September 01, 2011

Utah Officials Immune from Liability for Alleged Assault by Foster Child

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

J.W. v. Utah, 2011 WL 3134779 (10th Cir.).

State and child welfare agency officials were immune from liability from state negligence and Fourteenth Amendment claims by foster parents after foster child allegedly abused another child in their home. Battery exception gave state and its employees protection from state negligence claims since the alleged harm resulted from assault or battery. Absent showing that caseworker failed to exercise professional judgment when placing child, plaintiffs were unable to establish Fourteenth Amendment due process violation.

A couple brought suit against the state of Utah and several state employees after a six-year-old child placed in their foster home abused another child in their home in 2002. The six-year-old was the sibling of a five-year-old girl the couple was adopting. The child welfare agency had asked the couple if they would take him and another infant sibling in as foster children and they agreed.

Soon after the placement, the six-year-old engaged in violence and sexual conduct with his five-year-old sister. He was removed from the home a few months later. The foster parents later adopted the infant sibling.
In their suit, the foster parents brought state negligence claims against the state and a Fourteenth Amendment due process claim against the children’s caseworker and her supervisor. They argued the agency had informed them that the six-year-old brother struggled with ADHD and had some minor behavioral issues, but did not disclose his history of sexual abuse and violence. They claimed the sexual abuse had resulted in permanent psychological harm to their adopted daughter and that it caused her to later abuse the youngest sibling.

The district court dismissed the plaintiff’s negligence claims based on Utah’s Governmental Immunity Act, which provides government workers immunity when the alleged harm is caused by a third party’s assault or battery.
The court also found the plaintiffs were entitled to qualified immunity concerning the Fourteenth Amendment claim since the caseworker had failed to exercise professional judgment and there was no basis to hold the supervisor liable under §1983. Plaintiffs appealed.

The United States Court of Appeals for the Tenth Circuit affirmed. When determining if a state has immunity from negligence suits in Utah, a three-step test is applied. This test considers if (1) the activity is a government function, (2) if governmental immunity is waived for that activity, and (3) if there is an exception to that waiver.

In the underlying proceeding, the parties had agreed that the state’s blanket immunity had been waived. However, defendants argued an exception to that waiver was provided by a statutory provision that states that immunity is not waived when an injury results from assault, battery, or a civil rights violation. The district court agreed and dismissed the negligence claims based on the battery exception to the waiver of immunity.

On appeal, plaintiffs challenged the district court’s holding that this battery exception gave the state and its employees immunity from the alleged harm caused by the foster child’s assault. They claimed the foster child’s young age and mental impairments created a fact issue regarding whether his actions were intentional torts.

The Tenth Circuit upheld the district court’s ruling, explaining that although the foster child may not have known his actions were harmful or offensive, the types of harm alleged in plaintiffs’ complaint (violence and sexual assault) were deliberate and met the definition of battery. The court also disagreed with plaintiffs that a higher showing of intent is required for children, or that harmful conduct by children must meet a separate intent element to be considered intentional torts.

Regarding the Fourteenth Amendment claim, the foster parents argued the “special relationship doctrine” applied and created an exception to the general rule that government officials are immune from liability under the due process clause for the harmful actions of others. The special relationship doctrine applies when the statue exercises control over a person that triggers a duty to protect that individual.

In a foster care situation, the state has an affirmative duty to protect foster children while they are in care. However, a violation of this right only occurs if the state officials know of an alleged danger to the foster children or fail to exercise professional judgment in response to that danger in a way that “shocks the conscience.”

Plaintiffs argued the caseworker neglected her professional duties by placing the foster child in their home without considering his history or if the placement was in the siblings’ best interests. The Tenth Circuit disagreed, finding the caseworker had considered the children’s histories and their safety before finding the placement would be safe and appropriate. It also said the plaintiffs presented no specific facts showing the caseworker’s decision deviated from professional judgment. It therefore affirmed the district court’s grant of summary judgment to the caseworker on plaintiff’s due process claim.