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6 J.L. & Fam. Stud. 59 (2004)
Adult Sexuality, the Best Interests of Children, and Placement Liability of Foster-Care and Adoption Agencies

handle is hein.journals/jlfst6 and id is 65 raw text is: Adult Sexuality, the Best Interests of Children, and Placement Liability of Foster-Care and Adoption Agencies Lynn D. Wardle* [Flew seem to care about what it means for a society increas- ingly to regard a child not as a mysterious stranger given to be cherished as someone to take our place, but rather as a product of our will... to satisfy our wants. Leon Kass' L Introduction This article focuses on the intersection of three significant legal develop- ments that may have substantial implications for the investigation standards of public and private agencies that place or investigate placements of children for foster care or adoption. The first trend is the increasing placement of children for or approval of foster-care and adoption by adults who are involved in ongo- ing nonmarital sexual relationships. The second trend is increasing imposition of substantial damage liability upon state agencies involved in placement of children into foster care and for adoption (usually adoption is subsequent to and a consequence of foster care placement). The third intersecting develop- ment is the trend toward large damage awards against private institutions that fail to responsibly investigate for or to reasonably respond to indications of risk of sexual abuse by persons under their control or supervision of young persons within their stewardship. This article will show that public and private agencies that place, investi- gate or supervise the placement of children with adults for foster care or adop- tion are under a clear legal duty to protect the best interests of children. As children being placed for foster care or adoption are very vulnerable to exploi- tation and abuse by (or due to the neglect of) prospective foster and adoptive parents, as public policy requires those making such placements to act in the best interests of children, and as placing and investigating agencies are acting under the state's basic parens patriae responsibility for children in need of fos- ter care and adoption placement and procedures, both public and private agen- cies that make or evaluate foster care and adoptive placements have the legal responsibility to conduct competent and thorough investigations concerning, * Professor of Law, J. Reuben Clark Law School, Brigham Young University, Provo, Utah. This article is based on a presentation made by the author at the Symposium on Marriage and Family Structure at Brigham Young University, Provo, Utah, September 26, 2003. The helpful research assistance of William J. Perkins, R. Spencer Macdonald, and Justin W. Starr is grate- fully acknowledged. Leon Kass, Life, Liberty and the Defense of Dignity: The Challenge for Bioethics, at 11 (2002). Dr. Kass is Chairman of the President's Council on Bioethics. 59

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