LEGAL DEBATE

Court to weigh state’s duty to foster children

A 10-year-old child is taken from his mother’s care and placed in a group home, where he shares a room with a troubled 16-year-old.

Do the state of Maryland and the Baltimore City Department of Social Services — apart from the group home operator — have a duty to protect that child from abuse?

Corey Pendleton, who was placed with the now-defunct Baltimore residential care provider Finding Direction Inc. for two months in 1999, argues that there is such a duty. He is seeking to hold the state liable for “irreparable physical and emotional injuries” he says he suffered stemming from abuse by his roommate.

The Baltimore City Circuit Court held otherwise, dismissing the state and DSS as defendants in his case. Pendleton’s challenge to that dismissal comes before the Court of Appeals for oral arguments today.

Michael P. Lytle, one of the attorneys representing Pendleton at the appellate level, called the duty issue almost a “no brainer” — expressing surprise that in 2005 in Maryland, the question has yet to be addressed by the appellate courts. “There’s no case directly standing for the proposition that the state has a duty to protect one of its wards, a person in foster care, from unreasonable risk of harm at the hands of a third party — particularly when the plaintiff is in foster care and the third party is also in foster care,” Lytle said.

It was the state, he notes, that made Pendleton its ward in the first place, dependent on it for his food, clothing, shelter and protection. “The fact that he’s in custody, relying on the state for necessaries, the duty flows from there,” Lytle added.

But the state, in its brief, contends the 2003 dismissal by Baltimore City Circuit Judge M. Brooke Murdock was proper. Pendleton’s complaint, it argues, did not show the breach of any actionable duty on the part of the state defendants, including DSS.

“Even assuming that [Pendleton’s] status in the State’s out-of-home placement program created a legal duty on the part of the state to act with reasonable care in fulfilling its responsibilities under the program, the State does not thereby become a guarantor against all harm inflicted by third parties after placement in a duly licensed home,” Assistant Attorneys General Carol Ann Smith and David E. Beller write in their appellate brief — adding that the state was not the proximate cause of Pendleton’s injury.

The complaint, they point out, contained nothing to support a theory that the assailant had a history of sexual assaults, either.

But Pendleton would have no access to such confidential information, notes Debra Gardner of the Public Justice Center, which filed an amicus brief on behalf of itself, Advocates for Children and Youth and a University of Maryland law school clinic. “It has to be sufficient to plead that the child was in the state’s care, that the other child was, and that the state knew or should have known of the circumstances that put the child at serious risk,” Gardner said.

Duty?

Pendleton came to the home in January 2000 after his mother was unable to care for him. The operators of the home assigned him to a room with James Wratchford. In December 2002, Pendleton, acting through his father, filed a lawsuit against the home, its operators and the state defendants, claiming that Wratchford repeatedly sexually assaulted and battered Pendleton during his short stay at Finding Direction.

Pendleton won a $579,000 judgment against the home and its operators for negligence and battery after those defendants failed to answer the complaint. The state defendants, however, were dismissed from the case.

The state’s duty to license or supervise the licensed foster care program was a duty owed to the public generally, the judge found, and any breach of that duty was not actionable on behalf of a private person.

The Court of Appeals, on its own motion, granted certiorari before any proceedings in the intermediate appellate court.

Last year, in Horridge v. St. Mary’s County Department of Social Services, the top court held that a local social services department had a duty to a child who died at the hands of his mother’s boyfriend after the department failed to properly respond to reports of abuse. A motion to dismiss had originally been granted to the state in that case.  “In that case, as in this case, the issue was child abuse that took place on the state’s watch,” Lytle writes.

The state’s brief attempts to distinguish Horridge, pointing out that the duty in that case arose out of the state’s failure to follow precise statutory requirements concerning the prompt investigation of child abuse. Further, “there were no such reports of abuse or neglect of [Pendleton] while at Finding Direction until [Pendleton] informed the staff of Wratchford’s actions,” the state writes.

Pendleton asserts that the state had a statutory duty under the Family Law Article not to place him in a home that did not comply with licensing and operating requirements; however, he and the amici place more emphasis on the duty arising from a special relationship.

“The state had a special relationship with Corey Pendleton by virtue of taking custody of him, and the duty to exercise reasonable care arises from [that] relationship,” Gardner contends.

Ann Parks
7 November 2005

http://www.mddailyrecord.com/pub/5_412_law/legalnews/173391-1.html