From poverty to abuse and back again: the failure of the legal and social services communities to protect foster children.

• Author: Balmer, Sharon

"I don't know what to say. We just picked the kid up from one crack house and dropped her off at another." (1)

Stephanie's life ended as it began, her tiny body wrapped in a plastic bag and left on a New York City street. (2) When her parents dumped her body the first time, the plastic prevented her from receiving enough oxygen and she suffered severe brain damage. The second time Stephanie was wrapped in plastic and dumped onto the street she died. This time she was abandoned by her foster mother. Though this foster mother had provided the foster care agency with glowing recommendations, police investigators found her home filled with feces, insects, and rodents, and Stephanie's medical equipment caked in grime. The foster mother had also canceled Stephanie's health services a few months earlier without the agency's knowledge. (3)

Bruce was found digging through the trash for food because his foster parents fed him only breakfast cereal, uncooked pancake batter, and peanut butter. (4) He had been placed in foster care eight years earlier because his biological parents were also starving him. (5) His foster parents even locked the kitchen to keep him from taking food. (6) Neighbors, foster care agency caseworkers, and the family's pastor all described this family positively, some of whom noted that they were loving and deeply religious. (7)

After decades of legislative reform, stories like these still appear on the front pages of our newspapers, and foster children who are injured while in protective care are turning to the courts to change the system. It is still relatively difficult for a child to prevail in an action against child protective workers and agencies. (8) Opinions addressing children's issues are few, and courts seem hesitant to expand causes of action. (9) This Comment explores the current state of children's legal remedies for injuries incurred as the result of a foster care placement. Part I describes the foster care system in the United States. Part II discusses, generally, the possible causes of action available to foster children. Part III examines the most successful way for a child to recover damages; a 42 U.S.C.A. [section] 1983 ("section 1983") cause of action for the violation of the constitutional right to safety while in state custody. The Supreme Court has not ruled on whether foster children have such a right, and district courts are divided about what standard to apply if a constitutional right to safety even exists for children in foster care. Finally, Part IV suggests reasons why courts have been reluctant to allow civil rights actions by children in foster care, and also advocates for a shift in the way the legal community views children's issues. Until a consistent and appropriate standard of care is established, shocking stories of foster care child abuse will continue to make news around the country.

PART I: THE SAD STORY OF FOSTER CARE IN THE UNITED STATES

In 2003, over half a million children were living in foster homes. (10) An increase in drug and alcohol abuse, poverty, and homelessness has led to an increase in the population of children in foster care. (11) In the simplest terms, the foster care system is failing its growing population. Some children's advocates contend that forty percent of foster children end up on welfare or in prison, (12) and foster children are sixty-seven times more likely to be arrested than children who did not grow up in foster care. (13) While in care, children are often shuffled from home to home over the course of many years, so they are unable to form lasting bonds with any adult. (14) They often do not receive proper medical or psychiatric attention, (15) though it is common for foster parents to seek medication to control foster children more easily. (16) A grand jury in San Diego found a large disparity between the care of foster children, and that of biological children; the foster children were given cheaper food and clothing, restricted to certain areas of the house, and sometimes forbidden to open the refrigerator or watch television with the family. (17) Most concerning, however, is the fact that children in foster care are physically abused at a much greater rate than children in the general population. (18)

No one knows exactly how many children in foster care are being abused or neglected, but many suspect that many such cases go unreported. (19) In 1999, the Department of Health and Human Services reported that the rate of child maltreatment in foster care was more than seventy-five percent higher than in the general population, and the mortality rate amongst foster children resulting from maltreatment was almost 350 percent higher than among children in the general population. (20) Another study, conducted between 1986 and 1990 by the National Foster Care Education Project, found that the incidence of child abuse for children in foster care was over ten times greater than in the general population. (21) Foster care children are also more vulnerable to sexual abuse because, practically speaking, the incest taboo does not apply within the foster family structure. (22) The rate of substantiated allegations of sexual abuse is four times higher for children in foster care than children in the general population. (23) When accounting for the many cases of abuse and neglect that go unreported, one author concluded that forty-three percent of all foster children were in unsuitable foster homes and fifty-seven percent were at risk of harm in foster care. (24)

Paradoxically, children are placed into foster care to protect them from this kind of abuse. Foster care is designed to be a "temporary, safe haven for children whose parents are unable to care for them." (25) It is an underlying premise of this system that a child's natural parents can be rehabilitated, and the foster family is a temporary, stable substitute. (26) Unfortunately, most children linger in foster care for longer than expected and their living situations are anything but stable. (27) Even with recent legislation aimed at getting foster children into adoptive homes or back with their parents as soon as possible, (28) placing a child into any situation that is not a "safe haven" could cause serious damage to an already traumatized child, (29) Many caseworkers, however, fear liability or negative publicity if they leave a child with an abusive parent. (30) Removing children becomes the safer and, because of federal funding policies, more lucrative choice. (31)

While children's advocates have initiated impact litigation for over twenty years and federal, state, and local reforms have been numerous, our child protective systems seem to have a "remarkable immunity to reform." (32) The foster care system in this country creates what one court called a "lost generation of children whose tragic plight is being repeated every day." (33) Another court finds "profound disarray in the state's system of caring for abused and neglected children." (34) Increased rates of abuse and neglect in the foster care system can now be linked to child protective agencies that do not meet minimum professional standards. (35) There are few incentives for agencies to do a good job and little to discourage them from dangerously cutting corners. (36) These failing agencies create dangerous situations by placing children into homes without investigating them beforehand, and without supervising the families after the placement. (37) Because the Civil Rights Act applies both to those who violate constitutional rights and those who allow those rights to be violated, caseworkers and government agencies can all be held legally responsible when children are injured while in foster care. (38)

PART II: WHAT CHILDREN CAN DO: RECOVERING UNDER STATE TORT LAW AND 42 U.S.C.A. [section] 1983

Because children are both naturally and legally dependant on adults for protection, there is little that children can do to keep themselves out of abusive situations, and there is no consistent legal remedy for them to seek monetary, injunctive, or declaratory relief after they have been injured. While children have filed actions under state tort laws and federal statutory claims under section 1983 without great Success, (39) federal claims for violations of substantive due process rights under section 1983 have proven to be a more successful avenue for children seeking redress for injuries incurred while in state custody. (40)

1. State Tort Claims

   In foster care cases, a typical tort claim asserts a common law duty that one who has taken affirmative steps to rescue another has assumed a general duty over that person's safety. (41) Plaintiff foster children claim under negligence law that the child's injuries were caused by the failure of the child protective government worker to act when he or she knew or should have known the child was at risk. (42) But because tort law does not usually require a governmental actor to act affirmatively to benefit another, children may have difficulty establishing a positive duty for a negligence claim. (43)

   Even if a child could establish such a claim, she may then have trouble overcoming governmental immunity. In many states, tort claims are not available to foster children because of complex state tort statutes that bar claims against government workers. (44) In County of Los Angeles v. Superior Court (In re Terrell R.), the court read California's Liability of Public Entities Act narrowly, so as to almost guarantee absolute immunity for child protective caseworkers where common law had established no such precedent. (45) The court reasoned that child protective workers were immune to lawsuits from children injured by their foster parents because the statutes governing foster care were not meant to protect children from their foster parents. (46)

   Courts in other states have held that the state's placement of a child in foster care and the removal of a child from a home...