San Diego Union-Tribune (Sunday)
COUNTY CHILD WELFARE: LAPSES, LAWSUITS
Millions paid out, more suits pending over deaths, care
A toddler named Tyler was not quite 2 when San Diego County deputies found drugs in his family’s home in June 2018.
Tyler had been healthy, showing no signs of abuse or neglect, and had tested negative for drugs the day social workers took custody of him. His mother also was not under the influence, deputies told Child Welfare Services.
Nevertheless, Tyler was placed with his mother’s 19year-old niece, who lived 100 miles away in Long Beach and had no children of her own. When the niece and her girlfriend were later evicted and began living in a car, the county did not re-evaluate Tyler’s placement, according to a lawsuit Tyler’s mother filed against the county and five social workers.
When Tyler became sick and was throwing up, the niece struggled to get treatment because the county had not provided health insurance as required by law, the lawsuit said.
On Sept. 22, 2018, as the teen and her girlfriend
smoked marijuana in the car, they noticed Tyler slumped in his car seat. Bystanders tried CPR, but the toddler died.
Tyler’s mother filed a civil rights lawsuit in 2019, adding to the nearly three dozen wrongful death, negligence and civil-rights complaints brought against San Diego County’s child welfare office in recent years.
The county has paid more than $11.7 million to settle 15 of those cases, many of which accused the county of taking children away from parents without good reason, or even a warrant, according to a review of records by The San Diego Union-tribune.
In many cases, the families’ encounters with the child welfare system led to disastrous ends.
In Tyler’s case, the Los Angeles County coroner ruled the death suspicious. He was found to have bruises on his face and behind his ear which would have been visible to the social worker who visited him the day before his death, the lawsuit said.
“Defendants literally ignored Tyler to death,” the complaint said.
After Tyler died, county social workers refused to release his body to his mother, the lawsuit said. Instead they pushed for immediate cremation, despite the mother’s wish to bury her child, and they attended his funeral against her wishes, the lawsuit said.
In court filings county lawyers sought to get the lawsuit dismissed, saying the county social workers had qualified immunity, a legal shield protecting public employees from being sued for official actions. And the county said the mother “failed to state a legal claim on which relief can be granted.”
The court rejected the county’s arguments, ruling that the defendants may not have been protected from liability because they had violated the mother and son’s clearly established rights and because their conduct “shocked the conscience.”
In December, the county and the social workers appealed the ruling to the 9th U.S. Circuit Court of Appeals.
Earlier this month, the county agreed judgment could be entered against it and that it would pay $500,000 to resolve the lawsuit, but it did not admit liability for specific allegations, according to court records.
The cost of negligence lawsuits against county Child Welfare Services is likely to keep climbing. At least 13 more lawsuits against the county are pending in federal courts.
In San Diego County, as in most jurisdictions, childwelfare practices are all but invisible to outsiders even as they represent an immense authority: the power to separate parents from their children, temporarily or permanently, for better or worse.
Civil lawsuits are one of the only windows the public has into the world of child welfare, although legal claims often provide a onesided keyhole view.
With a $400 million annual budget and about 1,500 employees, Child Welfare Services generally does good work under difficult circumstances, according to recent reports. The office typically has about 3,500 open cases and 2,000 or so children in out-of-home placements per year.
There is little doubt child-welfare workers save lives and make families stronger in the majority of cases, but the public rarely learns of individual success stories because the job is done behind strict confidentiality laws designed to protect children’s privacy.
The work is complicated by two competing missions: the need to protect children from abusive parents and the goal of reuniting children with their families.
The dual objectives can place social workers in nowin situations. And children have been injured or killed after decisions were made to leave them in their homes or when they were removed from their parents’ custody.
The number of lawsuits the county has paid to resolve suggests that Child Welfare Services operations remain imperfect, with stubborn problems that have landed the agency in court again and again.
At least four caseworkers have been named as defendants in multiple lawsuits the county has paid to resolve since 2015, according to federal court records. Sixteen other workers were sued individually.
