From Poverty to Abuse and Back Again: The Failure of the Legal and Social Services Communities to Protect Foster Children
Balmer, Sharon, Fordham Urban Law Journal
"I don't know what to say. We just picked the kid up from one crack house and dropped her off at another." (1)
Stephanie's life ended as it began, her tiny body wrapped in a plastic bag and left on a New York City street. (2) When her parents dumped her body the first time, the plastic prevented her from receiving enough oxygen and she suffered severe brain damage. The second time Stephanie was wrapped in plastic and dumped onto the street she died. This time she was abandoned by her foster mother. Though this foster mother had provided the foster care agency with glowing recommendations, police investigators found her home filled with feces, insects, and rodents, and Stephanie's medical equipment caked in grime. The foster mother had also canceled Stephanie's health services a few months earlier without the agency's knowledge. (3)
Bruce was found digging through the trash for food because his foster parents fed him only breakfast cereal, uncooked pancake batter, and peanut butter. (4) He had been placed in foster care eight years earlier because his biological parents were also starving him. (5) His foster parents even locked the kitchen to keep him from taking food. (6) Neighbors, foster care agency caseworkers, and the family's pastor all described this family positively, some of whom noted that they were loving and deeply religious. (7)
After decades of legislative reform, stories like these still appear on the front pages of our newspapers, and foster children who are injured while in protective care are turning to the courts to change the system. It is still relatively difficult for a child to prevail in an action against child protective workers and agencies. (8) Opinions addressing children's issues are few, and courts seem hesitant to expand causes of action. (9) This Comment explores the current state of children's legal remedies for injuries incurred as the result of a foster care placement. Part I describes the foster care system in the United States. Part II discusses, generally, the possible causes of action available to foster children. Part III examines the most successful way for a child to recover damages; a 42 U.S.C.A. [section] 1983 ("section 1983") cause of action for the violation of the constitutional right to safety while in state custody. The Supreme Court has not ruled on whether foster children have such a right, and district courts are divided about what standard to apply if a constitutional right to safety even exists for children in foster care. Finally, Part IV suggests reasons why courts have been reluctant to allow civil rights actions by children in foster care, and also advocates for a shift in the way the legal community views children's issues. Until a consistent and appropriate standard of care is established, shocking stories of foster care child abuse will continue to make news around the country.
PART I: THE SAD STORY OF FOSTER CARE IN THE UNITED STATES
In 2003, over half a million children were living in foster homes. (10) An increase in drug and alcohol abuse, poverty, and homelessness has led to an increase in the population of children in foster care. (11) In the simplest terms, the foster care system is failing its growing population. Some children's advocates contend that forty percent of foster children end up on welfare or in prison, (12) and foster children are sixty-seven times more likely to be arrested than children who did not grow up in foster care. (13) While in care, children are often shuffled from home to home over the course of many years, so they are unable to form lasting bonds with any adult. (14) They often do not receive proper medical or psychiatric attention, (15) though it is common for foster parents to seek medication to control foster children more easily. (16) A grand jury in San Diego found a large disparity between the care of foster children, and that of biological children; the foster children were given cheaper food and clothing, restricted to certain areas of the house, and sometimes forbidden to open the refrigerator or watch television with the family. …