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Justice for abused foster children: suing state agencies as third parties under the Civil Rights Act can provide relief for children placed in harmful circumstances.

When the government removes a child from parents who are abusive, neglectful, or otherwise unfit custodians, it must--at a minimum--place the child in a safer physical environment. But often that doesn't occur. Foster care agencies all over the country place many children in foster homes and institutions where they suffer horrendous abuse and sometimes even die at the hands of their purported protectors. (1)

The incidence of abuse in foster care has increased dramatically over the past 30 years. The increase can be traced in part to the growing number of children in foster care; it has more than doubled since 1982, to more than 560,000. (2) As foster care agencies scramble to find more homes for the influx of children, they cut corners and certify foster parents who should not be permitted to care for children. They place children with families who cannot meet their needs, and fail to supervise the children once they are placed in homes.

Other agency deficiencies include failure to recruit a broad range and higher number of foster placements, not having an accurate system for tracking past allegations of abuse, and not hiring and training qualified workers who are able to screen homes and monitor children. As a result, some children are sent to live with abusive foster parents, and the abuse may continue unheeded by caseworkers whose caseloads are far too heavy.

Foster care agencies have failed children, at least in part because of a lack of accountability. Normally, when someone is injured by another's wrongdoing, he or she will sue the tortfeasor. Abused foster children too often lack that option. They already have three strikes against them when they seek redress in state court: state immunity, no adults to sue on their behalf, and sealed records.

All states, as sovereigns, were historically entitled to immunity from suit. Many still provide immunity, sovereign or otherwise, blocking all claims by abused foster children and depriving them of any state tort remedy. (3) State courts recognize the injustice of such provisions but feel powerless to remedy the situation. As the New Mexico Supreme Court stated, "Correction of whatever inequity exists in such a situation is best left to the legislature." (4)

Some state laws prohibit noncustodial parents from suing on behalf of their own children. The state places children in foster care because their parents cannot care for them or have abandoned them. Parents who cannot even provide for their children's basic needs may not be able to retain a lawyer and file a suit if the children are abused.

Foster care agencies that are not accountable to the courts are often also insulated from public accountability. All states have laws that make foster care records confidential. These laws, meant to protect foster children's privacy, unintentionally protect foster care agencies from public scrutiny. Foster care agencies have misused the laws to protect themselves by prohibiting foster children (and their attorneys) from accessing their own records.

Federal remedy

Where state suits might be hindered, the federal court system offers a damages remedy for abused foster children. They can sue a foster care agency and its staff for violations of their constitutional rights--specifically, their rights to safe conditions and protection by their government custodians from harm inflicted by third parties, which include foster parents and members of foster families. (5)

When an agency, official, or government employee violates an individual's constitutional rights, [section] 1983 of the Civil Rights Act allows that person to sue for deprivation of those rights by a party acting "under color of state law." (6) Accordingly, if a child in foster care is injured by a third party (rather than by an employee of the agency or government), the caseworker and even supervisors assigned to the case, as well as the agency, may be held liable.

Since state immunity laws vary, and state statutes could allow other causes of action based on the failure to adequately investigate abuse allegations, attorneys should research relevant state and federal law before deciding whether to file a state or federal claim. Section 1983 claims require proving move than mere negligence to establish liability; however, there are a number of advantages to pursuing a federal suit.

One major reason to file a civil rights lawsuit rather than a state tort claim in federal court is that state law immunity provisions, including sovereign immunity, do not apply to [section] 1983 actions. (7) Congress enacted the section in part to overcome state laws that immunized government employees who violated constitutional rights. Thus, even foster children who live in states that provide immunity to their foster care agencies can sue in federal court.

Section 1983 does include its own immunities, but they are not insurmountable. Civil rights defendants are entitled to "qualified" immunity for violating constitutional rights only if the law was not clearly established (8) or if their actions were objectively reasonable (the same negligence standard that applies in personal injury law). (9) At present, the explicit precedent has been established in eight of the circuits. (10) The same law should apply implicitly in the other circuits.

Agency liability

When children are abused in foster care, agencies are quick to blame the assailants, usually the foster parents themselves. However, the fact that a foster parent inflicted the injury does not automatically insulate the agency from liability. Liability generally falls into three categories: inadequate screening of prospective foster parents, placing children in inappropriate foster homes, and failing to supervise the children adequately after placement. The agencies may be held liable for affirmative misconduct, such as ignoring obvious danger signs, or for failing to train of supervise employees properly, when that failure leads to the employees' malfeasance.

