Abstract
The foster care system falls under the domain of each state’s family courts. State foster care agencies oversee the removal of children from their homes, the placement of children in temporary foster homes, and the process of reunification with the birth family if possible. This system is meant to protect children from abuse, but far too often foster care agencies fail in their duty to monitor the wellbeing of children after they are placed in a foster home. There is a crisis of child abuse within the foster care system, and the only avenue for recourse for children who have been injured is to sue the agency under 42 U.S.C. § 1983. The courts have applied two different standard of negligence to these suits when they involve foster care. The first, called the deliberate indifference standard, is based on the treatment of incarcerated individuals. The other, called the professional judgment standard, is based on the treatment of individuals involuntarily held in mental health facilities. Neither standard is adequately applicable to the situation of a child who has been abused in foster care. Rather, the standard of ordinary negligence should be applied in order to allow plaintiffs to more easily win their cases and in turn incentivize states to reinvest resources in preventative measure to stop abuse from happening in the first place.
Recommended Citation
Isabel Loughlin,
Child Abuse in the Foster Care System: Articulating a New Standard of Negligence for Civil Actions Against State Foster Agencies,
91 Brook. L. Rev.
1077
(2026).
Available at:
https://brooklynworks.brooklaw.edu/blr/vol91/iss3/8