The Lawletter Vol 44 No 4
Can a government agency be held liable in tort when a child is abused by a foster parent? The Washington Supreme Court addressed this issue of first impression in H.B.H. v. State, 429 P.3d 484 (Wash. 2018). In that case, several children were placed in foster care with a couple who abused the children physically, sexually, and psychologically over a five-year period. For a year during that period, social workers failed to conduct mandatory in-home health and safety checks, and the agency ultimately recommended that the foster parents be allowed to adopt the children. Years later, two of the children brought a tort action against the state Department of Social and Health Services (“DSHS”).
The DSHS argued that it owed no common-law duty because the children were not in the agency's physical custody at the time the abuse occurred. Rejecting that argument, the court concluded that a detailed statutory scheme created a special relationship between the agency and the children. The custodial relationship between the DSHS and the children gives rise to a common-law duty in accordance with Restatement (Second) of Torts § 315(b). The court found that such a special relationship exists even though the DSHS did not have actual physical custody of the children.
While the court recognized that the DSHS is not vicariously liable for the foster parents' abuse, it does have a direct and ongoing protective duty to monitor the children to ensure that their safety, well-being, and care are within the scope of what the legislature requires. The DSHS's duty of reasonable care is limited by the concept of foreseeability, and the court remanded the case to determine whether the DSHS breached its duty and whether any breach proximately caused injuries. The court's reasoning was subsequently applied in Cox v. Department of Social & Health Services, 913 F.3d 831, 840 (9th Cir. 2019).