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Currents - Nov./Dec. 2012 - Legal Advocacy for Child Welfare Workers and Same-Sex Couples
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Legal Advocacy in Court for Child Welfare Workers and
Same-Sex Couples

By Sherri Morgan, MSW, JD, NASW Associate Counsel, Legal Defense Fund and Office of Ethics & Professional Review

Seeking Qualified Immunity for Case Workers in Exercise of Their Duties

The NASW, New York City Chapter is advocating within the appellate courts in two cases addressing significant legal and social policy matters. In City of New York v. Southerland, NASW and the New York Chapters filed an amicus curiae (“friend of the court”) brief on September 17, 2012 in support of a child protection caseworker who removed abused and neglected children from their father’s home and was later sued by the family. The Second Circuit Court of Appeals’ decision, which opened the door for personal liability for monetary damages against the caseworker, is being appealed to the U.S. Supreme Court. The case addresses the right of child protection workers to qualified immunity in the exercise of their duties which were carried out after obtaining a court warrant and consultation with a supervisor, and whether children who were protected from abuse and neglect can challenge the procedures employed to protect them. It involves a search warrant which erroneously named different children than those who were eventually found neglected in the home and the reasonableness of the caseworker’s conduct in starting a search for a runaway teen at the current address of her legal parent. NASW’s brief argues that qualified immunity from lawsuits against caseworkers is necessary for states to effectively implement the Child Abuse Prevention and Treatment Act (CAPTA) and removing qualified immunity will chill child protection workers’ efforts to identify and prevent harm to children. NASW’s brief was filed through the pro bono efforts of a legal team from Debevoise & Plimpton, LLP in Washington, DC. The New York Public Welfare Association also joined NASW on the brief.

 

Assuring Equal Protection for Same-Sex Couples

A decision was issued on October 18, 2012 in a second case with New York City Chapter involvement, Windsor v. United States. The U.S. Court of Appeals for the Second Circuit held that the federal Defense of Marriage Act (DOMA) is an unconstitutional violation of equal protection. The appeals court concluded that discrimination against homosexuals required heightened judicial scrutiny and found that “DOMA’s classification of same-sex spouses was not substantially related to an important government interest.” NASW and the New York Chapters had earlier joined with the American Psychological Association in filing an amicus brief in Windsor arguing that homosexuality is within the range of normal human sexuality, that same-sex couples are effectively raising children and that denial of federal recognition to legally married same-sex couples stigmatizes them. Windsor is one of three DOMA cases which may end up in the U.S. Supreme Court. These are discussed in more detail in a NASW Legal Defense Fund article, The Defense of Marriage Act (June 2012), available to NASW members at https://www.socialworkers.org/ldf/legal_issue/2012/June2012.asp.

Amicus briefs for NASW-supported cases are available at www.socialworkers.org/ldf/brief_bank.

 

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