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

Thursday, Mar. 27, 2003
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.


James R. Marsh, JD is Senior Fellow, Center for Adoption Research, University of Massachusetts and Publisher of The Adoption and Child Welfare Law Reporter (TM).

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

  1. John Novak says:

    I am a 22 year old male with no college education, and it is sad to see such misinformed writings from college educated journalists. Why did you not mention the word “murder” when bringing up the murders by asphyxiation, or “restraint”? The child who died while being restrained was MURDERED. That is completely different than a child who dies drowning in a toilet.

    If a child dies from being “neglected” such as the toddler who drowned in a toilet than yes then a “lawsuit” is appropriate. However, the restraint murders (Everybody start calling them “restraint murders”, using the phrase “restraint murders” will save lives by making people aware of the seriousness of the problem). A human being violently attacking someone to death is called “murder”.

    I am not saying that the toddler drowning isn’t as much of a tragedy, however a lawsuit in that case is appropriate due to the fact that there was no malicious intent toward the child in the drowning, unlike in the case of restraint murders.

    It is extremely horrifying that you, a college educated person claiming to stand up for foster kids, would suggest that the people who work for and run these institutions should be “sued” for murder and not sent to prison with a minimum 25 year sentence for cold blooded murder.

    Keep in mind that many of these “restraint holds” are applied because the child is “talking back” or has an untucked shirt. Also keep in mind that kids get in fights ALL THE TIME, adults have ALWAYS “broken it up”. Twisting a child’s arms behind his or her back and slowly suffocating him or her to death for 45 minutes while the child screams and gasps “I can’t breathe” just because said child got in a little scrap with another child or threw a temper tantrum:

    That is cold blooded MURDER and nothing else. If they are “employees” than killing their “clients” is no different than someone who works for a hotel going into random customer’s rooms and offing them. Just because he’s wearing a red suit doesn’t mean we “fine the hotel”. We put the guy in prison.

    And if he only killed the guy because “his boss told him to” then we put him in prison for making terroristic threats and following through with them through his worker!

    The worst is when an institution or a worker gets “sued” for sexual assault, especially if they’re free to work at another facility *shudders*. How disgusting is it that rape and murder are NOT felonies if you commit them on institutionalized children. Black people had more rights in the late 1800’s than foster children do today. After slavery ended, it was illegal to kill and rape black people and raping a slave for the first time was no longer considered “trespassing”.

    It is still not a felony to kill or rape foster children or institutionalized children diagnosed with mental or emotional disorders. To make matters worse, the intentional exsessive restraints, and the going-out-of-their way to make foster children’s lives miserable in MANY cases, is blamed on “money” issues or “lack of funding”

    There is OBVIOUSLY something darker and malicious going on, that has nothing to do with money. Lots of kids in dirt huts in India live way healthier lives than foster children in America, where instead of living in dirt huts, they live in steel cells that costed tens of thousands of dollars to build and they live in multi million dollar facilities where the sole purpose of the people working there is to dole out punishments to the children.

    I do not know WHY this is happening. And I am NOT saying that “All people who work for childcare institutions are sadistic murderers”. But there is OBVIOUSLY some malicious or hate-based intent here that has NOTHING to do with “greed” or “lack of funding”.


  2. donna.saenger says:

    ha we are handy cap and we dint do nothing ron i cant rely spell or moltepliy and my husben cant read and thae tock tham oway owt off the hospitol ones 5 and in one place and the ether is 2 and a lone and now im 33weacks olong and now tha want this one to and seprat this one licke the ethers bie the time tha get don all 3 ove tham will be olon and in difrent homs and towns


  3. nikkie says:

    my fiances 20month old baby girl was founf face down in her foster families bathtub. She was took 2 a local hospital @ 3:40pm on a tuesday. Her father did not get any calls about her until 11:30am wednesday. She is now fighting for her life. Why was noone in the bathroom with a 20month old baby? Why did noone call this after they was taking her in surgery?


  4. Gail Gray says:

    What is your opinion of the definition of neglect in a case where the foster parents deliberately over fed an infant diagnosed with a rare form of dwarfism; the weight contributed to her death by worsening respirator problems she was 22 inches ( newborn length) and 15 pounds at age 22 months. Diagnosis was rhizomelic chondrodysplasia pun tags, can be googled for disease information


  5. foster parents should get NO immunity when it comes to harming children. Neither should the social workers that place the children!


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