States, and sometimes counties, license foster homes through their own foster care agencies, or occasionally through a contracted, private agency. A social worker does a home study, interviews the prospective foster parents, and evaluates both the size of their home and their ability to care for children.

To find good foster parents, an agency must carefully investigate prospective homes--or risk licensing unsuitable people. (11) As part of the investigation, federal law now requires criminal background checks of prospective foster parents. (12) But before that requirement was added in 1997, agencies that routinely failed to conduct such checks granted licenses to people who had been convicted of violent crimes against children.

The Eighth Circuit, for example, focused on the fact that a Missouri agency failed to check criminal records before placing four children with a man who previously had been convicted of rape and murder. It held the agency liable to the children after he raped them. (13)

Despite its obvious benefits, the background check requirement applied only prospectively, requiring agencies to check criminal records of only those who applied to become foster parents after it was enacted. No comparable federal statute requires criminal record checks of foster parents who applied before 1997.

A foster care agency's responsibility continues after it licenses foster parents. The next step is matching a foster home and a particular foster child. Severe problems, including abuse, can occur when this step is mishandled.

Usually, the agency will license a foster home for a specific number of children--the maximum number the foster parents can handle. The license may also specify whether the foster parents are trained to care for handicapped children. When an agency places more children in a home than the license permits, or puts handicapped children into a home licensed only for healthy children, the chance of injury rises.

That was the situation for Marcus Smith, who was not yet four when he was beaten unconscious by the 14-year-old son of his foster mother. The beating cracked Marcus's skull, causing permanent brain damage, and for the next five years he had to wear a helmet to protect his brain, parts of which were covered only by skin, not bone.

The foster care agency had placed three children with special problems--Marcus, his twin sister, and their six-year-old brother--in the home of a pregnant woman who had two teenagers with well-documented behavior problems. She had asked that the agency not place special-needs children, or more than one boy, in her care. She dealt with the stress of three foster children who had multiple problems by escaping: She went out almost every afternoon, leaving the young foster children alone with her son and daughter. On the day Marcus was assaulted, she had been gone for more than six hours.

After placing a child in a foster home, the foster care agency cannot simply walk away from the child. The agency and its staff have an ongoing responsibility to ensure that the foster parents are treating the child properly and obeying state and agency statutes, rules, and regulations designed to protect foster children. Sadly, agencies too often ignore that responsibility.

Marcus's mother and grandmother had complained to the foster care agency about suspected abuse, but the agency did not send anyone to investigate. While Marcus lay in a coma in the hospital after the beating, agency caseworkers reported to the city Administration for Children's Services that Marcus was in good health. The situation was uncovered only when the hospital reported the incident to child abuse investigators and the police.

Agency workers should visit foster homes, unannounced, on a regular basis to gather information on the safety of the children in those homes. (14) Visits also remind the foster parents that they are under the supervision of a government agency and must obey foster care rules. When agency workers fail to make visits required by federal law, the laws of most states, and professional standards--or fail to perform any of their other statutory duties--they send an implicit message that foster parents can disregard the rules.

If the foster care agency staff had visited Marcus's foster home on a typical afternoon, they would have found Marcus and his siblings alone with the teenaged children of the foster parents, an obviously dangerous situation even if the son's violent proclivities were not known. The agency's failure to visit for many months allowed the situation to continuo and finally explode.

The foster care agency that placed Anna Doe--who was physically and sexually abused by her foster father--was even less attentive. (15) Anna's caseworkers did not visit her for over a year. When caseworkers did visit, they failed to inspect Anna's bedroom. Had they done so, they would have seen that the foster father slept on a cot there rather than in the master bedroom with his wife. Those sleeping arrangements not only violated state foster care regulations, but also raised a red flag for sexual abuse.

From age 11 to 17, Anna continued to be molested. It wasn't until the father filed for divorce that the foster mother told the agency he had been abusing Anna. To cover up his misdeeds and destroy Anna's credibility, the foster father claimed that the girl was regularly engaging in sex orgies with classmates in empty classrooms during school hours. Agency supervisors believed him and ignored the principal of Anna's school, who said that the overcrowded school had no empty classrooms and that if any children had left their assigned classes during school hours, their teachers would have noticed.

