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A Kansas foster care agency is being sued in federal court after a foster child, who was placed back into her father's home, died from being attacked by pit bulls that lived in the home. The lawsuit is against the Department for Children and Families (DCF) and KVC Behavioral Healthcare, a private not-for-profit foster care contractor, and seeks damages of more than $75,000.
Plaintiffs, consisting of the child's mother and the child's estate, claim that the agency was negligent in placing the child back into the father's home, and for failing to adequately assess whether the home was safe.
Nothing Changes If Nothing Changes
The child, identified in the lawsuit as "PND," was removed from her family home when her father went to prison, and the home was deemed an unsafe environment. He had a history of drug and theft convictions.
PND was placed with DCF and KVC until the summer of 2016. Once her father was released from prison, DCF and KVC proposed to re-integrate PND into her father's home, even though it still was the same unsafe environment that they had removed her from, including two pit bulls that had already exhibited violence. As Albert Einstein so famously said, "The definition of insanity is doing the same thing over and over again, but expecting different results."
Within a month of PND living there, those pit bulls killed PND after she got into the family yard in the evening, while her father slept. Strangely, he slept through the entire attack.
Balancing Right to Safe Environment and Right to Live With Parents
According to Kansas law, foster youth have the right to live in a safe environment. This right is balanced with the right to live with a relative, if possible. Was it safe for PND to be placed in a home that had two pit bulls with histories of previous attacks? Probably not. Even though the the police had investigated the death, and felt criminal charges weren't in order against the parent and the pit bull owner, who resided with the parent, this has little bearing on the negligence of DCF and KVC. At issue in this case will be proving foster care's duty of care, and breach of that duty.
Why the Agency May Not Be Liable
Unfortunately, it isn't easy to sue foster care agencies. First, in order to prevail, plaintiffs will need to prove that the agencies' behavior exhibited "deliberate indifference" to a risk of harm to PND. This heightened standard of liability has been repeatedly exploited by careless foster care agencies to circumvent legal liability, and is difficult to prove. Second, plaintiffs will need to prove causation. After all, neither the agencies nor the adults killed PND; it was the pit bulls. Plaintiffs will need to show the deliberate indifference was a "substantial factor" leading to the death. Finally, even if plaintiffs can maneuver through heightened liability standards and causation, they will still have to dodge governmental qualified immunity. They truly face an uphill battle.
If you or someone you love has been the victim of negligence, whether by a government agency or someone else, contact a personal injury attorney. A legal expert can listen to the facts of your case, and determine if you are eligible for compensation. Many of these attorneys will take your case at no cost, and will only earn a fee if they win money for you. There's very little to lose by contacting one today.
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