Lawyers who specialize in child-welfare litigation say the root cause of so many lawsuits is clear: Strict confidentiality rules across the juvenile dependency system promote a culture in which social workers wield unchecked power.
“It would be very simple for them to open up the juvenile court system and allow the press in and just not allow them to use the names (of parties involved),” said civil rights attorney Donnie Cox, who has represented numerous families in cases against San Diego County.
“The press and the public should be allowed to watch these cases, because when you give the kind of power to social workers that they have and you cloak the system in secrecy, it’s a recipe for disaster,” Cox said. “They have a power most people do not understand and do not appreciate.”
Currently people who are not involved in a juvenile dependency case must petition the court for documents about it or to attend hearings.
Kimberly Giardina is director of Child Welfare Services for San Diego County. She declined multiple interview requests and did not answer questions posed by email.
Instead her staff provided a statement saying the county continually reviews its child-welfare practices and looks for ways to ensure that children in the foster care system receive the support they need to keep them safe.
“Last year, the county took further steps to protect children in foster care by increasing training to investigate alleged abuse or neglect of children in foster homes,” the statement said.
“Child Welfare has made other changes to its system and policies the past two years with guidance from the Child and Family Strengthening Advisory Board,” it added. “One of the areas of focus has been to promote transparent and unified delivery service of social work practice.”
Shawn Mcmillan, another San Diego attorney with decades of experience suing child welfare systems in California and other states, said San Diego County has been slower than other agencies to adopt new practices in response to litigation.
Unlike other counties, Mcmillan said, change in San Diego County has been reactive to lawsuits, not proactive to prevent similar lawsuits in the future.
He cited an email from 2009 he obtained in an Orange County case that shows an official there discussing how their counterparts in San Bernardino and Riverside counties drafted protocols for securing warrants to remove children from their homes after a series of lawsuits. Not San Diego.
“San Diego reported that they filed around 200 petitions a month, rarely request warrants, and that their County Counsel has taken the position of ‘let them prove that what we’re doing is unconstitutional’,” the email stated.
The matter of when counties must obtain warrants before removing children has been settled law for more than a decade, Mcmillian said, but San Diego County continues to get sued for removing children from homes without a warrant.
“San Diego is like one of the only places in California where I still, today, get warrantless seizure cases,” he said. “That’s still being litigated. It’s cultural.
“They (CWS officials) grew up in a time when they could do no wrong, and their approach has always been, ‘Even though plaintiffs are coming and we’re paying money, we still don’t agree it’s the law’,” Mcmillan said.
In 2017 the county updated its policy and procedures to get warrants to remove a child, enter a child’s home, interview them at school or have a them undergo a medical examination when parents have not consented and there is not a clear emergency, a working group report says.
Nathan Fletcher, chairman of the Board of Supervisors, said he is concerned with the county’s handling of foster children.
He campaigned on a promise to improve the system and said nearly 70 policy changes have been implemented since his election to the county board in 2018. But he acknowledged more needs to be done.
“When a mistake is made, it’s important for us to examine if there is an underlying policy or procedure that needs to change and then change it, and also do right by those who have been harmed,” he said in a statement.
Court records suggest that the county has altered its handling of child-welfare cases in recent years, moving from a fight-to-the-bitter-end philosophy to a takeresponsibility-and-resolve position when appropriate.
More than half of the 15 lawsuits the county settled since 2015 were resolved since Fletcher was seated on the Board of Supervisors.
No parental consent
Perhaps the most important decision a social worker makes is whether to remove a minor from their home.
In San Diego County those decisions are sometimes made without a warrant, meaning the child-welfare worker does not have the benefit of an independent third-party to review the situation and render an opinion.
The go-it-alone practice has led to some of the most costly cases litigated by the County Counsel’s Office.
Since 2015 the county has paid more than $5 million to resolve six child-welfare lawsuits alleging the wrongful, warrantless removal of children from their parents’ custody, federal court records show.
In three of those cases, children were given medical examinations without parents’ knowledge or consent.
The procedures are not insignificant. In many cases, they involve personally invasive inspections to determine whether a boy or girl has been molested or hurt.
