Metropolitan News-Enterprise


Monday, July 19, 2010


Page 1


C.A.: Agency Not Liable for Death of Child in Foster Home




A foster care agency is not liable for the death of a child who drowned after being left unattended in a bathtub by her foster mother, the Fourth District Court of Appeal has ruled.

Div. Two Friday certified for publication its June 18 opinion affirming Riverside Superior Court Judge Michael B. Donner’s ruling in favor of W&W Community Development, Inc., which does business as Children’s Plus Foster Agency.

Justice Art McKinster, writing for the Court of Appeal, said the trial judge erred in ruling that foster care placement agencies perform a governmental function for which they are entitled to immunity. Even a county would not be immune from liability for the negligence of an employee unless the employee were immune under the Government Code, the justice explained.

But the result was correct, the justice said, because the plaintiff failed to raise a triable issue of material fact.

Cesar Garcia sued after the death of his 2-year-old daughter Alexis in 2006. He claimed that the child drowned because her foster mother left her unattended for up to five minutes after filling the bathtub with water.

Children’s Plus, which placed Alexis and her older brother with the foster parents, was negligent in placing the children with foster parents who could not adequately care for them because of health problems and who were inadequately trained by the agency, Garcia’s complaint alleged. He contended that foster mother Irma Henry suffered from painful ailments that limited her mobility and forced her to take multiple mediations, including Xanax, Percodan, Zantac, and Dilantin.

The agency noted in its response that Henry completed her required training—including general safety and water safety training—and was a certified foster care provider, that the agency was told that she and her husband passed their required health screening as part of the certification process, and that agency officials had visited the home on three occasions and saw nothing that would have caused them to believe the children were not being properly cared for.

Henry testified in her deposition that she knew not to leave a child unattended, and that she left the bathroom only to retrieve soap and a towel.

McKinster, writing for the Court of Appeal, said the undisputed evidence showed that Henry was adequately trained, and that the plaintiff failed to raise any inference that her mobility problems contributed to the child’s drowning.

“According to the only evidence offered on the issue, Alexis drowned because Henry left the child unsupervised in a bathtub half filled with water,” the justice wrote. “Plaintiff’s claim assumes Alexis would not have drowned if Henry had walked faster and returned to the child more quickly. That argument assumes that Alexis did not slide under the water the minute Henry walked out of the bathroom. Plaintiff did not present any evidence to support that assumption.”

Even if Henry got distracted, or forgot the girl was still in the tub, McKinster wrote, the plaintiff could not present a prima facie case of negligence without evidence as to how soon the child drowned once the foster mother stepped out.

“The evidence is undisputed that Alexis drowned because she was left in a bathtub half filled with water and without any supervision,” the justice wrote, even though the defendant told Henry not to leave the child unattended at any time, so the agency had no direct liability for the child’s death.

Nor, McKinster went on to say, could the agency be held vicariously liable, because Henry was not an employee or agent of Children’s Plus, but rather an independent contractor who was paid $650 per month as Alexis’s foster parent.

The case is Garcia v. W&W Community Development, Inc., 10 S.O.S. 4120.


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