Dept. of Family and Protective and Regulatory Services v. Rachel Atwood

Opinion issued December 9, 2004

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-01108-CV

TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

a/k/a LIBERTY COUNTY CHILD PROTECTIVE SERVICES, Appellant

V.

RACHEL ATWOOD AND JONATHAN OLIVER ATWOOD SR.,

INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF JONATHAN

OLIVER ATWOOD JR., CHANCE ATWOOD, A MINOR, AND

CHRISTOPHER ATWOOD, A MINOR, Appellees

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause No. 01-14132

OPINION DISSENTING FROM

DENIAL OF EN BANC CONSIDERATION

In this important case of first impression, the panel holds that the Texas Tort

Claims Act

does not waive the Texas Department of Family and Protective Services’

(DFPS’s) sovereign immunity to liability for claims arising from the death or injury

of a child caused by the use of tangible property or by a premises defect in a licensed

foster home. Because of the potentially far-reaching effects of the opinion in this

case on the protections afforded children in the custody of the State and the liability

of foster parents and licensed child-care facilities, I respectfully dissent from denial

of en banc consideration. See Tex. R. App. P. 41.2(c). I would affirm the trial court’s

denial of DFPS’s plea to the jurisdiction and remand for further proceedings in

accordance with this opinion.

As the panel acknowledges, the State, its agencies, and its subdivisions enjoy

sovereign immunity to tort liability unless immunity has been waived. Tex. Civ.

Prac. & Rem. Code Ann. §§ 101.001(3)(A-B), 101.025 (Vernon Supp. 2004-2005);

County of Cameron v. Brown , 80 S.W.3d 549, 554 (Tex. 2002). The Tort Claims Act

expressly waives sovereign immunity in three general areas: (1) injury caused by an

employee’s use of a motor-driven vehicle, (2) injury caused by a condition or use of

tangible personal or real property, and (3) injury caused by a premises defect. Tex.

Civ. Prac. & Rem. Code Ann. §§ 101.021–101.022(a) (Vernon Supp. 2004-2005);

Brown , 80 S.W.3d at 554 .

The question before this Court is whether the Atwoods have pleaded claims

that fall within the Tort Claims Act’s waiver of immunity because (1) their pleadings

allege that an employee or employees of DFPS (a) caused the Atwoods’ injuries by

the use or misuse of tangible personal or real property or (b) provided property that

lacked an integral safety component and the lack of this integral safety component led

to the Atwoods’ injuries or (2) the pleadings state a claim for a premises defect by

adequately alleging that an employee or employees of DFPS, acting within the scope

of their DFPS duties, (a) breached a duty not to injure the Atwoods through willful,

wanton, or grossly negligent conduct or (b) had knowledge of a dangerous condition

that the Atwoods did not have and had a duty to warn the Atwoods or to make the

condition reasonably safe, but did not.

Adequacy of the Atwoods’ Pleadings

Three-year-old Jonathan Atwood drowned in the swimming pool of a licensed

agency foster home owned by the Roe family in which he had been placed by DFPS.

The Atwoods pleaded that DFPS and its employees, including the Roes

themselves and those employees named in the petition who were assigned to license,

to inspect, and to supervise the Roes’ foster home, all “were acting within the course

and scope of their office or employment and had a duty to exercise ordinary care and

use the above-ground swimming pool, the deck, the deck furniture, the door locks,

the failure to use a gate blocking access to the above-ground swimming pool and/or

deck, and the motion detector reasonably and prudently and to provide all integral

safety components”; they further pleaded that DFPS, acting through those employees,

breached those duties, proximately causing the Atwoods’ injuries.

The Atwoods further pleaded that the deck attached to the back of the Roe

home and extending to the swimming pool, to which the deck provided open access,

constituted a premises defect in that it presented an unreasonable risk of harm that a

reasonably prudent person would have foreseen; that DFPS, through its employees,

exercised control over the Roe home and/or the pool area; that DFPS owed the

Atwoods a duty not to injure them through willful, wanton, or grossly negligent

conduct; and that DFPS breached that duty. Finally, the Atwoods pleaded that DFPS,

through its employees, had knowledge of the dangerous condition and had a duty to

warn them or to make the condition reasonably safe, and that it breached this duty,

proximately causing the Atwoods’ injuries.

