Ministerial versus Discretionary Acts or Omissions in Child Welfare Litigation

Too often the child welfare system fails our children, especially foster children, leaving our most vulnerable population at risk of harm. Many children in the welfare system are injured or even killed because “[t]he system frequently fails to provide children with stable, secure care” and “fails to meet foster children’s basic medical, psychological, and emotional needs.”

This system-wide failure is the result of several recurring problems, which are on the rise, including: inadequate investigation of prospective foster parents and their families, placing children in inappropriate homes, overcrowded foster homes, placing children with first-time foster parents who are inexperienced and become overwhelmed, and inadequate supervision of foster homes. These recurring problems have resulted in harm to those children under the care of the child welfare system, leading many of them to seek redress in the courts.

When a child is harmed while under the care of child welfare services, that child may have a viable cause of action in state or federal court. Although some argue the children may fare better in federal court, which would still be an uphill battle, this article focuses on state claims.

When pursuing state claims against a state agency, the first challenge a child will face is whether the state agency and its employees are immune from liability in the matter. Although each state’s immunity provisions differ, many states offer immunity where the act or omission of the state employee is discretionary, as opposed to an act or omission that is ministerial. This distinction is key because in many states, official immunity does not shield officials from liability arising from negligent performance of ministerial acts or functions (i.e., directives the officials are required to follow and involve no discretion on the part of the employee). Conversely, an official acting with discretion may be found immune from liability.

Although the distinction between an act or omission that is discretionary and one that is ministerial may be difficult to determine in practice, the rationale and justification behind granting state employees or officials immunity for discretionary acts or omissions may help clarify why courts have found it so important to make the distinction in the first place. First, “[i]f the government and its employees are subject to tort liability [any time they] exercis[e] their discretion” in decision-making, the potential for an overwhelming amount of lawsuits could “stifle vigorous decision-making and thus lower the quality of the ultimate decision.”

Second, separation of powers dictates that courts should not review the discretionary decisions made by state employees or officials. When a state employee or official is not using any discretion in his or her decision-making (i.e., where the act or omission is ministerial) these rationales for immunity cease to exist.

State child welfare laws, regulations, and manuals are voluminous and can run many hundreds or even thousands of pages. But is every sentence of a specific directive nature to be defined as a ministerial action? From a plaintiff’s perspective, the compulsion is to answer “yes.” The manual instructs an action be taken and it was not.

The state’s perspective is much less certain. All would agree every directive in the state’s child welfare manual is not created equally. Ensuring a criminal background check is completed before issuing a foster care license is not comparable to ensuring a clothing reimbursement voucher is signed in exactly ten days. Nevertheless, a plaintiff will want to characterize a criminal background check and any other specific directives as ministerial to avoid immunity of the actor. Failing to do any one act may not necessarily result in a finding of negligence, but, depending on its importance, and assuming a convincing causation case can be made, it certainly might.

From the state’s perspective, does the public child welfare agency itself have the authority to definitively designate which directives are ministerial and which are discretionary? Probably not. The way in which a directive is phrased will have great weight, but the characterization of a duty as ministerial or discretionary is determined by the nature of the action, not by the agency or department of the one performing the action or omission.

Courts have found that “[a] duty is discretionary if the government actor is required to exercise his or her judgment or discretion in performing the duty.” On the other hand, “a duty is ministerial and not discretionary if it is imposed by law and its performance is not dependent on the employee’s judgment.”

The Supreme Court of the United States explained that “[t]he requirement of judgment or choice is not satisfied if a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,’ because ‘the employee has no rightful option but to adhere to the directive.’” In assessing whether a function is discretionary or ministerial, courts generally conduct a case-by-case determination, weighing “such factors as the nature of the official’s duties, the extent to which the acts involve policymaking or the exercise of professional expertise and judgment.”

In the field of public child welfare services, then, exactly which acts or omissions are ministerial, and which are discretionary? Each state has its own unique constitution, case law, statutes, regulations, child welfare manuals, and structure. This complexity does not allow for categorical rules on this subject matter, but this article nonetheless attempts to offer some meaningful guidelines on which state actions are discretionary and which are ministerial.


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