Colorado appeals court allows abused siblings to sue social workers

By Felisa Cardona

Three siblings severely abused in the home of their biological mother and later in foster care can pursue their lawsuit against Adams County social workers who allegedly failed to protect them and deceived their adoptive parents about the extent of their problems, the Colorado Court of Appeals ruled Thursday.

In the summer of 2002, the siblings — then ages 9, 6 and 3 — were adopted by a couple who only learned about the history of abuse on the eve of the adoption. The children were engaging in incestuous acts with each other, and one of them had to be removed from their home because she was suicidal.

The fallout of the abuse was so egregious that the adoptive parents installed alarms in the children's rooms to prevent them from abusing each other. The couple ended up divorcing, blaming the failure of the marriage on the stress caused by the children's emotional problems.

The names of the parents and siblings are being withheld by The Denver Post because the children are victims of sexual abuse and naming their adoptive parents would identify them.

The adoptive parents sued the Adams County Department of Social Services, asserting that social workers had a duty to fully disclose the background of the children. But the parents lost their case when a jury decided that the social workers were not "willful and wanton" in failing to inform them of the history of abuse.

Thursday's ruling allows lawyers for the children to proceed to trial with different claims — that the siblings' rights to be free from harm were violated by the workers entrusted to protect them.

"Evidence was presented at the first trial about the extraordinary challenges these children would face as a result of the defendants' conduct, and unfortunately it all seems to be coming to pass," said attorney Jordan Factor, who argued the case at the Colorado Court of Appeals.

Adams County argued that the social workers, Joan Forsmark, Cathy O'Donnell and Angela Lytle, were protected from the lawsuit by the state's governmental immunity law.

The court disagreed and concluded that Lytle, who as a division director of child welfare supervised O'Donnell and Forsmark, acted "recklessly."

"Lytle increased the children's vulnerability to the danger by not preparing the (adoptive parents) to deal with their extraordinary emotional needs, and by continuing to support the children's adoption as a sibling group, despite the revelations of incest, which distinguished them from the type of children the (adoptive parents) had indicated they were ready to adopt," the court's opinion reads. "This conduct put the children at substantial risk of serious, immediate, and proximate harm that was known to or suspected by Lytle at the time of the adoption. Such allegations show that Lytle acted recklessly in conscious disregard of that risk. And such conduct, when viewed in total, is conscience shocking."

Adams County Attorney Hal Warren declined to comment on the merits of the claims because the case is heading to trial.

Warren is reviewing the court's ruling to decide whether an appeal to the state Supreme Court is possible.

O'Donnell is still employed by the county. Forsmark has since retired. Lytle works for the Arapahoe County Department of Human Services.

The decision Thursday comes a month after a federal judge ruled that social workers in Denver were not immune from a lawsuit in the case of 7-year-old Chandler Grafner, who was starved to death by his foster parents.

In that case, the judge noted the neglect of Chandler by social services was also "conscious-shocking" and that a complaint of child abuse made by a teacher's aide a month before his death was not thoroughly investigated by Denver Human Services.

Factor, one of the siblings' lawyers in the Adams County case, said he hopes the rulings will have an impact on the quality of care for children.

"Each circumstance is a little different, and this adds to the mix of circumstances in which the courts consistently say that children in the custody of the state of Colorado have a right to be kept safe from harm," he said. "It is a case that has an opportunity to do real justice."

http://www.denverpost.com/news/ci_19685387