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SALT LAKE CITY (AP) -- The Utah Supreme Court has ruled that foster parents may not necessarily share the state's immunity from suits.
Foster care parents must prove they can be considered Department of Human Services employees, and not independent contractors, to enjoy immunity, the justices ruled Tuesday.
The ruling came in a suit in which the plaintiff said he had been sexually abused in 1993 by a fellow foster child with whom he shared a bedroom.
The man, who was 18 when he filed the suit in 1998, claimed the foster parents, DHS and the Four Corners Mental Health Center knew that the other boy had "a violent character and had homosexual tendencies" and the defendants failed to protect him.
He said that he tried to tell the foster parents, a caseworker and other authorities of the sexual assault, but they failed to adequately discuss his complaints.
Seventh District Judge Bruce K. Halliday dismissed DHS from the lawsuit on the basis of governmental immunity. He dismissed Four Corners, ruling the plaintiff had not strictly complied with the provisions governing how to sue health care providers. The justices Tuesday affirmed the dismissal of Four Corners.
The foster parents contended they were licensed, approved and controlled by DHS. But the justices held that information was not enough to distinguish whether they were employees entitled to immunity or independent contractors, who are not.
The decision revives the lawsuit against the couple, sending it back to Halliday.
Attorney Douglas Stowell, who represented the foster parents in the appeal, said the ruling leaves open the question of whether foster parents are DHS employees or independent contractors.
Roger Griffin, an appellate attorney for the plaintiff, said the decision does not open the floodgates for suits against foster parents.
"If you are a foster care parent and your child is being treated appropriately and they fall down and bump their head, or they trip, that's not negligence that you should be able to sue someone over," he said.
"What I'm saying is look, if you know a child is in a dangerous situation, regardless of who is overseeing them, you have a duty to protect the child," he said.
Stowell questioned how much foster parents should be expected to know about their charges and the potential harm they could cause.
DHS directly licenses and oversees the majority of foster parents, but also contracts with private agencies to find and oversee foster parents. Of the 1,619 kids currently in foster care in Utah, 272 of them were placed by 34 contracted agencies, said department spokeswoman Carol Sisco.
(Copyright 2003 by The Associated Press. All Rights Reserved.)