foster parent legal rights and liabilities foster parent legal rights and liabilities 39 th annual...

Foster Parent Legal Rights and Foster Parent Legal Rights and LiabilitiesLiabilities

39th Annual Education ConferenceNational Foster Parent Association

Grand Sierra ResortReno, NevadaMay 4, 2009

(This is a simplified online version)

Tom C. RawlingsDirector, Office of the Child Advocate

State of [email protected]

OverviewOverview

• This morningThis morning– 9:30 - 10:45 9:30 - 10:45

– An overview of foster parents’ legal status.An overview of foster parents’ legal status.– What are the big issues?What are the big issues?– Foster Parents’ Bills of Rights and how they Foster Parents’ Bills of Rights and how they

are implementedare implemented

– 11:00 - 12:30 11:00 - 12:30 – Other state rights Other state rights – Looking for love in all the wrong places? Bootstrapping Looking for love in all the wrong places? Bootstrapping

federal and state laws to create substantive rights for federal and state laws to create substantive rights for foster parents.foster parents.

– 12:30 - 1:30 12:30 - 1:30 Break for LunchBreak for Lunch

OverviewOverview

• This afternoonThis afternoon– 1:30 to 2:451:30 to 2:45

– Walking through scenarios – preventing and responding Walking through scenarios – preventing and responding to violations of your rights.to violations of your rights.

» Ignorance is NOT Bliss: What you don’t know can hurt Ignorance is NOT Bliss: What you don’t know can hurt you and your family.you and your family.

» Possible liability and how to avoid itPossible liability and how to avoid it

– 3:00 to 4:303:00 to 4:30» What if YOU get accused?What if YOU get accused?» Pushing for expanded protections in your state.Pushing for expanded protections in your state.

– The future of foster parents’ rights: class actions and The future of foster parents’ rights: class actions and the Constitutionthe Constitution

What’s Your Status?What’s Your Status?

• Let’s start with an important U.S. Supreme Court case, Smith v. Org. of Foster Families, 431 US 816 (1977).

• Foster parents claimed a constitutional right to due process – notice, an opportunity to have a hearing before an independent decisionmaker – before a foster child could be removed from the foster parent’s home.


Supreme Court’s findings:

1. We know there is a “family liberty interest” that’s protected by the Constitution:

– “Freedom of personal choice in matters of... family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. . . . There does exist a "private realm of family life which the state cannot enter.”


Supreme Court’s findings:2. We also know that family is not based

just on biology:• “[I]t is natural that the foster family

should hold the same place in the emotional life of the foster child, and fulfill the same socializing functions, as a natural family. For this reason, we cannot dismiss the foster family as a mere collection of unrelated individuals.”


3. BUT, at the same time, foster families are a bit different:

• “First, unlike the earlier cases recognizing a right to family privacy, the State here seeks to interfere, not with a relationship having its origins entirely apart from the power of the State, but rather with a foster family which has its source in state law and contractual arrangements.”


4. So, “we’re going to punt” and not really settle this issue for you!

– “It is unnecessary for us to resolve those questions definitively in this case, however . . . even [if] appellees have a protected `liberty interest.’ . . . . Where procedural due process must be afforded because a "liberty" or "property" interest is within the Fourteenth Amendment's protection, there must be de-termined `what process is due’ in the particular context.


• We’re still left scratching our heads.– What is constitutionally required to

protect the procedural and substantive rights of foster families?

• Still, many state and federal laws give statutory rights to foster parents.

– Foster parents’ bills of rights, federal child welfare laws, etc.

– To what extent are they enforceable?


• There’s also the question of how your status as relatives or parents interplays with your status as foster parents.

– What if you’re accused not of breaching your contract but of abusing a child?

– Is there a difference between being a foster parent, a foster-to-adopt parent, a relative foster parent, etc?


• Any foster parent rights are generally seen as rights “relative” to the rights of the agency and the birth parents:

• “[T]he Legislature has provided that the relationship between the foster parents and the child is by its very nature subordinate both to the relationship between the agency and the child and to the relationship between the child and the child's parents.”

– In the Interest of G.C., 558 Pa. 116, 121 (1999)


• “True liberty rights do not flow from state laws, which can be repealed by action of the legislature. Unlike property rights they have a more stable source in our notions of intrinsic human rights. The very fact that the relationship before us is a creature of state law, as well as the fact that it has never been recognized as equivalent to either the natural family or the adoptive family by any court, demonstrates that it is not a protected liberty interest, but an interest limited by the very laws which create it.”

