Kathy Jo Taylor, a Minor, by and Through David S. Walker, Jr., Attorney at Law as Guardian Ad Litem v. James G. Ledbetter, ph.d.
This text of 818 F.2d 791 (Kathy Jo Taylor, a Minor, by and Through David S. Walker, Jr., Attorney at Law as Guardian Ad Litem v. James G. Ledbetter, ph.d.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
HATCHETT, Circuit Judge:
We took this case en banc to determine whether and under what circumstances, if any, a child involuntarily placed in a foster home may successfully bring an action in federal court against the state officials involved in the placement, for injuries sustained while in the foster home. Finding that a child may successfully bring such an action, we affirm in part and reverse in part.
Facts
In 1982, pursuant to an order of the Gwinnett County Juvenile Court, the child who was the plaintiff in the district court, and who is the appellant here, was taken from the custody of her natural parents and placed with the Gwinnett County Department of Family and Children Services (DFACS).1 Upon removing the child from the custody of her natural parents, officials and employees of the Georgia Department of Human Resources and DFACS assumed responsibility for the child’s custody, supervision, and care. During 1982, the DHR and DFACS officials placed the child in a foster home. While in the foster home the child suffered severe and permanent personal injuries as a result of being “willfully struck, shaken, thrown down, beaten and otherwise severely abused by the foster mother.” She remains in a coma as a result of those injuries.
This suit was filed pursuant to 42 U.S.C. § 1983 by the child, through her guardian, against the state and county officials involved in her placement in the foster home.2 The child alleges that the state and [793]*793county officials were grossly negligent and deliberately indifferent to her welfare when deciding to place her, and after placing her, in the foster home. Specifically, she alleges that the officials: (1) failed to thoroughly investigate the fitness of the foster home; (2) knew or should have known the foster parents were unfit to be trusted with her care, custody, and supervision; (3) failed to maintain proper supervision in inspection of the foster home; and (4) failed to obtain complete physical and medical records, or to furnish available records to the foster parents.
The child’s complaint states two claims: first, the officials were deliberately indifferent to her rights and, therefore, they are liable under the reasoning employed in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and in Doe v. New York City Dept. of Social Services, 649 F.2d 134 (2d Cir.1981), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983). The second claim is that the Georgia statutory foster care scheme creates a legitimate claim of entitlement enforceable in federal court under the holding in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
The United States District Court for the Northern District of Georgia dismissed the complaint for failure to state a claim upon which relief could be granted.3 This court affirmed. Taylor v. Ledbetter, 791 F.2d 881 (11th Cir.1986). The full court took the case en banc to determine the Roth and Estelle issues.
Discussion
The state and county officials contend that the child’s suit was properly dismissed for four reasons: First, they contend that the child’s claim is barred by the recent decisions of the Supreme Court in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), and in Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). Second, they contend that the Georgia statutory scheme for child placement and supervision does not create any entitlements to children placed in foster homes. Their third contention is that the allegations in the child’s complaint are conclusory, and if not conclusory, are not sufficient to support a due process claim; and their fourth claim is that because the Gwinnett County Juvenile Court made the decision to remove the child from the natural parents they cannot be liable.
The first contention is easily decided. In Daniels and Davidson, the Supreme Court held that the due process clause is not implicated by the negligent act of an official causing unintended loss or injury to life, liberty, or property. The complaint in this case, however, alleges, in each paragraph, that the officials were “grossly negligent” or “deliberately indifferent.” Thus, the complaint is sufficient to overcome either a Daniels or Davidson bar.
We can also easily dispose of the state officials’ fourth contention that the action of the Gwinnett County Juvenile Court insulates them from liability. The Gwinnett County Juvenile Court’s removal of the child from her natural parents is irrelevant at this point in the proceedings.
Having decided two of the four contentions above, we proceed to a discussion of the Estelle (substantive constitutional claim) and the Roth claims.
The Substantive Constitutional Claim
We note that the allegations in the complaint must be taken as true and construed in the light most favorable to the child. [794]*794Scheuer v. Rhodes,4 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Miller v. Stanmore, 636 F.2d 986 (5th Cir.1981); Johnson v. Wells, 566 F.2d 1016 (5th Cir.1978).
A. Section 1983
We address first the requirements for an action filed under 42 U.S.C. § 1983. For a section 1983 action to arise where an official is charged with failing to exercise an affirmative duty, two requirements must be satisfied. First, the failure to act must have been a substantial factor leading to the violation of a constitutionally protected liberty or property interest. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). Second, the official having the responsibility to act must display deliberate indifference. Turpin v. Mailet, 619 F.2d 196 (1980), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980). These two requirements have been adequately pleaded in this case.
B. The Liberty Interest
The liberty interest which the child asserts under the fourteenth amendment is a substantive due process right rather than a procedural due process right. In a substantive due process claim, we are concerned with those rights which the state may not take away. Substantive due process rights are rights such as those listed in the Bill of Rights and those rights held to be so fundamental that a state may not take them away. Among the fundamental rights not listed in the Bill of Rights or incorporated through the fourteenth amendment are such rights as abortion (Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)); privacy (Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977); marriage
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HATCHETT, Circuit Judge:
We took this case en banc to determine whether and under what circumstances, if any, a child involuntarily placed in a foster home may successfully bring an action in federal court against the state officials involved in the placement, for injuries sustained while in the foster home. Finding that a child may successfully bring such an action, we affirm in part and reverse in part.
Facts
In 1982, pursuant to an order of the Gwinnett County Juvenile Court, the child who was the plaintiff in the district court, and who is the appellant here, was taken from the custody of her natural parents and placed with the Gwinnett County Department of Family and Children Services (DFACS).1 Upon removing the child from the custody of her natural parents, officials and employees of the Georgia Department of Human Resources and DFACS assumed responsibility for the child’s custody, supervision, and care. During 1982, the DHR and DFACS officials placed the child in a foster home. While in the foster home the child suffered severe and permanent personal injuries as a result of being “willfully struck, shaken, thrown down, beaten and otherwise severely abused by the foster mother.” She remains in a coma as a result of those injuries.
This suit was filed pursuant to 42 U.S.C. § 1983 by the child, through her guardian, against the state and county officials involved in her placement in the foster home.2 The child alleges that the state and [793]*793county officials were grossly negligent and deliberately indifferent to her welfare when deciding to place her, and after placing her, in the foster home. Specifically, she alleges that the officials: (1) failed to thoroughly investigate the fitness of the foster home; (2) knew or should have known the foster parents were unfit to be trusted with her care, custody, and supervision; (3) failed to maintain proper supervision in inspection of the foster home; and (4) failed to obtain complete physical and medical records, or to furnish available records to the foster parents.
