The six sections of this Article present the case for direct federal court involvement in aiding foster children who are at risk of abuse and neglect while in foster care. Section I discusses the extent of abuse and neglect in foster care as well as the structural causes of this maltreatment. It also explains the inevitable failure of the political branches of government to confront the problem. Section II describes the constitutional right to safety and surveys the judicial treatment of that right, including the lack of development of the right for children in foster care. Section III discusses differences between children in foster family care and institutionalized persons, and argues that none of the differences can account for the failure to accord foster children the benefits of the right to safety. Section IV explores the appropriate remedy for the right to safety for foster children, and it demonstrates that damage remedies are inadequate because their availability is severely circumscribed by a variety of immunity doctrines, and because even if they were available, monetary awards deflect attention from the root causes of abuse and neglect of foster children. This section presents the case for structural injunctions as the most practical remedy. Section V discusses whether federal courts are the appropriate forum to address the right to safety for foster children. Section V concludes that federal courts should also be the appropriate forum for foster care right-to-safety cases, and argues that none of the judicially created abstention doctrines bar them. The final section of the Article proposes five basic guidelines which, if followed, would maximize the potential effectiveness of district courts in making foster care safe. The Article concludes that federal judicial involvement offers the promise of benefitting children in foster care by materially improving a system that thus far has resisted reform. Without judicial scrutiny, the abuse and neglect that many children suffered in their original homes will continue after the state places them in foster care. For these children, the temporary, substitute family system imposed on children in foster care by the state will not be a haven, but a hell.
Michael B. Mushlin, Unsafe Havens: The Case for Constitutional Protection of Foster Children from Abuse and Neglect, 23 Harv. C.R.-C.L. L. Rev. 199 (1988), http://digitalcommons.pace.edu/lawfaculty/467/.