– Drummond v. Fulton County DFCS, 563 F.2d 1200, 1207 (5th Cir. Ga. 1977)


• So, let’s think about some of these issues!

Foster Parents’ RightsFoster Parents’ Rights

• Bills of Rights: What and Where Are They Found? Are they useful?

• Other State and Federal Statutory Rights– Right to notice and an opportunity to be

heard.– Right to payment, training, etc.

Foster Parents’ Bills of RightsFoster Parents’ Bills of Rights

• Alabama (Code of Ala. 38-12A-2)• Georgia (OCGA 49-5-281)• Illinois (20 ILCS 520/1-15) • Louisiana (La. R.S. 46:286.13)• Maryland (Md. Fam. L. Code Ann.

§ 5-504) • Mississippi (Miss. Code Ann. §

43-15-13)

• Missouri (§ 210.566 R.S.Mo.) • Oklahoma (10 Okl. St. § 7206.1)• Tennessee (Tenn. Code Ann. §

37-2-415)• Washington (Wash. Rev. Code

§74.13.332)

•Generally adopted as laws by the state legislature, often in response to foster parent advocacy.

•Do you have one in your jurisdiction?


• Acknowledge value of foster parents, and may also apply to relative caregivers.

• Affirm the right of the foster parent or relative caretaker to participate in case planning, to receive information, to have training (pre-service and ongoing)

• Are these “rights” one can enforce?


• How about more “substantive” rights?– Right to timely reimbursement;– Right to know about the child you are

receiving and the right to refuse;– Right to a fair process for resolving

disputes;– Right to due process when rights violated

or when discipline occurs;– Right to keep the child in your care under

appropriate circumstances;– Right to be involved in the court process

Examples of provisionsExamples of provisions

• Affirms right to be treated “fairly,” equally, and not to be discriminated against.– What exactly does that mean?– In Washington, foster parents have “the right to

be free of coercion, discrimination, and reprisal in serving foster children, including the right to voice grievances about treatment furnished or not furnished to the foster child.”

– The remedy? The foster parent “may file a complaint with the office of the family and children's ombudsman.”

» Rev. Code Wash. (ARCW) § 74.13.333

http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=Rev.+Code+Wash.+%28ARCW%29+%A7+74.13.333


• Right to know about the child entering the home:– “Prior to placement, … shall allow the foster

parent to review a written summary of information concerning the child, including . . . assessments, evaluations, and case plans, . . . to assist in determining if the child would be a proper placement.”

• Alabama

– “At placement and on an ongoing basis”• Louisiana


• Right to know about the child entering the home:– “The right prior to the placement of a child to be

notified of any issues . . . that may jeopardize the health and safety of the foster family or the child or alter the manner in which foster care should be administered”

• Georgia– “The department shall fully disclose . . . past or

pending charges of delinquency as a juvenile, criminal charges . . . and previous hospitalizations, whether due to mental or physical issues”

• Tennessee

Examples of provisionsExamples of provisions• Right to know about the child entering the home:

– “The children's division and its contractors shall provide to foster parents and potential adoptive parents, prior to placement, all pertinent information, including . . . full disclosure of all medical, psychological, and psychiatric conditions of the child, as well as information from previous placements that would indicate that the child or children may have a propensity to cause violence . . . . The foster parents shall be provided with any information regarding the child or the child's family, including . . . any family history of mental or physical illness, sexual abuse of the child or sexual abuse perpetrated by the child, criminal background of the child or the child's family, fire-setting or other destructive behavior by the child, substance abuse by the child or child's family, or any other information which is pertinent to the care and needs of the child and to protect the foster or adoptive family. Knowingly providing false or misleading information to foster parents in order to secure placement shall be denoted in the caseworker's personnel file and shall be kept on record by the division.

• Missouri


• Notice prior to removal:– In Missouri, two weeks’ notice and the

written reasons unless it’s an emergency.– Illinois, “reasonable written notice.”– In Oklahoma, 5 days’ notice and written

reasons if child has been in placement for at least 3 months.

» 10 Ok. Stat. 2706.1, 2708(B)

– Mississippi, 72 hours’ notice.


• Right to refuse a child or to have a child removed:– “right to refuse placement of a child in the foster

home or to request, upon reasonable notice, [removal] . . . without fear of reprisal or any adverse effect on . . . future foster or adoptive placements”

• Georgia

– Right to “refuse a placement without reprisal from the caseworker or agency.”

• Missouri


• The right to training – pre-service and ongoing.