Although the Atwoods’ pleadings appear to place their claims squarely within

the Tort Claims Act’s waiver of sovereign immunity, the panel opines that section

101.021(2) waives immunity for a use of tangible property only if the governmental

unit is itself the user, and it reasons that DFPS was not a “user” of personal or real

property at the foster home where Jonathan Atwood drowned because the Roes

owned the home and above-ground pool and they were not DFPS employees as that

term is defined by the Tort Claims Act. I respectfully disagree with the panel’s

conclusion that the Roes were not DFPS employees or agents; and I also disagree

with the panel’s conclusion that only the Roes were “users” of the property for DFPS

purposes— i.e. , for foster care and all of the duties arising out of the foster care

relationship between the Roes and DFPS—and not DFPS, which licensed the Roes’

home as a child-care facility, placed the Atwood children in the Roes’ home as an

agency foster home, and retained statutory rights and duties to supervise and inspect

the home and to enforce legislative and agency standards.

The panel also opines that the waiver of sovereign immunity for a premise

defect set out in sections 101.021 and 101.022(a) of the Tort Claims Act does not

apply because, to be liable for a premises defect, the agency must control the premises

and the Roes, who were not DFPS employees, rather than the agency itself, controlled

the premises. Again, I respectfully disagree. I would hold that the Roes, as paid

foster parents, were “employees” of the agency and that, through the Roes and other

employees, DFPS did control the premises of the foster home.

Waiver of Immunity Based on “Use”of Tangible Real or Personal Property

by Government Employees Acting Within the Scope of Employment

I would hold that the Roes were DFPS “employees” and that the Atwoods have

adequately pleaded claims for the use or misuse of tangible personal or real property

by DFPS employees for which the Tort Claims Act waives sovereign immunity.

Definition of Government Employee

The panel concludes that, as foster parents, the Roes do not meet the definition

of government employees under the Tort Claims Act and thus cannot have been

acting within the scope of their duties as DFPS employees in operating a licensed

child-care facility. The Tort Claims Act defines a government “employee” as:

a person, including an officer or agent, who is in the paid

service of a governmental unit by competent authority, but

does not include an independent contractor, an agent or

employee of the independent contractor, or a person who

performs tasks the details of which the governmental unit

does not have the legal right to control.

Tex. Civ. Prac. & Rem. Code Ann. § 101.001(2). The panel concludes that the

Roes were not “employees” of DFPS as that term is defined in the Tort Claims Act

because, unlike employees, foster parents like the Roes are not paid a salary and are

not otherwise “in the paid service of a governmental unit” and also because DFPS

did not have the legal right to control the Roes’ performance of their tasks as foster

parents. I respectfully disagree with both conclusions.

The stated purpose of Chapter 42 of the Human Resources Code, providing for

the “Regulation of Certain Facilities, Homes, and Agencies that Provide Child-Care

Services,” is “to protect the health, safety, and well-being of the children of the state

who reside in child-care facilities by establishing statewide minimum standards for

their safety and protection and by regulating the facilities through a licensing program

or by requiring child-care facilities to be regulated by alternative accreditation

bodies.” Tex. Hum. Res. Code Ann. § 42.001 (Vernon Supp. 2004-2005). The

stated policy of this State in promulgating Chapter 42 is “to ensure the protection of

all children under care in child-care facilities . . . .” Id. The foster care system is a

legislatively constructed system and is highly regulated.

The Roes’ home was an agency foster home. An agency foster home is defined

by the Human Resources Code as “a [child-care] facility that provides care for not

more than six children for 24 hours a day, is used only by a licensed child-placing

agency, and meets department standards.” Tex. Hum. Res. Code Ann. § 42.002(11)

(Vernon Supp. 2004-2005). By legislative mandate, “[a]n agency foster home . . . is

considered part of the child-placing agency that operates the agency foster home . .

