Child protective services fails to protect. Who is to blame?

Law Review

By Jim Porter
May 8, 2008

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This tragic case will make you sad. With those words, the Court of Appeal in Sacramento began its opinion about the tragic mishandling of 11-year-old Michaelina Ortega’s case.

PCP Arrest
On August 21, 2001, police arrested Michael Ortega because he was screaming uncontrollably in the street and violently banging on a refrigerator. A urine test later showed Ortega was under the influence of PCP.
Child Protective Services of Sacramento County (CPS) took Ortega’s 11-year-old daughter Michaelina into protective custody.
A rookie CPS social worker conducted a woefully inadequate investigation and returned Michaelina to her father’s home three days later. Four days after that Ortega stabbed Michaelina in the heart and lung. The stabbing was completely predictable given Ortega’s extensive rap sheet. CPS and the social worker claimed immunity from liability.

Social Worker Drops Ball
Child Protective Services has 48 hours to investigate and make the initial decision whether to release a child from protective custody. The social worker, who had started at CPS two weeks before being assigned the case, handled only one case before Michaelina’s.
The CPS employee failed to investigate what controlled substance was in Ortega’s system where he was arrested, which turned out to be PCP, failed to determine Ortega had been a regular user of drugs and alcohol, failed to determine Ortega was under the influence of PCP when Michaelina was returned to him, failed to learn Michaelina had been physically abused by her father, and finally, failed to learn that Ortega had once been ordered by a court not to have contact with his other children based upon his abuse of alcohol and drugs and his violent propensities.
She also failed to discover he had an extensive criminal record including 30 prior convictions. Thirty. The social worker failed even to discuss Michaelina’s case with her supervisor. She “investigated” and promptly released Michaelina to her no-good father.
Absolutely unbelievable. We can only hope the social worker is exploring other lines of work. Maybe something on an assembly line.

The Stabbing
On Aug. 28, seven days after Ortega’s arrest, Ortega approached Michaelina with nail polish remover and told her to drink it to kill herself. She refused and he stabbed her in the heart. The stabbing led to a 22-year prison sentence for Ortega — hardly enough.
Remember what Justice Sims wrote in the first line of his opinion, “This tragic case will make you sad.”

The Law
Michaelina’s guardian sued the social worker and Child Protective Services of Sacramento County. They defended based upon the public employee immunity statute, which states that “a public employee is not liable for any 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.”
Additionally, California law provides that “a public entity is not liable for any injuries resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” Could it be the social worker and CPS are off the hook and immune from Michaelina’s lawsuit?
If the social worker is immune, so is CPS.

Ruling
The Court of Appeal ultimately found the social worker and CPS immune based on those California statutes and based upon court rulings from the California Supreme Court, who admonishes lower courts not to second guess policy decisions of other branches of government, including second-guessing decisions and imposing civil liability upon public servants when their discretionary decisions turn out to be wrong.
The social worker “exercised her discretion” when releasing Michaelina to her drug-addicted father’s care and is protected under the public employee immunity laws, as is CPS. A harsh result but consistent with California law.

Jim Porter is an attorney with Porter· Simon, with offices in Truckee, South Lake Tahoe and Reno. He may be reached at porter@portersimon.com or at the firm’s Web site www.portersimon.com.  
© 2008