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No Discretionary Immunity Owed to County for Abusive Foster Care Placement—C.A.
Opinion Says Agency Failed to Show Any Consideration in Decision to Leave Minor in Home After Complaints About Guardian’s Behavior
By a MetNews Staff Writer
A county is not entitled to discretionary immunity—usually applicable to social services agencies relating to child placement decisions—where the department failed to provide any facts showing that a caseworker made a considered decision in not acting after the minor reported that the foster father showered with him and made him feel “yucky,” Div. Three of the Fourth District Court of Appeal held yesterday.
The placement in question occurred from 1970 until 1976 or 1977, when then-minor R.S. was placed into foster care in the home of Howard Graubner and his wife. In 2019, Graubner admitted in writing to sexually abusing R.S. and other children.
R.S. had complained to social worker Barbara Voss that “he did not like taking showers” with Graubner but was not removed from the home until he was reunited with his biological mother after approximately 7 years.
In 2021, R.S. sued Orange County and its social services agency for negligence after the passage of Code of Civil Procedure §340.1, which extends the limitations period for damages claims arising from childhood sexual assault to “22 years of the date the plaintiff attains the age of majority or within five years of…injury or illness occurring after the age of majority was caused by the sexual assault, whichever period expires later.”
The county moved for summary judgment, arguing that it is immune from liability under Government Code §820.2 which provides that “a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”
Orange Superior Court Judge David J. Hesseltine granted the motion in favor of the defendants, finding that placement decisions were discretionary acts within the meaning of the code and that the county did not have a legal duty to protect R.S. because Graubner’s conduct was not foreseeable.
Justice Martha K. Gooding wrote the unpublished opinion reversing the judgment, saying:
“We agree that, like a social worker’s act of placing a child in a particular foster home, the act of removing—or choosing not to remove—a child from an existing placement is a discretionary act. However, the County failed to show that its employees actually exercised any discretion by making a considered decision to leave R.S. in the Graubners’ care after R.S. complained to a social worker that he felt ‘weird’ and ‘yucky’ showering with his foster father. Accordingly, the trial court erred in granting the County summary judgment….”
She continued:
“We recognize that, given the length of time that passed between the acts in question and the filing of R.S.’s complaint, it may be difficult—perhaps impossible—to produce evidence of this element necessary to the determination of immunity….But that is a problem addressed to the Legislature, not this court….[T]he Legislature has…made the policy decision that the importance of providing redress to victims of childhood sexual abuse outweighs the potential difficulties inherent in defending against decades-old claims. We are not free to substitute our judgment on that point….”
Acting Presiding Justice Joanne Motoike and Justice Thomas A. Delaney joined in the opinion.
Discretionary Immunity
Gooding pointed out that child placement determinations have consistently been found to be discretionary acts within the meaning of §820.2 and said that “[w]e find no reason to depart from those decisions.” However, she explained, that “[a]lthough we have determined the trial court properly found that a decision not to change R.S.’s foster placement is a discretionary act, that does not end our inquiry.”
She noted that “we also must consider whether the County made the necessary showing that Voss (or any other County employee) actually exercised the discretion vested in them by making a considered decision regarding R.S.’s placement with the Graubners after R.S. told Voss about showering with [Graubner].”
Turning to the record in the case, she said:
“The County failed to provide any facts showing whether Voss…made a considered decision with respect to maintaining R.S.’s placement in the Graubners’ home. Instead, the County’s separate statement in support of the motion for summary judgment asserts ‘[t]here no longer exists any Juvenile Court or Social Service Agency records relating to [R.S.], his dependency proceedings, or foster care placement.’ But the lack of evidence to respond does not mean that the…test can be ignored. We therefore conclude the County failed to meet its…burden on summary judgment….”
Duty of Care
Gooding commented that there is “no serious dispute in this case that a special relationship existed between the County and R.S., and that the County therefore owed R.S. a duty of care to protect him from harm by third parties” but explained that the county asserts an exception applies in this case because the harm was not foreseeable.
Courts analyze whether an exception to the duty of care exists under a series of factors including the foreseeability of the harm, the degree of certainty that the injury was suffered, the moral blame attached to the action, and the policy of preventing future harm.
The justice remarked:
“The only factor the County addressed on summary judgment—and therefore the only factor the trial court considered—was foreseeability. The court concluded R.S.’s statement to Voss about showering with his foster father was not sufficient to establish the County had ‘actual knowledge that would make the conduct by [R.S.]’s foster father foreseeable.’ The court thus found the County had met its initial burden to show it had no legal duty to R.S., and R.S. failed to produce any admissible evidence to create a triable issue of material fact.”
Disagreeing with this analysis, she wrote:
“The trial court’s analysis was incorrect….Neither the County nor R.S. addressed whether the category of negligent conduct by the County alleged here (failure to investigate child molestation by a foster parent when presented with a comment by a foster child raising the specter of potential sexual abuse) is sufficiently likely to result in the kind of harm R.S. experienced (continued sexual molestation) that liability may appropriately be imposed on the County.”
Applying this framework, she declared:
“When analyzed in this way, we conclude it is sufficiently foreseeable that a failure by the County to take action (at a minimum, in the form of further inquiry or investigation) when a foster child makes comments to a social worker that are suggestive of sexual abuse is sufficiently likely to result in the harm R.S. experienced (continued sexual abuse) to make it appropriate to impose a duty on the County to protect against the harm R.S. suffered.”
Other Factors
The jurist concluded that the other factors do not weigh against the finding of a legal duty and said:
“R.S. was in a special relationship with the County, and the County had a duty to act reasonably to protect R.S. from being harmed by the criminal conduct of third parties. Based on the evidence offered in connection with the motion for summary judgment, the County failed to establish…an exception to imposing a duty on the County to act with reasonable care to prevent the sexual abuse of minors in its custody when those minors are placed in foster homes. The trial court erred by granting summary judgment on the ground the County owed no duty to R.S.”
Gooding continued:
“Having found the County owed no duty to R.S., the trial court did not address whether the County breached any such duty. Although breach had been alleged in the complaint, it was addressed in the motion for summary judgment in a cursory manner….”
The case is R.S. v. Orange County Social Services Agency, G063041.
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