Most cases dealing with foster care fall under the umbrella of family law or juvenile law. One recent case, however, addressed foster care in the context of tort law. Namely, may a foster family sue the Department of Children and Families (DCF) after one of its family members is injured by a foster child in its care?


Case Facts

The facts of the case are stark. DCF placed a foster child in the care of the plaintiff family. Before doing so, the family and DCF signed a foster care agreement. Under this agreement, DCF agreed to provide sufficient information to enable the family to “knowledgeably determine whether or not to accept the child.”

After the placement was made, the foster child sexually assaulted the family’s young daughter. As it turned out, DCF knew prior to the placement that the child had a sexual abuse history. The foster child had been both a victim and perpetrator of sexual abuse. DCF failed to disclose that information to the family before placing the child. Had the parents known about the history, they would not have accepted the placement.


Procedural History


Trial Court

The plaintiffs filed claims for negligence and breach of contract. At the trial level, the judge dismissed their claims based on sovereign immunity. The trial judge concluded that the Massachusetts Tort Claims Act barred the claims against DCF. The Act governs claims brought against the government for the negligence of its public employees. Specifically, the judge cited to a section that makes public employers immune from “any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or [its employees].”


Appeals Court

On appeal, the court discussed several facts in the case. For example, the family accepted the placement reluctantly. They told DCF that the placement could not continue for the summer. Nonetheless, DCF continued the placement through the summer. The family also requested information about the child both before and after the placement. Yet, DCF did not provide this information. Further, the family twice sought to terminate the placement based on behavioral issues. Meanwhile, DCF enrolled the child in the family’s school district for the fall.

The Appeals Court explained that even in cases barred by the Massachusetts Tort Claims Act, a “savings provision” exists. This clause provides the plaintiff with the ability to recover if the claim is “based upon explicit and specific assurances of safety or assistance, beyond general representations that investigation or assistance will be or has been undertaken, made to the direct victim or a member of his family or household by a public employee, provided that the injury resulted in part from reliance on those assurances.”

In this case, the Appeals Court noted, DCF and the family signed a contract. This contract set out in considerable detail the parents’ and DCF’s respective responsibilities. The contract, among other responsibilities, provided “explicit and specific assurances” that DCF would provide sufficient information to the family about the foster child. This information sharing is meant to allow the family to determine whether they would like to accept the placement. DCF failed to provide that information. In the process, DCF breached those explicit and specific assurances of safety or assistance.


Appeals Court Holding

“If the plaintiffs’ allegations are proven, the department violated its contractual commitment by failing to provide the parents with information known to it, and plainly material to the parents’ evaluation of whether to accept placement of the foster child in their home,” the Court stated. “Moreover, based on the allegations in the complaint the injuries to the parents’ daughter resulted at least in part from the parents’ reliance on the department’s assurances.” The Appeals Court reversed the trial court’s decision. The Appeals Court held that the plaintiffs’ claims were not barred in this case. The Appeals Court remanded the case to the Superior Court for further proceedings.


Contact Us

If you have questions about divorce, child custody, or other family law issues, contact us. You may schedule a free consultation online with our experienced attorneys at Turco Legal. If you’d prefer to schedule a consultation by phone, call (866) 995-6663. We will respond to your phone call promptly.