The agency even ignored its own psychiatrist, who interviewed Anna and told the agency director that she was probably being sexually abused by the foster father and should be removed from the home immediately. The director ordered that those suspicions not be disclosed to anyone.

Trusting abusive foster parents is not the only way agencies fail to adequately investigate signs of abuse. Other systemic problems such as poor worker training, high worker caseloads, poor supervision, and a shortage of good foster parents make agencies reluctant to remove children from of close substandard foster homes.

Case considerations

Not all children abused in foster care suffer injuries as great as Marcus's and Anna's. However, even less damaging abuse or neglect can leave permanent scars. By bringing suits on behalf of our most vulnerable children, attorneys may not only recover compensation for the injured plaintiff but also warn foster care providers that incompetence and apathy will not be tolerated.

To encourage attorneys to file civil rights cases, Congress enacted 42 U.S.C. [section] 1988, which requires losing defendants to pay plaintiff attorney fees--which do not depend on the amount of recovery. (16) Instead, a court bases the fee on a "lodestar" amount, calculated by multiplying the number of hours counsel reasonably expended by a reasonable hourly fee. The fee statute also deters defendants from engaging in stalling techniques, such as making meritless motions and obstructing discovery, since the defendant must be prepared to compensate the plaintiff attorney for every additional hour spent on the case.

The Federal Rules of Civil Procedure also offer abused foster children a smoother path in federal court than they would have in many state courts. To file a suit, the rules require only a complaint that is sufficient to put the defendant on notice of the claims against it, without the factual specificity that many state rules of procedure require. (17)

The plaintiff can draft a "bare bones" complaint without fear of dismissal, which is important because many abused foster children have only minimal information about their claims. For example, Marcus, who was eight when the suit was filed, didn't even remember the incident--at age three years and ten months--in which he was knocked unconscious, and his brother, who was six at the time, could provide only a bit more detail. His mother and grandmother had no knowledge of what had been happening to Marcus in foster care.

His foster care agency claimed confidentiality and refused to produce its records to Marcus's attorney before suit was filed. It is certainly not unusual for a prospective defendant to refuse to turn over documents to a person considering a lawsuit against it. But because agency records are frequently exempt from freedom-of-information requests, abused foster children may have to commence an action without having much concrete information to go on.

Once the lawsuit has begun, however, the plaintiff will have the benefit off the federal courts' liberal discovery rules. Federal law governs confidentiality in federal civil rights actions; state privilege statutes do not apply in federal court. (18) Agencies that might be able to hide behind privilege statutes in state court litigation will have to disclose their records to plaintiffs in federal suits. And because of young plaintiffs' lack of knowledge, agency records often are what makes the case. Foster care agencies are required by federal law and good social-work practice to keep comprehensive records on their foster children. For example, Marcus's records disclosed that his foster mother was not a competent caretaker and that caseworkers had not visited the foster home. Anna Doe's records documented the agency psychiatrist's suspicion of abuse, as well as infrequent caseworker visits.

Discovery is particularly important in civil rights litigation because of the heightened standard of liability under [section] 1983. This standard is not the simple negligence standard of tort law, (19) but a stricter one characterized variously as gross negligence, "deliberate indifference," (20) or "such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment"--essentially a gross negligence standard. (21)

Most states have specific statutes, regulations, and/or rules for supervising and protecting foster children. When an agency violates these rules, a jury may infer that the agency was deliberately indifferent to the safety of the foster child. In both Marcus's and Anna's cases, agency workers failed in their clearly specified obligation to visit the foster home at regular intervals. In Anna's case, agency workers also failed in their clearly specified obligation to report suspicions of child abuse to state authorities. The Second Circuit found those failures were sufficient for Anna's case to reach a jury.

Whether a plaintiff raises state tort claims, constitutional claims, or both, similar fact issues may arise. The agency may deny that the abuse happened, and there may be no medical evidence. In that event, it will be hard to persuade the jury that the child was abused. In cases of sex abuse, a child may have suffered abuse silently for many years, and the agency may argue that no child could have endured such appalling abuse for so long with out mentioning it to an adult.

In Anna's case, the jurors held Anna's stoicism against her when assessing damages, believing incorrectly that she had recovered from the emotional injuries six years of sexual abuse inflicted. It was crucial for an expert on sex abuse to testify about why victims do not disclose their abuse. (22) Anna was also fortunate to have an eyewitness, another foster child in the same home, who was willing to come forward and testify.

