State is liable for abuse of foster children, says Louisiana high court.

When foster parents abuse a child, the department that has legal custody of the child owes him or her a duty of care and therefore may be held strictly liable for the abuse, the Louisiana Supreme Court has ruled. (Miller v. Martin, 838 So. 2d 761 (La. 2003).) The court reversed the appeals court decision granting summary judgment to the state's Department of Social Services.

While citing contrary decisions by courts in Kansas, Montana, New Jersey, and South Carolina, the Louisiana court found that the department's duty to a child in its legal custody is so great that it cannot be delegated to foster parents.

"Our legislature has determined our policy of protecting children is best furthered by the imposition of a nondelegable duty of care upon the department once it obtains custody of vulnerable children," wrote Associate Justice Catherine Kimball. "Unlike the situation present in other states, the imposition of a nondelegable duty is not foreign to out law."

In August 1994, the Jefferson Parish Juvenile Court placed in the custody of the Louisiana Department of Social Services plaintiff Charlene Miller's two children, ages 5 and 7. The department placed the children in the foster care of Matthew and Shirley Martin. Matthew Martin allegedly sexually abused one child and physically abused the other.

Miller sued the Martins, the Department of Social Services, and the Methodist Home for Children, which had a contract with the state to help oversee foster parents. The complaint alleged that the department and the home shared responsibility for the children's injuries because they "fail[ed] to properly screen, investigate, train, supervise, and monitor the foster parents; fail[ed] to investigate reports of abuse from its foster children; and fail[ed] to promulgate policies and procedures to ensure that foster children are not abused by foster parents." The Methodist Home was eventually dismissed as a defendant.

The trial court denied the motion to dismiss the plaintiff's strict liability claims. The department argued that state law does not permit it to be held strictly liable for alleged acts by foster parents against children in their custody, and that it was not the Martins' employer or principal. In denying the motion, the court relied on a state high court ruling, Vonner v. Louisiana. (273 So. 2d 252 (La. 1973).)

In Vonner, the Louisiana Supreme Court concluded that "those charged with the duty of physical care arising out of the legal custody of a child cannot, on the ground that this duty had been delegated by them to another, evade their civil responsibility for the physical abuse of the child caused by the breach of such duty."

The court of appeals, however, found that Vonner suggests that "a negligence standard, rather than one of strict liability, applies to the determination of whether the department is liable in this case." While the appeals court found that the lower court should have granted the motion for summary judgment on the issue of strict liability, it also found that "genuine issues of material fact exist regarding the department's negligence" and therefore "summary judgment on this issue would be inappropriate."

The supreme court disagreed with the appeals court's reading of Vonner on the issue of strict liability, stating that the high court "has previously interpreted Louisiana law to impose vicarious liability on the department for abuse inflicted upon children in its custody by foster parents."

The defense also argued that Vonner was no longer valid because the statute on which the high court had based the decision had been overruled by the passage of the Louisiana Children's Code in 1991.

Revisiting Vonner, the supreme court examined its interpretation of the duty imposed on the department by the state legislature and considered whether lawmakers intended to alter the nature of that duty when they passed the Children's Code. The court concluded that the statutory language allowing the department to enter into contracts with foster parents remains unchanged, and therefore, as it stated in Vonner, "this statute does not authorize the department to divest itself of the responsibility of custody by such contracts."

Furthermore, the court found that "when the legislature enacted the definition of 'legal custody' in the Children's Code and retained the department's authorization to contract with foster parents, it evinced no intent to change the law as interpreted in Vonner.