Fostering Unity: Can’t Blame the (Foster) Parents
New York State Appellate Division, Second Department: McCabe v. Dutchess County
The rule in New York is that a child cannot sue his or her parents for damages resulting from negligent supervision. Kids always have accidents growing up. It’s part of life, not part of litigation. What about suing a foster parent? And suing the Department of Social services for placing you with the foster parent who was in charge when you got hurt?
According to the Second Department, the answer is the same: No can do.
Taylor Harris is the biological mother of 6 year old Jacob Harris. The mom had a drug problem. At birth, Jacob was found to have cocaine, opiates, marijuana and methadone in his urine. The hospital contacted Social Services and the child was placed in foster care with Diane Sherwood, one of the defendants to this action. About 16 months later, while living in the Sherwood home, Jacob climbed out of his “sleeping accommodation onto an adjacent dresser and fell to the floor.” Taylor regained custody soon thereafter and, ever the vigilant mom, commenced this action for money damages on the child’s behalf.
Sherwood and Dutchess County both moved for summary judgment. The lower court denied their motions. Both appealed.
Relying on Holodook v. Spencer, the Court of Appeals decision that held a child could not sue his folks for negligent supervision, the Second Department reversed and dismissed the case. As the high court observed in Holodook, “We can conceive a few, if any, accidental injuries to children which could not have been prevented, or substantially mitigated, by keener parental guidance, broader foresight, closer protection and better example,” but, “[i]f the instant negligent supervision claims were allowed, it would be the rare parent who could not conceivably be called to account in the courts for his conduct towards his child…” Loosely translated: Kids get hurt, even when raised by the most diligent parents. Such accidents are not actionable.
“These same considerations apply to foster parents,” the McCabe court said, and “[w]e decline to impose such a heavy burden on foster parents.” To do so would discourage qualified and much needed individuals from becoming foster parents in the first instance, and would open the door to retaliatory suits brought by disgruntled biological parents or by difficult foster children.
Similarly, the Department of Social Services can hardly be held responsible for the type of accident that can happen in any home, even if it results in serious injury. Only when there's “sufficiently specific knowledge or notice of the dangerous conduct which caused the injury,” can the foster care agency be held liable.
The actions by Ms. Harris were dismissed.
If this had gone the other way, one wonders whether young Jacob Harris could have filed suit against mother Taylor Harris for the drug problem he was born with, the injury which landed him in foster care to begin with. Ms. Taylor may not have thought her course of action all the way through to its logical end, but there might have been some measure of justice had her son obtained a judgment against her.
The victory here goes to common sense. Unmitigated gall takes the loss. And along the way, the court fosters a new appreciation for how difficult it is to raise kids, no matter who's taken on the job.
