Foster care, by its very nature, often involves caring for children who have suffered child abuse or neglect. A significant number of the children in foster care have been sexually abused. For example, a 2009 study reported that in a sample size of 155 girls in foster care, up to 81% reported being sexually abused, and of those, 68% reported being sexually abused by more than one individual.
While most children who have been sexually abused do not go on to commit sexual offenses themselves, past sexual victimization can increase the likelihood of sexually aggressive behavior. Because of the amount of foster care children who have been sexually abused, child-on-child sexual abuse is a recognized problem in the foster care system. Specifically, Washington State has openly acknowledged the danger of sexually predatory children placed in foster care, who then go on to sexually abuse other children in the home, since at least 2002. Child-on-child sexual abuse in foster homes is a problem necessitating careful monitoring by state social workers and comprehensive disclosures to foster care providers.
Despite acknowledging the issue of sexually predatory foster children, in lawsuits where state-dependent foster children have abused other children in foster homes, the State has consistently claimed an absence of a duty to prevent child-on-child sexual abuse from occurring. Recently, however, a King County court found that a duty can exist where the State’s actions amount to misfeasance, rather than nonfeasance, under Section 302B of the Restatement (Second) of Torts, thus creating a danger that otherwise would not have existed.
The Underlying Facts Paying It Forward
In October 2013, Susan and Matthew Cook began to consider the possibility of expanding their family through the Department of Social and Health Services’ (DSHS) foster-to-adopt program. At the time, the Cooks already had three biological children—a ten-year-old girl, a five-year-old girl, and a four year old boy—but they were committed to paying it forward by teaching their family the importance of sacrifice and giving back to the community. When asked to describe her goals for her family, Susan Cook stated that she wanted her family to develop a strong sense of compassion for others.
In making the decision to open their home to foster children, Susan and her husband Matthew understood they would both experience their fair share of trials and tribulations. The Cooks were aware that being foster parents was by no means easy, and that many foster children enter the system with pre-existing behavioral issues that foster parents need to help manage.
In order to best protect their family, however, Susan and Matthew made it known to their licensing social worker that if they were asked to take a child into their home who had certain behavioral difficulties, they would need to consider such a placement on a case by case basis, and that their placement decision would be made based on the information regarding the child as provided by the department. While neither had any specific behavioral issue in mind, the Cooks informed DSHS that they did not want any foster children that would place their own biological children at risk; for example, one who was sexually aggressive.
On June 17, 2014, the Cooks were approved by DSHS for foster and adoptive care for two children of either gender, from newborn to age four.
Over the next several months, the Cook family welcomed a number of different foster children into their home. But by February 2015, they were approached by DSHS and asked to be considered as pre-adoptive placement for two siblings who had been “bumping” around multiple foster homes. Although Susan welcomed the idea of placement, the two children being considered, Adam and Victoria, were older than what the family had requested or were licensed to foster. Above all else, Susan and Matthew had younger biological children in the home, and they were concerned about bringing in older kids, who at the time were almost twelve and seven years old, respectively.
Before agreeing to the placement, Susan wanted to learn more information about Adam and Victoria so that she could make an educated decision as to whether these two kids would be safe in her home. She spoke with a DSHS representative over the phone regarding the children’s history, and she spoke with two of Adam and Victoria’s former foster parents. Susan also received documented Child Information/Placement Referral (CHIPR) reports on each child. CHIPRs are designed to provide foster parents with a “clear indication” of any behavior concerns and family history. Adam’s and Victoria’s CHIPRs were short, with no behavioral concerns listed. Also absent was any information regarding Adam and Victoria’s biological relatives and any concerns or issues their biological siblings may have been experiencing. In fact, with each call she made and with each document she read, Susan was provided the same information: both children were great, and neither had any concerning behavioral issues or family history.
Despite the absence of information disclosed to the Cooks, DSHS actually had significant safety concerns about Adam and Victoria, including signs of physical and sexual abuse. None of these concerns were relayed to the Cooks, however.
Instead, Susan and Michael only received glowing reviews about Adam and Victoria. With no reason to be concerned about any potential safety issues, the Cooks welcomed both foster children into their home. DSHS filed for an age-waiver on the family’s behalf so that children over age four were permitted to be fostered in their home. The first age-waiver was for one night. The second age-waiver that the department filed was for one month.
Following placement in the Cooks’s home, however, Adam and Victoria continued exhibiting concerning behaviors, including Adam stealing and sleeping with a female family friend’s underwear, and Victoria’s overtly sexualized behaviors and unhealthy violations of personal boundaries. Yet, DSHS disregarded the behaviors as being unextraordinary when reported by the Cooks, and the Department still said nothing about the children’s concerning history. In spite of all these warning signs, DSHS told the Cooks nothing about Adam and Victoria’s past.
