07/09/2013 03:45 pm ET Updated Sep 08, 2013

When Foster Care Becomes Fatal

Kristina Hepp was one of more than 7,600 Florida children who lived under the protective care of Florida's Department of Children and Families' Foster Care Program, which then outsourced its responsibilities to subcontractors. In 1998, Florida's legislature mandated that foster care be provided through independent contractors and nonprofit agencies across the state, calling the concept Community Based Care (CBC).

In 2003 the DCF contracted with the "Partnership for Strong Families" (PSF) to provide child welfare services to several of Florida's poorest rural counties, including Alachua, Columbia, Dixie, Gilchrist, Hamilton, Lafayette, Levy, Madison, Taylor, Baker, Suwannee, and Union Counties.

PSF then subcontracted with the Devereux Foundation, founded in 1912, which operates in half a dozen states, including Florida, providing case-management services to the Foster Care Program for children, adolescents, and other vulnerable members of society, through clinical, therapeutic, educational, and employment programs and services. The PSF hired the Devereux Foundation to provide a case manager for Kristina. While both organizations hold themselves out as "not for profit," the State of Florida's contract with PSF is nearly $170 million, paid from July 2008 to June 2014.

When Kristina was first placed in foster care, she was assigned a caseworker, Mary Simmons, because at that time her mother was unwilling or unable to identify the child's biological father. In March 2007, Kristina's mother finally revealed the name of the putative father as Matthew Roland. Subsequently, paternity testing confirmed that Roland was in fact the father. Armed with virtually no information about Mr. Roland other than the fact that he was the child's biological father, Mary Simmons reportedly recommended that the Dependency Court terminate her protective services and jurisdiction and give the child to Roland.

Shortly after the child was delivered to the hands of Roland, he murdered her. A civil lawsuit for wrongful death was filed on behalf of Kristina against both the PSF and its employee and agent, Mary Simmons. The lawsuit alleged that they failed to properly investigate and screen Mr. Roland and that they knew or should have known he was unfit to care for Kristina.

The trial court dismissed the case, based upon Florida Statute §409.1671 (1)(h), which grants immunity to community-based care providers for the acts or omissions of its employees or its subcontractors' employees. Therefore, the PSF and Mary Simmons cannot be held liable for Simmons' alleged negligence in performing her case management duties. Sadly, Florida's First Court of Appeal agreed and affirmed the dismissal.

By 2014, The State of Florida will pay nearly $170 million to the PSF so that it can provide care of the most fragile members of society. This is not charity; this is business. In fact, it is big business and accordingly Community Based Care should not be given protection from civil lawsuits for negligence or wrongful death -- especially when their inadequate care causes harm to or kills a child. As a child advocacy lawyer in South Florida, I believe that any law providing a shield from civil justice prevents accountability and makes the world more dangerous for everyone except for those who put profit ahead of people.