The child’s complaint states two claims: first, the officials were deliberately indifferent to her rights and, therefore, they are liable under the reasoning employed in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and in Doe v. New York City Dept. of Social Services, 649 F.2d 134 (2d Cir.1981), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983). The second claim is that the Georgia statutory foster care scheme creates a legitimate claim of entitlement enforceable in federal court under the holding in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
The United States District Court for the Northern District of Georgia dismissed the complaint for failure to state a claim upon which relief could be granted.3 This court affirmed. Taylor v. Ledbetter, 791 F.2d 881 (11th Cir.1986). The full court took the case en banc to determine the Roth and Estelle issues.
Discussion
The state and county officials contend that the child’s suit was properly dismissed for four reasons: First, they contend that the child’s claim is barred by the recent decisions of the Supreme Court in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), and in Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). Second, they contend that the Georgia statutory scheme for child placement and supervision does not create any entitlements to children placed in foster homes. Their third contention is that the allegations in the child’s complaint are conclusory, and if not conclusory, are not sufficient to support a due process claim; and their fourth claim is that because the Gwinnett County Juvenile Court made the decision to remove the child from the natural parents they cannot be liable.
The first contention is easily decided. In Daniels and Davidson, the Supreme Court held that the due process clause is not implicated by the negligent act of an official causing unintended loss or injury to life, liberty, or property. The complaint in this case, however, alleges, in each paragraph, that the officials were “grossly negligent” or “deliberately indifferent.” Thus, the complaint is sufficient to overcome either a Daniels or Davidson bar.
We can also easily dispose of the state officials’ fourth contention that the action of the Gwinnett County Juvenile Court insulates them from liability. The Gwinnett County Juvenile Court’s removal of the child from her natural parents is irrelevant at this point in the proceedings.
Having decided two of the four contentions above, we proceed to a discussion of the Estelle (substantive constitutional claim) and the Roth claims.
The Substantive Constitutional Claim
We note that the allegations in the complaint must be taken as true and construed in the light most favorable to the child. [794]*794Scheuer v. Rhodes,4 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Miller v. Stanmore, 636 F.2d 986 (5th Cir.1981); Johnson v. Wells, 566 F.2d 1016 (5th Cir.1978).
A. Section 1983
We address first the requirements for an action filed under 42 U.S.C. § 1983. For a section 1983 action to arise where an official is charged with failing to exercise an affirmative duty, two requirements must be satisfied. First, the failure to act must have been a substantial factor leading to the violation of a constitutionally protected liberty or property interest. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). Second, the official having the responsibility to act must display deliberate indifference. Turpin v. Mailet, 619 F.2d 196 (1980), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980). These two requirements have been adequately pleaded in this case.
B. The Liberty Interest
The liberty interest which the child asserts under the fourteenth amendment is a substantive due process right rather than a procedural due process right. In a substantive due process claim, we are concerned with those rights which the state may not take away. Substantive due process rights are rights such as those listed in the Bill of Rights and those rights held to be so fundamental that a state may not take them away. Among the fundamental rights not listed in the Bill of Rights or incorporated through the fourteenth amendment are such rights as abortion (Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)); privacy (Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977); marriage (Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978)); and safety and physical movement (Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982)).
On the other hand, procedural due process claims involve those expectations created by state law. As to these rights, the state may take them away by affording predeprivation hearings as in Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) (public employment); or by a post-deprivation hearing as in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) (hobby kit), or by providing other safeguards. Parratt only applies to procedural due process claims; consequently, Parratt is not a bar to this action brought under section 1983 based on the fourteenth amendment.
The liberty interests in this case are the right to be free from the infliction of unnecessary pain, as that interest is protected by the fifth and fourteenth amendments, and the fundamental right to physical safety as protected by the fourteenth amendment.5
The Supreme Court recognized a liberty interest in a person involuntarily committed to a custodial setting in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). In Youngberg, the [795]*795mother of a mentally retarded person involuntarily committed to a Pennsylvania state institution upon her petition filed a complaint pursuant to 42 U.S.C. § 1983 seeking damages against the institution’s officials. The mother alleged that the officials knew or should have known that her son was suffering injuries, but failed to take appropriate preventive procedures, thereby violating his rights under the eighth and fourteenth amendments. The Supreme Court recognized the child’s liberty interest in the safety of his environment and noted that the right to personal security constitutes a “historic liberty interest” protected substantively by the due process clause. Youngberg v. Romeo, 457 U.S. at 315, 102 S.Ct. at 2458, 73 L.Ed.2d at 37 (citing Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977)).
The liberty interest in this case is analogous to the liberty interest in Youngberg. In both cases, the state involuntarily placed the person in a custodial environment, and in both cases, the person is unable to seek alternative living arrangements. In Youngberg the Court said, “if it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed — who may not be punished at all — in unsafe conditions.” Youngberg, 457 U.S. at 315-16, 102 S.Ct. at 2458, 73 L.Ed.2d at 37.
A child confined to a state mental health facility has a fourteenth amendment substantive due process liberty interest in reasonably safe living conditions. Young-berg v. Romeo, 457 U.S. 307, 320, 102 S.Ct. 2452, 2460, 73 L.Ed.2d 28, 39 (1982). Similarly, if foster parents with whom the state places a child injure the child, and that injury results from state action or inaction, a balancing of interests may show a deprivation of liberty.
State action was clearly involved in Youngberg where the person was confined to a state mental facility. In this case, the child’s physical safety was a primary objective in placing the child in the foster home. The state’s action in assuming the responsibility of finding and keeping the child in a safe environment placed an obligation on the state to insure the continuing safety of that environment. The state’s failure to meet that obligation, as evidenced by the child’s injuries, in the absence of overriding societal interests, constituted a deprivation of liberty under the fourteenth amendment.
We are mindful that a liberty interest protected by the due process clause involves a balancing. “In determining whether a substantive right protected by the due process clause has been violated, it is necessary to balance ‘the liberty of the individual’ and ‘the demands of an organized society.’ ” Youngberg, 457 U.S. at 320, 102 S.Ct. at 2460, 73 L.Ed.2d at 40. By alleging that the gross negligence and deliberate indifference of state officials rendered her comatose, the child has sufficiently pleaded a liberty interest. The state of Georgia may assert societal reasons for failing to take the actions alleged as necessary in the child’s complaint and held mandatory by the Georgia statutory scheme. Whether the child’s claim constitutes a liberty interest protected by the due process clause when weighed against the demands of society will be determined at later stages in these proceedings.
