Child Welfare Agencies' Potential Malpractice Liability for Improperly Detaining a Child in the Foster Care System

The agency or caseworker's obligations are not completed after a child is placed in a foster home. Foster care is not intended to be a permanent situation for the child. The agency or caseworker may be found liable if the child is left in foster care for an unreasonable or extended period of time. Unfortunately, some children are even lost in the foster care system. There are not enough caseworkers or resources to handle the volume of children that are placed in the foster care system each year. States are attempting to revamp their foster care systems; however, it is difficult with limited resources and staff.


Basically the agency or caseworker may be liable under one of two theories with respect to improperly detaining a child in the foster care system, either by failing to treat the child's parents or by failing to arrange an adoption for the foster child.

If the agency or caseworker fails to treat the parents, a lawsuit may result. The agency or caseworker themselves are not required to personally treat the parent but they must find adequate treatment programs for the parents to participate in while their child remains in foster care. There are numerous treatment programs to assist parents in overcoming any issues that they may have. However, these types of programs are only successful if the parents are willing participants. Sometimes parental treatment will go on for a period of years.

If the plaintiff bases their action on the agency or caseworker's failure to follow agency procedures or guidelines or the agency or caseworker's failure to abide by state or federal law, the plaintiff may be more successful in their action.

If the agency or caseworker fails to arrange for the child's adoption, either may be found liable for malpractice. If it is determined that the child needs to be placed for adoption because the child's parents do not want the child or are unable to properly care for the child, the agency or caseworker has a duty to arrange for the child's adoption. This often entails working with another state agency. If the agency or caseworker fails to arrange for the adoption of the child, the child remains is what is known as "limbo."

In order to proceed with the adoption arrangements, the agency or caseworker must also initiate an action to terminate the parental rights. If the agency or caseworker fails to initiate such an action after determining that the child be placed for adoption, either may be liable for malpractice.

Copyright 2009 LexisNexis, a division of Reed Elsevier Inc.