Court to weigh state’s duty to foster
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
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
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,”
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,
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.
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
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
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
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
“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.
7 November 2005