New Trial Date Set Against Louisiana DCFS For Brain Injured Foster Child

Following an “eleventh hour” request by the Louisiana Department of Children and Family Services (DCFS), a jury trial involving an infant that suffered a traumatic brain injury while in the agency’s custody has been postponed. The case originally set for trial in September 2022 will now be tried in May 2023. A St. Tammany Parish jury will decide whether DCFS was negligent in the civil case that comes as DCFS is under increasing scrutiny by Louisiana government officials.  

The lawsuit filed by Louisiana attorneys Grady Flattmann and Jed Cain alleges that a 7-week-old infant was left on a couch by his foster mother and allowed to fall onto a concrete floor. As a result of the fall, the baby suffered a skull fracture and brain herniation that required surgical intervention and resulted in permanent brain damage.  

The suit claims that the infant was left on a couch despite the foster mother being warned by the baby’s pediatrician in writing on at least 3 separate occasions not to leave the child on a couch because he could fall and get hurt. Pleadings further allege that DCFS botched the post-accident investigation into the foster parents’ culpability. According to service documents, the foster mother, who moved to Texas after the incident, allegedly provided multiple inconsistent accounts of how the baby was injured. The inconsistent statements included reports that the infant fell out of a blanket as he was being picked up, fell off the couch while the foster mother was sleeping, fell off the couch while the foster mother was retrieving a diaper, and fell off the couch while the child was vomiting.  

Louisiana DCFS Under Fire For Its Care Of Foster Children

The recent development in this civil case comes amid widespread criticism of DCFS. The criticism has prompted reaction at the highest levels of state government, with Louisiana Governor John Bel Edwards ordering changes be implemented by DCFS Secretary Marketa Garner Walters. However, one New Orleans area legislator believes the agency is in such disarray that a total change in DCFS leadership is needed.

In November 2021, allegations emerged that a Louisiana foster child was subjected to years of sexual abuse and trafficking despite multiple reports made to DCFS by mandatory reporters over the course of a decade. The victim was allegedly sold since she was 6 years old. It was only after concerned citizens bypassed DCFS and reported it to the Governor’s Office of Human Trafficking that arrests were finally made.

In August 2022, a DCFS foster parent in Zachary was arrested for allegedly sexually abusing Louisiana children placed in his custody by the agency. The man reportedly raped on numerous occasions a 14-year-old foster child. Another 15-year-old foster child claims the man forced him to drink alcohol and perform oral sex. A third child with reportedly severe autism and other mental health disorders was allegedly molested. Despite such abuse, the alleged pedophile foster parent reportedly received yearly payments from DCFS of up to $7,000 for each child placed in his care. 

Also, in August 2022, the Louisiana Inspector General launched an investigation into DCFS following the death of a 2-year-old who died from a fentanyl drug overdose despite the fact that the child was reported to the agency on multiple prior occasions because of drug overdoses. Hospitals where the child was brought for drug overdoses on at least two separate occasions prior to his death reported the situation to DCFS, but the agency did not intervene.

A recent DCFS whistleblower reportedly came forward and claimed she left her job because she did not want to be part of an agency where children were not put first and were left in homes where they were abused and neglected. The former DCFS employee claims she was directed by supervisors to leave certain information out of reports to minimize the severity of cases.

On Tuesday, September 6, 2022, DCFS officials are set to testify at a hearing of Louisiana lawmakers who make up the Senate Committee on Health & Welfare. Among the topics to likely be discussed are the recent allegations of agency incompetence that led to the abuse and injury of vulnerable children. DCFS head Marketa Garner Walters admits that agency oversight may have played a big role in the most recent fentanyl drug overdose of a toddler. 

Louisiana Law Provides Civil Remedies For Injured Foster Children

Injured and abused foster children have potential recourse through both the civil and criminal justice systems. Criminal charges may be pursued by reporting abuse to local law enforcement agencies and cooperating with subsequent investigations. Private civil claims may be filed against DCFS or culpable foster parents. Indemnity agreements between DCFS and foster parents usually require the state to be held accountable for the foster parents’ negligence.

In ruling on civil claims brought by abused and injured foster children, the Louisiana Supreme Court offered the following definitive statements about the duty owed these children by DCFS under the law of Louisiana:

“When the Department obtains legal custody of a child, the law imposes upon it a duty to care for and protect that child. This duty is one of ultimate responsibility for the care of the child and cannot be delegated to others.” Miller v. Martin, 2002-0670 (La. 2003) 838 So.2d 761, 770. 

“The children of our state are its most precious resource. Those charged with the duty of physical care arising out of the legal custody of a child cannot, on the ground that this duty has been delegated by them to another, evade their civil responsibility for the physical abuse of the child caused by the breach of such duty. Whether the party with legal custody (and thus the ultimate responsibility for the care of the child) chooses to exercise this responsibility of care himself or through an employee, agent, or independent contractor, the ultimate duty of care is non-delegable and remains his legal responsibility. The Department will therefore be held liable to the plaintiff mother for the death of her son while in the custody of the Department and at the hands of the foster mother through whom the Department was exercising its custodial responsibility.” Vonner v. State through Dept. of Public Welfare, 273 So.2d 252, 256 (La. 1973).