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Foster care parents and agencies can be held liable for sexual assault on foster kids committed by a tenant or visitor of a foster home — even if they had no reason to suspect any propensity for sexual misconduct — if the evidence shows that the visitor had a criminal record and the parent or agency “realized or should have realized” it was creating the opportunity to harm the child in any way, a federal judge has ruled. In his 22-page opinion in M.B. v. Women’s Christian Alliance, U.S. District Judge Berle M. Schiller upheld a $2.8 million jury verdict awarded to an 11-year-old girl who was living in foster care when she was sexually assaulted at the age of 4 by a basement tenant whose criminal record should have barred him from living in or even visiting a foster home. Lawyers for the WCA and foster parent Mary Barksdale had urged Schiller to grant a new trial, arguing that his jury instructions were faulty because he refused to give a “superseding cause” instruction. The correct instruction, they said, would have told the jury that the assailant, Irving Ford, was solely responsible unless there was proof that the agency or foster parent “realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.” Schiller disagreed, saying the defense argument was based on too narrow a reading of the Pennsylvania Supreme Court’s 1977 decision in Ford v. Jeffries. In Jeffries, Schiller noted, the state Supreme Court held that a negligent actor would not be liable for a superseding cause unless “the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.” Schiller found that the defense was reading too much into the high court’s use of the phrase “such a situation.” “The court did not hold … that a superseding cause instruction must be given when a negligent actor realized or should have realized that his or her actions would have created an opportunity for a third party to commit the particular crime or tort that was actually committed,” Schiller wrote. Instead, Schiller emphasized that the Jeffries court used the word “a” twice when it recognized liability for creating the opportunity to commit “a tort or a crime.” “As such,” Schiller wrote, “the law does not require that defendants realized or should have realized that Mr. Ford would sexually assault plaintiff. Rather, the law provides that defendants are liable if the jury determines that defendants realized or should have realized that their acts or omissions created an opportunity for Mr. Ford to commit a tort or a crime that would cause harm to plaintiff.” In a ruling handed down yesterday, Schiller rejected all of the defense challenges to the verdict. In its decision, the jury apportioned responsibility. It imposed half of the liability to the WCA and two of its employees — 10 percent to the agency, and 15 and 25 percent to the two employees, respectively. The other half of the liability was equally split by Barksdale and Ford, with 25 percent each. Prior to the trial, the City of Philadelphia was dismissed as a defendant, but paid $500,000 to settle remaining claims against two city officials at the Department of Human Services. At trial, plaintiff’s attorneys Leonard V. Fodera and John R. Trotman Jr. of Monheit Silverman & Fodera — whose client was referred to in court papers only as “M.B.” — argued that the assault by Ford could have been prevented if WCA and Barksdale had properly discharged their duties. Evidence at trial showed that the girl was removed from her biological mother’s care when she was just a few months old and was placed in foster care. The girl lived with Barksdale for about a year, was returned to her biological mother for a year, and was placed again with Barksdale from September 1995 to September 1996. The suit alleged that during the second placement with Barksdale, the girl was molested by Ford, a man with a prior drug conviction who was living in Barksdale’s basement for at least three months. In the spring of 1996, Barksdale said she noticed that M.B. had developed a rash in her genital area, which was later diagnosed as human papilloma virus or genital warts, according to court papers. State officials conducted two investigations. In the first, the investigator concluded that the claim of sexual abuse could not be substantiated; but in the second, the same investigator concluded there was sexual abuse, court papers state. In 2001, Ford was arrested and pleaded guilty to statutory sexual assault, indecent assault and corrupting the morals of a minor. Fodera said his main focus in the trial was establishing that Barksdale and the WCA either knew or should have known that Ford had a criminal record. Under state regulations, he said, no one with a criminal history is allowed to live in or be a frequent visitor to a foster home. The evidence, he said, showed that Barksdale had spoken to Marva Rountree, a WCA employee, about Ford. According to court papers, Barksdale told Rountree that Ford “was living in the house for a few days.” Ford also testified that while living at the foster home, he saw and spoke with a WCA employee that would come to the foster home to check on M.B. And Rountree testified in her deposition that she had seen Ford at the home on numerous occasions. Fodera also focused on WCA’s failure to remove M.B. from the home immediately after the sexual assault was discovered. Although Ford had already left the home, Fodera told the jury that the girl suffered more by staying in the same environment where the assault had occurred. In post-trial motions, WCA and Barksdale argued that Schiller erred by allowing the jury to learn of Ford’s guilty plea, but not allowing jurors to hear Ford’s deposition testimony in which he denied his guilt. Schiller disagreed, saying that under Pennsylvania law, “a conviction from a guilty plea is equivalent to a conviction from a trial-by-jury.” Criminal convictions, Schiller said, “are admissible in subsequent civil proceedings as conclusive evidence of the facts underlying the conviction.” Denials of a conviction are inadmissible, Schiller found, because the Supreme Court of Pennsylvania has held that a defendant should not be allowed to subsequently “deny that which was established by his criminal conviction, without proof that his conviction was procured by fraud, perjury or some manner or error now sufficient to upset the conviction itself.” As a result, Schiller concluded, “allowing Mr. Ford to deny the facts of his guilty plea would be improper under Pennsylvania law.”

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