Butterfield v. Lightbourne and California Department of Social Services

Jan. 3, 2013 — For Immediate Release

Victory for Children in SB 39 Litigation

Bob Fellmeth at CAI, 619-260-4806
Steve Keane at Morrison & Foerster, (858) 314-5474 

Read the Court's Order (pdf)

(San Diego) -- Handing child advocates a sweeping victory in their effort to prevent child deaths, a San Diego superior court judge has struck down regulations issued by the state Department of Social Services that blocked the press and the public’s ability to discover why local child welfare agencies failed to act to prevent a child from being fatally abused or neglected.

Judge Judith F. Hayes ruled that the Department’s regulations were “inconsistent and in conflict with” Senate Bill 39 (Migden), a landmark law enacted to promote and encourage public scrutiny of county child welfare practices when those practices failed to prevent a child from dying, when the county knew about abuse and neglect allegations.

“The judge ruled correctly that the regulations impeded the Legislature’s aim of encouraging public analysis and discussion of local child welfare practices in order to prevent child deaths,” said Steve Keane, an attorney at Morrison & Foerster LLP who argued the case on behalf of the plaintiff.

“Public scrutiny of local child welfare practices when our most precious and vulnerable citizens tragically die is something everyone who cares about the well being of children should embrace,” said Professor Bob Fellmeth, Executive Director of the Children’s Advocacy Institute at the University of San Diego School of Law, co-counsel in the lawsuit. “Everyone — including the public ultimately responsible for the running of government programs —has a moral obligation to prevent children from needlessly dying.”

SB 39 is a law that allows the public to seek to inspect local child welfare documents relevant to what the county knew about a report of child abuse and neglect and what the county did about it. The law strictly forbids any identifying information from being released; the aim is to review systemic policies and practices to test whether they can be improved to prevent future deaths. The law has facilitated public scrutiny and news reporting of systemic child welfare problems throughout the state, but especially in Sacramento and Los Angeles Counties. It was co-sponsored by the Children's Advocacy Institute and the National Center for Youth Law.

The lawsuit succeeded in overturning regulations contrary to the intent of the legislation that would limit public information about the causes of these deaths.  Ed Howard, legislative advocate for the Children's Advocacy Institute, remarked that "it is understandable that social workers and others do not want to be unfairly blamed for a death they failed to prevent, and we know that hindsight is always 20-20, but all concerned need to give way to the public's right to know because sometimes that hindsight allows us to improve decisions to remove or to leave in place — and to prevent future deaths."  The lawsuit pointed out that the rules excluded deaths caused by individuals such as the mother’s current boyfriend, the babysitter, the child care provider or anyone other than the parent/guardian.  The court granted the writ as to this and also to the three other disclosure limitations that the rules imposed contrary to the intent of SB 39 that they purportedly implemented.  These other challenged limitations included reporting only deaths where directly caused by an abuser through a single act or event. The petitioners argued that a coroner could conclude that a child died solely from wounds suffered from immediate abuse and neglect, but that the reporting requirement properly applied where earlier abuse and neglect may have contributed substantially to the death. The petition and granted writ adopts the broader causation interpretation to allow public examination of factors that lead to them.  

Elisa Weichel, CAI administrative director and staff attorney, noted that "CAI issues regular national reports on compliance by all fifty states on the federal requirement (in the Child Abuse Prevention and Treatment Act) that information about deaths and near deaths be publicly disclosed"  (see www.caichildlaw.org).  California's grade declined based on the DSS rules and assuming state compliance with the petition, may move up substantially and closer to compliance.  Rob Butterfield, the plaintiff and a co-founder of the Child Abuse Prevention Foundation of San Diego County (now known as Promises2Kids), noted that "the state still has not adopted law and regulations to address properly the 'near deaths' from abuse reporting requirement of federal law.  After compliance here, that is properly next on the list."

View the court's order (pdf)



September 14, 2011                                                        

Bob Fellmeth, Elisa Weichel, Children’s Advocacy Institute, (619) 260-4806
Steve Keane, Morrison & Foerster, (858) 314-5474                   
Ed Howard, Children’s Advocacy Institute, (916) 844-5646



Lawsuit Challenges Regulations That Limit Information
That Could Lead To Life-saving Reforms

View Filed Petition (pdf)

San Diego, CA – Child advocates today sued the California Department of Social Services in San Diego County Superior Court, seeking to overturn regulations they say unlawfully allow counties to keep secret the possible causes of child deaths occurring when a county had an open child protective services file on the child.

A review of July to December 2006 child deaths by the University of San Diego’s Children’s Advocacy Institute found that of 53 child abuse/neglect fatalities reported, 41 (82%) had a history with child protective services and of those 28 (53%) had a history that was specifically related to the child fatality.

The suit was filed by Robert Butterfield, a Founder Emeritus Board Member of Promises2Kids (formerly known as the Child Abuse Prevention Foundation of San Diego).  With the Institute and the law firm of Morrison & Foerster serving as counsel, the lawsuit alleges the regulations unlawfully block disclosure of key, child death-related documents by:

  • Requiring a coroner to decree with complete certainty that a particular incident of abuse or neglect killed the child as a pre-condition to disclosure.  If a county knew a child had a lengthy history of malnourishment, left the child with her parents, and the child later dies on the playground, key county documents remain secret if the autopsy concludes that the immediate cause of death was heat exhaustion.
  • Requiring as a pre-condition to disclosure the police to be consulted about whether documents should be released, when the statute says only District Attorneys responsible for proving cases in court are to be consulted.   This regulatory requirement endures even though the Department has conceded it is illegal.
  • Requiring that documents be kept secret no matter how much the county knew about the risks to the child if the child happens to die in a day care facility that is not located in a residence.
  • Requiring as a pre-condition to disclosure the child to have been killed by the parent, guardian, or foster parent in whose home the child was residing at the time of death.  This means documents revealing what happened when live-in boyfriends or grandparents kill children are kept secret. The Department’s own 2009 data show that the parent/guardian was identified as the alleged perpetrator in only 63 percent of cases.  SeeCalifornia Department of Social Services, California Fatality and Near Fatality Annual Report, Calendar Year 2009 (May 2011) at 23. 

“The State Department of Social Services should be on the side of shining a light on what happens when kids die on a county’s watch,” said Butterfield.  “Instead, the Department has acted to keep parents, relatives, and the community that pays the county’s bills, in the dark about whether a reform of county operations might prevent future child deaths.”

Bob Fellmeth, Price Professor of Public Interest Law at the University of San Diego School of Law and the Founder of the Institute, said, “the Department’s priorities are exactly backwards. In implementing this child safety law, the Department should be demanding the maximum transparency and accountability from counties.  It shouldn’t be allowing counties to keep its operations secret, especially when child deaths are involved.”

The lawsuit seeks to enforce Senate Bill 39, enacted in 2007.  The bill says its intent is to “promote public scrutiny and an informed debate of the circumstances that led to the fatality thereby promoting the development of child protection policies, procedures, practices, and strategies that will reduce or avoid future child deaths and injuries.” 

According to the Department, more than 100 California children die each year due to abuse and/or neglect.  SeeCalifornia Department of Social Services, California Fatality and Near Fatality Annual Report, Calendar Year 2009 (May 2011) at 5.