Position Statement – 2016
ELFA Article VII Part M, Section 5
Amendment to Social Services Law
That Would Immunize Negligence in Foster Care
S.6406A (Budget) / A.9006A (Budget)
The Women’s Bar of the State of New York (WBASNY) emphatically opposes the Executive Budget Bill’s proposed amendment to the Social Services Law, to the extent that the amendment would give blanket immunity for negligent foster care services.
This bill would hold foster parents, agencies and municipalities to a “reasonable and prudent parent standard,” but then provides that no liability exists for a foster child’s injury unless it is “caused by gross negligence or willful and wanton misconduct.” Thus, the new Social Services Law, as currently written, immunizes foster care parents, agencies and municipalities for general negligence when a child is injured. Applying blanket immunity for general negligence lowers the level of care and safety that must be provided to foster children and severely restricts foster children’s access to the justice system.
It’s beyond dispute that children are easy victims, but perhaps none are as vulnerable and easy prey than foster children. Certainly, there are foster parents who are generous and giving. But it is also unfortunately true that some foster parents mistreat, neglect, mishandle, and abuse their foster children. Foster care parents have a great responsibility: to raise a child in a safe and nurturing environment until the child can be adopted or returned to his or her parent. Relatedly, the foster care system’s purpose is not merely to place children in homes, but to ensure that those children are not neglected and abused while in care because they are in the best position to protect children by evaluating foster parents and their environments. Foster care parents and agencies must, therefore, be held accountable for this great responsibility, but holding them to a gross negligence standard is incompatible with this responsibility and the degree of accountability that is expected of foster care parents and agencies. “Gross negligence,” under New York law, is analogous to “recklessness” and “wantonness” and “falls short” of intentional conduct. So, the amendment would cloak the foster care system with legal bullet proof armor, while leaving the victims completely exposed. Indeed, parents are held to a negligence standard, not a gross negligence standard, with respect to their children and there is no reason to apply a lesser standard of care to those who care for foster children.
There are many reasons why children enter the foster care system. Some enter the system because they have been the victim of severe abuse or neglect and others enter because their parents have died or they have been abandoned. Babies, brothers, sisters, teenagers, all kinds of kids from all different backgrounds enter the foster care system. When the government removes children from parents it claims are abusive, neglectful or unfit, at a minimum, the government must place children in a safer environment than the one they left.
In John Doe, et al v. Little Flower Children’s Services of New York, the Plaintiffs, siblings ages 2, 4, 6 and 7 were assigned to a foster home. The foster parents’ adult son, who did not reside in the foster home sexually abused the siblings and was subsequently arrested and pled guilty to sex abuse charges. In total, the three older siblings had endured physical and sexual abuse and the youngest was neglected and forced to wear dirty clothes and soiled diapers during their 24 month residency. The agency was aware that caseworkers had expressed concerns and recommended close evaluation of the home, which did not occur. Under the new Social Services Law, these victims would be left without recourse. That result is not only unfair, but completely unacceptable in our society and our great State.
One of the worst cases of foster care abuse ever in the State of New York centers around a woman named Judith Leekin. Ms. Leekin used false names to adopt 11 children. Under her care, one disappeared and has been presumed to be dead. Ms. Leekin beat the other children; trapped them in cribs by placing heavy objects and boards on top of the cribs; restrained them with handcuffs; refused to give them food and access to the toilet; forced them to stand for hours with their hands above their heads; told them she would beat them to death and threatened them with a gun. In exchange, the foster care system paid her $1,680,000 for her services. These horrific actions were taken against these helpless and powerless children.
The legal standard of gross negligence or willful and wanton misconduct is a tacit statement by the Legislature that the safety of children is not punishable unless it borders on the criminal and will result in reduced supervision by foster care agencies and foster care parents increasing the risk of exploitation of children. Such agencies will then be able to avoid legal consequences for their avoidable mistakes. In addition, the legal standard puts the unfair burden on the injured foster children to prove more than they were a victim of someone’s carelessness, they must prove that they were a victim of someone’s willful and wonton or grossly negligent conduct. This simply is unconscionable and unjustifiable. Not only should the burden be lower for these victims, but the burden should be placed on the caregiver and supervising agencies to prove that their conduct fits within the reasonable and prudent parental standard. Therefore, passing the proposed amendment to the Social Services Law will result in unintended tragic consequences.
WBASNY does not support the portion of the social services law amendment that relieves any caregiver from their negligent actions or their failure to act and therefore urges the Legislature to reject it.
Upon review, the Assembly proposed the removal of the “willful and wonton” and “grossly negligent” language and proposed a revised section 383-a 2. which states: “A caregiver shall not be liable for injuries to the child as a result of participation in an extracurricular, enrichment, cultural, or social activity approved by the caregiver who has permitted such activity in compliance with the reasonable and prudent parent standard as defined in paragraph (d) of subdivision one of this section. Except as provided herein, nothing in this section shall otherwise limit the liability of any party whose negligence caused injuries to a child.”
WBASNY fully supports both the Assembly’s removal of the “willful and wonton” and “grossly negligent” language and the Assembly’s proposed section 383-a 2.