State Accountability for Abuse in Foster Care 

In 1996, a Nebraska state court found that three siblings — Joshua, Sydnie, and Abigail — had been abused and neglected by their parents and placed the children in the state’s foster care system, operated by the state’s Department of Health and Human Services. From 1996 to 2004, all three children were physically and sexually abused by their foster parents, Miles and Carol Ruch.

Joshua later testified that he believed — bravely and naively — that if he endured the brunt of Miles Ruch’s sexual abuse, he could protect his sisters from the same fate. To no avail: Sydnie’s very first memories were of being sexually abused by Miles. Abigail also recounted sexual abuse. When Sydnie wasn’t being sexually abused by Miles, she testified, she was being physically abused by Carol Ruch, who would beat her with a board or “anything that she had around.” Sydnie and Abigail said that Carol would call them “ugly,” “stupid,” and “worthless,” and Abigail recalled an incident where Carol “press[ed] her hand onto an electrical stove burner.” In 2004, the department returned the children to their father, who also subjected them to sexual abuse.

The Siblings Seek Justice

In 2015, the siblings filed a lawsuit bringing claims of intentional assault and battery against Miles Ruch (his wife was deceased by then). They also asserted a negligence claim against the department, alleging that the state agency negligently placed them in the Ruch’s home, failed to remove them from the placement when it knew or should have known about the abuse, and allowed them to return to their father’s home, where they were subjected to further abuse. The trial court found in favor of the siblings against Ruch, awarding them $2.9 million in damages.

But the court found that the evidence was insufficient to hold the state agency liable. The siblings appealed, and earlier this year, the Nebraska Supreme Court held in Joshua M. v. State that their claim against the agency should never have made it to trial in the first place. As a state entity, the court said, the agency enjoyed immunity from the siblings’ claims.

In short, the court relieved the agency of accountability for negligence and wrongdoing that caused children in the state’s foster care system severe harm — even where state actors had the power to prevent the harm and even if state actors abused their discretion in taking or not taking a particular course of action.

In negligence claims, liability typically turns on whether a defendant knew or should have known about the harm and whether that harm was reasonably foreseeable. One of the primary purposes of allowing negligence claims against entities is to deter them from actions or inactions that cause preventable harm. The threat of liability is an incentive to change policies, practices, or procedures that might harm others. And in cases of foster care abuse, while children may be able to pursue claims against foster parents or other persons who directly commit acts of abuse, the chances of recovering any awarded damages are much less likely from an individual than from the state.

By deciding the agency had immunity, the court removed an important motivator to ensuring that no child in Nebraska’s foster care system ever again suffers the kind of abuse Joshua, Sydnie, and Abigail endured.

Sovereign Immunity Blocks Suits Against the State

Federal and state governments — including their political subdivisions, agencies, and employees — generally enjoy immunity from claims of negligence or intentional wrongdoing, even where the governmental acts or omissions are identical to those of a nongovernmental entity or individual who would be held liable. This concept, known as government or sovereign immunity, is preserved in the Eleventh Amendment of the U.S. Constitution, as well as in some state constitutions. The doctrine finds its roots in the English common law tradition that “the king can do no wrong.” The U.S. Supreme Court has explained that “although the American people had rejected other aspects of English political theory, the doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified.”

Congress, under its Article I powers, has the authority to abrogate sovereign immunity on behalf of the federal government, but it does not have the power to subject states to claims by private individuals. Instead, each state must determine whether to abrogate its sovereign immunity. In most states, including Nebraska, the state constitution authorizes the legislature to determine the circumstances under which sovereign immunity is waived and the state may be subject to liability. According to a 2022 Institute for Justice study, “while most states allow for limited tort claims against government officials, they are riddled with exceptions and immunities, which makes it extremely difficult for victims of government abuse to prevail.”

Nebraska’s State Tort Claims Act includes such a list of exceptions to liability for harms state agencies and employees caused or could have prevented. The exception at issue in Joshua M. involved “any claim arising out of assault [or] battery.” The siblings argued that the claim against the agency was not for intentional assault or battery but for negligence, and therefore did not fall under the exception. Justice Lindsey Miller-Lerman, who authored the dissenting opinion, agreed. A majority of the court, however, held that the exception included not only claims of intentional harm but also negligence claims that are “inextricably linked” to the intentional acts of assault and battery, regardless of whether the negligence was a separate act that came before the assault or battery was committed.

