Part I of this Comment presents a brief look at the children in foster care and the maltreatment they experience, as well as the federal and state legislation enacted to provide for their safety. Part II explores § 1983 and Supreme Court precedent establishing the duty to protect persons from harm caused by private parties, with a focus on the special relationship doctrine. It also discusses the applicable standards of liability defined by the Court. Part III reviews and analyzes the various liability standards used in federal and state actions brought by foster children for failure to protect them from harm. Part IV assesses the relevant individual and state interests involved in foster care maltreatment actions brought under § 1983. This section also compares and contrasts these interests to the interests of institutionalized mental health patients and prisoners, as these are the subjects of the Supreme Courts only holdings regarding the liability standards applicable to special relationship cases. Further, it assesses the peculiar circumstances of foster children and the heightened duty that the state has to protect them from harm. Finally, it proposes that the Supreme Court should recognize the heightened duty to protect foster children from harm and adopt the professional judgment standard as the appropriate standard in foster care maltreatment actions.
The Forgotten Children of the Foster Care System: Making a Case for the Professional Judgment Standard, 44 Golden Gate U. L. Rev. 221