Document Type


Publication Date


Publication Citation

15 Stanford Law & Policy Review 267 (2004)


This article addresses the issue of governmental immunity and mandatory duty liability in the context of foster child abuse. The article should be of interest to children's rights organizations, legal scholars, practitioners and judges who face governmental liability issues related to the California foster care system.

The California Tort Claims Act has, until recently, long served as an important means by which foster children may obtain recourse from the government for injuries caused by social worker negligence. In the late 1990s, however, the California courts of appeal retreat - without justification - from the dictates of the Tort Claims Act. A low point was reached in 2002 when, in the landmark case Los Angeles County v. Superior Court (Terrell R.), the court of appeal interpreted the California Tort Claims Act, along with the statutory provisions governing foster care placement, so narrowly that governmental immunity would now appear inevitable in any case alleging foster child mistreatment. That decision was a radical departure from prior law, and one that renders California governmental immunity law inconsistent with the laws of the vast majority of other states. The harsh result is that innocent children abused or neglected in the California foster care system now face formidable - if not insurmountable - barriers to obtaining legal redress for their injuries.

This article examines the recent mistakes the California courts of appeal have made, with a particular focus on the errors made in Terrell R.. First, the article examines the systematic problems facing children in the California foster care system, and explains why it is a "system in crisis." Second, the article traces the history of the California Tort Claims Act. It explains how the government was, until the late 1990s, subject to liability when its social workers negligently supervise foster care children. Third, the article explains how in recent years the courts of appeal have erred in granting the government absolute immunity in foster care abuse cases. The article explains how this move to absolute immunity, whether done intentionally or unintentionally, not only contradicted sound public policy, but is a result long rejected by the California Legislature and California Supreme Court. The article concludes that if a social worker negligently places or negligently supervises a child in foster care, and the child is physically or sexually abused as a result of that negligence, liability is the rule, not the exception.