Expert testimony is also important to plaintiffs attempting to show that an agency failed to adhere to professional standards. (23) The professional standards in a series of handbooks by the Child Welfare League of America are a good starting point for attorneys trying to assess the strength of a case. (24) An expert can review the agency documents with a practiced eye and testify in a particular case about the areas in which an agency's behavior was substandard.

Proving causation may be the most difficult task facing the plaintiff if the defendant did not actually inflict the injuries. Because the foster parents (or others in the foster home) perpetrated the abuse, agencies often present a "how were we to know?" defense, claiming that the plaintiff should be suing the foster family. Civil rights law permits the assessment of liability against the foster care agency when its acts or omissions were "a substantial factor" in the abuse. (25) That standard is sufficiently broad to give plaintiffs the chance to show that an agency's omissions led to the abuse from its inception or, at a minimum, led to continuation of the abuse when the agency failed to intervene.

Representing abused foster children is fraught with procedural and substantives hurdles. Despite those obstacles, these children can and do obtain recompense as long as they have good trial lawyers to champion their cause.


(1.) See, e.g., Andrew Beadle, Florida: Collaboration Finds Missing Youths, YOUTH TODAY, Feb. 2003, at 10; Richard Lezin Jones & Leslie Kaufman, Foster Care Secrecy Magnifies Suffering in New Jersey Cases, N.Y. TIMES, May 4, 2003, at A1; Glenn E. Rice, Former Foster Mother Sentenced to Five Years' Probation in Girl's Death, KANSAS CITY STAR, Jan. 24, 2003; Mary Jo Patterson, Special Unit of DYFS Is Called Failure, N.J. STAR-LEDGER, Mat 23, 2003 (quoting Marsha Robinson Lowry, executive director of Children's Rights, Inc.). See also Winning for Children, TRIAL, Feb. 2002, at 58 (interview with Marsha Robinson Lowry and Ira Lustbader).

(2.) See U.S. Dep't of Health & Human Servs., National Foster Care and Adoption Information, available, at tables/sec11gb/national.htm (last visited Aug. 28, 2003).

(3.) Dalenko v. Wake County Dep't of Human Servs., 578 S.E.2d 599 (N.C. 2003); Pickett v. Washington County, 572 P.2d 1070 (Or. Ct. App. 1977); Thomas v. White, 102 S.W.3d 318 (Tex. Ct. App. 2003).

(4.) M.D.R. v. State, 836 P.2d 106, 110 (N.M. Ct. App. 1992).

(5.) Nicini v. Morra, 212 F.3d 798 (3d Cir. 2000); Norfleet v. Ark. Dep't of Human Servs., 989 F.2d 289 (8th Cir. 1993); Yvonne L. v. N.M. Dep't of Human Servs., 959 F.2d 883 (10th Cir. 1992); K.H. v. Morgan, 914 F.2d 846 (7th Cir. 1990); Meador v. Cabinet for Human Res., 902 F.2d 474 (6th Cir. 1990); Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987), cert. denied, 489 U.S. 1065 (1989); Doe v. New York City Dep't, of Soc. Servs., 709 F.2d 782 (2d Cir. 1983), cert. denied, 464 U.S. 864 (1983) (hereinafter Doe II); Doe v. New York City Dep't of Soc. Servs., 649 F.2d 134 (2d Cir. 1981) (hereinafter Doe I); Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003). The Fourth Circuit has reached two apparently contradictory results. Compare L.J. v. Massinga, 838 F.2d 118 (4th Cir. 1988), cert. denied, 488 U.S. 1018 (1989), with Milburn v. Anne Arundel County Dep't of Soc. Servs., 871 F.2d 474 (4th Cir. 1989), cert. denied, 483 U.S. 850 (1989). The First, Fifth, and D.C. Circuits have not ruled explicitly. But see LaShawn A. v. Dixon, 762 F. Supp. 959, 992 (D.D.C. 1991), aff'd on other grounds, 990 F.2d 1319 (D.C. Cir. 1993); Lynch v. Dukakis. 719 F.2d 504 (1st Cir. 1983). The Supreme Court has expressly declined to consider the issue. See DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 201 n.9 (1989).

(6.) Private agencies of organizations that operate as state actors are liable under [section] 1983 (Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 530 U.S. 282 (2001)). Some courts have held that private foster care agencies operate under color of state law (see, e.g.., Doe II, 709 F.2d 782).

