Criminal Records Checks for Youth Workers
A Texas court says "yes," Frith v. Fairview Baptist Church, 2002 WL 1565664 (Tex. App.-Dallas 2002)
Article summary. A Texas court ruled that a church had a "self-imposed duty" to conduct criminal records checks on youth workers, because of a policy the church had adopted years before. Because the church violated its own policy in selecting a youth worker without performing a criminal records check, it violated this self-imposed duty. However, the court concluded that the church was not legally responsible for the worker's acts of child molestation because even if the church had conducted a criminal records check it would not have discovered any information suggesting that the worker posed a threat to children.
Many church leaders are wondering if their church should conduct criminal records checks, and if so, on which persons. A recent Texas appeals court ruling addressed criminal records checks of volunteer church workers. The court's decision provides church leaders with some important guidance. This article will review the facts of the case, summarize the court's ruling, and evaluate the relevance of the case to other churches.
A mother alleged that a Sunday School teacher ("John") sexually molested her minor daughter, Katie, on two occasions. One of the incidents allegedly happened during a "lock-in" on church property. During the "lock in," John and the members of his Sunday School class stayed at church all night, watching movies and playing games. Katie claimed that while she was sleeping in the middle of the room, John began fondling her under her blanket. When Katie's mother arrived in the morning to pick her up, she found John sleeping next to Katie, sharing her blanket.
The second incident happened while Katie was helping with the church's food bank. Katie and her mother accompanied John to his mother's home to prepare food for distribution to the needy. John suggested that he and Katie stay behind while their mothers delivered the food. John later confessed that he again fondled Katie while they were sitting on a couch.
John was later arrested for molesting Katie and another child. He pled guilty and was sentenced to twenty years in the state penitentiary.
At the time John began teaching Sunday School at the church, he had a criminal history that included three felony convictions (two for burglary of a building and one for possession of a controlled substance) and five misdemeanors (public intoxication, possession of marijuana, unlawful carrying of a weapon, and two for evading arrest or detention). There was also a protective order issued against him pursuant to allegations by his ex-wife that he had physically abused their child.
The church did not perform a criminal background check on John before allowing him to teach Sunday School, although one pastor testified that they routinely performed such checks on volunteers.
Based on the fact that the church failed to perform both a criminal and civil background check on John, Katie's mother sued the church. She claimed that the church was liable for John's acts of molestation on the basis of "negligent hiring." That is, the church was negligent in not conducting a criminal records check on John before using him to teach a children's Sunday School class, and the church's negligence resulted in Katie's injuries.
A trial court dismissed the lawsuit, and Katie's mother appealed.
The court's ruling
A state appeals court began its opinion by noting that under the doctrine of negligent hiring, the basis of liability is a church's own negligence in hiring or retaining an incompetent worker "whom it knows, or by the exercise of reasonable care should have known, was incompetent or unfit, thereby creating an unreasonable risk of harm to others." A church that negligently hires an incompetent or unfit individual "may be directly liable to a third party whose injury was caused by the employee's negligent or intentional act."
Katie's mother claimed that, under the doctrine of negligent hiring, the church's duty to exercise reasonable care in the selection of its Sunday School teachers included the duty to perform a criminal background check. She insisted that if the church had fulfilled this duty, it would have known John was unfit and created an unreasonable risk of harm to the children in the Sunday School class. She also noted that the church had a policy of conducting criminal background checks on volunteers and employees who would be alone with children, but that it failed to conduct such a background check on John.
The court concluded that "the church had a self-imposed duty … to check the criminal background of persons it put in charge of the children's classes." Since it failed to check John's criminal background, it breached this duty.
However, the fact that the church had a duty to conduct a criminal records check on John before selecting him as a Sunday School teacher, and it breached this duty, did not necessarily mean that the church was responsible for John's molestation of Katie. Rather, the church's duty to inquire into John's criminal background "was but one component of the duty to protect Katie from John's conduct. The existence of a duty to protect is dependent on the type of knowledge the church would have gained from John's criminal record. The issue is whether, if the church had used reasonable care in discovering John's criminal background, it should have foreseen that hiring John could result in his molesting Katie.
The church asked the court to follow a decision by the Texas Supreme Court involving the liability of the Boys Clubs for the molestation of several children by a volunteer worker. The victims' families sued the Boys Clubs organization for negligent hiring, asserting that if it had done a criminal background check, it would have found the molester's two convictions for driving while intoxicated and would not have let him work around children. The court concluded that it was not foreseeable that the molester would molest children simply because he had two convictions for driving while intoxicated. It noted, "we do not believe that knowledge of these convictions would have put a reasonable person on notice that he might be a pedophile." Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472 (Tex. App. 1995).
Katie's mother asserted that John's criminal record was enough to put the church on notice that he was a danger to the congregation, and that if the church had been aware of his criminal background, it would have checked further and discovered the protective order that resulted from his alleged violence toward his daughter.
The court concluded that "to the extent [Katie's mother] argues the church had a duty to conduct a civil background check on John, we reject such an argument. No Texas court has ever imposed on an employer the duty to do a civil background check on prospective employees, and we decline to do so." Further,
while we agree that John's criminal background probably should have called into question his moral fitness as a Sunday School teacher, we cannot conclude John's background would have put the church on notice that he might sexually assault a child. While true that "it is not required that the particular accident complained of should have been foreseen," the injury must be "of such a general character as might reasonably have been anticipated," and "the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen." Here, none of John's convictions were for violent or sexual crimes, and nothing in his background indicated that he might sexually assault a child.
