(CN) - A child care agency may be liable for a fatal fire started by a foster child who had a propensity with playing with matches, a New York appeals court ruled.
In fall 2003, Victor and Elouise Squire had agreed to foster 6-year-old Glenn G. and his 4-year-old sister, Shantel G., from Little Flower Children's Services in New York City.
Weeks after their placement, however, Elouise complained to Little Flower about Glenn's behavioral problems. In addition to disobeying Elouise and hitting classmates, Glenn was also engaging in sexual behavior with his sister Shantel.
Glenn and Shantel had been removed from their last foster home amid similar reports. Little Flower disputes, however, that anyone had ever reported Glenn was setting fires at the Squires' apartment.
Teresa Wynn, one of Elouise's daughters, allegedly caught Glenn setting paper towels on fire in August 1993. She said Glenn's caseworker paid a visit the next day and instructed Glenn not to play with the stove or matches.
The caseworker allegedly agreed to remove Glenn from the home but said it would take time.
Teresa said she caught the boy setting clothes on fire in a hallway closet not long afterward, and that she Elouise again reported this incident to the agency. Theresa's brother, Melvin, who also lived at the home, denied that the closet fire occurred.
Carol, another of Elouise's daughters, also claimed to have found Glenn playing with matches in his bedroom. She said Elouise reported this to the agency, as well.
Teresa said she and her mother then visited Little Flower three times to have Glenn removed.
Though Melvin said Elouise had called the agency about Glenn's fires, he said the mother had not been trying to have the boy removed from the home.
On March 22, 1994, Carol and her daughter Bianca had been visiting with two of her siblings, Ernest and Joann. Though Carol, Ernest and Joann all left the apartment at around 6:30 p.m., the Squires stayed behind with Glenn, Shantel and Bianca.
Carol said she saw smoke when she retuned an hour later. Glenn allegedly opened the door from inside the flaming apartment and ran out.
Firefighters soon arrived, but Victor, Elouise and Shantel all died from their injuries. Bianca, the granddaughter, also suffered severe scarring to her face and arm.
Glenn told a fire marshal at the hospital that he set a mattress in the hallway on fire, using a lighter that he had taken from the kitchen table. The Fire Department investigation confirmed that the fire started on a mattress in the hallway of the apartment.
Teresa, as administratrix of the Squires' estate, sued Little Flower, but a Bronx County judge dismissed the complaint at summary judgment.
In addition to claiming that it had no duty to protect foster parents against torts committed by their foster children, Little Flower said that it lacked notice of Glenn's propensity for starting fires.
Glenn's caseworker has denied ever receiving any complaint about Glenn starting fires or any request to remove him from Elouise's home. Little Flower also has a fat record of complaints made against Glenn during his six months with Elouise, but there is no record of any complaint of Glenn starting a fire.
The Appellate Division's Manhattan-based First Department nevertheless reversed summary judgment last week.
It noted that Little Flower's program manual states that it will not accept a "firesetter" for placement, and that it has a policy of transferring children within 10 days of receiving notice that a foster parent can no longer care for the child.
"Society too has a reasonable expectation that a firesetter will be removed from a foster home upon notice of the child's firesetting propensities and upon the foster parent's request," Justice Rolando Acosta wrote for a five-member panel. "A child care agency is not simply a distribution center; it must consider each child's special needs and the foster parents' ability to care for those needs."
Though the Squires' family has not proven that Little Flower breached its duty, they had presented sufficient evidence to survive summary judgment, the court found.
"A jury may ultimately find that Elouise never placed Little Flower on notice of Glenn's firesetting propensities or asked that he be removed, but that finding is solely for the jury to make," Acosta wrote. "Similarly, whether, as the motion court found, Elouise was partly at fault for disconnecting smoke detectors on the night of the fire or for leaving matches where Glenn would have access to them is for the jury to decide, assuming evidence sufficient to support such findings is placed before them at trial."
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