PHOENIX (CN) - A child sex abuse victim argued for partial summary judgment Friday in a negligence suit against the state of Arizona over its placement of foster children.
Trever Frodsham says the state and its cooperating agencies were grossly negligent in placing Trever and his siblings in the care of former civilian army leader David Frodsham and leaving him there despite numerous complaints of abuse and sexual misconduct.
He says his foster father sexually abused him from age 2 to age 14, when David Frodsham was arrested in 2016. He's currently serving a 17-year prison sentence for leading a sex abuse ring, forcing multiple children he fostered to perform sex acts on both him and his friends, sometimes in the presence of his wife, Barbara. Both he and Barbara are named as defendants as well in the civil case against the state.
The state allowed the couple to retain custody of their foster children and later adopt them despite nearly 20 complaints of misconduct. Arizona says in its reply to the 2022 lawsuit that Catholic Community Services and Arizona Partnership for Children, the agencies that aid the Arizona Department of Child Services in placement of foster kids, investigated each complaint but couldn't substantiate any of them until David Frodsham was arrested.
Trever, now 20, moved for summary judgment in November on the counts pertaining to the state's negligence, leaving claims of assault and battery, intentional infliction of emotional distress and more to be decided by a jury.
The state countered his motion in December, arguing that both it and the caseworkers responsible for Trever's foster family have qualified immunity. Because the decisions to place and keep him in David Frodsham's home required the exercise of professional judgment and discretion, the state says those caseworkers cannot be held liable for making a call they thought was in the best interest of the child.
"There's no reason a caseworker shouldn't have qualified immunity, otherwise we're always gonna be in court," state attorney Mark Lammers said in a Friday morning hearing. "The caseworker is in a tough spot sometimes and has to make tough professional calls."
He later reasoned with U.S. District Judge G. Murray Snow that if caseworkers were to err on the side of removing a child whenever a complaint is made, issues on unconstitutional removals would surely arise, so caseworkers should be allowed to use their better judgment without worrying about lawsuits down the road.
Snow, a George W. Bush appointee, said he worries the definition of discretionary action is being strained to fit the argument. But Lammers disagreed, arguing the only instance in which immunity shouldn't be applied is if the caseworker knowingly disregarded the law in the course of their actions.
Attorney John Trebon, representing Trever Frodsham, said immunity should extend to caseworkers only in the context of approving or revoking foster licenses - not when it comes to placing a child or failing to investigate a complaint.
"I don't believe an investigation was really ever done," he told Snow.
Trebon said the only case law to refer to is a 28-year-old case dealing with similar accusations against the state, in which it was decided that immunity doesn't apply to investigatory work by Department of Child Services caseworkers.
"You have never seen a case where administrative workers doing investigatory work in Arizona have been given [immunity] outside police cases," he said. "The state is asking you to go way out on a limb and grant immunity in a way that no other case has over the last 28 years."
Lammers pointed to other cases that involved immunity for police officers and high-ranking state officials, but Trebon said those shouldn't apply in this context.
"The state is using those cases to protect themselves for not protecting children," he said. "Those cases are to protect the vulnerable, not protect the people that do a crappy job protecting children."
Snow said he's not sure which way he'll lean on either motion, but suggested multiple times throughout the hearing that he should deny both and let the question go to trial. He also considered certifying the question to the Arizona Supreme Court, in which the state court would weigh in with its own legal opinion and advise Snow on his ruling. The decision would remain in Snow's hands, though.
The judge said he wants to have a decision made late next week.
Source: Courthouse News Service