San Diego County has been sued repeatedly for allegedly conducting medical exams on children without parents’ consent or legal justification, typically when children are admitted to Polinsky Children’s Center, a temporary shelter for abused and neglected children.
County lawyers fought two of those lawsuits for nearly a decade and ended up paying millions to resolve them. A federal court decision in 2014 finally persuaded child-welfare officials to change their policy.
After that ruling, the county agreed to either seek consent from parents prior to a medical exam or secure a court order. The only exceptions are cases of clear emergencies or if there’s a concern that evidence of abuse could dissipate.
The stricter policy of obtaining parental permission before medically evaluating a child has not always been followed.
Months after the 2014 court ruling, county lawyers negotiated a $1.1 million settlement with Steven and Joanna Swartwood, who had accused social workers of subjecting their children to medical exams without consent. The exams included their genitals.
Earlier this year, William Meyer and Dana Gascay sued the county, Rady Children’s Hospital and others for alleged misdeeds including secretly installing cameras in their daughter’s private hospital room for what was essentially a diagnostic examination — without their knowledge, a clear emergency or a court order.
The social workers and Rady Children’s team were convinced the girl was a victim of Munchausen syndrome by proxy — abuse in which a caretaker intentionally makes a patient sick. They used hidden cameras to spy on the family during hospital visits in an attempt to prove they were responsible for the girl’s injuries, the lawsuit asserts.
The lawsuit also accused physicians at Rady Children’s of failing to appreciate the child’s earlier diagnosed medical condition, a hypermobile type of Ehlers-danlos syndrome. Symptoms of the rare disorder include loose joints that are vulnerable to displacement.
The parents, who lost custody of their child for 11 months, learned about the secret surveillance during the discovery process in the juvenile-dependency case, the lawsuit said. The same proceeding cleared the parents of all abuse allegations.
Officials with Rady Children’s and with the county in April declined to comment on ongoing litigation or to answer questions about the alleged use of covert surveillance.
The lawsuit by Meyer and Gascay was not the first to accuse the county of civilrights violations and an unjustified abuse investigation stemming from a complex, misdiagnosed medical condition.
In 2010, Trevor and Heather Reynolds sued the county and other defendants, accusing them of violating their civil rights, false imprisonment and other wrongdoing after county officials seized their children for about two months because neither parent could explain how their baby suffered a fracture.
Before the dependency hearing, Heather Reynolds had her child examined by a specialist, who immediately diagnosed the infant with what is often known as “brittle bone disease.” In an opinion provided to county social workers, the physician said the condition was so serious that an act “as simple as changing her diaper could have caused the femur fracture,” the lawsuit said.
But social workers rejected the expert’s finding and kept fighting to keep the child away from the parents, the lawsuit said.
On Aug. 18, 2010, the court found the allegations untrue and the petition was dismissed, the Reynolds’ legal complaint said.
After nearly a decade in court, the county agreed last August to pay $700,000 to settle the case, court and county records show. The defendants did not admit to any of the allegations.
Deceiving the judge
Michael Lewis and Lauren Taylor also accused social workers of wrongly taking away their children, and last year a court entered judgment against San Diego County.
According to their lawsuit, Child Welfare Services removed their children from the family home, absent any emergency or court order, in 2013 then lied to the juvenile dependency court about the circumstances of the removal. They told the juvenile court the action was necessary due to the “emergent nature” of a situation in the home, the lawsuit said.
Michael Lewis, who suffered from chronic migraine headaches, relied on legal medical marijuana to ease his symptoms, his complaint stated. He said he only used the drug when the children were away from home, and he showed social workers the locked container he used to store his marijuana.
Social workers and police reported that there was a large amount of marijuana in the home — not all of it inaccessible to children — and it appeared the father had been processing it into a condensed form, which has been blamed for various explosions at home labs, according to a judge’s order affirming judgment against the county.
Neither of the couple’s two kids ever tested positive for marijuana, and there were no signs of abuse or neglect, the lawsuit said. Childwelfare workers nonetheless took custody of the children without a court order, obvious emergency or any preplacement family services.
