Hot Docs: Appeals court says no one to blame but the foster child

March 22, 2012

Qualified ImmunityOn Christmas Eve in 2003, a woman was watching “Wednesday’s Child,” a weekly television program that helps find permanent families for children in foster care.

On that program, she saw C.H., whom was being shown on the program as being in need of adoption.

The woman was moved by what she saw, and took steps to adopt C.H.

Little did she know that doing so would lead to the rape of her five-year-old son at the hands of the 16-year-old C.H.

Naturally, a lawsuit emerged from the ordeal.

However, the lawsuit here isn’t against C.H. (though he did face criminal prosecution for his deeds).

Instead, the woman – under the pseudonym “Jane Doe” – sued the social workers who had taken part in C.H.’s placement in Doe’s home, on behalf of her son (using the pseudonym “John Doe”).

Doe claimed that the social workers had violated her son’s substantive due process rights and sued under 42 U.S.C. § 1983.

How did the social workers allegedly do this?

The social workers were aware in advance of the placement at Doe’s home of C.H.’s extensive history regarding his sexual issues.

For example, there were reported incidents of C.H.’s inappropriate sexual behavior with other children.

More disturbingly, in March 2004, a then-foster mother of C.H. reported to one of the social workers that she had found a pouch in C.H.’s room that included pictures of naked men and women, as well as photos of C.H.’s genitals (which one child had reported that C.H. had shown to him).

In response, the social worker brought C.H. to a psychologist that same month.

The psychologist recommended that C.H. be placed in “a group home or residential treatment facility, as opposed to a family foster home where other children might be vulnerable to his sexual acts.”

In addition, he cautioned that “until appropriate placement and treatment can be arranged, C.H.…should never be left alone with other children, and he should not share a bedroom with other children.”

Despite these recommendations, the social workers still placed C.H. with Doe and her five-year-old son.

Hot Doc: Doe v. Braddy

Source: Thomson Reuters News & Insight – National Litigation

Did the social workers at least make Doe aware of C.H.’s history and the psychologist’s recommendations?

Well, technically, they did, but it was buried in a “big book of information” that Doe didn’t completely review because of its size.

The social workers never verbally informed of C.H.’s sexual history.

Doe only allegedly became aware of the psychologist’s report after C.H. was arrested and removed from the home.

It does appear that the social workers made some big errors in judgment.

Regardless, though, the lawsuit against them just failed.

Why?

Qualified immunity, which is a legal principle that protects government officials performing discretionary functions except “the plainly incompetent or those who knowingly violate the law.”

In addition, according to Supreme Court precedent, “government actors are not required to err on the side of caution.”

The 11th Circuit Court of Appeals found that, though the social workers’ decision was incorrect and ultimately harmful, it didn’t rise to the level of “plainly incompetent” or “knowingly” illegal such that it would exclude them from qualified immunity.

So that’s that.

A five-year-old will require extensive psychological therapy, and may be scarred for life, but no one’s liable except for the 16-year-old perpetrator who had been bounced around in foster care since he was two.

What lessons can we take away from this ruling?

For one, be very thorough about researching the background of any child you are looking to adopt.

Most importantly, though, don’t expect complete competence from government workers, because the law sure doesn’t.