. for purposes of licensing.” Id. § 42.053(a) (Vernon 2003).

When the Atwood children were taken from the custody of their biological

mother, DFPS became the managing conservator of the children and became

responsible for protecting their rights. DFPS had complete control over where the

Atwood children were placed, and it had a mandated legislative responsibility to

place them in a safe environment. DFPS placed the children in the Roes’ home.

As a regulated child-care facility, the Roe foster home was required to meet the

appropriate minimum standards established by DFPS. See id. §§ 42.001, 42.042.

Part of the core requirements mandate that a child-placing agency like DFPS sign a

written agreement with the foster parents at the time the agency home is verified.

This agreement must specify, among other things, the following: (1) the financial

agreement between the child-placing agency and the foster home; (2) that the child-placing agency has the right to remove the child at the agency’s discretion; (3) that

the agency must consent to discharge a child from the home; (4) that the agency is

responsible for regular supervision of the home; (5) what the agency’s policies are in

regard to child care, discipline, supervision of children; and (6) what the agency’s

policies are in regard to reports to the agency from the foster parents regarding foster

children and other events or occurrences impacting the provision of foster care. See

40 Tex. Admin. Code § 720.48(f) (2004). If DFPS discovers that a foster family is

violating DFPS’s minimum standards in a manner which poses a risk to the health or

safety of children, it has the authority to demand that the foster family comply, and,

if the family does not, to remove the foster children and to close down the foster

home. See id. §§ 42.0705-42.073 (Vernon 2003 & Supp. 2004-2005) (delineating

remedies for violations of applicable standards).

DFPS and the Roes entered into a written contract under which the Roes

operated their home as an agency foster home and were compensated for their

services. Indeed, the panel itself acknowledges that the Texas Administrative Code

regulates foster care assistance payments and that the Roes received such payments

pursuant to the Code. See 40 Tex. Admin. Code § 700.308 (2004).

Because the Roes’ foster home was statutorily deemed to be part of the child-placing agency that placed the Atwood children in the home, and because the Roes

were paid for their services as foster parents in accordance with state law and the

contract they executed with DFPS pursuant to that law, I would hold that the Roes

satisfied the definition of government employees as persons “in the paid service of

a governmental unit.” Tex. Civ. Prac. & Rem. Code Ann. §101.001(2). Because

DFPS had both a statutory and a contractual right of control over the foster home to

ensure the protection of children placed by the state in that facility in accordance with

specified standards, I would also hold, in contrast to the panel, that the exclusion from

the definition of a government employee of “a person who performs tasks the details

of which the governmental unit does not have the legal right to control” does not

apply to the Roes. See id. Indisputably, the salaried DFPS employees who were

charged with supervising and inspecting the Roe foster home were also state

employees.

Waiver of Immunity

To state a claim involving the use of non-defective property by a governmental

unit, a party must allege that the property was used or misused by a government

employee acting within the scope of his employment so as to cause injury. Texas

Parks & Wildlife Dep’t v. Garrett Place, Inc. , 972 S.W.2d 140, 143 (Tex.

App.—Dallas 1998, no pet.). To be a proximate cause of injury for purposes of

waiver under the Tort Claims Act, the government employee’s use of tangible

personal or real property must be a substantial factor in bringing about the injury.

Texas Dep’t of Mental Health & Mental Retardation v. Pearce , 16 S.W.3d 456, 460

(Tex. App.—Waco 2000, pet dism’d w.o.j.). In the absence of use of property by a

government employee, a state agency is liable only when a state actor has provided

property that lacks an integral safety component and the lack of this integral safety

component led to the plaintiff’s injuries. San Antonio State Hosp. v. Cowan , 128

S.W.3d 244, 247 (Tex. 2004) (citing Kerrville State Hosp. v. Clark , 923 S.W.2d 582,

585 (Tex. 1996)).

