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In a twist to foster care litigation, a Seattle jury has ordered the state of Washington to pay $10.3 million to a man who was severely beaten and left brain damaged by a group of youths, two of whom were foster care kids. Attorneys for the state plan to appeal the verdict, saying that it sets a risky precedent that requires it to protect members of the general public from troubled foster kids. Aba Sheikh v. Choe No. 02-2-05199-5 SEA (King Co.). Assistant District Attorney Jeff Freiumund said that prior litigation against the state Department of Social and Health Services (DSHS) has been for failure to prevent harm to children in its foster care system. He claims the state does not have a duty to protect the general public. Sixteen-year-old Said Aba Sheikh, a Somalian refugee, was beaten and left brain-damaged by the four youths outside a Shell gas station in Seattle on March 27, 1999. The boy was left with the mental capacity of a 9-year-old, his lawyers said. The family of Aba Sheikh, who lived with his uncle, filed a negligence suit against King County, the state, the DSHS, the foster care mother and Shell Oil Co. The county and Shell Oil settled before trial. The county paid $4.5 million; Shell paid $300,000. Lawyers for Aba Sheikh argued that the state knew the boys had a history of criminal abuses, but it left them in an unsupervised foster home where the foster mother had repeatedly admitted that she couldn’t handle them. “The foster kids had a string of violent assaults and a history of chronic drug and alcohol abuse, all of which DSHS knew had to be controlled through counseling, drug treatment and close supervision,” said plaintiffs’ counsel Darryl Cochran of Tacoma, Wash.’s Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim. Cochran noted that there are cases with similar fact patterns in South Dakota and New York. “This is not a risky precedent,” he argued. “The only precedent it sets is that DSHS can’t warehouse the most dangerous kids in the home of a single mom who has begged DSHS to take them out.” Two of the youths lived in a foster care home run by a single mother, Emma Daniels, and the third was her biological grandson. The fourth lived with his family. All four faced criminal charges for the assault. Three were tried as adults and received sentences from eight to 10 years for first-degree assault, according to Cochran’s co-counsel, Fred Diamondstone, a Seattle-based solo practitioner. Freiumund argued that the duty of care belonged to King County, not the state. The county supervised the criminal justice system and the boys’ probation, and had the authority to lock them up, he said. DSHS had the authority to remove the boys from the foster home, but Freiumund denied that it would have prevented them from being at the scene of the crime. “DSHS would still be required to place them in the least restrictive environment,” said Freiumund. That would mean leaving the youth in the same school district, in a neighborhood that is close to his family and meets his ethnic and religious needs, he said. The jury found the state 85% liable and the county 15% liable. The state will have to pay that percentage of the verdict, which included $7.3 million for future expenses, $2.5 million for pain and suffering and $547,500 for past medical expenses. Professor David DeWolf, who teaches torts at Gonzaga University in Spokane, Wash., said this is the first case in Washington where the state is put in the position of being held liable for its actions as a parent. The state may be rightly confused as to what the standard is, he said. “If the standard is gross negligence, then not just any old bad decision by the state is a trigger,” said DeWolf. “Not even a warning that [the foster kids] are a ticking time bomb. That’s true of a lot of adolescent boys,” DeWolf said. He would not support a rule that the state is never liable for egregious failure to supervise. But this case suggests that the state takes on an unlimited potential liability if its efforts to reform these kids are unsuccessful, he said. McAree’s e-mail address is [email protected].

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