Home > Attorneys > Even Attorneys Say that Caseworkers and Child Protection Services Should be held accountable for abuse in Foster Care.

Even Attorneys Say that Caseworkers and Child Protection Services Should be held accountable for abuse in Foster Care.


When attorneys agree that CPS must be held accountable for abuse in foster homes, that is a problem. Children are snatched from homes which in most cases there is no abuse- just poverty and lack of education. These children are placed in homes which are worse than the ones they have been snatched from. When these children are abused, CPS is never held accountable. They should be listed at the top of the indicment as co-defendants. They are the reason the child is abused in the first place, if it were not for them snatching children and removing them from the home that child probably would not have been abused. They always have excuses for their actions. They always have excuses for the abuse in the foster care providers home. They must be held accountable.

Holding Foster Care Agencies Responsible for Abuse and Neglect

By Carolyn A. Kubitschek

We have all heard some version of the story.

For half his life, 8-year-old Marcus Smith has had to wear a helmet . . . . to protect his brain, which has only the healed skin of his scalp to protect the right side of his head. . . . When he was four, Marcus was beaten unconscious, his skull smashed like an eggshell, leaving his brain bruised and permanently damaged. . . . This would have been more than enough for city authorities to crash down doors to get the perpetrator, except for one thing: Marcus was a foster child at the time, taken from his mother and entrusted to the care of the city. Bob Port, From Foster Care to Courts, N.Y. DAILY NEWS, Feb. 20, 2001, at 24.

The blows that crushed Marcus’s skull were allegedly inflicted by a teenage son of Marcus’s foster mother. The foster care agency that oversaw Marcus’s care had ignored complaints from the boy’s mother and grandmother. Indeed, as the newspaper noted, “even as [Marcus] lay in intensive care with a shattered skull, caseworkers submitted an internal report saying he was in good health.” Id.

When the government removes children from parents it claims are abusive, neglectful, or unfit, at a minimum the government must place the children in safer environments than those they left. In many cases, this does not happen. Throughout our country, foster children are placed in homes and institutions where they suffer horrendous abuse and neglect, and sometimes even death, at the hands of their purported protectors. See, e.g., Glenn E. Rice, Former Foster Mother Sentenced to Five Years Probation in Girl’s Death, KANSAS CITY STAR, Jan. 24, 2003, at B1; Richard Lezin Jones & Leslie Kaufman, Foster Care Secrecy Magnifies Suffering in New Jersey Cases, N.Y. TIMES, May 4, 2003, at A1.

“I know that there are good foster families out there, OK?” a former foster child said. “But I also know that every foster kid that I have ever talked to, including myself, has been abused in foster homes.” Frontline: Failure to Protect—A National Dialogue (PBS television broadcast, Feb. 6, 2003), available at http://www.pbs.org/wgbh/pages/frontline/shows/fostercare/etc/script2.html#dialogue. In New Jersey, the system has deteriorated to the point that Marsha Robinson Lowry, executive director of Children’s Rights, Inc., concluded that “it is now a documented fact that no child is safe today in [the state’s] foster care.” Patterson, Special Unit of DYFS Is Called Failure, N.J. STAR LEDGER, May 23, 2003.

Our nation’s most vulnerable children deserve better. Having been removed from their homes and families—and often from their neighborhoods, friends, schools, and religious institutions—they are helpless and at the mercy of the agencies that are charged with providing substitute care. All too often, foster care agencies fail at their job. Government social workers also habitually fall short. Some children languish for years in abusive situations while the officials charged with protecting them either do not know what is going on or choose to see no evil, hear no evil, speak no evil, and write no evil in the case file.

