How Should the Law Respond When Children Die, Or Are Injured, In Foster Care?
Even Limited Immunities for Foster Parents Are Dangerous

Earlier this month, the U.S. Department of Health and Human Services released a report, reviewing data from the year 2000, that showed that of 1182 child deaths nationwide, 32 - or 2.7% - were deaths of children who resided in foster care.

Meanwhile, a June 2002 General Accounting Office report found that the median percentage of children abused or neglected while in foster care during 1999 was 0.60 percent - more than 1 in 200 children. During 2000, the percentage was a similarly high 0.49 percent, or about 1 in 200 children.

Given the large number of foster children, even a fraction of a percentage results in thousands of incidents of abuse and neglect in foster care each year. By now almost everyone has seen the headlines: "Foster Child Killed by Caretakers," "Child Dies After State Fails to Investigate," "Child Missing from Foster Care."

Based on such incidents, child welfare professionals, state and federal policymakers, elected officials and the public are all rightly concerned about the care and wellbeing of the over 500,000 children who reside in state-supervised foster homes, residential treatment facilities and group homes.

The question is, how can the law help these children? One answer is: through state tort systems. The threat of negligence suits can serve to convince foster parents to provide at least adequate and non-abusive care. And in cases where abuse or neglect does happen, such suits can allow compensation for the terrible injuries inflicted.

Unfortunately, some court decisions have erected immunities that make it difficult for such suits to be brought by, or on behalf of, foster children. These immunities should be removed by statute, in states where they exist.

Illinois - which has a large foster care system - is a case in point. While the state's Supreme Court has made several pro-foster child rulings, it has yet to fully strip foster parents of legal immunity for abuse and neglect, as it ought to do.

The Unusual Relationship Between Foster Parent and Child

The status of foster parents, in the law, is a strange one. Are they quasi-parents? Are they government employees, since they are paid by the state? Or are they both, or neither? And if they are indeed parents and employees, do they enjoy all the immunities that parents and employees typically do?

In 2000, the Illinois Supreme Court addressed several of these key questions regarding the status of foster parents, in the case of Nichol v. Stass. The case arose when two-year-old Jonathan Nichol drowned in a bathroom toilet while in the care of his foster parents, John and Bonnie Stass.

Jonathan's biological parents filed a complaint against the Stasses on Jonathan's behalf alleging that the Stasses were negligent in supervising, monitoring, and caring for Jonathan. But they ran up against several types of immunity in trying to pursue their claims.

Do Foster Parents Share Government Employees' Immunity From Suit?

The first question the court addressed was whether foster parents, such as the Stasses, are government employees or agents, and are therefore entitled to immunity from suit for actions done in the ordinary course of their jobs.

Resolving a conflict among lower courts, the Illinois Supreme Court said no: Foster parents, under Illinois law, are neither state employees nor state agents. In reaching this conclusion, the court reviewed Illinois state law and policy relating to state employment. Although foster parents are subject to a laundry list of requirements, the court found that these were akin to licensing standards and not indicative of an employer-employee relationship. (Interestingly, the Stasses were entitled to state indemnification for any adverse judgement and were represented throughout the proceeding by the Illinois attorney general's office.)

On this point, the court's decision was correct. To make foster parents immune for liability for what is done in the ordinary course of their "jobs" - caring for children - would only abet the current epidemic of abuse and neglect in foster care.

Do Foster Parents Share Biological and Adoptive Parents' Immunity from Suit?

The court's second holding, however, was disappointing. The second question the Illinois court addressed related to "parental immunity" from suit.

Under tort law, parents cannot be sued by their children for damages allegedly caused by their negligence - unless the children have gone through the process of becoming "emancipated minors" independent from their parents.

But what about foster parents? Can they be sued by (or on behalf of) their foster children, or can they claim the same immunity parents can?

The Illinois court held that foster parents can indeed claim some immunity, because they stand in loco parentis (literally "in the place of a parent") with regard to the child. However, the court also held - after reviewing the law of several states - that this immunity, in Illinois, as elsewhere, was limited.

The court held that in areas where foster parents act like parents - exercising a substantial amount of discretion in discipline, supervision, and care - parental immunity from negligence suits is appropriate. But, the court held, when foster parents act sufficiently badly - when the conduct results in revocation of a foster parent's license or a finding of neglect, or when it is the subject of a criminal charge - they lose that immunity.

This decision was only partially correct. Abuse and neglect by foster parents should provide a basis for suit, even if it does not meet these tests - for such conduct need not rise to the level of criminality or license revocation to do permanent harm to a child.

What If the Foster Care Is Provided By a Person, Not An Institution?

Late last year, in the case of Wallace v. Maryville Academy, the Illinois Supreme Court was again called upon to determine whether the doctrine of parental immunity is available in the foster care context. This time, however, the party asserting the defense was not an individual, but an institution - one that cared for foster children. And this time, the court's decision served, fortunately, to extend full protection to the foster child.

Again, a foster child's death was at issue. A twelve-year-old boy who was a "ward of the state" died after being restrained by various staff members in a prone position for over four hours. A suit was brought on the boy's behalf, and again, the institution tried to hide behind immunity.

Relying on Nichol v. Stass, the institution argued that like a foster parent, it too was in loco parentis with regard to the child, and it too could therefore invoke parental immunity. This time, however, the court did not accept the argument.

Parental immunity, the court noted, only applies when the negligent conduct is intimately associated with the parent-child relationship - such as the care, supervision, and discipline of a child. The Court found that the employees of a residential child care facility exercise their professional - not parental - duties in handling state wards.

Even if their responsibilities are similar to those of parents, the court held, they are not parental responsibilities. Thus, the institution and its staff were not immune from suit for negligence, the court concluded.

Immunities Should Be Abolished, and Foster Parents Held Accountable

For foster children, many of whom have been abused and neglected by their parents and caretakers, the state is their last best hope for a family. It is all the more tragic, then, that children often go into the foster care system only to face more abuse and neglect.

Fortunately, the legal system has begun to respond to these children's suffering through tort actions that seek to recover monetary damages as compensation. Unfortunately, however, the doctrine of parental immunity can currently result in the dismissal of some suits of this type.

When it comes to foster parents, that immunity should be removed by statute in every state. Meanwhile, until that happens, other remedies are emerging - based on federal statutory rights and tort actions under federal civil rights laws. Whatever the basis, there should certainly be a remedy for these wrongs. Injured and damaged children deserve no less than any other injured plaintiff - full restitution under law.