The family’s civil complaint took years to resolve.
A jury found that a supervisor named Benita Jemison acted intentionally and unreasonably by instructing social workers at the scene to remove the children, according to court records. Jurors found the county responsible for violating plaintiffs’ rights because it failed to adequately train staff and was “deliberately indifferent to the known or obvious consequences” of that failure.
In post-trial proceedings the court amended the judgment, upholding only the children’s claims against the county. It ruled that Jemison was shielded by qualified immunity, and it ordered the county to pay $546,573 for the children’s attorneys, court costs and interest.
Jemison also was named as a defendant in a lawsuit filed by John and Heather Benavidez and their two children in 2018, records show.
That federal complaint said Jemison and other social workers violated the family’s rights two years earlier by deceiving the dependency court when seeking an order for medical examinations of the children without the parents’ consent.
County lawyers tried to get the case dismissed on legal technicalities but were unsuccessful.
Last month, an appeals court said Jemison and the others could be sued for allegedly deceiving the juvenile court by falsely claiming reasonable efforts had been made to contact the parents before seeking court approval for a medical exam of the children.
The lawsuit, now pending in district court, accuses the social workers of violating the parents’ constitutional rights under the Fourth and Fourteenth amendments.
Jemison retired from her job with San Diego County in 2017, according to records available through Transparent California. It appears the other social worker named in the lawsuit also left the county in 2017.
Reached by phone, Jemison declined to comment for this article.
For families, fighting dependency petitions can be an uphill battle.
According to the county’s 2021 operational plan, the County Counsel’s Office prevailed in 99 percent of the juvenile-dependency petitions contested in superior court in the year ending June 30, 2019. It also won 97 percent of juvenile-dependency appeals and writs.
Child Welfare Services officials have long been aware of the need to properly train social workers about how and when to wield their authority.
A 2009 grand jury report found that “CWS employs social workers, some of whom, in the opinion of the Grand Jury, are biased, have personality differences with customers or have little experience with the populations they serve.”
The same panel said, “It is essential to the administration of the child protection system that CWS screen its workers and train them to minimize personal bias, cultural ignorance or factual errors.”
In a legally required written response to the report, county officials agreed with the grand jury findings.
‘A lack of focus’
Nevertheless, multiple lawsuits against San Diego County allege serious lapses in oversight and faulty decision-making by social workers.
In some cases, the failures have led to children under county supervision being sexually assaulted, neglected or otherwise harmed in foster homes that county social workers deemed safer than the children’s family homes.
In recent years, the county paid $4.9 million to settle five lawsuits alleging children were harmed in foster-care placements. In a separate case, the county paid $78,000 to settle a claim alleging social workers fabricated evidence to gain access to a child’s medical records.
According to a 2016 lawsuit, county social workers received more than a dozen reports that two brothers were being sexually abused by a foster parent. But the repeated warnings of rape and abuse were ignored or improperly investigated.
Weeks after the case was detailed in a Union-tribune report on the allegations, county lawyers reached a $3 million settlement with the brothers.
The foster parent, Michael J. Hayes, pleaded guilty to child molestation charges and was sentenced to 21 years in prison. And the county paid $1.3 million to resolve two other legal complaints filed by foster children who had been placed with Hayes.
After a 2018 report in the Union-tribune, county officials convened a working group to identify areas for improvement in the childwelfare system.
The group’s subsequent report found “a lack of focus on child safety and minimization of further systeminduced trauma” in decision-making. Recommendations included the creation of a team tasked with expanding and evaluating safety efforts.
The county grand jury also took a fresh interest in the lapses within Child Welfare Services. In June 2019, the citizens’ panel found that “despite many CWS workers’ dedication to excellence, serious institutional safety gaps remain.”
The grand jury also said county practices “point to patterns of ignoring problematic behaviors of the perpetrators, social workers’ lack of follow-up, CWS staff ’s refusal to take action regarding documented communications with victims and county staff ’s diminished focus on child-safety.”
The report recommended reducing caseloads for social workers, improving training for staff and bolstering communication between various parts of the child welfare system.
