Duty of Children and Family Services Regarding Foster Care

Recently, the Supreme Court of Louisiana determined that there is a non-delegable duty of care and well-being owed by the state department of children and family services to children in its legal custody, and the agency is liable for the acts of foster parents who breach that duty irrespective of an employer/employee relationship.  Howe v. Gafford, 395 So.3d 844, 845 (La. 2024) (“[T]here is a non-delegable duty of care and well-being owed by the Louisiana Department of Children and Family Services (“DCFS”) to children in its legal custody….and DCFS is liable for the acts of foster parents who breach that duty irrespective of an employer/employee relationship.”).

In a case arising in a similar factual context, a New York appellate court held that a municipality that has assumed legal custody of a foster child, and which selects and supervises the foster parents of that child, necessarily owes a duty to the child more than that owed to the public generally.  Adams v. Suffolk Cnty., ___ N.E.3d___, ___, 222 N.Y.S.3d 501, 510 (App. Div. 2024) (“[A] municipality that has assumed legal custody of a foster child, and which selects and supervises the foster parents of that child, necessarily owes a duty to the child ‘more than that owed [to] the public generally’” (internal citations omitted)).