The fear of getting sued if a foster child attempts suicide or theft prompted private social service agencies to push in the waning days of the lame-duck session for a law granting them limited immunity to lawsuits.
They got their wish late in the night of the last session of the Legislature last week, even as opponents said the change could let private agencies off the hook if vulnerable children living with foster parents or adoptive parents are mistreated by adults who prey on them.
The new measure (Senate Bill 1240) won’t shield private social service agencies from being sued if the conduct that caused personal injury or property damage amounted to gross negligence or willful misconduct, according to the nonpartisan Senate Fiscal Agency. But if a civil action for damages is brought based on the conduct of a child being overseen by a private social services agency, there would be a presumption that the agency and those working for it were acting within the scope of their authority.
The law will make those employees immune from liability for personal injury or property damage while acting on behalf of the agency unless their actions are found to be gross negligence or willful misconduct.
During testimony earlier this year to the Senate Families, Seniors and Human Services Committee, Wedgwood Christian Services Chief Operations Officer Randall Zylstra said his agency was paying more than $100,000 annually for liability insurance because it could be sued if foster or adoptive children did something beyond the agency’s control to harm themselves or others. He said the agency ultimately might find itself unable to get any liability insurance coverage if it didn’t receive the same level of limited immunity to lawsuits already granted to the Michigan Department of Human Services.
DHS supported the bill once the House made changes to it earlier in the week to more clearly define what falls under the definition of a child social welfare program granted the new limited immunity. Even so, the bill won only 20 votes in the Senate where Republicans hold 26 of the 38 seats.
Child advocates say the law is a step in the wrong direction, especially in light of high-profile sex abuse scandals nationally.
“It is amazing that, at a time when the nation is still reeling from the scandals at Penn State and within the Boy Scouts of America, the Michigan Legislature would be focused on protecting administrators who fail to exercise due diligence to protect the children in their charge,” said Maxine Thome, executive director of the National Association of Social Workers – Michigan Chapter.
She went on to note that the legislation will “protect employees who failed to conduct proper background checks; who placed children in environments without proper inspections; and who failed to disclose to families who accept child placements important behavioral and physical health issues with the children.”
Advocates point to flaws exposed by boy’s death
Representatives of child abuse victims said lawmakers should have focused instead on finding ways to hold state workers accountable for children such as Ricky Holland, a 7-year-old boy struck in the head with a tack hammer in 2005 by his adoptive mother.
Ricky died several days later after Lisa and Tim Holland didn’t seek help for the injured boy. The couple hid his body and claimed he’d been kidnapped, prompting a massive hunt for Ricky. Tim Holland eventually led police to Ricky’s body, which had been put in a trash bag and left in a field. Both were sentenced to prison in 2006. Ricky was being overseen by DHS caseworkers at the time.
His death prompted disciplinary investigations into 10 DHS employees and changes in DHS procedures and training, but other children have died in the years since then. A four-month-long investigation by the Detroit Free Press reported CORRECTION: in 2007
earlier this month that the state child welfare system is “overwhelmed and lax in its oversight, that attempts to reform it have failed” and that children are still being placed in danger.
UPDATE: Responding to the Bridge story, DHS Director Maura Corrigan said in a statement that "Much has changed in Michigan’s child welfare system since Jack Kresnack’s investigative series in 2007. In the last two years, DHS has moved in what our governor calls 'dog years.' We have made changes that directly affect our foster youth – and we have done so without delay."
Private social services agencies say they’re doing their best to make sure children are protected and to work with DHS to get children into safe foster and adoptive homes. But they say they can’t stay in business if liability insurance is too expensive or not available at all, which is why they need the new law.
Another bill that would have allowed faith-based organizations – including some private social services organizations – to avoid assisting in adoptions that violate their religious teachings failed to make it through the lame-duck legislative session.
About 14,000 Michigan children are in foster care at any given time, according to the state. DHS has a goal of getting more than 2,700 children adopted annually.
Kathy Barks Hoffman covered Michigan government and politics for more than two decades as a reporter for the Detroit News, the Lansing State Journal and the Associated Press, where she headed AP’s Lansing Bureau for nearly 17 years. She now works for the Public Affairs Practice of public relations firm Lambert, Edwards & Associates.