From Poverty to Abuse and Back Again: The Failure of the Legal and Social Services Communities to Protect Foster Children

After decades of legislative reform, stories of foster care abuse still appear on the fron 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. Opinions addressing children’s issues are few, and courts seem hesitant to expand causes of action. 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. § 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