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Injuries To Children In Foster Care

Children placed into foster care have been legally detained from their parents or guardians as a result of neglect or abuse. Yet these children are often also injured in foster care as a result of the foster parents’ own neglect or abuse of the minor for whom they are legally responsible. Typical injuries include sexual abuse, physical abuse and even death, and the defendants typically include the County of Los Angeles, any Foster Family Agencies involved, and/or the foster parent(s).The parents and relatives of such children are typically unable to prosecute any action on behalf of their child because the parent has lost custody of the child to the Juvenile Court. The Juvenile Court in Los Angeles County has therefore developed its own Juvenile Tort Policy for the handling of such actions, whereby a Report of Injury is made to the court by the child’s dependency court attorney, and that Report is then referred to a special panel of Juvenile Tort Attorneys through the Los Angeles County Bar Association. In some cases a child injured in foster care does not report the injury until the child is returned to a parent's, a relative's, or a guardian's care. Such cases may still be prosecuted if notice is promptly given to the court. In all cases, and pursuant to Government Code §911.2, in order to seek compensation for such injuries, the minor must file a Tort Claim against any prospective government entity defendant, not later than 6 months from the date of injury, or it is forever barred. Government Code §911.4 allows the filing of a Tort Claim against a government entity defendant not more than a year from the date of injury in cases of mistake or inadvertence in the filing of the claim within the 6 month limited time. Government Code §911.4(a)(2) provides a special tolling provision for the filing of such actions on behalf of foster children. Upon settlement of such a claim, a court supervised Probate Code §3600 Special Needs trust is typically required in order to exempt the recovery from calculation as a “resource” for continued SSI and Medi-Cal eligibility.


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