Pollak, Vida & Barer

In D.G. v. Orange County Social Services Agency, ordered published January 31, 2025, the Fourth District Court of Appeal, Division 3 reversed the summary judgment granted to the defendant county.  The plaintiff and his siblings were first placed in a foster home in 1972, when the plaintiff was three.  The foster parents were licensed, had no criminal history, and had never been accused of sexual abuse.  When he was five years old, the plaintiff claims, he started telling his social worker, "Bad people are hurting me."  He did not tell the social worker to whom he was referring.  He asserts he told the social worker this repeatedly, and tried to explain how the bad people were hurting him.  There is no evidence the social worker followed up on the statements.  The social worker was also allegedly aware of a bedwetting problem that the plaintiff developed after he moved into the foster home.  The social worker was aware that bedwetting was common in children who had experienced trauma, but based on the plaintiff's history and situation she did not consider it a red flag.  Years before the plaintiff's placement, a nine-year-old foster child had told his social worker he felt weird taking showers with the same foster father.  The county did not follow up on the report, and continued to place children with the foster family after the report.  The social worker had no suspicions of sexual abuse in the foster home.  An adoption home study did not reveal evidence of abuse or the risk of abuse.  In 1978, the plaintiff was adopted by the foster family.  He lived with the family until the mid-80s, when he was arrested.  In 1986, the plaintiff disclosed to a therapist at juvenile hall that the foster father had molested him.  The therapist reported this to the county.  This was the first formal report of sex abuse the county received about the father.  In 2019, the foster father admitted to sexually abusing his four oldest sons, including the plaintiff.  The plaintiff sued the county for negligence. He alleged sexual abuse throughout his placement with the family. The trial court granted summary judgment for the county on the grounds of lack of duty to protect the plaintiff from unforeseeable criminal conduct, and that the social worker (and therefore the county) were immune under Government Code section 820.2 discretionary immunity.

The appellate court disagreed on both points.  There is a special relationship between a foster child and the agency that provides his or her care.  Once a special relationship is established, the trial court must look to the factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108 to decide whether they require creating an exception to the duty of care at issue.  The trial court erred by analyzing only the foreseeability Rowland factor.  The trial court also misapplied the foreseeability factor, by determining only whether the information the county received constituted actual knowledge that would make the foster father's conduct foreseeable.  In applying Rowland, the court's task is not to decide whether a particular plaintiff's injury was foreseeable in light of a particular defendant's conduct, but whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced.  The relevant question is whether the failure to investigate sexual abuse by a foster parent once the potential for abuse is raised by a foster child is likely to result in continued sexual abuse.  Case-specific foreseeability questions, such as whether there was actual knowledge of abuse, are relevant in determining the actual standard of care or breach in a particular case, but do not inform the threshhold determination that a duty exists.  The appellate court concluded that it was sufficiently foreseeable that the failure by the county to inquire or investigate when a foster child suggested abuse had occurred makes it appropriate to impose a duty to protect.  The other Rowland factors (except availability of insurance, for which there was no information) do not support an exception to imposing a duty in this case.  As for discretionary immunity, the court agreed that decisions of child welfare agency employees concerning determinations of child abuse and placement are subjective discretionary ones.  But there is no evidence in the record that the social worker here or anyone else exercised discretion–that she made a judgment call about whether to leave the plaintiff in the foster home after considering possible abuse based on the information known to her or the county.  The county therefore failed to shift the burden to the plaintiff on that issue.  Even if the burden had shifted, the evidence created triable issues of fact as to whether the social worker did actually consider facts indicating possible abuse.