster maximum self-determination on the part of clients.
* The social worker should avoid relationships or commitments that conflict with the interests of clients.
Unique values between ethnic groups can lead to challenging ethical problems in representing clients at all stages of the life cycle. Values regarding trust, respect, health care and financial decision-making can be best understood through a cross-cultural ethical lens.  Toward this end, human services employee should retain the firm presumption that a client who is recent immigrant has the capacity to make judgments and decisions that are in his or her best interest.  Sticking to this principle will enable human services workers to continue to effectively advocate on behalf of their clients.

This article was originally published in Policy & Practice 61(28), 28.

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A law and technology challenge for human services


Overview

The information revolution continues to unfold and the contemporary human services world is daily being changed by it.  This heralds the alteration of previous relationships between agencies and clients and among agencies themselves.  Perhaps the single most important outcome of this process is the emergence of a more transparent human service world.  Aggregated personal information about clients is becoming more public, while simultaneously we attach great significance to information privacy, especially from government institutions.

During the past decade, vast sums of federal and state public funds have been spent to automate the human service infrastructure. Many of these information technology solutions are designed and implemented by companies that may have varying degrees of understanding of best practices. Many of these systems utilize propriety technology to create automated case management workflows with hundreds of screens, dozens of reports and custom programming.

Current Market Perspective    

The federal government has spent billions of dollars underwriting the planning, development, and operation of state-based information technology systems that support the Child Support Enforcement, Child Welfare, Medicaid, and Food Stamps programs.  We spend these considerable resources and time in trying to serve each client on an individual basis. Ironically, the more detailed these personalized databases are, the more concerned we are about privacy infringement.  There is an essential need for easy, effective workflow automation in the human services field that takes into account efficiency and privacy. An information technology solution must address four crucial requirements: (1) accurate information gathering; (2) timely dissemination; (3) quality control, and (4) pass legal muster.

imageAccurate information gathering and timely dissemination involve accumulating and processing data in order to arrive at discrete outcomes. For example, in the adoption context, a typical intake requires a field social worker to interview individuals and record observations and recommendations in order to create a document which forms the basis of a report which is then filed in court. This workflow involves, at minimum, accurate recording, supervisory approval, document collaboration, record review and information exchanges between social service agencies, legal counsel and the court.

Quality control includes supervisory and external monitoring of not only the process of information gathering and dissemination, but also the implementation and utilization of best practices in the workflow solution. Using this example, not only must the field social worker conduct an accurate and thorough investigation, but the worker’s supervisor and administrators must monitor the process along each step of the way. All must conduct their day-to-day operations incorporating an ever-changing body of rules, regulations, and policies stemming from federal, state and local legal mandates. Agency lawyers, judges and outside counsel must have varying degrees of access to data, reports and recommendations. Ongoing monitoring, strict timelines and systematic accountability are critical. Data security and integrity is essential.

Goals
An automated case management solution for the social service field must accomplish the following:
•  leverage existing technology investments.
•  be designed to enhance and support strategic alliances with external partners.
•  utilize and exploit open standards.
•  comply with current and future eGovernment initiatives.
•  adhere to government usability and accessibility standards.
•  facilitate the easy and affordable transition from paper-based to electronic-based workflows.
•  provide information technology value to our clients while maintaining end-to-end security.
•  efficiently and inexpensively capture current paper-based information.
•  supply data which can be used easily by a variety of users.
•  emphasize accountability and tie resource allocation and initiatives to the concepts of agency effectiveness.

Every new technology creates its own responsibilities and dangers, and information technology is no exception. Notwithstanding the dramatic advances in communication technology, rather than resolving our communication concerns, many new ones have been created, and in some cases, have increased the onerous nature of existing ones. As the information superhighway continues to accelerate it is not so easily defined, controlled, or understood. Its sheer size and speed makes everything appear anonymous, yet we know too well that it is filled with billions of bytes of private information – with each byte representing a precious reputation.

The above article originally appeared in Policy & Practice 64(4), 21.

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The subtleties of race and recruitment in foster care and adoption


How do race and ethnicity factor into adoptive and foster care placements today? Congress initially began work on MEPA in 1994 in order to concretize the principle that a child’s placement should not be denied or delayed because of race or ethnicity.  Simultaneously, there was a genuine concern that MEPA could lead to a discounting of the importance that race and culture play in a child’s life.  There was further concern that MEPA might inadvertently lead to a deceleration in recruitment efforts of persons of color to be foster and adoptive parents. After ten years of social work practice under MEPA, tension still exists in social work practice between the right of the child to a culturally appropriate placement in adoption and the right of a child to a speedy placement regardless of race.

The policy tradeoff, under current law, has been resolved in favor of speedy placement.  The workaday tradeoffs made in social work practice, however, are shielded from direct observation.  In some jurisdictions it seems that a transracial placement should be allowed only after the costs of impermanency have risen to very high levels.

States have a legal duty to recruit vigorously families for all of the children in their care.  Any recruitment strategy should take into account the importance of ethnicity and culture and should clearly promote an awareness and sensitivity to the ethnic and cultural background of the prospective parents.  But nothing in any recruitment materials should be couched in such terms that would actively or even subtly undermine a prospective parent’s belief that the child’s ethic or racial background would, on it own, be a bar to a successful placement.

imageConsider the case of foster and adoptive parent training in San Jose, as described in a paper summarizing the results of a focus group study conducted by the Kennedy School of Government at Harvard in cooperation with the Urban Institute:
…I just envisioned us taking home an African American little boy.  After watching the movie, I just thought no…that is the one thing about [the training sessions] that didn’t leave a good taste in my mouth.  They did a film and it was very powerful to me.  I came away with the thought that maybe not (adopt a child of another race) (“Listening to Parents,” p. 46).

In the study, transracial placements accounted for over 20 percent of all adoptions across three focus groups that included 92 participants in San Jose, Miami and Boston. Transracial placements accounted for 28 percent of adoptions completed by parents with no prior relationship to the child.

A recent paper in Adoption Quarterly by Mary Eschelbach Hansen and Rita J. Simon estimates that about 15 percent of all adoptions completed in 2001 with public agency involvement were transracial.  This is an increase of about 5 percent from the 1995, although the climb was not steady.  Transracial placements amounted to about 17 percent of African American adoptions in 2001.  There is great variability between the states: Ohio reported 27 percent of adoptions as transracial; Illinois reported only 7 percent.

It seems quite plausible that the variation in the experiences of children of color between the states is explained by attitudes transmitted in training materials. While not an official policy, states, local jurisdictions, and social workers who wish to discourage transracial adoptions may subtly dissuade prospective parents from agreeing to accept a transracial placement, even if it results in longer waits for children.

Researchers Devon Brooks, of the University of Southern California, and Richard Barth of the University of North Carolina found that while a large percentage of adoptive families in California in the late 1980s had expressed a willingness to accept a transracial placement, few actually did so.  The Kennedy School/Urban Institute study reports that adoption administrators in 29 states today feel that interest in adoption is high, but interest in adoption of children from foster care is not high enough (p. 88).

The law requires speedy permanent placement.  Skewed training and recruitment materials should not be used as a back-door method to delay or deny that placement.

The above article originally appeared in California NASW News, 32(8), 6.
Mary Hansen is Assistant Professor Department of Economics, American University, and Research Fellow, Center for Adoption Research, University of Massachusetts Medical School, Worcester, MA. Daniel Pollack is Professor, Wurzweiler School of Social Work, Yeshiva University, New York City, and Senior Fellow, Center for Adoption Research, University of Massachusetts Medical School, Worcester, MA.

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