(7.) Howlett v. Rose, 496 U.S. 376 (1990).

(8.) Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Camp v. Gregory, 67 F.3d 1286, 1298 (7th Cir: 1995).

(9.) Anderson v. Creighton, 483 U.S. 635,644 (1987). For example, placing a child in the foster home of an experienced foster parent with an unblemished record was objectively reasonable, even though the foster parent subsequently abused the child. Lewis v. Anderson, 308 F.3d 768, 774 (7th Cir. 2002).

(10.) See cases cited in note 5.


(12.) 42 U.S.C. [section] 671(a)(20) (2000).

(13.) Burton v. Richmond, 276 F.3d 973, 975, 979-80 (8th Cir. 2002).

(14.) Doe I, 649 F.2d 134, 142.

(15.) Id.

(16.) City of Riverside v. Rivera, 477 U.S. 561 (1986). Compare Green v. Torres, 59 Fed. Appx. 400 (2d Cir. 2003), with Homans v. City of Albuquerque, No. CIV. 01-917 MVRLP, 2003 WL 21145794 (D.N.M. May 14, 2003).

(17.) Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993).

(18.) FED. R. CIV. P. 26(b)(1); FED. R. EVID. 501. King v. Conde, 121 F.R.D. 180, 189 (E.D.N.Y 1988); Von Bulow by Auersperg v. Von Bulow, 811 F.2d 136, 141 (2d Cir. 1987).

(19.) Daniels v. Williams, 474 U.S. 327, 332 (1986).

(20.) Nicini, 212 F.3d 708; Armstrong v. Squadrito, 152 F.3d 564, 577 (7th Cir. 1998) (defining deliberate indifference as a "conscious disregard of known or obvious dangers"); Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996); Doe II, 709 F.2d 782, 790. See also Norfleet, 989 F.2d 289, and Meador, 902 F.2d 474 (accepting the deliberate indifference standard without discussion).

(21.) See, e.g., Youngberg v. Romeo, 437 U.S. 307, 323 (1982); K.H., 914 F.2d 846, 854; T.M. v. Carson. 93 F. Supp. 2d 1179, 1190 (D. Wyo. 2000); Mark G. v. Sabol, 717 N.E. 2d 1067 (N.Y. Ct. App. 1999); Kara B. v. Dane County, 555 N.W.2d 630 (Wis. 1997).

(22.) See, e.g., Doe II, 709 F.2d 782, 791; SUZANNE M. SGROI, HANDBOOK OF CLINICAL INTERVENTION IN CHILD SEXUAL ABUSE 16 (1982); Matter of Mayra T., 520 N.Y.S.2d 295, 296 (N.Y Fam. Ct. 1987).

(23.) See, e.g., Wendy H. v City of Philadelphia, 849 F. Supp. 367 (E.D. Pa. 1994).

(24.) See CHILD WELFARE LEAGUE OF AM., supra note 11.

(25.) Doe I, 649 F.2d 134, 141.

Try your case with child welfare documents from the ATLA Exchange

These documents and many others on negligence by foster homes, adoption agencies, and social workers are available from the ATLA Exchange. For more information, visit or contact the Exchange by phone at (800) 344-3023 or by fax at (202) 337-0977.

Adams v. State. The parties' appellate briefs in a case holding that a state and its caseworkers do not have absolute immunity from liability for negligently investigating and supervising adoptive parents. (No. LR507.)

Mohr v. Massachusetts. The plaintiffs' complaint, pretrial memorandum, and motion for leave to amend the complaint in a case alleging state liability for failing to disclose to adoptive parents a child's family and medical history, which included a diagnosis of mental retardation as well as maternal schizophrenia. (No. EX1412.)

Norfleet v. Arkansas Department of Human Services. The parties' appellate briefs and the court's memorandum and order in a case holding that social workers are not entitled to qualified immunity for the death of a child in foster care. (No. EX1868.)

Williams v. Coleman. The plaintiff's appellate brief on whether social workers are immune from liability for failing to report suspected child neglect. (No. EX1681.)

L013 2MMS

CAROLYN A. KUBITSCHEK is a partner with Lansner & Kubitschek in New York City and an adjunct professor at Cardozo Law School.
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Author:Kubitschek, Carolyn A.
Date:Oct 1, 2003
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