The State’s Duty to Prevent Child-on-Child Sexual Abuse in Foster Care

By Loren A. Cochran, Cole B. Douglas, and Bridget T. Grotz.  

Foster care often involves caring for children who have suffered child abuse or neglect. For example, a 2009 study reported that in a sample size of 155 girls in foster care up to 81% reported being sexually abused, and of those, 68% reported being sexually abused by more than one individual.

While most children who have been sexually abused do not go on to commit sexual offenses themselves, past sexual victimization can increase the likelihood of sexually aggressive behavior. Because of the amount of foster care children who have been sexually abused, child-on-child sexual abuse is a recognized problem in the foster care system. Specifically, Washington State has openly acknowledged the danger of sexually predatory children placed in foster care.

Despite acknowledging the issue of sexually predatory foster children, the State has consistently claimed an absence of duty to prevent child-on-child sexual abuse. Recently, however, a King County Court found that a duty can exist where the State’s actions amount to misfeasance, rather than nonfeasance, under Section 302B of the Restatement (Second) of Torts.

The Underlying Facts:  

In October 2013, Susan and Matthew Cook considered expanding their family through the Department of Social and Health Services’ (“DSHS”) foster-to-adopt program.[1] At the time, the Cook’s already had three young biological children, but they were committed to teaching their family the importance of giving back to the community. In order to best protect their family, Susan and Matthew informed their licensing social worker that they would need to consider a placement on a case-by-case basis and their placement decision would be based on information provided by the department.

In February 2015, DSHS asked the Cooks to be considered as pre-adoptive placement for two siblings who had been “bumping” around multiple foster homes. Although Susan welcomed the idea of placement, the two children, Adam and Victoria, were older than what the family had requested and were licensed to foster. Susan and Matthew had younger biological children in the home, and they were concerned about bringing in older kids.

Before agreeing to the placement, Susan wanted to learn more about Adam and Victoria. She spoke with a DSHS representative and she spoke with two former foster parents of Adam and Victoria. Susan also received documented Child Information/Placement Referral (“CHIPR”) reports on each child. CHIPRs are designed to provide foster parents with a “clear indication” of any behavior concerns and family history. Adam’s and Victoria’s CHIPRs were short with no behavioral concerns listed. Also absent was any information regarding Adam’s and Victoria’s biological relatives and any issues their biological siblings may have been experiencing. Despite the absence of information disclosed to the Cooks, DSHS had significant safety concerns about Adam and Victoria, including signs of physical and sexual abuse. However, DSHS did not relay these concerns to the Cooks.

With no reason to be concerned about any potential safety issues, the Cooks welcomed both foster children into their home. DSHS filed for an age-waiver on the family’s behalf so that children over age four were permitted to be fostered in their home. Following placement, Adam and Victoria continued exhibiting concerning and overtly sexualized behavior. Yet, DSHS disregarded this behavior and still said nothing about the children’s history.

In March 2016, DSHS received a referral from the Cook’s son’s elementary school. The child had been brought to the office for grabbing his peers’ privates. This school touching incident triggered a mandatory call to CPS. Despite receiving an allegation of child abuse and neglect, no CPS investigation ensued. Instead, a foster home licensing review took place. And again, DSHS provided the Cooks with no information about Adam’s or Victoria’s past.

In September 2016, Susan called DSHS informing the department that she had just learned that Adam had been sexually abusing their biological children. This disclosure led to a full DLR/CPS investigation into the abuse. In March 2017, the Cooks brought a negligence suit against the State for the abuse suffered by the Cook children. After discovery was completed, the State brought a motion for summary judgment seeking to dismiss the case because “Plaintiffs cannot… establish any legal duty on the part of DSHS.”

Affirmatively Placing Adam in the Plaintiffs’ Home Without a Warning Created a Duty for the State and DSHS

The trial court denied the State’s motion declaring that DSHS’s affirmative acts arguably exposed the plaintiffs to a recognizable high degree of risk of harm that would not have otherwise existed, thus implicating § 302B. Here, the State placed the danger, foster child Adam, into the Cook family’s home. In fact, DSHS pushed Adam’s and Victoria’s placement, disregarding the Cook’s specific request for younger children and then convincing them to take older children. Further, DSHS controlled all information about the sexual and physical abuse of Adam’s biological siblings. The State chose not to disclose this critical information to the foster parents while knowing this information made Adam a high risk of harm. Consequently, DSHS owed the plaintiffs a duty under § 302B based on the danger the State created.


Loren A. Cochran, Cole B. Douglas and Bridget T. Grotz are Tacoma trial attorneys specializing in sexual abuse and government liability.

[1]   All names have been changed due to the nature of the allegations and to protect the privacy of the juvenile sexual assault victims.