• Right to timely and appropriate reimbursement.– Mississippi: Reimbursement for damages

caused by foster child, up to $500.– Washington: Similar law for reimbursing

damages


• Right to a hotline or other access to a grievance procedure.– “Access to a fair and impartial grievance process

to address licensure, case management decisions, and delivery of service issues. Foster parents shall have timely access to the child placement agency's appeals process, and shall be free from acts of retaliation when exercising the right to appeal.

• Missouri


• Right to a hotline or other access to a grievance procedure.– “The right to be provided a fair, timely, and impartial

investigation of complaints concerning the foster parent's licensure, to . . . have a person of the foster parent's choosing present during the investigation, and to be provided due process during the investigation; the right to be provided the opportunity to request and receive mediation or an administrative review of decisions that affect licensing parameters, or both mediation and an administrative review; and the right to have decisions concerning a licensing corrective action plan specifically explained and tied to the licensing standards violated.”

• Illinois


• Right to permanency priority– First choice to adopt if child has been in foster

home 12 months or more (Tennessee)– Right to priority placement if child who has left

foster care returns (Georgia, Illinois, Missouri)

Additional State RightsAdditional State Rights

• Right to notice and opportunity to be heard in hearings

• Right to preference in adoptions

State Rights to Notice and State Rights to Notice and Opportunity to Be HeardOpportunity to Be Heard

• Georgia:– “In advance of any hearing or other proceeding to

be held with respect to a child pursuant . . . the court shall provide notice or shall direct that a party shall provide notice of such hearing or other proceeding, including their right to be heard at such hearing or other proceeding, to the foster parents of the child, and to any preadoptive parents or relatives providing care for the child, consistent with the form and timing of notice to parties . . . .”

» OCGA 15-11-55.1

State Rights to Notice and State Rights to Notice and Opportunity to Be HeardOpportunity to Be Heard

• Alabama– “Relative caregivers, preadoptive parents, and foster parents of

a child in foster care under the responsibility of the state shall be given notice, verbally or in writing, of the date, time, and place of any juvenile court proceeding being held with respect to a child in their care.

Foster parents, preadoptive parents, and relative caregivers of a child in foster care . . . have a right to be heard in any juvenile court proceeding being held with respect to a child in their care.

No foster parent, preadoptive parent, and relative caregiver of a child in foster care under the responsibility of the state shall be made a party to a juvenile court proceeding solely on the basis of this notice and right to be heard pursuant to this section.”

– Code of Ala. § 12-15-307

Right to preference in adoptionsRight to preference in adoptions• Tennessee

– (1) When a child is placed in a foster home by the department or otherwise, and becomes available for adoption due to the termination or surrender of all parental or guardianship rights to the child, those foster parents shall be given first preference to adopt the child if the child has resided in the foster home for twelve (12) or more consecutive months immediately preceding the filing of an adoption petition.

(2) In becoming adoptive parents, the foster parents shall meet all requirements otherwise imposed on persons seeking to adopt children in the custody of the department, and shall be subject to all other provisions of this part.

– Tenn. Code Ann. § 36-1-115 (g)

Enforcing these State RightsEnforcing these State Rights

• Are they enforceable?• Some agencies treat them as you

would a “customer service code of conduct.”

• Maryland – no cause of action!– “This section does not create, and may not be

construed to create, a cause of action for foster parents.”

– Md. FAMILY LAW Code Ann. § 5-504


• Are they enforceable?– “DHS has an affirmative statutory duty to

cooperate with and provide guidance and support to foster parents and foster families to promote stability and permanency. Foster parents are guaranteed the right to provide input in the planning of services for a child and actively and fully participate in the decision-making process regarding the child.”

– Saul v. Alcorn, 2007 OK 90, P14 (Okla. 2007).


• Are they enforceable?– “Although the trial court does give consideration to a

surrender of parental rights in favor of a relative, the surrender is not in itself determinative on the ultimate issue of whether an adoption petition should be granted, which remains governed by the best interest of the child analysis. . . . We note, however, that the Georgia Code also provides that, after a child has been placed with a foster family for 12 months, the foster parents have "[t]he right to be considered, where appropriate, as the first choice as . . . permanent . . . parents for a child" who has been released for adoption. OCGA § 49-5-281 (a)(20).

