October 26, 2014 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Do child protective service agencies have a duty to protect children? Few would argue that they can protect all children. After all, they’re simply unable to guarantee the safety of every child who may be at risk of harm.
OK, so let’s try another question. Do they have a duty to attempt to protect children they know to be at risk? Surely the answer to that question is “Yes.” Indeed, what else is their job? What else do taxpayers hire them to do? When they receive credible information that a child may be at risk of harm, most people would agree that caseworkers have an obligation to investigate the matter and determine, to the best of their ability whether the child is in danger, has been abused or neglected and, if so, what to do next. Again, I think most people would say that’s pretty much their job description.
But Dave Lopez isn’t one of those people. As this article tells us, Dave Lopez is an Assistant Attorney General for the State of Nebraska and he recently was in court to argue that, contrary to all that’s sensible, the state’s child protective agency has no duty to lift a finger to try to protect a child who’s been reported to them to be in danger (Omaha World Herald, 10/16/14). Really, that’s what he said.
Back in 2009, a woman named Angela Manns called the Department of Health and Human Services in Omaha. DHHS oversees Nebraska’s child protective agency. Manns got a caseworker’s voicemail and left a message.
“It feels like I’m spiraling downward, so I’m concerned for him and me,” Manns told the caseworker in a message.
The “him” was her son, Michael Belitz who was 12 at the time. Manns was concerned about her own sanity and her ability to care for the boy. She said she thought Michael should be placed in foster care.
The caseworker called her back, but Manns didn’t have voicemail, so the caseworker apparently forgot the whole thing. But Manns didn’t. A few days later, she called again, but the caseworker said she should contact a child abuse and neglect hotline. The next thing anyone knew, Manns had strangled Michael in his sleep. She eventually pleaded no contest to a second degree murder charge and was sentenced to 30 – 35 years in prison.
Now Michael’s estate is suing DHHS for its negligent failure to act to protect him. The state has asked the judge to dismiss the suit saying the department owed the child no duty to act on his behalf.
The big question waiting to be answered is whether the state had a duty to act on those warnings to protect Michael from his mother. The state says it didn’t have a duty to protect Michael, while lawyers for the boy say the state absolutely should have intervened after receiving phone calls from Michael’s mother, Angela Manns.
The state’s position is bunk. When DHHS receives reports that a child may be in danger, it’s obviously under an obligation to do what it can to check those out. The idea that an obviously distraught mother can call the agency with the news that she’s “spiraling down,” that she’s concerned for her son and that she thinks he ought to be in foster care can be ignored by the state agency that’s charged by law with protection of children is of no merit whatsoever. The fact is made even clearer by Lopez’s other remarks.
“It would basically require the state to become a guarantor of safety — to provide guaranteed security any time there is even a hint that a child has been abused.”
Again I say “bunk.” A judge’s finding of a duty to act in the situation presented by Angela Manns would be nothing more than a requirement that the agency do its best. In her case it probably would have meant finding out the specifics of why she was calling and probably going to her house to assess the situation. Likely it would also have meant having her psychologically evaluated and Michael placed at least temporarily in foster care or, better yet, with his father who, we now know, had an active interest in the boy and would probably have taken him in.
But of course no one expects, and no judge will ever rule, that the department is required to guarantee anyone’s safety. The duty they have, like everyone else, is to behave in a non-negligent way. For example, no motorist is required to guarantee the safety of other drivers, but all are required to operate their vehicles responsibly. The same should be true of DHHS caseworkers. In their job of protecting Nebraska’s children from abuse and neglect, they have a duty to act in a non-negligent way.
Did the two DHHS employees do that in Michael Belitz’s case? We don’t know, but his estate has the right to present its case to a jury and have it answer that question. Lopez’s notion that DHHS is free to ignore reports of abuse or neglect or the threat thereof strikes at the very heart of the agency’s child protective function.
Another thing Lopez might want to consider is what state authorities said immediately after Michael’s murder came to light. Read about it here (Stop Corrupt DSS, 8/26/09)
Lancaster County Attorney Gary Lacey was appointed by former Gov. Mike Johanns to investigate 30 child deaths in the state. Lacey said the state failed to protect Michael Belitz...
“Yeah, he fell through the cracks. He wouldn’t be dead if he didn’t fall through the cracks,” Lacey said. “There’s no question to me, in this case, something immediate should have happened.”
Hmm. It looks like the state should get its story straight. Lacey certainly thought DHHS owed Michael a duty and that it failed to do it. Now Lopez claims caseworkers could have done nothing and still have been within the bounds of the law.
As if that’s not enough, on the day of her first call, Manns had a history with DHHS. Two incidents were brought to the attention of DHHS, one in 1999 and the other in 2007.
In February, 2007, the critical incident said somebody reported Manns was drinking and being physically and verbally abusive. HHS said those allegations were unfounded. Later that year, Mann’s oldest daughter became guardian for her 15-year-old sister after mother kicked the girl out of the house.
Monday night, an HHS spokeswoman said the department received a series of e-mails from Michael’s older sister indicating she was worried about his well being.
In short, DHHS knew about Manns who was not hiding anything. On the contrary, she was reaching out for help. She didn’t trust herself. Unfortunately, she trusted DHHS who responded to her efforts with none of their own.
The judge in this civil suit should take no time in denying the state’s motion for Summary Judgment. It is not only without merit, it’s without sense. Making an effort to protect children in danger is what the agency exists to do. It’s why the legislature budgets tax money to keep it in operation.
I suspect that sensible people understand this perfectly. I further suspect that Lopez would too if he weren’t so steeped in the bureaucratic mindset that he could see what he’s actually proposing. But sadly, we see that very mindset all too often, particularly in child protective organizations.
Those organizations operate mostly in secret and that secrecy breeds a disdain for the ideas of everyday people. Secrecy encourages a bunker mentality in which everyone within the agency is “us” and everyone else is “them.” Those in the agency are also in the know; those outside the agency are considered incapable of understanding. And it is that very mindset that results in outrageous claims like Lopez’s that the child protective agency has “no duty” to even attempt to protect children.
Those on the outside can see how silly that is. With any luck, so will the judge. A denial of Lopez’s motion might go a long way toward acquainting DHHS employees with the idea that, really, when someone calls to say she’s spiraling downward and her child may be in danger, it’s not enough to call back, find there’s no voicemail and then just forget the whole thing.
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