Court says state isn't liable for crimes by foster kids

A near-unanimous state Supreme Court has swept aside an $8.3 million civil judgment against the state for the vicious beating in 1999 of a Somali refugee by a group of teenagers living in a West Seattle foster home.

By an 8-1 vote, the high court on Thursday vacated the judgment in favor of Said Aba Sheikh, who was left permanently disabled by the attack. He has no short-term memory and his lungs continually fill with fluid, requiring frequent hospital stays.

The ruling sends a clear message that future plaintiffs will have a difficult time holding the state Department of Social and Health Services (DSHS) responsible for criminal acts committed by children in foster care.

After his assailants were prosecuted, Aba Sheikh sued DSHS and King County. A King County jury in November 2003 ruled in his favor, finding that negligence by state social workers contributed to the assault. The jury said it intended the unusually big award to pay for the then-20-year-old's lifelong medical care.

DSHS, which called the jury's verdict an "unprecedented" expansion of the state's legal liability, appealed. The Court of Appeals sent the case directly to the high court.

In its ruling, the Supreme Court emphasized that the chief role of DSHS is to protect children, not to serve as a law-enforcement agency. "Existing case law and public policy considerations all support a conclusion that the state owed no duty to Aba Sheikh," the court ruled.

Darrell Cochran, one of Aba Sheikh's attorneys, decried the decision, saying: "The facts in this case were incredibly egregious, and if there's no government liability here, I don't know if it exists anywhere."

But Assistant State Attorney General Jeff Freimund, who defended DSHS, said the decision may mean that "plaintiffs' lawyers don't get to collect damages, but it doesn't mean the state is not accountable ... to other entities," including the state and federal governments and to the media.

"Just because a person can't collect damages from one defendant doesn't mean the incident goes unnoticed," Freimund said, "or that DSHS doesn't strive to make a good-faith effort to correct the situation."

Aba Sheikh had been in the U.S. only eight months before the assault.

For nearly a year leading up to the attack, Emma Daniels, who ran the foster home where some of Aba Sheikh's assailants lived, had alerted DSHS that she was having difficulty controlling them. Daniels became so worried that she sent her own son to live with a relative and begged DSHS to remove two of the foster teens.

Daniels said that DSHS never told her about one of the boys' history of setting fires and abusing animals or a previous investigation for sexual assault. At trial, lawyers for Aba Sheikh presented evidence that two of the most troubled foster children were engaging in a growing pattern of criminal acts.

On March 27, 1999, two of the teens in Daniels' home, Miguel Pierre and Mychal Anderson, were reportedly smoking pot at a West Seattle bus stop with two teenage friends when Aba Sheikh pulled into a gas station across the street. Still fuming from a near-fight with Aba Sheikh earlier in the day, the group dragged him from the car and kicked him into a coma in the parking lot.

Pierre, 16 at the time of the attack, was convicted of assault as an adult and remains in prison. Anderson, 15 at the time, was scheduled to be released from prison last week. Pulefano Ativalu, the other assailant convicted as an adult, remains in prison, and an assailant prosecuted as a juvenile has been released.

Before the case went to trial, King County settled for $4.5 million. Shell Oil paid $300,000 because the attack occurred at a gas station franchised by the company, and Daniels' state-paid liability paid $25,000.

Cochran said Abu Sheikh has extraordinary needs and that the money is being used to help meet them. For example, he said, Abu Sheikh has about 30 percent lung capacity, making him susceptible to respiratory problems.

In its decision, the Supreme Court majority wrote that state law "does not contemplate that social workers will supervise the general day-to-day activities of a child. Rather, the social worker's role is to coordinate and integrate services in accord with the child's best interests and the need(s) of the family. Any 'ongoing' relationship between the social worker and the child is to prevent future harm to that child, not to protect members of the community from harm."

Justice Richard Sanders dissented. Identifying Pierre and Anderson as the ringleaders, Sanders wrote that the state knew they were dangerous and knew that Daniels could not control them.

"It had the authority to place Pierre and Anderson with an able foster parent and had a duty to do so. It chose not to exercise its authority and thereby breached its duty of careful placement," Sanders wrote.

Peter Lewis: 206-464-2217 or plewis@seattletimes.com

Seattle Times news researcher David Turim contributed to the report.