How to Reduce Tort Claims in Child Welfare
(Originally published March 2020)
On November 22, 2019, The Seattle Times ran a front-page story, “State to pay 8.5M after placing girls with abusive foster parent despite report.” This story concerns the foster placement of two girls, ages 9 and 14, in a foster home a year after a “4-year old girl said she saw a man in her previous foster home (i.e., the same home) expose himself.” The foster father subsequently admitted sexually abusing the two girls and a third foster child in the home at the time. The 4-year-old’s statement was investigated as a licensing violation after the 4-year- old denied to a relative that she had been sexually touched by the foster father. “A social worker interviewed the 4-year-old … According to the worker’s notes, the girl said “yes” when asked if … (the foster father) “did something” with his genitals but would not go into further detail. The interview ended when the child said she was done talking. The worker did not schedule a follow-up interview.” The caseworker who interviewed the 4-year old “was told further interviews, including with the children, were not necessary because it was a licensing complaint.”
According to the Seattle Times story, “The plaintiff’s attorneys argued that state employees made mistakes at every step … and that they should have investigated the report as potential abuse; conducted a follow up interview with the 4-year-old; interviewed the … (foster parents) separately as well as the children in the home; and not placed the girls in the home after what they describe as an insufficient investigation.” And, “The state agreed to settle … the month the case was scheduled to go to trial.”
The most astonishing part of this story is the following:
The settlement is one in a series of costly payouts for the state, which
spent $84 million in the 2019 fiscal year just on settlements involving
the Department of Children, Youth and Families (DCYF) – making up
nearly half of the state’s spending on claims that year.
The total DCYF annual budget for child welfare (not including early learning and juvenile justice) is probably no more than $550-600 million dollars. If the information in the Seattle Times story warrants a tort settlement of $8.5 million (tort AG’s would not have recommended that the state agree to this settlement unless they believed they would probably lose in court), it’s likely that Washington State will continue paying huge amounts annually to settle child welfare tort actions, or after losing in court.
When I left the Children’s Administration in 2004, DSHS was spending about $20-25 million dollars per year in tort pay-outs, an amount which was understandably a matter of great concern to top managers, the Governor’s office and legislators. Fifteen years later, the pay-out in tort claims was 3-4 times greater than in the early 2000’s, with no end in sight. Eighty-four million dollars (or a third of that amount) per year could fund reforms which would potentially transform Washington’s child welfare system. Instead, state government will likely be spending many millions of dollars per year to compensate plaintiffs for the indefinite future.
In past years, large tort judgments and settlements discredited top managers and the state’s child welfare system in the eyes of policymakers in both the Governor’s office and legislature. However, the events summarized in the Seattle Times happened several years before the creation of a separate children’s department, an administrative restructuring some policymakers expect will “stop the bleeding” of large tort pay-outs, a highly unlikely occurrence. Policymakers in both the executive and legislative branches of state government seem unable to connect the dots between and among the following:
● budget shortfalls,
● drastic budget cuts during the Great Recession,
● inadequate staffing of the child welfare agency,
● poor practice, and
● harm to children and large tort claims.
Veteran child welfare staff and retired persons who worked in child welfare for decades have no difficulty making these connections. Policymakers looking for someone to blame for $84 million dollars in child welfare tort claims in 12 months should first look in the mirror!
Unfortunately, there is plenty of blame to go around. Inadequate funding of child welfare and an inadequately staffed child welfare system has had a huge negative impact on child welfare practice in this state, but so have management practices that cannot fairly be blamed on the state’s policymakers. First and foremost, it is the relentless expansion in policies and procedures that has increased child welfare exposure to tort claims, an expansion that has been occasionally checked for brief periods of time, but never for long in this state.
Expanding policy frameworks and tort exposure
In developing a tort case, plaintiffs’ attorneys review written child welfare agency policies and look for instances when agency staff failed to fully comply with these policies. The greater the gap between policy and practice in a specific case, and the greater the harm to children that can be plausibly connected to non-compliance, the more the state is exposed to tort claims. The gradual, steady and ever-growing expansion of policy frameworks in an understaffed agency increases the likelihood that, in many (perhaps most) cases, some agency policies will be ignored or carried out in a cursory way. Finding gaps between policy and practice in case records is easy pickings for plaintiffs’ attorneys who may also add their moral intuitions to arguments regarding how policies should have been implemented, as in the Seattle Times story.
Tort attorneys in the AG’s Office have communicated this perspective to child welfare managers for at least two decades, for the most part to no avail. Child welfare leaders are subject to intense persistent pressure from all sides (internal and external) to adopt “best practices” in policy and procedural manuals. The federal government, advocates, state legislators, stakeholders, foster care alumni and (sometimes) child welfare supervisors and managers apply pressure on leaders to revise or add policies regarding their favorite issue. It’s usually easier to add new policies and procedures rather than take policies away. As a result, policy manuals tend to steadily increase until caseworkers may be unable to remember a large percentage of what they are expected to do on each case! In theory, caseworkers could consult policy and procedural manuals hundreds of pages in length at every turn, but any caseworker foolish enough to use a policy manual like an on-line encyclopedia would quickly be defeated by the effort required. Instead, busy caseworkers must simplify procedures to make job expectations manageable.
To its credit, the state’s child welfare agency has made two serious attempts in the past 25 years to reduce policy manuals to bare bones required by federal or state law, a gargantuan time-consuming undertaking. However, as soon as policy manuals were reduced to legal requirements, the agency’s bureaucratic DNA ensured that a new set of policies would be added at a rapid rate. The managerial paradigm in child welfare agencies is to manage to policy and procedures; and it is far more difficult to motivate child welfare managers to reflect on their management practices than to stimulate discussion of controversial policies.
