Statement on Proposed Amendments to the Social Services Law That Would Immunize Negligence

Carol A. Sigmond

President

New York County Lawyers Association Statement on Proposed Amendments to Social Services Law That Would Immunize Negligence in Foster Care

The New York County Lawyers Association’s Executive Committee approved the issuance of the following statement in advance of State Budge approval, on March 31, 2016.

The New York County Lawyers Association opposes the Executive Budget Bill’s proposed amendment to the Social Services Law, to the extent that it would immunize negligent foster care services.

Proposed Section 383-a purports to hold foster parents and agencies to a “reasonable and prudent parent standard,” but then provides that there can be no liability for a foster child’s injury unless it is “caused by gross negligence or willful and wanton misconduct.” The Executive’s bill immunizes foster care agencies when the agency’s negligence causes injury to a child, unless the child can prove the agency’s actions were “grossly negligent” or “willful or wanton.” Thus, proposed Section 383-a would severely restrict the rights of foster children in New York State.

All children should be protected against negligence. This is particularly important for foster children, whose lives have been disrupted and who are at the mercy of an often inefficient and tragically negligent foster care system. Negligence has long been the standard used to protect people from injuries. Indeed, parents are held to the negligence standard, not a gross negligence standard, with respect to their own children, and there is no reason to apply a lesser standard of care to foster care agencies, which are responsible for selecting and overseeing the individuals who care for foster children.

Children enter the foster care system for many different reasons. Some enter the system after their parents have died and they have no one to care for them, others because their parents have severely abused or neglected them. When the government removes children from parents it claims are abusive, neglectful or unfit, at a minimum, the government must place children in a safer environment than the one they left. By holding foster parents to a lesser standard of care than biological / legal parents, the bill removes this basic protection for one of the most vulnerable populations in our state.

Section 383-a would immunize a foster care agency for negligent oversight even if a foster parent abuses children repeatedly. One of the worst cases of foster care abuse in the State of New York involved a woman named Judith Leekin. Ms. Leekin used false names to adopt 11 children. While under her care, one child disappeared and is presumed to be dead. Ms. Leekin was found to have beaten the other children; trapped them in cribs by placing heavy objects and boards on top of the cribs; restrained them with handcuffs; refused to give them food and access to the toilet; forced them to stand for hours with their hands above their heads; told them she would beat them to death and threatened them with a gun. In 2014, eight of the children who were fraudulently adopted by Ms. Leekin reached a $17.5 million settlement with the foster care agencies.

While Ms. Leekin could still be held personally liable under Section 383-a, she, like most foster parents, is essentially judgment-proof; thus, by immunizing foster-care agencies for their negligent oversight of providers like Ms. Leekin, Section 383-a effectively precludes children that have been abused while in the foster care system from recovering any damages.

The Assembly has introduced an amended bill. Because public policy favors holding caregivers to the standard of reasonable care, NYCLA strongly supports the Assembly’s proposal to remove the “willful and wonton” and “grossly negligent” language. However, NYLCA is concerned that the underlined language “[e]xcept as provided herein, nothing in this section shall otherwise limit the liability of any party whose negligence caused injuries to a child,” may be read as exempting foster parents from liability for their own negligence, such as in driving.

Footnotes

1. Weister, Benjamin, Eight in Adoption Abuse Case Agree to $17.5 Million Settlement With Foster Care Agencies, N.Y. TIMES (Aug. 27, 2014), http://www.nytimes.com/2014/08/28/nyregion/eight-in-adoption-abuse-case-agree-to-17-5-million-settlement-with-foster-agencies.html?_r=0.