C. Deliberate Indifference
In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Supreme Court held that prison officials who show deliberate indifference to a prisoner’s serious illness or injury violate the eighth amendment’s prohibition against the infliction of cruel and unusual punishment. Such a transgression gives rise to a prisoner’s action under 42 U.S.C. § 1983. This principle is well established in this circuit. Williams v. Bennett, 689 F.2d 1370 (11th Cir.1982).
The Second Circuit has held that a minor in state custody may maintain a section 1983 action based on the fourteenth amendment under an Estelle analysis. Doe v. New York City Dept. of Social Services, 649 F.2d 134 (2d Cir.1981), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983). The Doe court held that where a [796]*796state official’s deliberate indifference is a substantial factor in denying property or liberty interests, a child in foster care is in a situation analogous to a prisoner in state custody. Consequently, state officials responsible for foster placement may be liable under section 1983.
The facts in Doe are similar to those in this case. In Doe, a foster child sued her legal custodian and a voluntary child welfare agency which provided foster care under a contract with the city of New York. In the suit, the foster child alleged that state officials violated her constitutional rights when, with the knowledge of possible sexual abuse from her foster father, they failed to investigate or remove her from the foster home. The Second Circuit held that government officials may be liable under section 1983 not only for overt activity which is unlawful and harmful, but also for failure to act when the duty to act exists. “When individuals are placed in custody or under the care of the government, their governmental custodians are sometimes charged with affirmative duties, the nonfeasance of which may violate the Constitution. Thus, nonperformance of such custodial duties has been held to give rise to a section 1983 cause of action for prisoners.” Doe, 649 F.2d at 141.
Is a foster child involuntarily placed in a foster home in a situation so similar to that of a prisoner involuntarily placed in an institution that similar rules of law should be applied? We believe so. We recognize that the situations are not parallel. Obviously, a closer relationship exists between superior officers, subordinate officers, and the inmates within a prison than exists between a state agency, the foster parents, and the foster child in a foster care setting. In a penal institution, all the persons involved are in close and daily contact. Wardens and supervisors have the ability to daily monitor the activities of subordinates as well as the effect of certain conduct upon inmates. Although the contacts between actors in the foster home situation are not as close as in the penal institution the situations are close enough to be held analogous. The lack of proximity in the foster home situation simply suggests that deliberate indifference is not as easily inferred or shown from a failure to act. A child abused while in foster care, in order to successfully recover from state officials in a section 1983 action, will be faced with the difficult problem of showing actual knowledge of abuse or that agency personnel deliberately failed to learn what was occurring in the foster home.6
Although mindful of the fact that the eighth amendment has historically been limited to criminal proceedings, such substantial similarities exist between a prisoner’s situation and the situation of a minor child forced into a foster home that we are justified in holding that the situations are sufficiently analogous to support a section 1983 action. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) is not a bar to this holding. In finding that imposing corporal punishment upon school children in public schools does not constitute cruel and unusual punishment, the Supreme Court relied heavily upon the support which a school child receives from family, friends, teachers, and other pupils who may witness and protest mistreatment. The Court acknowledged, in its well-known footnote, that some circumstances may be sufficiently analogous to criminal processes as to justify application of the eighth amendment.7 The Court expressly left open the question of whether [797]*797and under what circumstances persons involuntarily confined in juvenile institutions may claim eighth amendment protection. In Ingraham, the Court discussed the cost of providing additional benefits and safeguards to school children threatened with punishment. It found the cost of benefits and additional safeguards high and the risk of harm to the school children low. In the foster home setting, recent events lead us to believe that the risk of harm to children is high. We believe the risk of harm is great enough to bring foster children under the umbrella of protection afforded by the fourteenth amendment. Children in foster homes, unlike children in public schools, are isolated; no persons outside the home setting are present to witness and report mistreatment. The children are helpless. Without the investigation, supervision, and constant contact required by statute, a child placed in a foster home is at the mercy of the foster parents.
The fourteenth amendment, like the eighth amendment, “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958). With contemporary society’s outrage at the exposure of defenseless children to gross mistreatment and abuse, it is time that the law give to these defenseless children at least the same protection afforded adults who are imprisoned as a result of their own misdeeds.
We agree with the Second Circuit: Defendants may be held liable under 1983 if they, or in the case of an agency, its top supervisory personnel, exhibited deliberate indifference to a known injury, a known risk, or a specific duty and their failure to perform the duty or act to ameliorate the risk of injury was a proximate cause of plaintiff’s deprivation of rights under the Constitution.
649 F.2d at 145.
We hold that a child involuntarily placed in a foster home is in a situation so analogous to a prisoner in a penal institution and a child confined in a mental health facility that the foster child may bring a section 1983 action for violation of fourteenth amendment rights.8
This holding does not mean that every child in foster care may prevail in a section 1983 action against state officials based on incidental injuries or infrequent acts of abuse; only where it is alleged and the proof shows that the state officials were deliberately indifferent to the welfare of the child will liability be imposed.9
D. Special Relationship
We are not alone in our holding. Other circuits have recognized that special relationships may support section 1983 actions. In Bowers v. DeVito, 686 F.2d 616 (7th Cir.1982), the Seventh Circuit refused to hold the state liable for a murder committed by a schizophrenic (with a history of criminal violence) one year after being released from a state mental hospital. The court in Bowers stated that “there is no constitutional right to be protected by the state against being murdered by criminals or madmen.” Bowers, 686 F.2d at 618. However, the Bowers court held that an affirmative duty obligating the state to protect private citizens’ safety and health could arise from special custodial or other relationships — where the state is responsible for placing such person in a “position of danger” or potential harm. The court in Bowers stated: “If the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tort feasor as if it had thrown him into a snake pit. It is [798]*798on this theory that state prison personnel are sometimes held liable under section 1983 for the violence of one prison inmate against another.” Bowers, 686 F.2d at 618. The Bowers court refused to distinguish between custodial relationships and “other relationships created by the state.”
The Fourth Circuit in Fox v. Custis, 712 F.2d 84, 86 (4th Cir.1983), defined the category of persons entitled to institute a section 1983 claim against the state. The Fox court expressly stated the nexus between the state and a private citizen necessary to an action under section 1983:
With one qualification, we agree with the Seventh Circuit’s recent holding that, in general, there simply is ‘no constitutional right to be protected by the state against ... criminals or madmen,’ and that because, in corollary, there is no ‘constitutional duty [on the state] to provide such protection, its failure to do so is not actionable under section 1983.’ Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982). The qualification — an important one actually acknowledged by the Bowers court, Id. —is that such a right and corollary duty may arise out of special custodial or other relationships created or assumed by the state in respect of particular persons. [Original emphasis.]