– Owen v. Watts, ___ Ga. App. __ (Mar. 5, 2009)


• Foster Parent Grievance Procedures– North Dakota– Georgia

• Are these grievance procedures sufficient?– Rights without

remedies?– Advocacy

Removal HearingsRemoval Hearings• Connecticut Example

– Sec. 17a-100-5. Request for removal hearing

– (a) A licensed or certified out of home care provider may request a removal hearing if the child:

(1) has been in continuous placement with the out of home care provider for one (1) year or more; or(2) has been in non-continuous placement with the out of home care provider for a total of two (2) or more years of actual placement;

(b) Notwithstanding the provisions of subsection (a) of this section no removal hearing shall be provided by the department if:(1) a child is removed from an out of home care provider for the purpose of placing such child with a prospective adoptive family or other placement identified in the permanency plan approved by the court; or(2) the out of home care provider is denied a hearing under the provisions of section 17a-100-6 of the regulations of Connecticut State Agencies.

Removal HearingsRemoval Hearings• Connecticut Example

(a) The department shall conduct a removal hearing when the out of home care provider, qualified for such hearing under section 17a-100-5 of the regulations of Connecticut State Agencies, disagrees with the department's decision to remove a child from the provider and requests a removal hearing within ten (10) days of receiving the written notice required by section 17a-100-4(c) of the regulations of Connecticut State Agencies

– Regs., Conn. State Agencies § 17a-100-3

Removal HearingsRemoval Hearings

• New York:– 10 days’ notice in writing unless

emergency– Foster parents must request conference,

set within 10 days of request, can submit objections to removal

– Request for conference puts hold on removal;

– Appeal from there to Commissioner for a “fair hearing” – administrative hearing officer

Removal HearingsRemoval Hearings

• New York:– Fair hearing includes right to present

evidence, witnesses, etc.– May appeal from there to a “real” court,

with the standard being “substantial evidence” indicating the removal was not “arbitrary” or “capricious.

– Banks-Nelson v. Bane, 214 A.D.2d 338 (N.Y. App. Div. 1st Dep't 1995)

Other Administrative HearingsOther Administrative Hearings

• Denial of or change in benefits• Claudio v. Dowling, 89 N.Y.2d 567, 571 (1997)

• Challenge to finding of abuse or neglect

• More on that later

Federal RightsFederal Rights

• Contained in ASFA, CAPTA, AACWA, and lots of other federal acts that go by acronyms.

• Generally, the rights are phrased as:– If the State wants to get federal $, it will

create a “plan” acceptable to the feds.– Those “state plans” must contain certain

features.– Can private individuals enforce those

required features?

Federal Right to Notice and Federal Right to Notice and Opportunity to Be HeardOpportunity to Be Heard

• Under 42 USC § 671(a)(16), State must provide an adequate “case review system.”

• Under 42 USC § 675 (5)(G), such a system must include provisions that:– “the foster parents (if any) of a child and any

preadoptive parent or relative providing care for the child are provided with notice of, and a right to be heard in, any proceeding to be held with respect to the child, except that this . . . shall not . . . require that [the person] be made a party to such a proceeding . . . .”

Adoption Assistance and Child Adoption Assistance and Child Welfare Act of 1980Welfare Act of 1980

• Does this law provide foster and adoptive parents with enforceable rights?

• This law requires that states assure the federal government that they have in place certain policies and laws that govern foster care and the foster care process.

• Failure to comply can result in loss of federal foster care and adoption assistance funding, but to what extent does it also give foster and adoptive parents real rights?


• Among its provisions are the following:– Requirement to assess adequacy of foster

and adoption assistance reimbursements.• The state must conduct a periodic review of the

amounts paid as foster care maintenance payments and adoption assistance to assure their continuing appropriateness.

» 42 USCS § 671(a)(11)

• In the Kenny A. case, the State agreed to propose increases for foster care expenses as well as a commission to set residential placement rates. No progress thus far.

» www.childwelfare.net/activities/kennya/kenny_a_monitorreport5.pdf

http://www.childwelfare.net/activities/kennya/kenny_a_monitorreport5.pdf


• Requirement of Adequate Reimbursement– 42 USC 672 and 42 USC 675(4)(A) require

the state to make foster care payments to cover the cost of caring for the child.

– A California federal court recently held that foster parents can enforce this requirement by court action.

– California State Foster Parent Ass'n v. Wagner, 2008 U.S. Dist. LEXIS 88798 (N.D. Cal. Oct. 21, 2008).


• Requirement of Adequate Reimbursement– A federal appeals court recently prohibited

Oregon from unilaterally reducing the amount of its adoption assistance payments.

– ASW v. Oregon, 424 F.3d 970, 975 (9th Cir. 2005)

– The Court took seriously the requirement in 42 USC 673(a)(3) that these amounts be set in agreement with the adoptive parents.


