A former foster family can move ahead with a lawsuit against the Department of Children and Families claiming the agency placed a foster child with a history of being a “perpetrator of sexual abuse” in its home without sharing his background, only to then have the boy allegedly sexually assault the parents’ daughter, a court ruled Thursday.
The Massachusetts Appeals Court decision could have wide ramifications for the department, advocates and attorneys said, by possibly pushing it to disclose more about the children they are placing with foster families, and in how it’s able to defend itself in potential future litigation.
The family said Thursday they’re still digesting the ruling. The former foster mother, who is referred to by a pseudonym in the appellate court decision, told the Globe she felt deceived by DCF. Her daughter, now 11, disclosed the alleged sexual assault to her father in 2013 on the day of her fifth birthday party, according to court records.
“You put your kids to bed at night, you lock your doors, you turn on the alarm. And your 4-year-old wakes up from a nightmare, and says there’s a monster in their room,” said the mother, who the Globe is not identifying, at her request, to protect her daughter’s identity. “You do the flashlight check and you put them back to bed. Then, to find out the monster was real and put in your home by the very agency that is supposed to protect children, it’s pretty emotionally destroying.”
The foster family sued DCF in July 2016 in Middlesex County Superior Court, arguing that DCF was negligent and that if the parents had known the then-12-year-old boy’s history, they would not have agreed to take him in.
A superior court judge dismissed the case on grounds the agency was protected by “sovereign immunity,” which means a private party can’t take a state agency to court outside certain exceptions.
But the appellate court overturned the decision, ruling that the contract DCF signed with the parents gave “explicit and specific assurance that the department would provide the parents with sufficient information” before they decided to foster the child.
“That assurance, made to the parents, is unambiguous,” the court wrote. “If the plaintiffs’ allegations are proven, the department violated its contractual commitment by failing to provide the parents with information known to it.”
The appellate decision sends the case back to superior court. A DCF spokeswoman, citing the pending litigation, declined to comment on whether it would appeal the ruling to the Supreme Judicial Court.
“The decision can open up floodgates,” said Kevin Patrick Seaver, a Boston attorney who specializes in legal matters involving DCF but is not involved in the case. “It could require DCF to give a lot more information about foster children who are being adopted or placed in a foster home. It’s a fine line that DCF has to walk.”
Gregory A. Hession, who is representing the foster parents and their daughter, said he’s open to discussing a possible settlement with DCF, but that he’s prepared to bring the case to trial.
“I think it raises the bar and could likely change their policies,” Hession said of DCF. He said the parents, who the court noted had fostered hundreds of children, is still dealing with the fallout of the situation.
“This was their worst nightmare,” he said, “and it’s continuing to be a nightmare.”
According to court records, DCF had asked the mother in May 2013 if she could foster the boy, then 12, for a few days, but a caseworker provided little information beyond that his grandmother had passed away and that his aunt did not have legal custody.
DCF, however, was aware the boy had a history of sexual abuse, according to the complaint. Medical records obtained by the parents disclosed he was both a victim, at the a hands of a step grandfather, and a perpetrator, having tried to climb into bed with a relative and “touch and kiss her,” according to the appellate decision.
The parents had twice requested that DCF remove the boy from their home for “behavioral problems,” according to court records. But not only was he not removed, a DCF caseworker enrolled him in the public school in the parents’ town without telling them, the parents alleged.
That September, as the family was waiting for guests to arrive for the daughter’s birthday party, she told her father the boy had assaulted her.
“I never did foster care for any other reason other than to help the kids,” the mother told the Globe. “You trust the agency that they’ll give [the information] you need.”
Susan Elsen, a child welfare advocate at the Massachusetts Law Reform Institute, said the decision could have “significant implications” on how DCF communicates with the thousands of foster families it deals with, and it also can have legal ramifications.
“I think it makes clear that sovereign immunity is not absolute,” she said.
The state’s foster care system has been battered by a litany of problems and headlines over the last year. Children are bouncing between homes within the foster care system at a rate nearly double the national standard, a new department report revealed. And teens in foster care are graduating high school at a rate far below DCF’s own goals.
The Baker administration in May announced a raft of changes to the system, including efforts to more aggressively recruit and retain foster families. It came after a series of Globe stories revealed an overwhelmed and understaffed system in which children are being shifted from home to home. And frustrated foster parents are dropping out at a time when the state needs more of them.
DCF said this month that since January 2017, it has seen a net gain of more than 300 new foster families, leaving it with 2,297 foster homes, plus 2,036 other so-called kinship homes, where a foster child stays with a relative. But that has come as 2,350 foster families have stopped accepting placements between then and Nov. 1.