Can you sue a social worker for placing your child into an abusive foster home? Yes, but these cases are very hard to win, as the courts are unwilling to let cases go to juries. See James v. Friend, No. 05-2008 (8th Cir. 2006 ) demonstrates the unlawful intersection of two legal doctrines - deliberate indifference and jury questions.
In order to sue a social worker for leaving a child in an abusive foster home, you must show that the social worker acted with deliberate indifference. A social worker is deliberately indifferent when she knows (or infers) that a foster child faces a serious risk of harm, and she does not remove that child from that risk of harm.
Thus, the issue in James v. Friend was whether Alysha Friend was aware that a baby faced a serious risk of harm when over a course of several weeks:
- the baby had injuries to his face and body, including a black eye
- the baby had seizures and had to be taken to the hospital
- while at the hospital doctors found more bruises on the baby's back
- the baby had another black eye
- every one of Friend's colleagues who reviewed the case concluded that the baby was being abused and should be removed from the foster home.
Does anyone here not see where this case is going? I didn't think so. What will come to a surprise to no one is that the baby died from shaken baby syndrome.
The question in James v. Friend, then, is whether Alysha Friend inferred that the baby faced a serious risk of harm if left with the foster parents.
This seems like a no-brainer. After all, how could Alysha Friend not have known that the baby faced a risk of harm?
The problem is that the deliberate indifference standard requires that the person actually knows of the harm. It's not enough that any person with one-half a clue would have inferred that the baby was in harm's way. As courts are fond of saying: Mere negligence or even recklessness does not deliberate indifference make.
"But," you're likely saying, "It's not like Alysha Friend would admit that she knew the baby faced harm. Thus, shouldn't the question of whether Ms. Friend inferred that the baby was in danger of being hurt go to a jury?" Brilliant! "After all," you continue, "juries regularly determine mental states in all sorts of cases. Juries are the ones who determine, for example, whether a criminal defendant had the culpable mental state when charged with a crime." Sadly, courts don't like sending deliberate indifference cases to juries. Instead, the split panel takes the question from the jury, writing:
The most that can be said about Friend ... based on this record is that [she was] insufficiently skeptical about the [foster parent's] explanations for Dominic’s injuries. [Her] willingness to accept those explanations does not rise to the level of a substantive due process violation.
This is an incorrect holding. Since when did judges conclude whether or not a defendant possessed a given mental state? Determining whether someone possess a culpable mental state is a classic jury question. Indeed, imagine your typical date-rape case: The defendant said that he concluded that the complaining witness consented. Whether or not the defendant believed that is, more emphatically, a textbook jury question. Whether Alysha Friend concluded that the baby was being abused is also a jury question.
Granted, judges can determine whether the evidence, when viewed in the light most favorable toward the plaintiff, can be legally sufficient to support a jury's conclusion. But that's not what the panel does here. Instead, the panel - who never looked at Friend eye-to-eye or otherwise evaluated her credibility under cross-examination - decided what Friend must have inferred.
The panel simply should have asked: As a matter of law, could a jury rationally conclude that a social worker who was faced with a baby that had numerous black eyes and other bruises, and who was told by her other colleagues that the baby was being abused, inferred that the baby was actually being abused? If the answer is, Yes, then the case must go to the jury.
And the answer should have been, Yes!
The panel of judges - rather than letting the jury decide whether someone faced with a mountain of knowledge drew a conclusion based on that knowledge - decided for itself that Friend never drew that conclusion. The split panel today usurped the jury's role. Rather than limiting themselves to a review of the law, the judges acted as triers-of-fact.