Family Law: STRATTON V. KENTUCKY CABINET FOR FAMILIES AND CHILDREN (SCOKY; 1/19/2006)

Investigation by social workers into alleged abuse are “simply discretionary, and therefore, there was no waiver of immunity”, affirming the Court of Appeals which upheld the Board of Claims’ dismissal of an action taken by the estate of the deceased minor child who had been murdered by her mother’s live-in boyfriend.  The Franklin Circuit Court of Appeals found that the duties of the Cabinet were ministerial and that governmental immunity was waived and the Court of Appeals reversed that decision.   Administrative regulations do outline the types of individuals to be interviewed when an allegation of child abuse is made.  Several allegations of abuse had been made concerning this child and at one point the child was removed from her mother’s custody.  Even at the time of the removal, however, no evidence of the actual abuser was found.  The mother cooperated with the Cabinet’s requirements and custody was returned to her.  After the return, more allegations of abuse were made to the Cabinet but these allegations included information from the child that her injuries were the results of accidents; when the regular case worker did visit two day after the last report, on a regularly scheduled visit, he limited his interviews to the child and her natural mother, both of whom claimed the injuries were accidentally inflicted by a neighbor child during play. The social worker’s visit was on May 17, 1994, and the child was murdered four days later.  The very first physical abuse, resulting in the temporary removal from the mother, was February 11, 1994.   The Court of Appeals opinion explains that the first decision is to determine whether investigation of child abuse is ministerial (applying routine duties) in which the agency has no discretion or discretionary (involving policy-making decisions and significant judgment).  Discretionary acts cannot be a basis for recovery under the Board of Claims Act.  Which witnesses to interview, which witnesses to believe, interpreting the information received, etcetera,  are acts of Cabinet social workers which require significant judgment and discretion.  The Franklin Court of Appeals had relied on the case of Collins v Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet, 10 S.W.3d 122 (Ky. 1999).  The Supreme Court distinguished Collins  which concerned the death of a child who drowned in a flooded drainage culvert because the culvert was too small to handle the expected rain run-off and found the negligent performance of  Natural Resources actionable under the Board of Claims Act; the majority in that case said that the inspection of drainage culverts to see if they conform to regulations would only require mathematical engineering calculations and no statutory interpretation, discretionary judgment or policy-making decisions.