The National Runaway Switchboard reports that between 1.6 million and 2.8 million youth run away each year. It also reports that there has been "a significant increase in the number of crisis calls identifying abuse or neglect as a reason for the call, with abuse calls up 33 percent and neglect calls up 54 percent between 2005-2008" (National Runaway Switchboard Crisis Caller Trends, 2009, p. 2).
Youth in out-of-home care often choose conduct that does not ensure their own safety. They elope from foster homes, group homes or other residential settings at an unknown rate. When children are known risks for eloping, a court may find that is the legal duty of the caregiver to take all prudent means to take appropriate preventative measures.
Instinctively, we are aware of the links between youths running away in general and youths eloping from out-of-home care. Social science research has made significant progress in describing runaway youth in general (Martinez, 2006; Sanchez, Waller & Greene, 2006), but has made minimal inroads in accurately describing the phenomenon of youth eloping from out-of-home care. Similarly, while federal laws and conventions exist to address runaways and missing children (see Figure 1), scant legislative attention has been paid to youth eloping from out-of-home care.
Because of this relative dearth of data, there exists no consensus concerning fundamental definitions regarding this population. For purposes of this article, a working definition of "elopement" is any unauthorized absence from within or outside of a youth's assigned location i.e., when a youth cannot be accounted for or when there is reasonable suspicion to believe the youth has absconded. Such situations include, but are not limited to, failing to return at a designated time from an approved leave or the unauthorized departure from a foster home or facility.
Between the time of elopement and the time a youth returns or is apprehended, their safety is in jeopardy. Should harm befall the youth, liability against the agency may result under a negligence theory. The four essential elements of negligence are:
1. The defendant had a duty to the plaintiff.
2. The defendant failed to perform that duty.
3. As a result of the defendant's violation of that duty, the plaintiff was injured.
4. The plaintiff suffered damage as a proximate result of the breach of the defendant's duty.
If a court determines that a facility neglected a vulnerable child by failing to adopt reasonable preventive measures, liability may attach. …