HEALTH AND HUMAN SERVICES Court: State not liable in foster child's sexual assault Parents seek change in child welfare system after foster child assaults their 7-year-old son

LINCOLN - The Nebraska Supreme Court ruled Friday that the state cannot be held liable for a foster child's sexual assault of a Gage County boy.

But the boy's parents, who brought the case, say they plan to take their fight for changes in the child welfare system to the Legislature.

"We're not done because we lost this," said the boy's mother. "I don't want any other family to go through what we went through."

The couple's next step will be talking with state senators about making changes in state law, she said.

They already have started talking about options with their attorney, Jeff Wagner of Papillion, after getting Friday's court decision.

The ruling came in a lawsuit brought by the boy's parents against the Nebraska Department of Health and Human Services.

As summarized in the decision, the couple sought damages after HHS placed a 10-year-old boy with them for potential adoption in 2010 and did not tell them about his history of being sexually abused and of acting out sexually.

About five months after the placement - and one month before the adoption was to be completed - the couple found out the boy had sexually assaulted their son, then 7 years old.

"We had no clue. We had no safeguards put in place," the mother said.

The couple dropped their adoption efforts and the boy was returned to the foster care system.

They then filed suit, alleging that HHS was negligent for failing to disclose the boy's history and failing to properly supervise the child welfare caseworker.

Attorneys for the state argued that it was protected by sovereign immunity, meaning it cannot be held liable in such a case. The state's attorneys said that the State Tort Claims Act, which allows some types of lawsuits against the state, does not apply when there is misrepresentation or deceit.

According to the decision, the caseworker knew the boy's history but did not reveal it despite being asked at least three times by the mother.

The lower court sided with the state, as did the state's highest court.

In the Friday decision, the Supreme Court said the State Tort Claims Act is similar to the federal law. Neither allows lawsuits in cases where employees act deliberately or recklessly.

The court cited several decisions and articles explaining the rationale for the law.

It said such cases would be difficult to defend against. It also said current law promotes higher standards of performance by employees, because they cannot act unlawfully and let the state pick up liability.

But the ruling, written by Judge William Cassel, suggested the Nebraska Legislature may want to consider changing the section of law that protects the state in this case.

"From the perspective of the parents," the court said, "immunity 'adds insult to injury.'

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Wagner, the couple's attorney, said he hopes state lawmakers will pursue some remedy for situations like that of his clients. He said the couple's experience with the child welfare system is far from unique.

"The perpetrator in my case is the department," he said. "It's a systemic problem."

Wagner said making the state legally liable in such situations would force changes in practice that could prevent future families from encountering similar problems.

The mother, meanwhile, said the experience changed her family. The couple had once thought to adopt several children, but are sticking with the one they have now.

Her son is doing well after getting therapy, but could encounter issues again as he hits adolescence and other key points in his life. She said she doesn't have hard feelings toward the child welfare worker, who had been overloaded with cases.

She also said she still loves the boy they had once hoped to adopt. She said she kept in touch with him for about a year but doesn't know how he is doing now.

"I don't know what they did for therapy for him," she said. "That's what I pray for, is that he got help."

martha.stoddard@owh.com, 402-473-9583