Can You Sue the State of Washington for State-Supervised Parental Abuse?
The family court system in Washington State seeks to maintain parent-child relationships as much as possible when deciding custody and visitation arrangements in a parenting plan. Most of the time this is a good thing. But sometimes granting custody or visitation rights can be a disastrous mistake and result in a catastrophic injury.
Accidents happen all the time, but the state can be held legally responsible if there were clear warning signs that a custody or visitation arrangement posed a danger to the child and the state ignored those warning signs. Winning a lawsuit against a state for catastrophic injury arising out of state-supervised custody or foster care involves demonstrating two elements — the severity of the injury and the negligence of the state in placing the child in harm’s way.
What is a catastrophic injury?
A catastrophic injury is an extreme, critical loss resulting from an injury, such as the inability to walk, the loss of a limb, or brain damage that impacts speech or the ability to learn.
Examples could include eyesight or hearing loss, paralysis, brain damage, severe burns, or injuries that result in multiple surgeries, prolonged rehabilitation, or intensive nursing care. Catastrophic injuries result in severe physical pain, mental anguish, and steep medical expenses. They may require a parent or caregiver to stop working to take care of the child.
When determining damages for injuries, a jury will consider:
- Medical costs
- Disability, disfigurement, and pain
- Loss of employment, loss of earnings, or an inability to work
- Suffering, mental anguish, and emotional distress
- Loss of opportunities, such as education or the pursuit of interests
Sexual abuse and the trauma that it causes is widely acknowledged to be catastrophic and lifechanging. Tragically, sexual abuse is an all-too-common element of catastrophic injury cases involving state-supervised parental custody or foster care.
Catastrophic injuries can arise from violence, such as sexual or physical abuse, or from accidents arising out of negligence, such as unsafe living conditions at a child’s home.
How is the state responsible for injuries arising from parental custody or foster care?
When a court decides on a parenting plan, or places a child in foster care, it must make careful considerations about a guardian’s fitness to provide care. Courts should consider the following factors to determine a parent’s fitness for custody:
- History of substance abuse
- Mental illness
- Instances of abuse against the child, other children, or anyone else
- A record as a sex offender
- The lack of ability to provide a safe home and other necessities
- Any neglect or alienation history
A court that fails to identify a lack of fitness, ignores evidence of violent tendencies or neglect, and awards custody or unsupervised visitation rights to an unfit guardian should be held accountable if the child suffers a catastrophic injury while in that person’s care.
What is negligence?
To win a lawsuit against the state for catastrophic injury that resulted from state-supervised custody orders, an attorney must show a jury that the state was negligent when it ordered custody, visitation rights, or placement in foster care.
An example of negligence could include ignoring red flags that would have indicated a parent’s lack of fitness, such as a history of abuse, mental health or substance abuse problems, or unsafe living conditions. Negligence could also involve an incomplete background check. When assessing fitness and the safety of the child’s environment, the court should also consider the background of other adults living in the home or those with close relationships to the parent, such as romantic partners.
Our experienced attorneys at PCVA have seen many cases where the state ignored reports and warnings about a parent’s history of abuse, neglect, or drug abuse or warnings about their boyfriends and girlfriends. Courts have a responsibility to consider these reports in making decisions, and state agencies should investigate them if they arise.
The state also has a responsibility to properly screen and monitor foster families. Unfortunately, the foster system has been plagued with tragic cases of sexual abuse, with abuse perpetuated by foster parents, their romantic partners, or older children living in the homes.
What is the statute of limitations for catastrophic injury arising out of state-supervised custody arrangements?
The statute of limitations for catastrophic injury cases in Washington State is three years after the incident, except for sexual abuse. Adults who wish to file a lawsuit on behalf of minor children should contact an experienced lawyer as soon as possible to allow the attorney to begin a thorough investigation that will give the case the best chance of success. To help aid their attorney in the investigation, adults should keep all relevant records, including medical bills, letters, and documents from court proceedings.
In the case of childhood sexual abuse, the law has a similar three-year statute of limitations – but with critical differences. In incidents of childhood sexual abuse, the clock does not start ticking after the incident. Rather, the clock starts ticking once the incident causes the injury or once the survivor realizes that the abuse caused injury. The reason for this is that the state legislature knows that children who suffer sexual abuse may not understand what is happening to them, may repress memories for many years, or may not connect problems in adulthood with the abuse experienced in childhood. For these reasons, adults may seek damages for childhood sexual abuse many years later. For example, PCVA partner Darrell Cochran has secured tens of millions of dollars in settlements for the survivors of sexual abuse suffered while in foster care at institutions such as Kiwanis homes and affiliates, which occurred decades ago.
Courts and state agencies have a responsibility to keep children safe and must exercise care when making custody decisions. When the state’s negligence results in a catastrophic injury, the child’s loved ones have the right to seek justice, which will help the family offset the expenses caused by the injury and will help prevent similar carelessness from happening to other children in the future.