The reforms would come too late for some children.
In 2016, Z.T. was a few days old when his mother agreed to let San Diego County social workers take custody of him while she sought treatment for substance abuse, according to a lawsuit she filed against the county and other defendants in 2018.
Instead of honoring her legal right to have her child placed with appropriate relatives, the child-welfare workers delivered the medically fragile, premature infant to a set of foster parents who were in their 70s, the lawsuit said.
The couple was caring for four other foster children at the time, and social workers knew that another foster infant had died in their care, according to the complaint.
After one visit with Z.T., his mother told social workers that the foster parents appeared overwhelmed and that living conditions in the home were unsafe, the lawsuit alleged. County employees declined to investigate, and the foster parents stopped allowing her to visit.
The infant died hours after being placed on his stomach to sleep unsupervised. According to the county’s court filings, the toddler’s death was linked to his premature birth and subsequent medical problems.
He had been in the care of Child Welfare Services for less than three months.
The grieving mother’s lawsuit cited three other cases, contending that the county’s record of training staff and supervising the care of children was inadequate.
The county argued in court records that it was not strictly liable for injuries that occurred in the foster home, and that social workers were entitled to qualified immunity because they had not acted with deliberate indifference to the family’s rights.
The county paid $69,000 to settle the case two years ago. The mother also received $250,000, close to the maximum payout, from the Foster Family Home and Small Family Home Insurance
Fund, her attorney said. The state program works to “provide liability insurance coverage for foster parents related to incidents in providing foster care services.”
More spending, training
Social workers have difficult jobs even under perfect conditions. Cynthia Henderson of the National Association of Social Workers said conditions are rarely perfect.
To do their jobs well and avoid mistakes, social workers need to feel safe working in the field, they need to feel supported by their supervisors and peers, they need manageable caseloads and they need continuous training in the most up-to-date laws and standards, she said.
“All social workers need to have regular professional development, because the laws are always changing, people are changing,” Henderson said. “In some situations caseworkers are used and they don’t have licenses, so the agency needs to provide additional oversight and training, and it needs to be frequently updated.”
Alandria Saifer, a San Diego industrial psychologist who provides executive coaching and managementdevelopment services, said training will not help if managers do not support the instruction.
“The training could be perfectly designed to teach exactly what you want to teach, but if you then send people back to the job and there are no supports for those factors they were trained on, then basically the training was a waste of time and a waste of money,” she said.
One of the county childwelfare department’s goals is to house 60 percent of children they removed from homes with a relative or close non-family member, to minimize their trauma and maintain their connection with family.
But the county has fallen short, in part due to state and federal regulation changes that required additional training, said the county’s 2022 adopted operational plan.
The county system placed 38 percent of its foster children with a relative or a close non-family member last year. That’s down from 2019, when the county placed 44 percent of foster children with a relative or close nonfamily member, and down from 51 percent the prior year and 54 percent the year before that.
The county’s placement percentage was within a few points of the state’s average in each of those years.
After the county’s working group identified a spate of shortcomings across the department and recommended a change in leadership, Giardina was promoted to Child Welfare Services director two years ago.
The working group’s report also included dozens of other suggestions for improving practices and weeding out systemic impediments to effective oversight.
“The repeated themes were that the child-welfare system needs to be transparent, willing to take corrective action when necessary, invest more time and resources into the training of their staff and requires a change in its culture to focus on its outcomes and impact more than policies and statistics,” the report said.
The county has made some system improvements since the Child and Family Strengthening Advisory Board report.
For instance, it revised guidelines for how often child welfare workers should contact children and families during child abuse investigations and after a child is removed.
It also is participating in the “family urgent response team,” a 24-hour statewide hotline where counselors provide support to caregivers and current and former foster youth.
To help child welfare staff stay emotionally healthy, the county is piloting a program in which staff psychologists help employees improve their sleep, set boundaries, improve communication skills and build resilience.
The county’s child-welfare budget for the current year is $400 million, up about $13 million from the previous year. The proposed budget for the new fiscal year beginning July 1 pushes annual spending to $406 million.