Foster Care Abuse Ruling Goes Against State Workers


Court Strikes Down Defense of Qualified Immunity

February 5, 2009
by Jamaal Abdul-Alim

Foster care workers can be held liable if the children they place in foster homes are sexually abused by other children in the home who were known perpetrators or victims of sexual abuse, a federal appellate court has ruled.

The ruling by the U.S. Court of Appeals for the 11th Circuit, in Atlanta, involves a case in which three children - who were 8, 5 and 3 at the time - were repeatedly molested in 1999 and 2000 by older children in a Florida foster home. The suit alleged that even after a documented case of child-on-child sexual abuse occurred in the same house in July 1999 nothing was done to protect the younger children.

According to the suit, the younger children originally were placed in the house even though it was licensed for only two children and had three living there.  Of those three, two boys were known to be "sexually aggressive." And, the suit alleged, the Florida Department of Children and Family knew that younger children in the home were often left in the care of those same "sexually aggressive" youths.

The suit alleges that the younger children were abused by those two sexually aggressive youths.

The federal appellate court ruled that the foster care workers should have known not to place the young children - who had allegedly been sexually abused by their biological parents - in the home.  By doing so, the court said, they violated the children's 14th amendment right "to be free from an unreasonable risk of harm while in state custody."

"Defendants knew that sexual abuse victims ... were more likely to be re-victimized and more likely to perpetrate similar offenses," the court wrote in reference to the older boys. "Despite this knowledge, no defendant - despite his or her authority to act - took steps to secure" the safety of the children they had placed in the foster home.

The appeals court's ruling turned on the issue of immunity.  The plaintiffs had sought to file an amended complaint of their federal district court case and, in response, the state had asked for a dismissal, claiming the three child welfare workers named in the suit - a social worker, a licensing counselor and a licensing supervisor - had qualified immunity. The district court ruled against the state and the appellate court upheld that ruling.

Howard Talenfeld, an attorney for the victims, believes the case is the first to establish a foster child's right to be protected from sexual abuse by other children in the foster care system when workers know they are placing the children in harm's way.

"The message is that front line workers and officials need to be vigilant ... to ensure that they're not placing other children in care at risk of sexual assault," Talenfeld said.

Marty Guggenheim, president of the National Coalition for Child Protection Reform, said there have been other successful lawsuits for such foster-care abuse, but added: "This case is very important because it clarifies that agencies owe a duty of care not to endanger their wards."

A spokesman for the Florida DCF said the department had taken several precautionary steps since this case to make sure that children are protected from sexual abuse while in the foster care system.  Those steps include more thorough assessments and background checks on everyone, including children, living in a foster home, and not placing younger children in homes where older children have been victims or perpetrators of sexual abuse.

However, the department spokesman said  that the Florida DCF has no way of knowing whether those precautionary steps are working because the department does not track child-on-child sexual abuse within the system - a practice that Talenfeld said is endemic in foster care systems nationwide.

After the federal appellate court issued its decision on Dec. 15, the matter involving the three children,  including a still-pending state court action for negligence, was settled through mediation for $2.925 million, according to Colodny, Fass, Talenfeld, Karlinsky & Abate, a Florida law firm that represents the children. The state case, filed separately around the same time as the federal case, will be closed when the damage settlement in the federal case is approved by the federal district court judge.


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