Below are summaries of federal cases dealing with abuse/neglect.

Cuyler v. United States of America, 362 F.3d 949 (7^th Cir. 2004).   Neither Illinois common law nor the State’s Abused and Neglected Child Reporting Act creates a tortious duty of care on behalf of physicians, foster parents, homemakers, child-care workers, etc. that gives rise to civil actions for damages stemming from their failure to report child abuse.  Only criminal sanctions are mandated by the Statute and common law, and those are imposed only when the failure to report was “willful” as opposed to merely “negligent.”

The plaintiff in this case was a bereaved mother whose child sustained fatal injuries inflicted by a babysitter whom had previously harmed a child treated by hospital personnel at a federal hospital.  She brought a wrongful death suit against the hospital personnel for failure to report what would have been a reasonable belief that the child they had previously treated had been abused and she sought monetary damages.  The trial court awarded her $4 million.  The 7^th  Circuit U. S. Court of Appeals reversed and remanded for dismissal because from the Statute’s inception thirty years ago through the date of its decision, the only penalties assessed stemming from the Statute are criminal and the result of willful failure to report as opposed to negligence.

Braam v. State of Washington , 81 P.3d 851 (Wa. 2003).    The “professional judgment” (articulated in Youngberg, 457 U.S. 307) as opposed to the “deliberate indifference” standard of liability shall be utilized in class action cases alleging violations of foster children’s due process rights to reasonable safety free of unreasonable risk of harm by defendants that are institutions as opposed to individual institutional actors.  Whether or not the institution is liable shall hinge on whether plaintiffs prove the institution substantially departed from accepted professional judgment, standards or practices so much as to demonstrate that its actors did not base their decisions on such judgments (but presumably something else).

The certified class in this case was foster children who had been placed in at least three different homes.  Their attorneys sued the State Department of Social and Health Services (DSHS) for violation of the children’s substantive due process rights to safety and freedom from unreasonable risk of harm.  After they rested their case, plaintiffs somewhat surprised the judge and opposing counsels by requesting that the “professional judgment” standard be used as opposed to the “deliberate indifference” standard in the jury instructions.  The judge, nonetheless, gave jury instructions utilizing the “professional judgment” standard.  The jury held that the defendants had breached children’s due process rights and the trial court entered an injunction against DSHS requiring that it make specified improvements.  The defendants appealed and moved for an emergency stay of the injunction which the Appellate Court granted.  The Washington Supreme Court vacated the injunction and the verdict and remanded to the trial court, saying that the jury instructions did not correctly articulate the due process right and the “professional judgment” standard and that they, in fact, confused the right with the standard of culpability.  

Burton v. Richmond, 370 F.3d 723 (8^th Cir. 2004). The U.S. Court of Appeals for the 8^th circuit held that DFS caseworkers are entitled to qualified immunity unless their official conduct or inaction is so egregious that it “shocks the conscience” and constitutes a violation of foster children’s substantive due process constitutional rights. 

The defendant DFS caseworkers appealed the Missouri State District and Appellate Courts’ denials of their summary judgment motions for qualified immunity.  Caseworkers in Missouri are granted qualified immunity unless their conduct or inaction is so egregious that it “shocks the conscience” and constitutes a violation of foster children’s due process rights, namely, their rights to bodily integrity when either a) they are in the State’s custody, or b) they are subjected to danger created by the state’s arrangements.  The mother in this case left her four children with their aunt.  The aunt and the aunt’s mother agreed to allow two of the four children to live in their respective homes (the aunt’s mother was married to a man who was convicted of murder some years previous and had violated his parole).  Concerned that the children’s mother would try to regain custody, the aunt and her mother talked to DFS caseworkers (whom both knew previously) to get the juvenile court involved so as to stop the mother from regaining custody easily.  The caseworkers who placed the children in the home of the aunt and her mother were the same who had placed the children in the aunt’s mother’s home previously.  The caseworkers had conducted a home study prior to this placement with the aunt’s mother and her husband and had learned that the husband had been convicted of murder but nonetheless had placed the children in the home for a time before their return to their mother.  No negative incidents between the husband and the children were reported.  After the children were placed in the home with the aunt’s mother and her husband, the mother told the aunt that the husband had sexually abused one of the children.  The aunt told the caseworkers.  The mother did not bring forth the allegations in her interviews with caseworkers.  When the children sued the caseworkers for violating their substantive due process rights, the 8^th circuit held that violation of due process requires that the State have a duty and that that duty be breached.  The 8^th circuit held that the State had no duty because the custodial arrangement was not “created” by the State but by the parties and that the State had not taken custody (but rather temporarily lent it to the aunt and her mother while the mom did what she did).  Even if there were a duty, the 8^th circuit held that the caseworkers’ actions did not rise to the level of a constitutional breach because they did not “shock the conscience” (each caseworker heard only one allegation of sexual abuse and that was made by a mother who wanted to regain custody of her children, and, a home study had been conducted for the aunt’s mom’s home a few years prior and nothing substantial had changed).  The court was quick to add that mere negligence did not constitute a constitutional breach and thus the defendants were entitled to qualified immunity.

Ray v. Foltz, 370 f.3D 1079 (11^th Cir. 2004).  Unless caseworkers are proved to have had actual knowledge of a foster child’s abuse and to have acted with deliberate indifference to that abuse, they are entitled to qualified immunity when parents seek monetary damages as compensation for the mistreatment of their children while in foster care.   

The natural parents’ two children were placed by the defendant DCFS caseworkers in a foster home with the Cumberbatch Family.  The son was abused repeatedly by a third party, and the daughter was murdered by Mrs. Cumberbatch.  The parents allege that the caseworkers should be liable for monetary damages because they allegedly ignored (1) two 1999 abuse reports regarding Mr. Cumberbatch; (2) statements that the Cumberbatches failed to provide proper care to a small child in their home; (3) complaints that the Cumberbatches were verbally abusive and uncooperative with state officials; (4) bruises, blisters, and rashes on R.M.; (5) the removal of a foster child from the Cumberbatch home because they were uncooperative; and (6) the fact that R.M. was not in day care for weeks.  There was no evidence in the record that either case worker knew any of the aforementioned information about the Cumberbatches, and, in fact, the bulk of the plaintiffs’ case was that the case workers failed to follow office procedures and protocol that would have given them actual knowledge of the danger the children were facing.  The 11^th Circuit Court of Appeals held that mere negligence does not preclude a claim of qualified immunity and that absent a showing of deliberate avoidance of information that would have indicated a danger to the children, the caseworkers still have a right to qualified immunity.  It was not enough that the defendants should have known the danger to preclude qualified immunity.  The defendants had to be shown to have had actual knowledge of danger and to have acted with indifference in the face of this knowledge for their claims of qualified immunity to be blocked.  The court remanded the case to the district court with instructions to dismiss.