• State must grant foster and adoptive parents the opportunity for a fair hearing before the State agency to whenever a claim for “benefits” is denied or not acted upon with reasonable promptness.

» 42 USC 671(a)(12).

– “Benefits” include reimbursements and training.


• Some federal and state courts have interpreted this right to a hearing as one that individuals can enforce.– Timmy S. v. Stumbo, 916 F.2d 312, 315 (6th

Cir. Ky. 1990).– Claudio v. Dowling, 89 N.Y.2d 567, 571

(1997)


• What would such a hearing look like?– Similar to that involved when a license is

revoked, or a school disciplinary tribunal?• Notice, opportunity to be heard;• Opportunity to present and respond to evidence,

cross-examine witnesses;• Decision in writing;• Opportunity to appeal;• Opportunity to seek judicial relief?

» OCGA 20-2-750 et seq.

• Georgia Administrative Procedures Act, OCGA 50-13-13


• Other requirements:– State must not discriminate in placement on

the basis of race, color, or national origin;– State must ensure foster parents are

prepared adequately with the appropriate knowledge and skills to provide for the needs of the child, and that such preparation will be continued, as necessary, after the placement of the child;


• One of the allegations in Kenny A. was that foster children have the right to have their “health and educational records reviewed, updated, and supplied to foster parents or foster care providers with whom the child is placed at the time of placement.

» www.childwelfare.net/activities/kennya/kenny_a_complaint20050606.pdf (p. 64).

http://www.childwelfare.net/activities/kennya/kenny_a_complaint20050606.pdf

Enforcing Federal RightsEnforcing Federal Rights

• A federal statutory provision creates an individual right if:– (1) Congress intended the provision in question to

benefit the plaintiff; – (2) the plaintiff demonstrates that the right

assertedly protected by statute is not so "vague and amorphous" that its enforcement would strain judicial competence; and

– (3) the statute unambiguously imposes a binding obligation on the state.

• Blessing v. Freestone, 520 U.S. 329, 341 (1997).

LunchtimeLunchtime

• Recapping:– You have plenty of “rights,” but the

problem is that they are often considered subordinate to the rights of others.

– The key is to create methods you can use to enforce those rights.

– Unfortunately, grievance procedures are too often toothless!

Welcome Back!Welcome Back!

• Afternoon topics:– What happens if the Department puts a

problematic child in your home and doesn’t tell you the child’s background?

– What if that child makes allegations against you or harms your child?

– What if you get sued because something happens (or allegedly happens) to a foster child in your home?

Protecting Yourself and Your Protecting Yourself and Your FamilyFamily

• Topics to cover:– Information is the best protection. To what

are you entitled?– Legal theories of liability and legal protections– “Please don’t throw me under the bus.”

• What to do when the agency says you’re the one at fault?

A foster parent’s worst A foster parent’s worst nightmare (version 1) ….nightmare (version 1) ….

• The Savage family took in a juvenile sex offender who then molested their 3-year-old son.

• Savages claimed the non-profit placement agency failed to fully inform them of the juvenile’s issues.

• Utah Court found the Savages could sue for “negligent placement”

A foster parent’s worst A foster parent’s worst nightmare (version 1)….nightmare (version 1)….

• Reasons:– Agency has “special duty” to protect other

children in the foster home from abuse.– Reasonably foreseeable a child with a

history of abusing may abuse again.– Village may be held liable for their

negligence in the process.– Savage v. Utah Youth Vill., 104 P.3d 1242, 1246 (Utah

2004).– See also P.G. & R. v. State, 4 P.3d 326, 332 (Alaska

2000)

A foster parent’s worst A foster parent’s worst nightmare (version 1). . . .nightmare (version 1). . . .

• DFCS removed child from a facility due to severe emotional issues, then places with foster parent without informing grandparent of the child’s issues.

• Child molests FP’s 6-year-old grandson.• Federal suit against DFCS claims

violation of victim’s “Fourteenth Amendment right to be free from state-created dangers to his bodily integrity”

http://www.lexis.com/research/buttonTFLink?_m=8fec5b1216ca2512b5f8f81fe94ebf0f&_xfercite=%3Ccite%20cc%3D%22USA%22%3E%3C%21%5BCDATA%5B93%20F.%20Supp.%202d%20744%5D%5D%3E%3C%2Fcite%3E&_butType=4&_butStat=0&_butNum=105&_butInline=1&_butinfo=U.S.%20CONST.%20AMEND.%2014&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVlz-zSkAb&_md5=f9e84a126440475926b888e2af7b95fa


• Usually, the state has no obligation to protect private individuals from harm.

