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Child Welfare Agency’s Potential Malpractice Liability for Violating Parental Rights

Although intervention by a child welfare agency is sometimes required for the protection of a child, sometimes the investigation may become over zealous or slanderous in nature. Investigating claims that a child is the subject of mistreatment is difficult. The agency should attempt to investigate all claims made with a balanced outlook. However, in some instances, the agency does not fairly investigate the parents and improperly places the child into protective custody.

If the caseworker determines that the child is in need of protective services and the parents are unwilling to cooperate, the caseworker must determine whether the danger to the child is so great that treatment is warranted. Parental treatment may include:

  • Counseling.
  • Other social work services.
  • Involuntary home supervision.
  • Foster care.
  • Temporary removal of the child from the home.
  • Termination of parental rights (in extreme circumstances).

The need to protect the child from neglect or abuse does not in anyway justify violating parental rights. Either the agency itself or the caseworker may be found liable for malpractice for violating parental rights. There are basically four categories in which violations occur. These categories are:

  • Slanderous investigation. Caseworkers must not overstep the bounds of permissible investigation.
  • Improper removal of a child. If the removal of the child was made pursuant to a court order, the agency or caseworker would not be held liable. However, if the child is removed in the case of an emergency, the caseworker or agency may be liable for malpractice.
  • Malicious prosecution. More often than not, the agency does not seek court intervention. Court intervention is sought if the parents are not cooperative.
  • Confidentiality violations. An improper disclosure of information can result in confidentiality violations. If the information disclosed is disclosed to the wrong person or the information is incorrect, a confidentiality violation may have occurred.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.

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