A recent decision has made it possible for former and current foster children to recover damages for negligence committed by the government in regards to their foster care. The Court of Appeals, New York’s highest-level of Court, recently handed down a decision ruling that the government owes a duty of care to safeguard children that it places in foster care. This duty includes ensuring foster children are placed in safe homes. Normally, the government is immune to liability for negligent actions that are considered “normal governmental functions.” However, the Court found that if someone is in the custody of the government, the government can be held liable for negligence. Such a group includes foster children.
According to the Court of Appeals, New York Courts “have consistently recognized that the government owes a duty of care to safeguard all people in its custody. This group not only includes kids in foster care, but also includes “incarcerated persons, juveniles in delinquency facilities, and schoolchildren.” Specifically, the Government’s owes a duty to foster children, because the government “effectively takes the place of parents and guardians.” As such, the government owes “a duty of care to the children” placed “in foster homes because the municipalities have assumed custody of those children.”
The Court further stated that by “assuming legal custody over the foster child” the “government steps in as the sole legal authority responsible for determining who has daily control over the child’s life.” The government’s duty is further strengthened because it has physical control over the foster children. Still there is a limit as to what the Government can be held liable for.
The government cannot be held liable for all actions committed by foster parents. It can only be held liable for failing to act when there are “foreseeable risks of harm” to the child. For example, this means the government can be held liable for placing a child in a foster home, or keeping a child in a foster home, that it should have known was not safe. If the government had no reasonable way of knowing the foster home was unsafe, it is unlikely one would be able to recover damages.
Regardless, if you have suffered physical, mental, or emotional injury in the foster system due to mistreatment or negligence committed by the government or any other party, you should contact a personal injury attorney immediately. At Zalman Schnurman & Miner P.C., the first consultation is always free. Contact us now by phone at 212-668-0059 or over email at info@1800lawline.com.