Justice denied: How the law can shield CPS from failing abused kids

Children are powerless to protect themselves against sexual abuse. They can only endure the unimaginable pain and confusion of these acts while being forced to carry a lifetime of emotional and psychological suffering, reliving the memories and trauma of their abuse. One of the hardest things for any victim to do is come forward. But it is even harder to face the grueling unforgiving process of disclosure.

Disclosure in sexual abuse cases is uncommon, and when it happens, children rely on those entrusted to protect them. Some are lucky enough to be believed - others are not. But what happens when the unbelieved are in the custody of Child Protective Services (CPS) and CPS does not investigate disclosures of abuse?

If the abuse occurred prior to the enactment of the Child Abuse and Neglect Reporting Act (CANRA) in 1980 (Penal Code §11166 et seq.), and the social worker did not fail to perform a mandatory duty (Gov. Code § 815.6) but rather made a discretionary choice not to investigate, then the child was at the mercy of both the social worker's interpretation of their disclosure and the court's interpretation of the social worker's decision during later litigation.

In K.C. v. County of Merced (2025) 109 Cal. App.5th 606, the court of appeals affirmed the dismissal of a lawsuit against Merced County following the lower court's sustention of a demurrer. The court held that a social worker's choice not to investigate a child's sexual abuse report while in foster care fell under discretionary immunity and that discretionary immunity and derivative public entity employer immunity applied to the social workers' decisions regarding a recipients' reports of abuse in foster homes.

K.C. concerns discretionary and derivative immunity at the demurrer stage of proceedings. Generally, a court initially determines whether a defendant owes a duty to a plaintiff before it determines whether the former is immune ["duty before immunity" doctrine] (See Caldwell v. Montoya (1995) 10 Cal.4^th 972, 977.) However, the court may elect to proceed directly to the immunity issue on grounds of expediency and judicial economy (Cruz v. Briseno (2000) 22 Cal.4^th 568, 572) as the K.C. court did.

Given the policy considerations in child sexual abuse cases, the vulnerability of children, and the early stage of investigation at the demurrer stage, should courts apply the two-part analysis laid out in D.G. v. Orange County Social Services Agency (2025) 108 Cal.App.5^th 465? This analysis first determines if the decision at issue is discretionary rather than ministerial, and second, whether the employee who made the decision actually reached a considered decision, knowingly and deliberately encountering the risks that gave rise to plaintiff's complaint, to determine if discretionary act immunity applies to ensure justice does not cede to expediency and judicial economy.

Discretionary immunity requires a showing that the specific conduct giving rise to the suit involved an actual exercise of discretion, i.e., a conscious balancing of risks and advantages. (Caldwell, supra, 10 Cal.4^th at p. 983.) However, courts do not require a strictly careful, thorough, formal, or correct evaluation, and even lousy decisions are protected, no matter how horrible the outcome. (Christina C. v. County of Orange (2013) 220 Cal.App. 4^th 1371, 1381.) However, applying the analysis in D.G. provides victims with the opportunity for courts to determine if social workers made a considered decision, knowingly and deliberately encountering the risks that give rise to their complaints prior to dismissal, despite the outcome.

The evaluation of information is an integral part of the exercise of discretion immunized by Government Code section 820.2. (Conway v. County of Tuolumne (2014) 231 Cal.App.4^th 1005, 1015.) [police officer's decision "to investigate or not investigate" a vehicle accident immunized by Gov. Code § 820.2].) However, once the employee undertakes to render such services, he or she is not immune for the negligent performance of professional duties that do not amount to policy or planning decisions. (Ibid.)

The court stated decisions to undertake investigations or corrective actions are discretionary for purposes of immunity under Gov. Code section 820. While a showing that the specific conduct giving rise to the suit involved an actual exercise of discretion, a strictly careful, thorough, formal, or correct evaluation is not mandatory. But where does this leave children who rely on social workers for protection?

CPS agencies are subject to certain mandatory duties codified in the Welfare and Institutions Code and Department of Social Services Division 31 regulations. These regulations mandate how and when County welfare departments must respond to any report of danger to a child (Welf. and Inst. Code, § 16501, subd. (f); California DSS Child Welfare Services Manual § 31-101.3, 31-120, 31-125, and 31-125.2.  They also specify the conclusions that must be drawn (Pen. Code, § 11165.12), and the remedial action that must be taken (California DSS Child Welfare Services Manual § 31-125.5 and 31-200). Specifically, CANRA creates comprehensive reporting schemes aimed towards protecting children from abuse and neglect; failure to comply with CANRA is a misdemeanor. The court notes that K.C. did not cite any laws existing at the time of the alleged incidents compelling social workers responding to childhood sexual assault claims to achieve a particular result or left them "no choice" as to how to handle such claims.

Although K.C. filed a letter of supplemental authority informing the court of D.G. v. Orange County Social Services Agency, supra 108 Cal.App.5^th 465 (holding discretionary immunity did not apply where no evidence suggested the social worker exercised discretion), the Court found it to be inapposite as it concerned whether discretionary immunity was a proper basis for granting a motion for summary judgement.

Where does this leave victims who rightly deserve justice? If their abuse occurred prior to the enactment of CANRA and the government employee performed his or her mandatory duty, then victims are at the mercy of both the social worker's evaluation of their disclosure and the court's interpretation of that evaluation, at least at the demurrer stage of the proceedings.