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In the past decade, a number of states have begun to contract with private foster care agencies to place children in foster homes. The trend toward privatization—which has taken place in Illinois, Florida, Indiana and Ohio—has turned private agencies into potential defendants, and raised questions about their legal obligations and immunity, family lawyers are noting. Jay Deratany of Chicago’s Deratany & Carden currently has about six cases against private foster placement agencies in Illinois. Most of the plaintiffs are foster families who claim that an agency failed to disclose information about a foster child’s violent history. “The law [in Illinois] doesn’t specifically say, as it does in adoption, that an agency has a duty to disclose all the information about the child,” Deratany noted. In Utah, Spencer Siebers of Salt Lake City’s Silvester & Conroy settled a similar case against a private agency last month. Siebers represented foster care parents who claimed their 3-year-old was abused by a 15-year-old child that an agency had placed in their home without disclosing his abusive history. The parties settled for a confidential amount. Savage v. Utah Youth Village, No. 20030087. The case was initially thrown out, but was later reinstated by the Utah Supreme Court, which recognized that private foster care agencies have a “special duty to prevent abuse to and by children they place in foster homes.” Another likely test case is brewing in Massachusetts over the death of 4-year-old Dontel Jeffers, who was allegedly killed by the foster parent chosen for him by a private agency earlier this year. A report by the state alleged that the private agency failed to check up on the child. Criminal charges were filed against the foster parent, but Jeffers’ lawyer, Shawn P. O’Rourke of Boston’s Barron & Stadfeld, declined to discuss details until the civil suit is filed. Commonwealth v. Stephen, No. 462105 0507CR4261 (Suffolk Co., Mass., Super. Ct.). In several states, no “special duty” has been recognized for private agencies. In Illinois, for example, Deratany said he often relies on traditional principles of negligence to bring cases. Opposing counsel in one of Deratany’s cases, Steven Borkan of Stellato & Schwartz in Chicago, said the legal obligations of private agencies are clear. “The law is not vague,” Borkan said. Courts and the legislature must use a balancing test to decide what information, and how much of it, should be disclosed about birth parents and foster children, he added. Despite differences in state laws, jurors are likely to be critical of private agencies, according to Siebers. Most private foster placement agencies have nonprofit tax status, but they do receive payment from the state for the children they place. This profit motive, plus the lack of budget and caseload burdens, could potentially inflame a jury, Siebers noted.

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