Trouble at School
In March of 2016, DSHS received a referral from the assistant principal at their youngest biological son’s elementary school. According to the school, the child had been brought to the office for grabbing his peers’ privates. When confronted about what had been occurring, the child broke down in tears and admitted to the offenses. He stated that he had been touching classmates in "the front" over the clothing. The school touching incident triggered a mandatory call to Child Protective Services (CPS). Despite receiving an allegation of child abuse and neglect, no CPS investigation ensued. Instead, a foster home licensing review took place. And yet again, DSHS provided the Cooks with no information about Adam’s or Victora’s pasts, and the foster children remained in the home.
Six months later, in September 2016, DSHS received a call from Susan, informing them that she had just learned that Adam had been sexually abusing their biological children. According to the associated intake report, Susan noticed her youngest son touching himself, so she asked if anyone had ever touched his privates before. The boy initially said no, but then ultimately disclosed that Adam had touched him.
This disclosure led to a full Division of Licensed Resources Child Protective Services (DLR/CPS) investigation into the alleged abuse. During interviews, the Cooks’s son stated that Adam regularly squeezed and pulled on his penis. He stated that Adam penetrated him with his penis and other random objects, and that Adam forced him to perform oral sex and threatened him with physical violence and death if he told anyone. The Cooks’s two daughters were also interviewed. Both disclosed that they were also sexually abused by Adam, including vaginal penetration and fondling.
A Path to Liability for Biological Children
In March of 2017, the Cooks brought a negligence suit against the State for the abuse suffered by the Cook children. After discovery was completed, the State brought a motion for summary judgment seeking to dismiss the case, because "Plaintiffs cannot… establish any legal duty on the part of DSHS."
Statutory Framework for Information Sharing with Foster Parents
RCW 74.13.332, known as the Foster Parents Bill of Rights, declares that "Foster parents have the right to be free of coercion, discrimination, and reprisal in serving foster children, including the right to voice grievances about treatment furnished or not furnished to the foster child." Most significantly, RCW 74.13.280 requires the State disclose specific information to foster parents about foster children who are to be placed in the home, including information about abuse to the child or abuse in the child’s family. While RCW 74.13.280 does not imply a separate cause of action for foster parents, its provisions are no less mandatory on the State.
Here, the plaintiffs argued DSHS knew prior to placement in the plaintiffs’ home the foster children were exhibiting signs of sexual abuse and/or physical abuse. Despite knowing this, DSHS did not provide the Cooks with information required by RCW 74.13.280.
The State’s Legal Duty § 302B of the Restatement
The Restatement (Second) Torts § 302 B cmt. E 90 states, “A person may have a duty to protect another from criminal acts of third parties when the person’s ‘own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct.’” By placing a dependent child with a known family history of physical and sexual abuse without first warning his foster parents, the State arguably committed a negligent, affirmative act that created a recognizable high degree of risk of harm, just as is contemplated under § 302B of the Restatement.
The central question for courts examining the applicability of § 302B is what constitutes nonfeasance, which is not actionable, versus what constitutes misfeasance, which is. The analysis for government actors like the State has been addressed in Washington in the cases of Parrilla v. King County (138 Wn. App. 427, 157 P.3d 879 (2007)), Robb v. City of Seattle (176 Wn.2d 427, 295 P.3d 212 (2013)), and most recently in Washburn v. City of Federal Way (178 Wn.2d 732, 310 P.3d 1275 (2013)).
Parrilla v. King County
The first time Washington courts squarely addressed whether a government entity could owe a duty for the creation of a danger pursuant to § 302B was in Parrilla v. King County. In Parrilla, the Court of Appeals, Division I was asked to determine whether King County owed a duty to the Parrillas, who were injured when struck by a county bus that had been hijacked by an agitated passenger. In 2002, after an altercation on a metro bus, the driver pulled the bus over and demanded that all the passengers exit the bus. One passenger refused, and the driver exited with the bus still running and the troubled passenger inside. The passenger took the wheel and then drove the bus down the Seattle streets, eventually striking and injuring the Parrillas. The Parrillas filed suit against King County, but the trial court dismissed their claims on a motion to dismiss finding that the county did not owe a duty to the plaintiffs.
