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Child Welfare Agencies’ Potential Malpractice Liability for Inadequate or Inappropriate Foster Care Services

If a child welfare agency or caseworker determines that a child needs to be moved into protective custody, the agency's duty to that child is not discharged. The agency or caseworker has a continuing duty to ensure that the child is not mistreated in her foster care home. Many of the children in the foster system are in need of special placements given their own special needs. Further, the agency or caseworker should do everything possible to ensure that the child is not a danger to others. The agency or caseworker should make every attempt possible to match the child with the proper foster family.

Plaintiffs

If the agency or caseworker improperly placed a child with a foster family and failed to ensure the child's safety, they may be liable for malpractice. The child herself may sue or the birth parent. If the child is harmed by the placement, the agency may be liable if they did not act in a reasonable manner in placing the child.
The foster parent may also sue the agency or caseworker on the basis of malpractice. If the child is violent, for example, and the agency or caseworker neglected to inform the foster parent of this fact and an incident occurs, the agency or caseworker may be liable.

Liability

Before the agency or caseworker may be found liable for malpractice, the plaintiff must show that either the agency or caseworker violated a specific duty owed to the child. Often times a showing that the agency or caseworker failed to follow the basic administrative guidelines will be sufficient to show that the agency or caseworker is liable.

Inadequate Foster Parents

Some foster parents are clearly inadequate. Abuse and neglect occur in many foster care homes. The child or birth parent may sue the agency or caseworker for negligence when abuse or neglect results in the foster care home. If the agency or caseworker does not follow the proper channels or adequately research the foster care home, either may be liable.

Dangerous Foster Children

Agencies and caseworkers may also be sued for the harm caused by the child that they have placed. The child need not be prone to violence or misbehavior in order to pose an actionable danger to the foster parents. However, in order for the agency or caseworker to be found liable, the plaintiff must show that either the agency or caseworker was negligent in the placement process. The agency or caseworker must have known, or had sufficient reason to know, that the child posed a danger to the foster parents or others, and placed the child anyway without taking any action to protect or warn the foster parent.