The State Owes an Ongoing and Actionable Duty to Children in Foster Care

 In Tactics

The State owes a continuous and actionable duty to ensure a child is not placed in an abusive or neglectful foster home. While this may seem obvious, in foster care abuse cases, the State will likely argue at summary judgment that an actionable duty against DSHS for child abuse or neglect can only arise from a formal CPS investigation. Here’s how you can dismantle the “no duty” defense in foster care abuse cases:

  • Common Law Special Relationship — Washington law has long held that the duty to protect a plaintiff from foreseeable harm, including criminal conduct, can arise from a special relationship between the defendant and either the plaintiff or the perpetrator, as evidenced by a custodial relationship. N.K. v. Corp. of Presiding Bishop of the Church of Latter-Day Saints, et al., 175 Wn. App. 517 (Div. I 2013). Clearly, a special relationship exist in the foster care context between the State and dependent children.
  • The Washington Supreme Court has adopted Restatement § 302B. Thus, a defendant has a duty to protect others from third parties if “the actor’s own affirmative acts creates a recognizable high degree of risk of harm.” See Robb v. City of Seattle, 176 Wn.2d 427, 433-34 (2013). Arguably, a duty therefore arises as a result of the State’s affirmative licensing activities and placement decisions.
  • Finally, in Babcock v. State, 116 Wn.2d 596, 598 (1991), although in dicta, the Washington Supreme Court stated that an actionable duty based on a negligent foster care placement decision could be derived from RCW 26.44.050, which “creates an actionable duty that flows from DSHS to both children and parents who are harmed by DSHS negligence that results in wrongfully … placing a child into an abusive home or allowing a child to remain in an abusive home.”
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