Placing foster children in abusive homes is appalling. Failing to protect them, so that the abuse continues, is inexcusable. It is also unconstitutional. The U.S. Supreme Court has repeatedly ruled that people who are in government custody have a constitutional right to safe conditions during confinement and protection from injuries inflicted by others. The Court has extended its ruling to prisoners, suspects in jail awaiting trial, and involuntarily hospitalized mental patients. The Court has not yet decided whether foster children have the same right to protection as prisoners, criminal suspects, and mental patients. However, nine federal judicial circuits have ruled that foster children, who are innocent of any wrongdoing, are at least entitled to the same constitutional protections, in terms of safe conditions of confinement, as convicted felons. See Doe v. N.Y. City Dep’t of Soc. Servs., 649 F.2d 134 (2d Cir. 1981); Nicini v. Morra, 212 F.3d 798 (3d Cir. 2000); Hernandez v. Texas Dep’t of Protective & Regulatory Servs., 380 F.3d 872 (5th Cir. 2004); Meador v. Cabinet for Human Res., 902 F.2d 474 (6th Cir. 1990); K.H. by Murphy v. Morgan, 914 F.2d 846 (7th Cir. 1990); Norfleet v. Ark. Dep’t of Human Servs., 989 F.2d 289 (8th Cir. 1993); Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003); Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883 (10th Cir. 1992); Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987). When foster care agencies fail to provide those protections, they may be held liable.

The constitutional rulings have provided some redress for abused foster children. They may sue under 42 U.S.C. section 1983 to obtain compensation from the agencies that have wronged them. Importantly, the Constitution, as the supreme law of the land, trumps all state statutes and case law that might give full or partial sovereign immunity to government agencies or employees, or that might impose procedural prerequisites on children asserting claims against state or local governments. However, the law falls far short of providing a remedy for comprehensive damages for all abused foster children. Numerous hurdles remain for an abused foster child.

First, in states that provide foster care directly through a statewide program, the government agencies themselves are immune from suit in federal court under the Eleventh Amendment. (Where foster care is provided by counties or other local governments—as in New York, California, and some other states—the Eleventh Amendment does not prohibit lawsuits.) In all states, agency employees and officials may still be sued, however.

Second, in all lawsuits under 42 U.S.C. section 1983, the standard of liability is much higher than the negligence standard of tort law. Foster care agencies, officials, and employees will not be held to account unless their behavior exhibits “deliberate indifference” to a risk of harm to the foster children. Doe v. N.Y. City Dep’t of Soc. Servs., 649 F.2d 134. This heightened standard of liability has been exploited by careless foster care agencies to avoid legal consequences of their careless mistakes.

A third problem for abused foster children seeking legal recourse is the issue of proximate cause. As in tort law, defendants are responsible for the consequences of only those injuries that they cause. Foster care agencies and staff do not normally abuse foster children directly. The abuse is usually inflicted by foster parents and family members, or other foster children in the household. The courts have held that foster care agencies will be liable for abuse inflicted by foster parents when the agencies’ behavior was a “substantial factor” leading to the abuse. Id. If the chain of causation is found to be too attenuated, however, the agency will escape liability.

Finally, 42 U.S.C. section 1983 contains its own defense. All defendants can potentially claim the defense of qualified immunity and avoid paying damages if their actions or omissions violated a law that was not clearly established at the time, or if their actions or omissions were objectively reasonable, as determined by the judge (not the jury). While agencies themselves cannot claim qualified immunity, their employees can, and the employees have avoided compensating abused foster children by using that defense. See Camp v. Gregory, 67 F.3d 1286 (7th Cir. 1995).

Despite all the hurdles, many abused foster children can and do obtain compensation. Three years after his injury, Marcus has twice undergone surgery on his skull. A permanent plate has replaced his helmet and, except for the large scars on his head, Marcus looks like any other child. He is doing well in his special education class at school. When he turns eighteen, he will begin to receive a monthly annuity out of the $1.25 million settlement of his lawsuit for the abuse he suffered in foster care. That sum in theory replaces the salary that Marcus will unfortunately never be able to earn.

Carolyn A. Kubitschek is a partner in Lansner and Kubitschek in New York City and an adjunct professor at Cardozo Law School. She served as the attorney in Doe v. N.Y. City Department of Social Services.

Contact information:
Section of Individual Rights & Responsibilities
American Bar Association, 740 15th Street, NW
Washington, DC, 20005
phone: (202) 662-1030
fax: (202) 662-1032
irr@abanet.org