Fox, 712 F.2d at 88.
The liberty interest which the plaintiff alleges is also sufficiently borne out by our decision in Dollar v. Harralson County, 704 F.2d 1540 (11th Cir.1983). In Dollar, we stated: “In determining whether a constitutional deprivation has occurred, courts must examine whether the defendant was under any obligation to the particular plaintiff. The question of the existence of such a duty is an issue of law.” 704 F.2d at 1543. We went on to note that the existence of duties resulting from relationships is usually clear in section 1983 cases, citing the relationship between prisoners and wardens and hospitals and patients.
Dollar suggests that the more important the relationship and its attendant duties, the more likely it is that an act or omission on the part of one party has the potential to deprive the other of a constitutional right. The relationship between state officials charged with carrying out a foster child care program and the children in the program is an important one involving substantial duties and, therefore, substantial rights.
This circuit has also recognized the “special relationship” analysis. Jones v. Phyfer, 761 F.2d 642 (11th Cir.1985). The Jones court, in noting that “[t]here are cases which demonstrate the type of special relationship required for an action under 42 U.S.C. § 1983,” stated: “the case workers were hired specifically to protect the children and ... it would therefore be unreasonable to characterize the child’s death as too remote a consequence of the ease workers’ failure to perform their duties.” Jones, 761 F.2d at 645.
The Both Claim
The child also contends that the statutes and regulations of the state of Georgia create in her a legitimate and sufficiently vested claim of entitlement such that deprivation of that entitlement without due process of law imposes on her a grievous loss. This claim is based on the Supreme Court’s holding in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In Roth, the Court held that procedural due process applies to the deprivation of interests encompassed within the fourteenth amendment’s protection of liberty and property when a person has acquired specific benefits through state law.
We must look to the Georgia statutes and ordinances to determine whether they indicate an intention to bestow benefits upon children in the care of the state or upon children placed by the state in foster homes. An appendix is attached setting forth the statutes and ordinances involved in this case. The district court’s order provides an excellent summary of the pertinent Georgia statutes and ordinances:
The Georgia statute in question provides generally that the Department of Human Resources is authorized to use its facilities for the assistance of children in several ways, including child welfare servic[799]*799es, preventive services, services to courts, and regulation of child placing and child caring agencies. See O.C.G.A. § 49-5-8. Moreover, O.C.G.A. § 49-5-9(b) requires that institutions and agencies which have custody of children who are committed to the Department shall be inspected by the Department. The regulations governing foster care services which are those most directly applicable to the present case are found at O.C.G.R.R.G. § 290-2-12-.08. These regulations require the development of a plan for a child placed in foster care which is responsive to the child’s needs, is attentive to the duration of the placement, projects necessary medical services, and sets goals toward enabling the child to be replaced with his natural family. Subsection (3) of that section provides that the selection of a foster home should be based upon an assessment of the child’s total needs and how well a particular program can meet the child’s needs. Subsection (13) provides that the agency shall evaluate each foster home including: motives; adjustment of the foster family to each other and the community; foster family’s attitude toward the parents of the foster child; the family’s expectations of behavior of foster children; physical standards; community resources; the physical, mental, and emotional health of each member of the foster family; foster parent training; and adequacy of financial resources. Subsection (16) provides that supervision of children in foster homes is to be maintained by the agency ‘through visits made at regular intervals and as frequently as is necessary for the best interest of the child. ’ The section continues that there must be at least one personal contact each month. Subsection (19) of the foster child regulations provides that the agency shall maintain a file for each foster child which includes, inter alia, the child’s medical history and a health record. [Emphasis added.]
In spite of the comprehensive and direct nature of the statutory commands, the district court concluded that the statutes and ordinances only provided “procedural guidelines” to be followed in arriving at decisions. We disagree.
The Georgia statutes provide more than just “procedural guidelines” to be followed in arriving at decisions. The Georgia foster care and placement scheme is a comprehensive one. The Children and Youth Act provides that “legal custody embodies: ‘(B) the right and the duty to protect [children] ... and (C) the responsibility to provide food, clothing, shelter, education, and ordinary medical care.’ ” O.C.G.A. § 49-5-3(12). The law governing the licensing of child placement agencies clearly mandates that the Department of Human Resources “in placing children in foster family homes, shall safeguard the welfare of such children by thoroughly investigating each such home and the character and reputation of the persons residing therein and shall adequately supervise each home during the period of care.” “... It shall be the duty of the department to inspect at regular intervals all licensed child welfare agencies within the state including ... foster family homes____” O.C.G.A. § 49-5-12(0, (m). The regulations governing foster care services are found in O.C.R.R.G. § 290-2-12-08. Subsection 3 of that section provides that the selection of a foster home should be based upon an assessment of the child’s total needs and how well a particular program meets the child’s needs. Section 16 provides that supervision of children in foster homes is to be maintained “through visits made at regular intervals and as frequently as necessary for the best interest of the child. ” (Emphasis added.)
Thus, the Georgia scheme mandates that officials follow guidelines and take affirmative actions to ensure the well being and promote the welfare of children in foster care. These children can state a claim based upon deprivation of a liberty interest in personal safety when the officials fail to follow this mandate. “In a constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed.” Board of Regents v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548, 558 (1972).
[800]*800It is of no moment that the state officials are not charged in this case with affirmatively acting to harm this child. What the child is entitled to is the state’s protection from harm. She is entitled to be protected in the manner provided by statute. It would be anomalous if the state, in allegedly acting to protect the child, could itself cause harm to the child by failing to assume the child’s minimal physical safety. Failing to act may, under certain circumstances, be more detrimental than acting.
We hold that the Georgia child care statutory scheme gives rise to a Roth-type claim.10
Since the child’s claim under Roth is a procedural due process claim, the state of Georgia may alter its statutes and ordinances in such a way as to change or eliminate the expectation on which this child had the right to rely.
For the reasons expressed by the district court, we find without merit plaintiff’s claim in Count III of the complaint based upon the Social Security Act, 42 U.S.C.A. § 601 and its regulations.
Accordingly, we affirm the district court’s dismissal of Count III of the complaint. We reverse and remand the case as to Counts I and II.11
AFFIRMED in part, REVERSED in part and REMANDED.
APPENDIX
O.C.G.A.