Division I disagreed with the trial court and found that the county did in fact owe the Parrillas a duty. The court, relying on the Supreme Court’s analysis of § 302B and found that "a duty of care may arise ‘[w]here the actor acts with knowledge of peculiar conditions which create a high degree of risk of intentional misconduct.’" The court went on to discuss that a party did not need establish that a "special relationship" between the injured party and government actor in order to establish that a duty was owed under § 302B. Therefore, the court found that a plaintiff asserting a duty was owed under § 302B need not establish that the government entity owed her a special duty that would serve as an exception to the public duty doctrine. Given the particular circumstances that led to the Parrillas being injured, the court found that the county owed them a duty of reasonable care.
Robb v. City of Seattle
In Robb v. City of Seattle, the Supreme Court adopted the legal theory espoused in Parrilla. The Robb Court addressed whether officers conducting an investigative stop could owe a duty of reasonable care to prevent harm from the illegal acts of the person subject to the stop. Michael Robb was shot and killed by an individual who had been subject to an earlier Terry stop. During the investigative stop, shotgun shells were observed near the individual being questioned, but never retrieved by the officers. Robb, 196 Wn.2d 97__. That same individual later came back, picked up those same shells observed previously by police, loaded his shotgun, and killed Robb. Division I found that Seattle owed a duty to Michael Robb pursuant to § 302B. The Supreme Court accepted review and reversed Division I’s decision on the specific facts of the case. In reversing the appellate court’s decision, however, the Supreme Court established that an officer may owe a duty of reasonable care to a victim of the criminal conduct of a third party pursuant to § 302B. "We hold that Restatement § 302B may create an independent duty to protect against the criminal acts of a third party where the actor’s own affirmative act creates or exposes another to the recognizable high degree of risk of harm." Whether a duty arose, according to the Court, depended on whether the government agent’s actions constituted an act. Specifically, the Court looked at whether the government actor’s conduct was nonfeasance or misfeasance.
Nonfeasance, or the failure to act, could not give rise to a duty because the officer’s actions simply failed to remove an existing harm. Misfeasance, in contrast, can give rise to a duty of reasonable care, because the government’s action "creates or exposes another to a situation of peril." Therefore, whether a government agent owes a reasonable duty of care to a third party hinges on whether the agent simply failed to act, i.e. made the peril no worse, or acted affirmatively, thereby creating or increasing the peril to another. In Robb, the Court found that the officers simply failed to remove a then existing danger rather than creating a danger. As a result, the city did not owe Michael Robb a duty.
Washburn v. City of Federal Way
In Washburn v. City of Federal Way, the Supreme Court further explained the duty outlined in Robb. In Washburn, the estate of a murder victim filed suit against the City of Federal Way alleging that it owed the victim a duty of reasonable care when it served an anti-harassment order on the murder victim’s domestic partner. Critical to the Washburn Court’s decision was the fact that the officer serving the anti-harassment order was given a Law Enforcement Information Sheet (LEIS) along with the order indicating the recipient of an anti harassment order might become violent and needed an interpreter to understand the nature of the document being served upon him. Unfortunately, the officer who served the restraining order never read the LEIS. As a result, the officer served the order despite observing the petitioner at the residence when he served the order, and he didn’t bring an interpreter with him.
After being served with the order and discovering the contents, the domestic partner stabbed and killed the petitioner. The Washburn Court found that the officer and the City of Federal Way owed the murder victim a duty of reasonable care pursuant to § 302B. The Court rejected the city’s attempts to categorize the officer’s actions as a failure to act, or otherwise similar to the officer’s nonfeasance in Robb. The Court also recognized that when a government agent commits an affirmative but negligent act, the description of the act will inevitably contain language that discusses the failure to do something. Such a description, however, does not transform the misfeasance into nonfeasance.
Affirmatively placing Adam in Plaintiffs’ home without a warning created a duty for the State and DSHS. In the Cook family case, the trial court denied the State’s motion, declaring that the DSHS’s affirmative acts arguably exposed the plaintiffs to a recognizable high degree of risk of harm that would not have otherwise existed, thus implicating § 302B. Here, the State literally placed the danger, foster child Adam, into the Cook family’s home. In fact, DSHS pushed Adam’s and Victoria’s placement on the Cooks, disregarding Susan’s and Matthew’s specific request for placement with a child under five years old, and then convincing them to take older children. Further, DSHS controlled all information about the sexual and physical abuse of Adam’s biological siblings. The State chose not to disclose this critical information to foster parents while knowing this abuse history information made Adam a high risk of harm. In short, the danger of Adam in Plaintiffs’ home would not have happened but for the State’s placement action. Consequently, DSHS owed the plaintiffs a duty under § 302B based on the danger the State created.