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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.

Article Excerpt
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...

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