49-5-2. Purpose of article.
The purpose of this article is to promote, safeguard, and protect the well-being and general welfare of children and youth of this state through a comprehensive and coordinated program of public child welfare and youth services, providing for:
(1) Social services and facilities for children and youths who require care, control, protection, treatment, or rehabilitation and for the parents of such children;
(2) Setting of standards for social services and facilities for children and youths;
(8) Cooperation with public and voluntary agencies, organizations, and citizen groups in the development and coordination of programs and activities in behalf of children and youth; and
(4) Promotion of community conditions and resources that help parents to discharge their responsibilities for the care, development, and well-being of their children.
It is the further purpose of this article to provide for a qualified group of citizens and leading professionals who will identify and study the problems of youth, recommend and effect possible solutions, and work actively for state and local action to prevent children and youths from becoming inmates of our prisons, patients in our mental hospitals, and persons dependent upon public assistance programs. (Ga.L.1963, p. 81, § 2.)
49-5-3. Definitions.
As used in this article, the term:
(1) “Child-caring institution” means any institution, society, agency, or facility, whether incorporated or not, which either primarily or incidentally provides full-time care for children under 17 years of age outside of their own homes, subject to such exceptions as may be provided in rules and regulations of the board.
(2) “Child-placing agency” means any institution, society, agency, or facility, whether incorporated or not, which places children in foster homes for temporary care or for adoption.
(3) “Child welfare and youth services” means duties and functions authorized or required by this article to be provided by the department with respect to:
(A) Establishment and enforcement of standards for social services and facilities for children and youths which supplement or substitute for parental care [801]*801and supervision for the purpose of preventing or remedying or assisting in the solution of problems which may result in neglect, abuse; exploitation, or delinquency of children and youths;
(B) Protecting and caring for deprived children and youths;
(C) Protecting and promoting the welfare of children of working mothers;
(D) Providing social services to children and youths and their parents and care for children and youths born out of wedlock and their mothers;
(E) Promotion of coordination and cooperation among organizations, agencies, and citizen groups in community planning, organization, development, and implementation of such services; and
(F) Otherwise protecting and promoting the welfare of children and youths, including the strengthening of their homes where possible or, where needed, the provision of adequate care of children and youths away from their homes in foster family homes or day-care or other child-care facilities.
(4) “Day-care center” means any place operated by a person, society, agency, corporation, institution, or group wherein are received for pay for group care for fewer than 24 hours per day without transfer of legal custody 19 or more children under 18 years of age.
(5) “Delinquent child or youth” means any person so adjudged under Chapter 11 of Title 15.
(6) “Detention” or “detention care” means temporary care in a facility affording secure custody.
(7) “Family boarding home” means a home operated by any person who receives therein for pay for supervision, care, lodging, and maintenance, with or without transfer of legal custody, three or more children under 17 years of age who are not related to such person and whose parents or guardians are not residents of the same house.
(8) “Family day-care home” means a private residence operated by any person who receives therein for pay for supervision and care fewer than 24 hours per day, without transfer of legal custody, three but not more than six children under 18 years of age who are not related to such person and whose parents or guardians are not residents in the same private residence.
(9) “Group-care facility” means a place providing care for groups of children and youths, other than a foster family home.
(10) “Homemaker service” means a service provided by a woman selected for her skills in the care of children and home management and placed in a home to help maintain and preserve the family life during the absence or incapacity of the mother.
(11) “In loco parentis” means a quasi-parental relationship inferred from and implied by the fact that a child or youth has been taken into a family and treated like any other member thereof, unless an express contract exists to the contrary.
(12) “Legal custody” means a legal status created by court order embodying the following rights and responsibilities:
(A) The right to have the physical possession of the child or youth;
(B) The right and the duty to protect, train, and discipline him;
(C) The responsibility to provide him with food, clothing, shelter, education, and ordinary medical care; and
(D) The right to determine where and with whom he shall live,
provided that these rights and responsibilities shall be exercised subject to the powers, rights, duties, and responsibilities of the guardian of the person of the child or youth and subject to any residual parental rights and responsibilities.
(13) “Maintenance” means all general expenses for care such as board; shelter; clothing; medical, dental, and hospital care; transportation; and other necessary or incidental expenses.
(14) “Maternity home” means any place in which any person, society, agency, corporation, or facility receives, treats, or cares for, within any six-month period, more than one illegitimately pregnant woman, either before, during, or within two weeks after [802]*802childbirth. This definition shall not include women who receive maternity care in the home of a relative or in general or special hospitals, licensed according to law, in which maternity treatment and care is part of the medical services performed and the care of children is only brief and incidental.
(15) “Probation” means a legal status created by court order following adjudication in a delinquency case, whereby a child or youth is permitted to remain in the community, subject to supervision by the court or an agency designated by the court and subject to being returned to court at any time during the period of probation.
(16) “Protective supervision” means a legal status created by court order following adjudication in a deprivation case, whereby a child’s place of abode is not changed but assistance directed at correcting the deprivation is provided through the court or an agency designated by the court.
(17) “Shelter” or “shelter care” means temporary care in a non-security or open type of facility.
(18) “Group day-care home” means any place operated by any person or group wherein are received for pay not less than seven nor more than 18 children under 18 years of age for care and supervision for less than 24 hours per day. (Ga.L.1963, p. 81, § 3; Ga.L.1982, p. 706, §§ 2, 6-8.) O.C.G.A.
49-5-8. Powers and duties of department.