Katie's mother relied on another Texas appeals court ruling in which a court concluded that a nursing home nurse with 56 convictions for theft was "morally unfit," and that the employer should reasonably have anticipated an injury would occur as a result of his hiring. Deerings W. Nursing Center v. Scott, 787 S.W.2d 494 (Tex. App. 1990). According to Katie's mother, this case established that since John was a repeat criminal offender, it was foreseeable that he might harm a child. The court disagreed, "To the extent the Deerings court holds that a general lack of moral fitness gives rise to a reasonable anticipation of a specific kind of criminal activity, we decline to follow it. We conclude there is no evidence in this record that the harm that befell Katie was reasonably foreseeable to the church when it hired John." As a result, Katie's mother failed to establish that the church owed a duty to Katie to protect her from John's criminal acts, and since there was no duty there could be no negligence.
Application to churches and church leaders
What is the relevance of this case to church leaders? Consider the following points:
1. In general. A decision by a Texas appeals court is not binding in any other state, and is not binding on trial courts in Texas in counties over which the court has no jurisdiction (there are 14 courts of appeals in Texas). Further, a decision by a Texas appeals court is not binding on any other Texas appeals court, or the Texas Supreme Court. However, there are some aspects to the court's decision that are instructive for all churches.
2. A duty to perform criminal records checks. The court did not say that churches have a legal duty to conduct criminal records checks on every volunteer youth worker. In fact, it did not even address this issue. Rather, it concluded that the church had a "self-imposed duty" to conduct criminal records checks on volunteer youth workers because it had adopted a policy requiring such checks. In other words, a church that adopts a policy requiring criminal records checks for youth workers imposes a legal duty upon itself to conduct such checks, and a failure to do so can result in liability for a worker's acts of child molestation.
3. Criminal acts. The court concluded that the church was not liable for John's acts of child molestation, even though it breached its self-imposed duty to conduct a criminal records check on him, since had such a check been performed it would not have disclosed any crimes suggesting that John might molest children. John had three prior felony convictions (two for burglary of a building and one for possession of a controlled substance) and five misdemeanors (public intoxication, possession of marijuana, unlawful carrying of a weapon, and two for evading arrest or detention). The court concluded that these crimes simply would not have put the church on notice that John might molest children. In reaching this conclusion, the court relied on a previous ruling in which the Texas Supreme Court ruled that it was not foreseeable that a person would molest children simply because he had two convictions for driving while intoxicated. It noted, "we do not believe that knowledge of these convictions would have put a reasonable person on notice that he might be a pedophile." Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472 (Tex. App. 1995).
4. Neglecting policies. This case illustrates a very important point. While it is certainly desirable for churches to adopt policies on certain matters, any deviation from such policies can result in automatic liability. It is common for churches to adopt policies at the urging of an "advocate" within the congregation. But, if the advocate leaves the church, there may be no one with the same commitment to ensuring that the policies are followed. This is especially true of policies relating to the screening and supervision of youth workers. The church in this case adopted a policy years earlier mandating criminal records checks on all youth workers. For whatever reason, such a check was never performed on John when he applied to work as a Sunday School teacher. As a result, the church violated this "self-imposed duty." However, the court concluded that the church was not liable for breaching this duty because a criminal records check would not have revealed any crimes suggesting that John posed a risk of molesting children.
The important point for church leaders to note is that if John's criminal record would have revealed crimes suggesting that he posed a risk to children, then the church would have been liable for not conducting a criminal records check pursuant to its policy. The lesson is clear. If your church has implemented policies for the screening of youth workers, it is imperative that those policies be followed. Any deviation may result in liability based on a breach of your self-imposed duty. It is a good practice for church leaders to periodically review church policies. Are they being enforced? Do we need them? Are changes needed? Should we abandon some policies? If screening policies are not being consistently followed, then steps should be taken immediately to insure that they are consistently followed, or, appropriate modifications must be made.
5. High-risk church activities. John's acts of molestation occurred during a "lock in" on church premises. A "lock in" is a common youth activity in which members of the youth group spend the night at church, along with a few adult leaders. Such activities expose a church to substantial risk, since it is often difficult if not impossible to adequately monitor youth or adults. Often, people are scattered around the church, engaged in different activities, and much of the church is dark, unsupervised, and easily accessible. The absence of a few persons from one or more of the "groups" would rarely be noticed. Such events are viewed by sexual predators as a tremendous opportunity. Church leaders should reassess whether the risks associated with such events is too great, and whether those risks can be meaningfully reduced.
6. Should our church perform criminal records checks? Should churches conduct criminal records checks on persons (whether volunteers or employees) who work with minors? Here are some important factors to consider:
(1) No court, in any reported decision, has found a church liable on the basis of negligent selection for the molestation of a child on the ground that the church failed to conduct a criminal records check on the molester before using him to work with children.
(2) A few courts have ruled that a church was not liable on the basis of negligent selection for the molestation of a child by a volunteer worker on the ground that the church conducted a criminal records check on the offender before allowing him to work with children. To illustrate, a Georgia court concluded that a private school was not responsible for the alleged sexual molestation of a 13-year-old girl by a male staff member, because it conducted a criminal records check prior to hiring the staff member that revealed no criminal history. Doe v. Village of St. Joseph, Inc., 415 S.E.2d 56 (Ga. App. 1992).
(3) Criminal records checks tend to prove that a church was not negligent in selecting a youth worker. However, churches should not assume that such checks are the only method of screening to be employed. Reference checks, especially from other organizations in which an applicant has worked with minors, are essential.
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