• Exception: state-created danger.• (Maybe)

• Unfortunately, the Fifth Circuit doesn’t recognize that theory!

» C.A. v. Lowndes County DFCS., 93 F. Supp. 2d 744, 746 (N.D. Miss. 2000)

The vaccine: information!The vaccine: information!• Foster Parents’ Bill of Rights:

– “Right to be notified of any issues relative to the child that may jeopardize the health and safety of the foster family or the child or alter the manner in which foster care should be administered.”

» OCGA 49-5-281(8).

• State confidentiality laws:– DFCS “may permit access to records concerning

reports of child abuse and may release information from such records to the following persons when deemed appropriate by [DFCS] . . . . An agency or person having the legal custody, responsibility, or authorization to care for, treat, or supervise the child who is the subject of a report or record.” OCGA 49-5-41(c)

Your Right to InformationYour Right to Information• HIPAA:

– Nothing in HIPAA prevents foster parents from having this information.

– “If, and to the extent, permitted or required by an applicable provision of State or other law, including applicable case law, a covered entity may disclose, or provide access in accordance with § 164.524 to, protected health information about an unemancipated minor to a parent, guardian, or other person acting in loco parentis”

» 45 CFR 164.502

Your Right to InformationYour Right to Information• Tennessee Foster Parent Bill of Rights

– (c) (1) At the time of placement of a child in a foster home, and no later than at the time the foster care placement contract is signed, the foster parent shall be informed, in writing, through a succinct checklist form, of all information that is available to the department regarding the child's:

• (A) Pending petitions, or adjudications of delinquency when the conduct constituting the delinquent act, if committed by an adult, would constitute first degree murder, second degree murder, rape, aggravated rape, rape of a child, aggravated robbery, especially aggravated robbery, kidnapping, aggravated kidnapping or especially aggravated kidnapping;

• (B) Behavioral issues that may affect the care and supervision of the child;

• (C) History of physical or sexual abuse;• (D) Special medical or psychological needs of the child; and• (E) Current infectious diseases.

• (2) All information shall remain confidential and not subject to disclosure to any person by the foster parent.

» Tenn. Code Ann. § 37-2-415

Information Please!Information Please!

Protecting YourselfProtecting Yourself

• Sherin v. Dep't of Human Res., 229 Ga. App. 621 (1997).– Foster parents took in a child.– No one told them about foster child’s

history of sexual misbehavior, and he molested their daughter and granddaughter.

– Foster parents sued, alleging DFCS violated their civil rights by failing to inform them.


• Sherin v. Dep't of Human Res., 229 Ga. App. 621 (1997).– The question before the Court was whether

DFCS was deliberately indifferent to the FPs’ clearly-established rights.

– At the time, the answer was, “No.” No liability. What was “pertinent” information to tell Foster Parents was left to the discretion of the caseworker.

– Would the result be different today?

Checklist:Checklist:Protecting Your Family Protecting Your Family

A foster parent’s worst A foster parent’s worst nightmare (version 2):nightmare (version 2):

• Suits over injuries in your foster home.– Accidental – house burns down

– Negligent – failure to supervise child

– Intentional – physical or sexual abuse.


• Some protections:– “Parental Immunity”

– Examples:

• Illinois (but not for corporations);

• Washington (but not for the agency);

• Alabama (for the agency, and FPs, but not for intentional torts)


Some protections:– State sovereign immunity or treatment as a state

employee entitled to state insurance coverage:– Connecticut: “No state officer or employee shall

be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment.

– Conn. Gen. Stat. § 4-165

– Foster parents are considered state employees.– Hunte v. Blumenthal, 238 Conn. 146, 148 (1996)


• Georgia Tort Claims Act:– “This article constitutes the exclusive remedy for

any tort committed by a state officer or employee. A state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor. However, nothing in this article shall be construed to give a state officer or employee immunity from suit and liability if it is proved that the officer's or employee's conduct was not within the scope of his or her official duties or employment.”

– OCGA 50-21-25(a)

Protecting YourselfProtecting Yourself• Suits over injuries in your foster home

– Problem can arise when you’re not considered a “state employee” or when your actions are not within the scope of your work.

– Broken Shackle Ranch, a group facility in my home county, was hit with $2 million verdict following child’s death from faulty wiring on a freezer.

– Court concluded that group homes or corporations cannot be considered “foster parents.”