(a) The Department of Human Resources is authorized and empowered, through its own programs and the programs of county or district departments of family and children services, to establish, maintain, extend, and improve throughout the state, within the limits of funds appropriated therefor, programs that will provide:
(1) Preventive services as follows:
(A) Collecting and disseminating information about the problems of children and youths and providing consultative assistance to groups, public and private, interested in developing programs and services for the prevention, control, and treatment of dependency, deprivation, and delinquency among the children of this state; and
(B) Research and demonstration projects designed to add to the store of information about the social and emotional problems of children and youths and improve the methods for dealing with these problems;
(2) Child welfare services as follows:
(A) Casework services for children and youths and for mothers bearing children out of wedlock, whether living in their own homes or elsewhere, to help overcome problems that result in dependency, deprivation, or delinquency;
(B) Protective services that will investigate complaints of deprivation, abuse, or abandonment of children and youths by parents, guardians, custodians, or persons serving in loco parentis and, on the basis of the findings of such investigation, offer social services to such parents, guardians, custodians, or persons serving in loco parentis in relation to the problem or bring the situation to the attention of a law enforcement agency, an appropriate court, or another community agency;
(C) Supervising and providing required services and care involved in the interstate placement of children;
(D) Homemaker service, or payment of the cost of such service, when needed due to the absence or incapacity of the mother;
(E) Boarding care, or payment of maintenance costs, in foster family homes or in group-care facilities for children and youths who cannot be adequately cared for in their own homes;
(F) Boarding care or payment of maintenance costs for mothers bearing children out of wedlock prior to, during, and for a reasonable period after childbirth; and
(G) Day-care services for the care and protection of children whose parents are absent from the home or unable for other reasons to provide parental supervision;
(3) Services to courts, upon their request, as follows:
[803]*803(A) Accepting for casework services and care all children and youths whose legal custody is vested in the department by the court;
(B) Providing shelter or detention care for children prior to examination and study or pending court hearing;
(C) Making social studies and reports to the court with respect to children and youths as to whom petitions have been filed;
(D) Following an adjudication by the court or discharge from an institution, providing probation services, protective supervision, or after-care (parole) supervision to specific children and youths; and reporting thereon to the court at such times and in such manner as the court shall direct; and
(E) Providing casework services and care or payment of maintenance costs for children and youths who have run away from their home communities within this state, or from their home communities in this state to another state, or from their home communities in another state to this state; paying the costs of returning such runaway children and youths to their home communities; and providing such services, care, or costs for runaway children and youths as may be required under Chapter 3 of Title 39;
(4) Regional group-care facilities for the purpose of:
(A) Providing local authorities an alternative to placing any child in a common jail;
(B) Shelter care prior to examination and study or pending a hearing before juvenile court;
(C) Detention prior to examination and study or pending a hearing before juvenile court; and
(D) Study and diagnosis pending determination of treatment or a hearing before juvenile court;
(5) State institutional facilities, including the existing institutions, to wit: the Training Schools for Boys and Girls located at Adamsville, Milledgeville, and Augusta, Georgia, and additional facilities designed to afford specialized and diversified programs, such as open institutions, closed institutions, forestry camps, ranches, and group residences, for the care, treatment, and training of children and youths of different ages and different emotional, mental, and physical conditions;
(6) Regulation of child-placing and child-caring agencies by:
(A) Setting standards for and providing consultation and making recommendations concerning establishment and incorporation of all such agencies; and
(B) Licensing and inspecting regularly all such agencies to ensure their adherence to established standards as prescribed by the department;
(7) Adoption services, as follows:
(A) Supervising the work of all child-placing agencies;
(B) Providing services to parents desiring to surrender children for adoption as provided for in adoption statutes;
(C) Providing care or payment of maintenance costs for mothers bearing children out of wedlock and children being considered for adoption;
(D) Inquiring into the character and reputation of persons making application for the adoption of children;
(E) Placing children for adoption; and
(F) Providing financial assistance after the consummation of a legal adoption to families adopting children who would otherwise remain in foster care at state expense. Financial assistance may only be granted for hard-to-place children with physical, mental, or emotional handicaps or with other problems for whom it is difficult to find a permanent home. Financial assistance may not exceed 75 percent of the amount paid for boarding such child and for special services such as medical care not available through insurance or public facilities. Such supplements shall only be available to families who could not provide for the child adequately without continued financial assistance. The department may review the supplements paid at any time but shall review them at least annually to [804]*804determine the need for continued assistance;
(8) Staff development and recruitment programs through in-service training and educational scholarships for personnel as may be necessary to assure efficient and effective administration of the services and care for children and youths authorized in this article. The department is authorized to disburse state funds to match federal funds in order to provide qualified employees with graduate or post-graduate educational scholarships in accordance with rules and regulations adopted by the board pursuant to Article VIII, Section VII, Paragraph I of the Constitution of Georgia; and
(9) Miscellaneous services, such as providing all medical, hospital, psychiatric, surgical, or dental services or payment of the costs of such services as may be considered appropriate and necessary by competent medical authority to those children subject to the supervision and control of the department without securing prior consent of parents or legal guardians.
(b) The department is authorized to perform such other duties as may be required under related statutes.
(c) (1) As used in paragraph (2) bf this subsection, the term “state” means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, or any territory or possession of or territory or possession administered by the United States.
(2) The Department of Human Resources is authorized to enter into interstate compacts, on behalf of this state, with other states to provide for the reciprocal provision of adoption assistance services.
49-5-9. Use of public and private institutions and agencies; inspections; examination and control of children not in department’s facilities.
(a) The department is authorized to make use of law enforcement detention, supervisory, medical, educational, and other public or private facilities, institutions, and agencies within the state for the purposes of this article; provided, however, that this shall not give the department authority to transfer any child or youth under its custody and control to any penal institution in the state without due process of law. When funds are available, the department may enter into agreements with appropriate private or public officials of private or public institutions and agencies for separate care and special treatment of children and youths subject to the control of the department.
The department is given the right and is required to inspect periodically all public and private institutions and agencies whose facilities it is using. Every institution and agency, whether public or private, is required to afford the department reasonable opportunity to examine or consult with children and youths committed to the department who are for the time being in the custody of the institution or agency.
Placement of a child or youth by the department in any institution or agency not operated by the department or the release of such child or youth from such an institution or agency shall not terminate the control of the department over such child or youth. No child or youth placed in such institution or under such an agency may be released by the institution or agency without the approval of the department. (Ga.L. 1963, p. 81, § 12.)
49-5-12. Licensing and inspection of private and public child welfare agencies and facilities; receiving children; reports; revocation or refusal of license; penalties for unlicensed operation or placement of children; penalties for interference with inspections; civil penalties; enjoining violations.
(a) “Child welfare agency” means any child-caring institution, child-placing agency, maternity home, family boarding home, family day-care home, group day-care home, and day-care center.
(b) (1) All child welfare agencies, as defined in subsection (a) of this Code section, shall be licensed annually by the [805]*805department in accordance with procedures, standards, rules, and regulations to be established by the board; provided, however, that the department may require persons who operate family daycare homes to register with the department. The board shall develop and publish standards for licensing of child welfare agencies. A license issued to a child welfare agency shall be deemed approval of all family boarding homes, foster family homes, and family day-care homes approved, supervised, and used by the licensed agency as a part of its work, subject to this article and rules and regulations of the board.
