This time the social worker is shielded

Government shielding Incompetence. Social worker not identified. This is too common to allow to continue.

Social Workers Immune From Suit Over Investigation C.A.

By STEVEN M. ELLIS, Staff Writer

The Third District Court of Appeal ruled yesterday that social workers who released a minor back into her father's custody less than three days after she had been removed because of his PCP-induced behavior are immune from liability in the minor's suit over her father's subsequent attempt to kill her.

Affirming the decision of Sacramento Superior Court Judge Eugene L. Balonon, the court ruled that employees of the Sacramento County Department of Health and Human Services are entitled to discretionary acts immunity under Government Code Sec. 820.2 because state law requiring an investigation of the potential risk to a child prior to such a release imposes a discretionary, rather than mandatory duty, and because the social worker's admittedly "lousy" investigation was nonetheless a "considered decision balancing risks and advantages."

Mijalina Ortega, then 11 years old, was taken into custody by Child Protective Services on Aug. 21, 2001 after her father was found screaming in the street and arrested. Her mother was absent, and tests showed later that her father was under the influence of phencyclidine, or PCP, a hallucinogenic drug that can create profound psychological disturbances for days after ingestion.

A social worker conducted an investigation whether releasing Ortega from custody would place her at risk under state law requiring such an investigation and initial decision within 48 hours, but allegedly failed to look into the father's background or the effect of his PCP use.

Ortega's father had both a history of domestic violence and substance abuse, and Ortega had previously been removed from his custody in 1998 when he was arrested in her presence on outstanding warrants.

Nevertheless, on Aug. 24, the social worker released Ortega into her father's custody.

Four days later, Ortega's father approached her in their shared apartment with nail polish remover and told her to drink it to kill herself. When she refused, he brought her a knife and told her to use it kill herself.

When she again refused, he stabbed her in the heart. Ortega fled, but her father chased her down, pulled her back into the apartment, and stabbed her in the lung.

Ortega fled the apartment a second time and collapsed before receiving medical attention.

The stabbing led to a 22-year prison sentence for her father.

Ortega brought suit in 2005, alleging that the social workers violated mandatory duties imposed by statute and were negligent in releasing her into her father's custody because they failed to determine the facts surrounding her entry into custody, failed to determine the potential for existence of conditions placing her at risk if released, and failed to perform tasks identified in the CPS handbook.

Anticipating that the defendants would assert a defense of discretionary acts immunity under Sec. 820.20which provides that, "[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused" Ortega alleged that the social workers's failures related to operational, ministerial matters not subject to their discretion.

However, Balonon granted summary judgment for the defendants, holding that they were entitled to discretionary immunity because investigations are uniquely discretionary activities with highly subjective decisions.

On appeal, Justice Richard Sims III wrote for the Court of Appeal to affirm Balonen's ruling.

Rejecting Ortega's claims that Sec. 815.6 which requires an investigation and determine potential risk to child imposes discretionary, rather than mandatory duties, Sims wrote:

"[T]he statute and regulation relied upon by plaintiff merely required defendants to conduct an investigation and determine the potential risk to the child. Neither of these are ministerial duties, and both involve a formidable amount of discretion."

Sims also rejected Ortega's claims that the CPS handbook which sets forth specific protocols to be followed in conducting 48-hour investigation set forth ministerial, rather than discretionary duties.

Noting that the social worker had conducted an investigation albeit on "woefully inadequate information" - that was a considered decision balancing the risks and advantages of releasing Ortega, Sims said that "the exercise of discretion invariably entails the collection and evaluation of information."

He continued:

"Thus, the collection and evaluation of information is an integral part of "the exercise of discretion immunized by section 820.2. The distinction urged by plaintiff would eviscerate section 820.2 immunity, because in every case there would have to be a trial on the step-by-step actions which comprised the investigation forming the basis for an exercise of discretion.

"This is an untenable result."

Justices Coleman Blease and Ronald B. Robie joined Sims in his opinion.

The case is Ortega v. Sacramento County Department of Health and Human Services, C054262.