May 2014
Andrea Koehler, The Forgotten Children of the Foster Care System: Making a Case for the Professional Judgment Standard, 44 Golden Gate U. L. Rev. 221 (2014).
“They are everybody’s children, and nobody’s children. They are the forgotten children in the . . . foster care system.”1
INTRODUCTION
Each year, thousands of children are separated from their families and placed into foster care.2 While under the not-so-careful watch of the state, many suffer further abuse and neglect.3 In some cases, child welfare employees are so derelict in their duties that they are unaware children are being harmed. Thus, maltreatment goes undetected. Despite egregious failures to protect the children in its care, the state often suffers no repercussions.
One reason for this travesty is that the “deliberate indifference” liability standard4 applied by most courts sets a low bar for the government’s duty to protect foster children.5 For example, when a caseworker repeatedly fails to perform mandated visits, home studies, and other duties, and, as a result, is unaware that a foster child is being maltreated, the caseworker’s conduct may not be considered sufficiently “conscience shocking”6 for the court to impose liability.7
On the other hand, if courts were to adopt the “professional judgment” liability standard,8 such a pattern of omissions on the part of a caseworker would likely result in a finding of liability and allow the foster child to obtain redress. The following hypothetical9 illustrates the unjust implications of applying the deliberate indifference standard to cases of foster care maltreatment, rather than applying the more appropriate professional judgment standard.