(2) The department shall have the responsibility to review existing day-care regulations to determine which regulations are necessary to safeguard and protect the well-being and general welfare of children and youth, which regulations could more appropriately be issued as guidelines for quality day care, and which regulations unnecessarily restrict the delivery of day-care services. A list of proposed rule changes shall be submitted to the Board of Human Resources no later than November 1, 1982. Copies of the proposed changes shall be submitted to the Lieutenant Governor, the Speaker of the House of Representatives, and the chairmen of the Senate Human Resources Committee and the House Health and Ecology Committee.
(3) No later than December 31, 1982, the department shall publish and make available to day-care centers and interested persons a list of guidelines for quality child care.
(4) After a family day-care home, group day-care home, or day-care center has been licensed or registered by the department as provided in this article, the facility shall not be required to have a permit to operate a food service establishment as required in Code Section 26-2-371, provided that standards for food service have been incorporated in the regulations for licensing or registering such agencies.
(c) The department shall assist applicants or licensees in meeting standards of the department and, if a licensee is, for any reason, denied renewal of a license or if a license is revoked or if any applicant for a license cannot meet department standards, the department shall assist in planning the placement of children, if any, in the custody of such child welfare agency in some other licensed child welfare agency or assist in returning them to their own homes or in making any other plans or provisions as may be necessary and advisable to meet the particular needs of the children involved.
(d) Application for a license shall be made to the department upon forms furnished by the department. Upon receipt of an application for a license and upon presentation by the applicant of evidence that the child welfare agency meets the standards prescribed by the department, the department shall issue such child welfare agency a license for a one-year period.
(e) If the department finds that any child welfare agency applicant does not meet standards prescribed by the department but is attempting to meet such standards, the department may, in its discretion, issue a temporary license to such child welfare agency, but such temporary license shall not be issued for more than a one-year period. Upon presentation of satisfactory evidence that such agency is making progress toward meeting prescribed standards of the department, the department may, in its discretion, reissue such temporary license for one additional period not to exceed one year. As an alternative to a temporary license, the department, in its discretion, may issue a restricted license which states the restrictions on its face.
(e.l) The department shall refuse a license upon a showing of:
(1) Sporadic noncompliance with those rules and regulations which are designated in writing to the facilities as being related to children’s health and safety;
(2) Flagrant and continued operation of an unlicensed facility in contravention of the law; or
(3) Prior license denial or revocation within one year of application.
[806]*806(f) All child welfare agencies shall prominently display the license issued to such agency by the department at some point near the entrance of the premises of such agency that is opén to view by the public.
(g) The department’s action revoking or refusing to renew or issue a license required by this Code section shall be preceded by notice and opportunity for a hearing and shall constitute a contested case within the meaning of Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” except that only 30 days’ notice in writing from the commissioner’s designee shall be required prior to license revocation and except that hearings held relating to such action by the department may be closed to the public if the hearing officer determines that an open hearing would be detrimental to the physical or mental health of any child who will testify at that hearing.
(h) Reserved.
(i) Reserved.
(j) Reserved.
(k) Child-caring institutions and child-placing agencies, when licensed in accordance with this Code section, may receive needy or dependent children from their parents, guardians, custodians, or persons serving in loco parentis for special, temporary, or continued care. Parents, guardians, custodians, or persons serving in loco parentis to such children may sign releases or agreements giving to such institutions or agencies custody and control over such children during the period of care.
(l) Child-placing agencies, in placing children in foster family homes, shall safeguard the welfare of such children by thoroughly investigating each such home and the character and reputation of the persons residing therein and shall adequately supervise each home during the period of care. All children placed in foster family homes shall, as far as is practicable, be placed with persons of the same religious faith as the children themselves or the children’s parents.
(m) It shall be the duty of the department to inspect at regular intervals all licensed child welfare agencies within the state, including all family boarding homes, foster family homes, and family day-care homes used by such agencies. The department shall have right of entrance, privilege of inspection, and right of access to all children under the care and control of the licensee.
(n) If any flagrant abuses, derelictions, or deficiencies are made known to the department or its duly authorized agents during their inspection of any child welfare agency or if, at any time, such are reported to the department, the department shall immediately investigate such matters and take such action as conditions may require.
(o) If abuses, derelictions, or deficiencies are found in the operation and management of any child welfare agency, they shall be brought immediately to the attention of the management of such agency; and if correctable, but not corrected within a reasonable time the department shall revoke the license of such agency in the manner prescribed in this Code section.
(p) Each child welfare agency shall make an annual report of its work to the department in such form and at such time as the department shall prescribe. The department shall prepare and supply child welfare agencies with all forms needed for the purpose of providing the department with such information as may, from time to time, be required by the department.
(q) Child welfare agencies and other facilities and institutions wherein children and youths are detained which are operated by any department or agency of state, county, or municipal government shall not be subject to licensure under this Code section, but the department may, through its authorized agents, make periodic inspections of such agencies, facilities, and institutions. Reports of such inspections shall be made privately to the proper authorities in charge of such agencies, facilities, or institutions. The department shall cooperate with such authorities in the development of standards that will adequately protect the health and well-being of all children and youths detained in such agencies, facilities, and institutions or provided care by them. The department may recommend [807]*807changes in programs and policies and if, within a reasonable time, the standards established by the department and the recommendations of the department are not met, it shall be the duty of the commissioner to make public in the community in which such agency, facility, or institution is located the report of the above-mentioned inspection and the changes recommended by the department. If any serious abuses, derelictions, or deficiencies are found and are not corrected within a reasonable time, the commissioner shall report them in writing to the Governor,
(r) Any child welfare agency that shall operate without a license issued by the department shall be guilty of a misdemean- or and, upon conviction thereof, shall be punished by a fine of not less than $50.00 nor more than $200.00 for each such offense. Each day of operation without a license shall constitute a separate offense.
(s) No person, official, agency, hospital, maternity home, or institution, public or private, in this state shall receive or accept a child under 17 years of age for placement or adoption or place such a child, either temporarily or permanently, in a home other than the home of the child’s relatives without having been licensed by the department. Notwithstanding the provisions of Code Section 49-5-12.1, violation of this subsection shall be punishable by a fine of not less than $100.00 nor exceeding $500.00 for each offense. Nothing in this Code section shall be construed to prohibit a properly licensed attorney at law from providing necessary legal services and counsel to parties engaged in adoption proceedings.
(t) The department may, without regard to the availability of other remedies, including administrative remedies, seek an injunction against the continued operation of a child welfare agency without a license or the continued operation of a child welfare agency in willful violation of this article or of any regulation of the department or in violation of any order of the board. (Ga.L. 1963, p. 81, §§ 3, 14; Ga.L.1967, p. 772, § 1; Ga.L.1973, p. 560, § I; Ga.L.1982, p. 3, § 49; Ga.L.1982, p. 706, §§ 1, 3, 9, 10; Ga.L.1983, p. 3, § 38; Ga.L.1984, p. 22, § 49; Ga.L.1986, p. 1038, § 1.)