http://www.abanet.org/irr/hr/winter05/fostercare.html

  1. Anndrea Souza
    June 14, 2010 at 5:52 am

    My daughter and son were taken eight years ago when I was arrested and bailed out at 1.30amthat night/morn. It was a Friday morn that I was bailed and I called cps starting at 8:30am that same morn.and all day until they returned my call at 4:45pm and said Id have to wait till Monday because it was not enough time (15mins) to do the paperwork to release them and I even had my sons father an hour after I was arrested go to pick them up at my house but he was told by sheriffs office that they did’nt know where he was and it was too late that they were gone and then to check with cps. The law says that a parent has the right to allow another adult to pick children up before cps is to place them in foster care. And the law also states a parent is to have her children released within 72hrs if she is avail. I was yet they kept them over the weekend so they could claim the 72hrs in order to place them.I did the case plan yet they ecnored the evidence and said I failed it. I also got my son back from the Judge 50/50custody and within 24hrs the sheriffs office came to my house almost knocking me down and said that they didnt care what I had from the judge they would take my son if he was with me at all.Thats only the beginning.My daughter is now 17 and they are just now having me legally going to court again requiring us to do things to send her back home.She was nine when they placed her and they got my son a second time the one night In went somewhere and left the family I lived with to bbsit.They said he was abandoned and lift alone even after they verified he was with an adult. Now he has been illegally adopted out to people in Pomona,Calif. saying that it was a special circumstance being that it was a second to kinship adoption.I can quarentee he is not related to these people in any way what so ever. He has been in foster care for five years now and adopted six months after if not sooner that he was taken by cps.I was never allowed any rights in court as to equal protection of the law and never was allowed to speak. When I did I was ecnored.They even banned me from the church my kids were taken to saying It was an unsuprivised visit.The foster parents abused my son everyday and my daughter was a whittness to this and thats how I found out.My daughter was gettiing drunk every day and taking ecstacy and cutting school everyday while she was in foster care and the fosters didnt even know it? Also I sent people to pick my daughter up and they didnt even check to see who she was going with at age nine,ten and eleven. She managed to get herself out of that home and is now in a home that the foster is better but still abusive.They say she is going to be able to come home but keep making new excuses.I think they are just trying to keep her for the benefits until she is 18. She is not drinking and will graduate on time since she has been staying with me for five out of seven days a week and five nights too. The foster mother is single and collects $800.00 a month for her yet I was getting maybe 236.00 in food stamps for both kids when I had them.If they would of given me that much I quarentee I would of had a much better life for them and still they never went without.Cps even said I did not neglect or abuse my children and they knew that by the way my children were and the house was looked at and documented that it was clean and kids had plenty of food and clothing and that the house was well kept. I dont understand how this was possible for them to be taken but I do know it all started with the main sheriff in my town murdering one of my friends I knew since she was five and yet her body has not been found and the sheriff admitted he had a video tape of her the day before she was murdered and yet no one could know that unless they were there.I know from friends cause this is a very small town and they were made to be part of it and he got her pregnant and them made her boyfriend stab and rape her after he did and then made another friend bury her and he doesnt know where she was burried because they dont want to be charged for what he made them do due to their fear of him. He is still an officer of the law but right after he murdered her he became head of murder investigation dept in the same town. I know this sounds crazy but look up Juanita Nelson out of Boulder Creek and you will read the facts as the town knows it.They dont know the truth but I and some friends do but cant do anything about it. I would love to see this man put away for what he did but how do you do that when he works in the sheriffs dept and they do protect him like no other officer because of his number of arrests even when alot of them were set up when he could not find them doing what he thought they were.He even had some of the minors and the girl he murdered hooked on herion and tried to force another friend to sell it for him. The kid lives up my street and will tell you what happened. I dont fear this man but most in this town do so its a realy touchy subject with the locals and I dont know how to handle this.Its such a hard one to prove and I know it sounds far fetched and an excuse for my kids being taken.But I swear on the bible that these things are true.Yes I may have committed a misdomener but I payed for it and some. Why is it legal for the children to pay with the rest of their lives if I didnt even have to go to prison or jail for more than one half of a night.

  2. Fiona Lockhart
    November 23, 2010 at 5:46 pm

    Dear Andrea
    I’m sorry about what has happened to you and your children and I already know that the ‘crazy truth’ is often stranger than the fiction. I’m writing to ask you about Juanita. Her family really need to know where she is buried. Is there is any way you can find out and let them know? I’m in the UK if you can’t do it directly.

  3. August 21, 2011 at 7:38 am

    Cfsa in wash dc is to much one worker name darlene v richardson remove childen wrongfully she the social that smiles in youre face the social worker from hell family strng collob are a trick to get mother at the meeting to just make court order no heros with cfsa them btchs are wicked.

  1. May 7, 2010 at 7:20 am

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