Ensuring Insurance for Foster Care: Requiring Foster Parents to Obtain Liability Insurance to Cover Harm Done to Foster Children in their Care

• Date: 01 October 2015
• Published date: 01 October 2015
• DOI: http://doi.org/10.1111/fcre.12179
• Author: Devon Palma

STUDENT NOTES

ENSURING INSURANCE FOR FOSTER CARE: REQUIRING

FOSTER PARENTS TO OBTAIN LIABILITY INSURANCE

TO COVER HARM DONE TO FOSTER CHILDREN

IN THEIR CARE

Devon Palma

This Note proposes that a ll states should requir e that foster parents hav e liability insuranc e before children are plac ed in

their care. This Note als o proposes that the liability insurance needs to cover not just harm to thir d parties but also harm to

the foster children thr ough the negligent acts of the foster par ents. This legislation will allow fost er children to have standing

to bring claims against their foster parents and insurance companies and give them a greater opportunityfor recovery. Cur-

rently, the policies and statutes governing the policies in place do not cover all types of harm that can occur during the foster

parent–child relati onship. Certain polic ies leave children w ho are harmed by their fo ster parents’ neglig ence unable to

recover any damages from the people who have harmed them. Because foster parents can be left to defend the actions them-

selves, they often becom e judgment proof due to their lo w income, leaving the children who are harmed with li ttle chance

of recovery.

Key Points for the Family Court Community:

States need to require foster parents to obtain liability insurance, which covers harm done by the foster children to third

parties, harm to the home, and any harm done to the child by the foster parents.

Keywords: Foster Care; Foster Children; Foster Parents; Insurance Company; Liability Insurance; Negligence; and

State Regulations.

I. INTRODUCTION

Aurora Espinal-Cruz was six months old when bruises were found on the arm of her older sister.

1

The school called the Oklahoma Department of Human Services (DHS) because of suspected child

abuse, and the children were plucked from the care of their biological mother and placed with a foster

parent, Deanza Jones.

2

On January 27, 2002, just seventeen days after Aurora was placed in Jones’ care, she was found

dead in her crib.

3

Aurora had greatly suffered while in Jones’ care and in the days before her death,

she was left to die in her own waste and vomit while cockroaches ate her skin.

4

Robbie Burke, the special administrator of Aurora’s estate, sued Jones, DHS and two DHS employees

for negligence and wrongful death.

5

Jones had $163.00 in her checking account and a job that paid

$12.63 an hour.

6

Oklahoma purchases liability insurance for foster parents who are licensed and/or certi-

fied by the DHS.

7

Jones had foster care liability insurance policies with Colony Insurance Co. and United

National Insurance Company.

8

Jones requested Colony and United settle the case, but the insurers

declined to do so and at trial, a unanimous jury returned a verdict of $20 million against Jones.

9

Prejudg-

ment interest was then added to the judgment for a total of $24 million plus postjudgment interest.

10

After the verdict, Colony filed a declaratory judgment against Jones and the Estate, seeking a deter-

mination that it had no duty to defend or indemnify Jones for the judgment against her, and the court

granted Colony’s motion for summary judgment.

11

The Court concluded that Oklahoma law did not

clearly confer standing upon the estate, as a third-party claimant, to assert contractual claims against an

FAMILY COURT REVIEW, Vol. 53 No. 4, October 2015 663–675

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C2015 Association of Family and Conciliation Courts