O.C.R.R.G.
290-2-12-.08 Foster Care Services.
Amended.
(1) Foster care shall be considered only after it has been established that it would be detrimental to the child physically and/or emotionally to remain with his family-
(2) If the child cannot remain with his family, a plan of care for the child and the family shall be developed and such plan shall be reevaluated for appropriateness in a case review conference at least every 6 months. The plan shall include, but not be limited to:
(a) Selection and description of the type of placement appropriate to meet the child’s needs;
(b) Projected duration of the placement;
(c) Preplacement activities with child and family;
(d) Medical services;
(e) Specific treatment goals for child and family;
(f) Specific steps to be taken by the Agency and the family to achieve each goal;
(g) Specific time frames for achieving the goals;
(h) Designation of responsibility for carrying out steps with child, birth parents, foster parent, adoptive parent and court (when involved) including frequency of contacts;
(i) Date for first review of progress on steps and goals;
(j) Description of the conditions under which the child shall be returned home or when termination of parental rights should be initiated;
(k) Visitation plan.
(3) The selection of a foster home or group care facility for a particular child shall be based on an assessment of the child’s total needs and how well a particular program can meet the child’s needs.
[808]*808(4) Children of the same family shall be kept together when possible unless it has been determined through casework services that this is not desirable.
(5) An effort should be made to place a child with families whose religious beliefs are similar to those of his birth parent and where they will receive religious training accordingly — if such becomes an issue of concern for the birth parent and or the child.
(6) An Agency shall make provision for adequate and appropriate clothing for each child admitted into foster care.
(7) Provisions for visits between parents and children shall be made, except where the parental rights have been terminated or where it is documented that visits are detrimental to the child. The parents and the child shall be informed of the visitation plan.
(8) The Agency shall provide for a complete health and dental program for each child including:
(a) A physical examination at the time of or within 8 months prior to admission;
(b) Correction, improvement of health and dental defects;
(c) Immunizations appropriate for the age of the child.
(9) The Agency shall provide opportunity for academic and/or vocational training for each child in accordance with his ability and special aptitude and as required by the school attendance laws of the state.
(10) The Agency shall provide funds for each child for individual personal items, allowances.
(11) Termination of Agency care shall be determined by casework study and planning with the child and his family and/or court or local public agency responsible for the child.
(12) Foster Homes used by the Agency shall conform to the standards for foster family care adopted by the Department.
(13) The Agency shall make a thorough and complete study of each Foster Home which shall evaluate the following:
(a) The motives for boarding;
(b) The adjustment of each member of the foster family to each other and the community;
(c) Foster family’s attitude toward the parents of the foster children including parental visits in their home;
(d) Expectations of behavior and attitude of foster children;
(e) Physical standards of the home including space. Water supply and sewage disposal systems, if other than community systems, shall be approved by the local health authorities;
(f) Assessment of community resources, including accessible schools, churches, recreation, medical facilities, mental health facilities;
(g) Health, physical, mental and emotional, conditions of each member of the foster family;
(h) Foster parent training;
(i) Support network systems for single parents, if applicable;
(j) Adequacy of financial resources.
(14) Foster homes used by the Agency shall be located within a reasonable travel distance from the Agency so as to permit regular visits by family and Agency staff.
(15) The Agency shall have a clear understanding in writing with the foster parent regarding its policies as to payment of board, arrangements for medical care, clothing, incidental expenses, visits by parents, discipline, advanced notices for removal when placements are terminated by foster parent and emergency procedures.
(16) Supervision of children placed in foster homes shall be maintained by the Agen-' cy through visits made at regular intervals and as frequently as is necessary for the best interest of the child. There shall be at least one personal contact per month.
(17) Foster Home Records.
(a) The Agency shall maintain separate records for each foster home. The record shall be started at the time of application.
(b) The foster home record shall contain:
1. The application;
[809]*8092. Home study;
3. Medical reports for each member of the foster family;
4. Summary narrative containing the dates as well as the content material from the Caseworker’s contacts;
5. References;
6. Annual evaluation of strengths and weaknesses of the foster family and assessment of the best way to maximize the foster care experience for the foster family and the children placed with them. This evaluation shall be shared with the foster family;
7. Placement history of the foster home, children placed, dates admitted and discharged and pertinent narrative information about the interaction and relationships within the foster family;
8. Recommendation as to the type, age, and sex of child best served by the foster parent;
9. Copy of all agreements.
(18) Foster home records shall be maintained for at least 3 years following the Agency’s last placement in said foster home.
(19) The record for a child placed in foster care shall include:
(a) Name, sex, race, birthdate and birthplace of child;
(b) Name, address, telephone number and marital status of parent or of guardian of the child;
(c) Name, address, telephone number of the foster parent with whom child has been placed;
(d) Legal documents including verified birth record, court status, agreements, consents, etc.;
(e) A report of the circumstances precipitating the decision to place the child, the Agency’s involvement with the parents, including services offered, delivered or rejected. If placement is court ordered, the case record shall contain the court papers, summaries and copies of the required court reports;
(f) Social history of the family and parent background;
(g) Medical history and cumulative health record, psychological and psychiatric reports;
(h) Educational records and reports;
(i) Plan of care according to Rule 290-2-12-.08, paragraph (2);
(j) Summary of case review conference which reflects the contacts with and the status of all family members in relation to the placement plan as well as the achievements or changes in the goals;
(k) Summary of the administrative and other Agency case review (where applicable) on the progress of each child toward determined goals;
(Z) Summary of child’s contacts with the family, the quality of the relationships and the child’s progress in coping;
(m) Upon termination of placement of the child, the following shall be placed in the record.
1. Date of termination, reason for termination, the name, telephone number, address, and relationship of the person or Agency assuming responsibility for the child.
2. A termination summary describing the services provided during care, growth and accomplishments, and assessed needs which remain to be met with the service possibilities which might meet those needs.
3. Aftercare plans which determine the responsibility for follow through.
(20) Family child records shall be maintained for at least 3 years following completion of service.
Related
Cite This Page — Counsel Stack
818 F.2d 791, 1987 U.S. App. LEXIS 7459, 55 U.S.L.W. 2681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kathy-jo-taylor-a-minor-by-and-through-david-s-walker-jr-attorney-at-ca11-1987.