Thursday, August 30, 2001
Claims Against County Over Foster Care Abuses Were Timely—C.A.
By KENNETH OFGANG, Staff Writer/Appellate Courts
The time in which a dependent child may bring a tort claim against a public entity is tolled when there is no parent or guardian ad litem to represent the child’s interests, even if counsel has been appointed by the court, this district’s Court of Appeal ruled yesterday.
In a long-awaited ruling, the Court of Appeal for this district granted a writ of mandate allowing the plaintiffs to sue the county for negligently monitoring the foster home in which they lived for five years.
According to news accounts, at least 85 foster children have presented, or attempted to present, similar claims. All have been rejected by the county.
The children in yesterday’s case, identified only as Crystal B., Steven G., and Anita G., were in a foster home from 1991 to 1996. In May 1997—after they were returned to their parents’ residence but while they were still under juvenile court jurisdiction—they told their therapist that they had been beaten, inadequately fed, and subjected to roach-infested living conditions in foster care.
The therapist notified the county. The foster mother, Sandra Rodriguez, became the subject of a 10-month investigation—dealing with over 20 children—which led to her being removed as a foster parent.
Criminal charges were resolved two years ago by a plea bargain.
An attorney appointed by the juvenile court to represent Crystal, Steven, and Anita took no formal action. The children obtained new counsel, more than a year after the appointment was made, and an application for leave to file a late tort claim was presented to the county.
The application alleged that the Department of Children and Family Services was negligent in its supervision of the Rodriguez home. Under what is commonly known as the Tort Claims Act, if a claim is not filed within six months of the alleged act or omission, the plaintiff must request leave from the public entity to present the claim.
The deadline for the request is one year from the accrual of the cause of action. If leave is denied, a petition for relief from the claims-presentation requirement may be brought in superior court.
Amendments adopted in 1999 provide for tolling of the one-year period if the claimant is a dependent child and certain other conditions are met. But the amendments do not apply to cases in which the claim was rejected before the amendments were enacted.
In the case of Crystal, Steven, and Anita, the county denied the claim and the children’s new attorney filed the required petition. Los Angeles Superior Court Judge Charles McCoy initially granted the petition, but vacated his order and denied the petition after the Court of Appeal issued an alternative writ of mandate.
Yesterday, a divided panel in Div. Three ruled that McCoy was right the first time and held that the children had a timely claim.
Justice Walter Croskey, writing for the panel, emphasized that under the claims act, the one-year period in which an application for leave to present a late claim must be brought does not include “the time during which [the claimant] is mentally incapacitated and does not have a guardian or conservator of his person.”
The law, Croskey reasoned, anticipates that when a minor is the victim of a tort, the child’s parent or guardian will be able to protect his or interests. It does not anticipate that someone other than a parent or guardian, even an independent appointed counsel, will be able to “represent a minor’s interests in the same way, and as to the same scope, as either a parent or guardian.”
Presiding Justice Joan Dempsey Klein concurred.
Justice Patti S. Kitching dissented. The attorney appointed by the juvenile court, she argued, was “properly authorized and capable of pursuing the minors’ tort claims.”
John J. Collins of Pasadena’s Collins, Collins, Muir & Traver, who argued the appeal for the county, pronounced himself “disappointed” in the outcome and said he would confer with county officials about a possible petition for Supreme Court review.
L. Wallace Pate of Century City, the attorney for the children, was not available for comment.
The case is County of Los Angeles v. Superior Court, Crystal B. RPI., B137358.
Copyright 2001, Metropolitan News Company