Workload pressures and practice standards
If a state’s child welfare agency is staffed to a workload standard, adding new policies may not have a negative effect on practice. However, Washington State’s child welfare system has never been funded to a workload standard, and even workload standards cited in budget requests (e.g.,18 cases per caseworker) are dated and unreasonable given current requirements. With rare exceptions, new policies and procedures are implemented regardless of staffing levels even when line staff are unable to fully comply with agency policies in a 40-hour work week. Chronic excessive workloads always lead to an erosion of practice standards and, in some overwhelmed units and offices, to a collapse of standards. Once practice standards have eroded or (worse) collapsed, it is a difficult task to rebuild them, even when a child welfare office has been given greatly increased resources. Anyone with common sense can understand the inability of caseworkers to meet unreasonable expectations resulting from too many assigned cases. It is harder to understand - and impossible to defend - inadequate casework practices when offices have enough casework staff and supervisors to do the job.
Tort actions occur in a virtual world of case records and agency policies that lacks a social context. I have yet to encounter a single mention of workload pressures and their impact on casework practices in a case record or deposition that was part of a tort action. The workload context in which questionable practices occurred is a ghostly presence which all parties choose to ignore. Caseworkers and supervisors are reluctant to acknowledge that they failed to fully comply with agency policies, while plaintiffs’ attorneys are unwilling to provide caseworkers with an excuse for poor practice. Child welfare managers and policymakers should understand that workload pressures that influenced casework practices are typically not considered in tort actions, possibly because AG’s believe that courts and juries would not view this information as legally relevant.
Nevertheless, there is one simple step caseworkers can take to inform their testimony in future tort actions: make a notation regarding the size of caseload whenever a case is opened or closed and at every 6-month review hearing. CPS caseworkers should document the number of investigations/assessments assigned to them during the past month, as well as the number of families on active and open cases on the day of case assignment or case closure. CWFS caseworkers should document the number of children in foster care or on trial home visits they are responsible for, and the number of other cases (families) on the day of review hearings.
Professional foster parents
Some of the largest tort judgments and settlements in Washington and Oregon in recent years have involved the severe abuse of children and youth in foster care. The Washington State Supreme Court has recently affirmed the responsibility of state government to ensure the safety of children in out-of-home care, a ruling that leaves DCYF in a highly vulnerable position. Approximately half of foster children and youth are behaviorally troubled with extensive needs for mental health treatment. Any child welfare system with acute and chronic shortages of foster homes will frequently place behaviorally challenging children with inexperienced, unskilled foster parents who have been encouraged by home finders, and/ or motivated by the promise of exceptional reimbursement, to care for these children and youth. This is a formula for multiple placements, mistreatment of oppositional youth and overuse of psychotropic medications. A steady stream of tort actions is certain to result from placing difficult, often traumatized, children and youth with inexperienced foster parents who have not had the education or training to adequately care for them.
Over the next decade, DCYF should be funded to develop a cadre of professional foster parents, either salaried or paid double or triple the usual reimbursement for every foster child in their home, following completion of a certification program and a track record of providing excellent care to foster children and youth. A cadre of 500-1000 professional foster homes developed over a decade would potentially save the state many millions of dollars in tort actions and dramatically improve the quality of foster care. Refusing to acknowledge that the current foster care business model of unrelated volunteers, plus kinship care, is a failure for half the children in foster care reflects the type of denial that undermines a child welfare system. Regarding foster care, it’s past time to do something different.
Daniel Kahneman’s book, Thinking Fast and Slow, contains a discussion of hindsight bias which should be read and discussed by all parties to tort actions, i.e., child welfare staff, attorneys, judges, jurors. Kahneman asserts that:
“A general limitation of the human mind is its imperfect ability to reconstruct past states of knowledge, or beliefs that have changed.
Once you adopt a new view of the world …, you immediately lose much of your ability to recall what you used to believe before your mind changed… Your inability to reconstruct past beliefs will inevitably cause you to underestimate the extent to which you were surprised by past events… Hindsight bias has pernicious effects on the evaluations of decision makers. It leads observers to assess the quality of a decision not by whether the process was sound but by whether the outcome was good or bad. … This outcome bias makes it almost impossible to evaluate a decision properly – in terms of the beliefs that were reasonable when the decision was made.
Hindsight is especially unkind to decision makers who act as agents for others - physicians … social workers … We are prone to blame decision makers for good decisions that worked out badly and to give too little credit for successful moves … There is a clear outcome bias. When the outcomes are bad, the clients often blame their agents for not seeing the handwriting on the wall – forgetting that it was written in an invisible ink that became legible only afterward. Actions that seemed prudent in foresight can look irresponsibly negligent in hindsight."
… The worse the consequence, the greater the hindsight bias.”
Child welfare staff whose actions are the subject of tort actions are as prone to hindsight bias as plaintiffs’ attorneys. The certainty that if “I knew x, I would surely have done y,” even when circumstances were novel or unusual, is a powerful illusion. Ditto for the pretension that anyone could know the outcome of a CPS investigation that did not (in fact) occur years ago, as in “if only the report had been investigated, the child would have been removed from the home.” Hindsight bias makes it easy and compelling to imaginatively reconstruct the past so that a child was effectively protected rather than harmed.
Kahneman maintains that “Because adherence to standard operating procedure is difficult to second guess, decision makers who expect to have their decisions scrutinized with hindsight are driven to bureaucratic solutions,” i.e., more required procedures. This is what has occurred in many child welfare systems, but to no avail as more policies and procedures have increased rather than diminished exposure to tort actions. Child welfare bureaucracies have been hoisted on their own petard. ©