As the Georgia Supreme Court explained in Georgia Department of Human Services v. Spruill, allowing broad sovereign immunity for state child protection agencies and workers “prevents judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” In other words, agency workers with specialized knowledge and training can do their jobs without having to constantly look over their shoulder and wonder if they’re going to be sued and told by a judge who has never worked in child protective services that their professional judgment was wrong.

But if a state cannot be held accountable for failing to prevent foreseeable harm to children, then what incentives do child welfare agencies have to provide diligent care to children who have been forcibly removed from their families and placed in the legal custody of the state?

Recognizing the need to maintain child safety, some state supreme courts have limited the immunities available to state child welfare agencies. The Minnesota Supreme Court, for example, held in Jepsen v. County of Pope that immunity is not available to agency workers “for conduct during the performance of their official duties [where] they intentionally act without legal justification or excuse, commit a willful violation of a known right, or fail to perform a ministerial duty or perform the ministerial duty negligently.”

Other Paths to State Accountability

Survivors of child abuse in foster care have found some — albeit limited — success bringing claims against the state under other sources of law. Instead of bringing tort claims for damages stemming from injury to one’s person or property, survivors may argue that state employees violated their “unambiguously conferred” constitutional rights, such as procedural due process and fundamental liberty interests.

In Kenny A. v. Perdue, a federal judge in Georgia found that children in foster care have protected liberty interests under both the U.S. and Georgia Constitutions. Most cases finding that children possess protected liberty interests under the U.S. Constitution have involved delinquency proceedings, and the U.S. Supreme Court has not yet had the opportunity to determine which property and liberty interests are protected for children in foster care. As a result, courts turn to state constitutions to determine the extent of those rights. In Kenny A., the court relied on the Georgia Constitution in finding that when a child is taken into foster care by the state, a “‘special relationship’ is created that gives rise to rights to reasonably safe living conditions and services necessary to ensure protection from physical, psychological, and emotional harm.”

But constitutional claims (both state and federal) are woefully limited. For example, defendants may be protected by qualified immunity. Qualified immunity shields governmental actors from liability unless the right at issue was “clearly established” — and, the U.S. Supreme Court has explained, protects “all but the plainly incompetent or those who knowingly violate the law.”

Moreover, in most states there is no way for individuals to bring claims for damages for state constitutional violations. People suing for federal constitutional violations can bring claims under Section 1983, which allows suits for damages against state actors for deprivations of federal constitutional rights. But only a handful of states have civil rights statutes that establish a cause of action against state actors for state constitutional violations. And only 16 states allow lawsuits against the state directly under their state constitutions. (Nebraska, where Joshua, Sydnie, and Abigail were abused, has neither.)

And the federal Constitution is not always as protective as we would like. In DeShaney v. Winnebago County Department of Social Services, the U.S. Supreme Court ruled against a child who argued that the county’s failure to remove him from a severely abusive home — despite multiple complaints to the department of social services — deprived him of his liberty interest in bodily integrity in violation of federal due process. The Court explained that the Due Process Clause is a limitation on the state’s power to act, not a guarantee of protection against “private violence.”

Still, the Court left space for successful federal constitutional claims, acknowledging that “when the State, by the affirmative exercise of its power, so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.”

The Court in DeShaney specifically emphasized that the Due Process Clause does not “transform every tort committed by a state actor into a constitutional violation.” Rather, “the people of [a State] may well prefer a system of liability which would place upon the State and its officials the responsibility for failure to act in situations such as the present one,” wrote Chief Justice William Rehnquist. “They may create such a system, if they do not have it already, by changing the tort law of the State in accordance with the regular lawmaking process.”

In other words, where state inaction does not amount to a constitutional violation, tort laws can place upon the state an affirmative duty to protect kids. Rehnquist did not mention, however, that tort claims against the state come riddled with exceptions to accountability — as Joshua, Sydnie, and Abigail learned this year.

As emphasized by Justice William Brennan in his dissent in DeShaney, where a state relies on its social services department to investigate reports of suspected abuse and then ignores or dismisses those reports, no other state agency or private individual is empowered to taken protective action. Thus, the state has “effectively confined [a child] within the walls of [a] violent home.”

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Justice is too often denied to children who experienced abuse in a state’s foster system. After all, if the king can do no wrong, what protections do the most vulnerable children have?

Emma Hetherington is a clinical associate professor at the University of Georgia School of Law and director of the Wilbanks Child Endangerment and Sexual Exploitation Clinic.

Suggested Citation: Emma Hetherington, State Accountability for Abuse in Foster Care, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Sept. 5, 2024), https://statecourtreport.org/our-work/analysis-opinion/state-accountability-abuse-foster-care.