– Broken Shackle on the hook for the verdict.– Johnson v. Ga. Dep't of Human Res., 278 Ga. 714, 717 (Ga.

2004).

Protecting YourselfProtecting Yourself• 42 USC 1983 suits over injuries:• In federal court, these suits are often

styled as alleged violations of federal rights “under color of law.”– Rayburn v. Hogue:– Suit claimed foster parents violated foster

children’s rights by abusing them.– Court found that for Section 1983 purposes,

foster parents are not “state actors.”– 241 F.3d 1341 (11th Cir. Ga. 2001)


• For private individual to be a “state actor” requires finding that:– State required the action (does the state

encourage child abuse?); or– The action is one only the state can do; or– The state has taken active part in the conduct.

• Court says, “no state action.”– So, foster parents may be treated as “employees

of the state” for purposes of tort liability but not as “state actors” for purposes of 42 USC 1983 liability.


Some protections:– Insurance purchased by the state;– California:

• Fund covers “all claims of foster children, their parents, guardians, or guardians ad litem for damages arising from, and peculiar to, the foster-care relationship and the provision of foster-care services.”

• $300,000 liability coverage for all occurrences in a calendar year.

• Claimant must seek $$ from fund first before suing foster parent.

Checklist:Checklist:Liability ProtectionLiability Protection


• Mr. Bohn breaks up a fight between his sons; one runs to the neighbor’s, CPS called, no injury but abuse substantiated.

• Mr. Bohn is put on child abuse registry.• “We can conceive of no more important relationship,

no more basic bond in American society, than the tie between parent and child. . . . By identifying the Bohns as child abusers, investigating the quality of their family life, and maintaining data on them, the County Department exposed them to public opprobrium and may have damaged their standing in the community.”

– Bohn v. County of Dakota, 772 F.2d 1433, 1435 (8th Cir. Minn. 1985)

CPS Investigations of Foster CPS Investigations of Foster HomesHomes

• So, what do you do if the Department investigates maltreatment in your home?

• What if they want to interview you or your children in your home?

• What if they want to take evidence out of your home?


• Investigation– “the liberty interest in familial integrity is limited

by the compelling governmental interest in the protection of children, particularly where the children need to be protected from their own parents.”

– “The right to familial integrity, in other words, does not include a right to remain free from child abuse investigations.”

» Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1126 (3d Cir. Pa. 1997)

Protecting YourselfProtecting Yourself• Warrant Requirement?• Exceptions: Exigent Circumstances• Gates v. Tex. Dep't of Protective & Regulatory

Servs., 537 F.3d 404, 421 (5th Cir. Tex. 2008)– CPS went into home without permission to interview

children.– Fourth Amendment regulates social workers’

investigations.– “A statutory command to investigate allegations within

twenty-four hours is not a license to ignore the Fourth Amendment, and it is unreasonable for the defendants to think otherwise.”

– One-time incident, alleged abuser not in home, “routine” interview of child = no exigent circumstances.


• Warrantless Searches• Special Needs Exception

– Some rational reason other than law enforcement.– Testing of maternity patients to determine cocaine

use without consent violates 4th amendment despite “benign” intent.

– Ferguson v. City of Charleston, 532 U.S. 67, 86 (2001)

– No such reason in abuse/neglect cases.– Roska v. Peterson, 328 F.3d 1230, 1242 (10th Cir. 2003)

• Gates:– No special need. “The purpose of TDPRS's entry

into the Gateses' home--the investigation of possible child abuse--was closely tied with law enforcement.”

CPS Investigations of Foster CPS Investigations of Foster HomesHomes

• What do you do if the Department substantiates maltreatment in your home?

• Many states provide a procedure by which individuals could challenge substantiations of child abuse.

• Include ability to go before an administrative law judge


• A procedure that complies with due process.• Georgia: Supreme Court struck down child

abuse registry because protections were insufficient – “Those alleged under the Act to be child abusers

must be afforded a constitutional procedure by which they can challenge their classification. O.C.G.A. § 49-5-183.1 is the only portion of the Act that provides the person so accused with any recourse. Unfortunately, it does not do so in a manner which comports with federal due process.”

– State v. Jackson, 269 Ga. 308 (1998)


• Due Process Requires What?– Hearing before agency– Opportunity to present evidence– Opportunity to confront witnesses– Formal proceeding– Opportunity for appeal– Opportunity to seek judicial relief

– OCGA 50-13-13


• Georgia DFCS Investigations of Foster Homes– DFCS Position:– 1015.32: “Decisions made as a result of Child

Protective Services investigations and Discipline or other Serious Foster Care Policy violations are not grievable under the Foster Parent Grievance Procedure.”

