Plaintiff’s Counsel - What to Expect from County Child Welfare Agencies

TASA ID: 1220

Expect to be inundated with a sea of paperwork and documentation, some of which may have nothing to do with the discovery for your particular case, client or circumstances. Defense counsel is well aware that some attorneys are not familiar with the day-to-day operations involved in child welfare and perhaps as a strategy will seek to waste time or distract attention to important detail by “fogging” the field of discovery with peripheral or non-essential documents. Being able to navigate through the “fog” is essential to efficient use of resources. Knowing how a county child welfare agency operates is as important as understanding what they do.

Expect also to have some pointed documentation or discovery files conveniently “omitted” or not tendered until your work is well underway and possibly within a sight of the hearing date. Attorneys who are unfamiliar with the nuts and bolts of child welfare may well miss finding or requesting documents or exhibits supporting their claims. Hence, some essential and potentially key documents may initially be missing from discovery and thereby delay or compromise deposition and case preparation.  An understanding of the protocols and operating procedures of county child welfare agencies is essential in completing discovery and case preparation. Not knowing where, when or who or what to ask can be costly in terms of time and position. Again, the process of child welfare is as important as the content of an investigation and or case and can vary somewhat from county-to-county.

Expect an over-reaching ideology to be argued in contrast to facts, policy, procedures, and mandated responsibilities. More often than not in reading defense experts’ responses or depositions of defense witnesses, I find there is clear misunderstanding as to what mandated regulations require as opposed to what child welfare workers “feel” was the right thing to do or not to do.  There can be a serious lack of critical thinking.  (See “Child Welfare – Why Social Work Doesn’t.)  There may at times be a “Red Cape” ideology in which a perceived “need to protect” is not supported by fact, law, codes, policies or procedures resulting in precipitant actions by child welfare. In such cases, parents and/or legal custodians may have been denied due process, either intentionally or through error.  There may at other times be an over-reach to be “family friendly” in which a proper investigation may have fallen short because someone was more concerned with perception than detection and fulfillment of mandated responsibilities.  In these cases, invariably the very person who is the focus of child welfare, the child his or herself is victimized further by the system intended and charged with their protection and welfare.

Expect to be dealing with a bureaucracy and all that entails. By their very nature county child welfare agencies are bureaucracies and subject to the characteristics and pitfalls therein. From a call, to a referral, to an investigation, to a case, to a petition, to jurisdiction, and disposition; there are any number of individuals involved who may vary in competence, skill and commitment to their task.  They may rely on and build upon the false or inaccurate findings of the person involved at the previous juncture of an investigation or case, despite in some instances, mandates to be independent in their own assigned task.  Whether this is due to ignorance of mandated regulations, policies and procedures, error due to workloads or simple lassitude is unknown and unimportant as the result is the same.

Expectations of using an expert witness. The role of an expert in child welfare damage cases early on, is to avoid or at least minimize the delays that can grow out of the discovery process and cite with specificity the acts or omission and or commission which resulted in further abuse and neglect to a child and/or his or her family.  For counsel with little to no experience in such cases, the knowledge of how child welfare operates on a day to day bases, how regulations, policies and procedures all come together and where and what to probe can be an essential difference between making it through an MSJ to prevailing in a case. For counsel with some experience in this arena, the expert stands ready to support by virtue of training, education and experience, an independent assessment voiced in declaration and testimony.  Also, advice as to deposition queries and strategies can be valuable coming from someone with previous direct experience in child welfare.

TASA Article Disclaimer

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA and the author TASA ID#: 1220. Contact marketing@tasanet.com for any questions.

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