Checklist:Checklist:Avoid the BusAvoid the Bus


• How do I get some of these things they have in other states?

–Legislative Advocacy

–Administrative Procedures Act

Administrative Procedures Administrative Procedures ActAct

• Agencies have to make rules to determine contested cases.– “Contested case” means a proceeding

including “rate making, price fixing, and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing.”

» OCGA 50-13-2

Administrative Procedures ActAdministrative Procedures Act

• In addition to other rule-making requirements imposed by law, each agency shall:– (1) Adopt as a rule a description of its organization, stating the general course

and method of its operations and the methods whereby the public may obtain information or make submissions or requests;

– (2) Adopt rules of practice setting forth the nature and requirements of all formal and informal procedures available, including a description of all forms and instructions used by the agency;

– (3) Make available for public inspection all rules and all other written statements of policy or interpretations formulated, adopted, or used by the agency in the discharge of its functions; and

– (4) Make available for public inspection all final orders, decisions, and opinions except those expressly made confidential or privileged by statute

• .(b) No agency rule, order, or decision shall be valid or effective against any person or party nor may it be invoked by the agency for any purpose until it has been published or made available for public inspection as required in this Code section. This provision is not applicable in favor of any person or party who has actual knowledge thereof.

– O.C.G.A. § 50-13-3


• Before making a rule, agency must:– Give 30 days’ notice after issuing an exact

copy of the rule;– Take public comments;– Allow legislators opportunity to object.

• OCGA 50-13-4


• “An interested person may petition an agency requesting the promulgation, amendment, or repeal of a rule. Each agency shall prescribe by rule the form for petitions and the procedure for their submission, consideration, and disposition. Within 30 days after submission of a petition, the agency either shall deny the petition in writing, stating its reasons for the denial, or shall initiate rule-making proceedings in accordance with Code Section 50-13-4.”

O.C.G.A. § 50-13-9

““Trust Me, I’m an Attorney”Trust Me, I’m an Attorney”(and other things you shouldn’t believe)(and other things you shouldn’t believe)

Class Action Litigation and the Future of Foster Care

Class ActionsClass Actions• Oklahoma

– D.G. v. Henry• Rhode Island

– Sam and Tony M. v. Carcieri• Connecticut

– Juan F. v. Rell• Georgia

– Kenny A. v. Perdue • Michigan

– Dwayne B. v. Granholm • Mississippi

– Olivia Y. v. Barbour• New Jersey

– Charlie and Nadine H. v. Corzine

• Washington, DC– LaShawn A. v. Fenty

• Wisconsin– Jeanine B. v. Doyle

• Kansas • Kentucky • Missouri

– E.C. v. Sherman and G.L. v. Sherman

• New Mexico – Joseph A. v. Bolson

• New York City– Marisol A. v. Giuliani

• Tennessee – Brian A. v. Bredesen

Kenny A.Kenny A.

• Class-action lawsuit on behalf of foster children in DeKalb and Fulton Counties.

• Settled October 2005 with a consent decree and monitoring by “accountability agents.”

• 31 “measures” and also system improvement requirements.

• State must be in compliance before monitoring will end.

Kenny A.Kenny A.

• Some highlights:– Measure 17: 95% of children have 2 or fewer

moves in 12 months.– Measure 19: 90% of children placed within 50

miles of “home.”– Measure 24: Major reductions in children “aging

out” of care.– Measure 31: 90% of children in placements of 3

foster children or fewer, no more than 6 children in the home.

– Measure 25: 98% of children in foster placements with full approval status.

Kenny A.Kenny A.

• Effects on you:– Brings additional pressures on the system

to take action based on the lawsuit and not necessarily on what is in the child’s best interests.

• Types of homes, location of homes, monitoring of homes.

– Reflects a set philosophy that some would characterize as anti-foster care.

Kenny A.Kenny A.

• Effects on foster parents:– Provides opportunity to insist on better

care for your kids:• Measure 30: at least 85% of foster children

shall have no unmet medical, dental, mental health or education needs.

• Other measures include lowered caseloads, improved graduation rates, improved foster parent training, etc.

– (At least if you live in Metro Atlanta).– www.childwelfare.net

http://www.childwelfare.net/

Class ActionsClass Actions

• Future litigation?– Contempt actions– Other class-action lawsuits?– www.childrensrights.org

http://www.childrensrights.org/

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