The Atwoods have pleaded that Jonathan Atwood’s death resulted directly

from the Roes’ misuse of tangible real and/or personal property—including the

above-ground swimming pool, the deck, the deck furniture, the door locks, the failure

to use a gate blocking access to the above-ground swimming pool and/or deck, and

a non-working motion detector . Alternatively, they have pleaded that even if the pool

that caused Jonathan’s death by drowning was not itself being “used” by a state actor

at the time of his death, but rather was being used by Jonathan, who was not a state

actor, DFPS is still not absolved from potential liability for his death because, through

its employees, it placed Jonathan in a foster home that lacked integral safety

components, leading to the injuries that form the basis of their claim. See Cowan ,

128 S.W.3d at 247 ; Robinson v. Central Texas MHMR Ctr. , 780 S.W.2d 169, 171

(Tex. 1989) (MHMR employees provided swimming attire that lacked life preserver);

Lowe v. Texas Tech Univ. , 540 S.W.2d 297, 300 (Tex. 1976) (university employees

provided football uniform that lacked knee brace).

Accordingly, I would hold that the Atwoods have adequately pleaded a claim

for which section 101.021(2) of the Tort Claims Act waives sovereign immunity.

Specifically, they have pleaded that an employee or employees of DFPS (a) caused

the Atwoods’ injuries by the use or misuse of tangible personal or real property or (b)

provided property that lacked an integral safety component and the lack of this

integral safety component led to Jonathan’s death and the Atwoods’ injuries.

Waiver of Immunity Based on Premises Defect

I would also hold that the Atwoods have pleaded a premises defect for which

the Tort Claims Act waives sovereign immunity.

With respect to premises defects,

the Tort Claims Act limits the governmental

duty owed a claimant to “the duty that a private person owes to a licensee on private

property.” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a). This duty entails a

responsibility not to injure the licensee through willful, wanton, or grossly negligent

conduct. County of Cameron v. Brown , 80 S.W.3d 549, 554 (Tex. 2002) (citing State

Dep’t of Highways and Pub. Transp. v. Payne , 838 S.W.2d 235, 237 (Tex. 1992)).

The duty also entails a responsibility to either warn the licensee or to make the

condition reasonably safe if the property possessor has knowledge of a dangerous

condition and the licensee does not. Id . at 554–55.

DFPS’s Right to Control the Premises

Generally, a licensee asserting a premises defect claim must first show that the

defendant possessed—that is, owned, occupied, or controlled—the premises where

the injury occurred. Brown , 80 S.W.3d at 554 (citing Wilson v. Texas Parks &

Wildlife Dep’t , 8 S.W.3d 634, 635 (Tex. 1999)). Even if a defendant did not own or

physically occupy the property, it may be held liable for a dangerous condition on the

property if it assumed control over and responsibility for the premises. Id. at 556

(citing City of Denton v. Van Page , 701 S.W.2d 831, 835 (Tex. 1986)). “The relevant

inquiry is whether the defendant assumed sufficient control over the part of the

premises that presented the alleged danger so that the defendant had the responsibility

to remedy it.” Id .

In this case, it is undisputed that the Roes owned and occupied the premises at

issue. Thus, with regard to the Atwood’s premises defect claim, the question before

this court is whether the Roes, as employees of DFPS, and/or DFPS itself assumed

sufficient control over the property that presented a danger to Jonathan Atwood so

that the Roes had the responsibility to remedy it in their capacity as paid DFPS foster

parents or DFPS had the duty to require the Roes to remedy it. See id.

Pursuant to DFPS’s core requirements for agency foster families, the Roe foster

home was required to meet all applicable fire, health, and safety laws, ordinances and

regulations. Likewise, DFPS required that the Roe foster home and outdoor areas be

maintained, repaired, and cleaned so that they were not hazardous to the children in

care. DFPS was responsible for providing regular supervision of the Roe foster home

and all foster children in the home by qualified staff, and to assisting the Roes in

maintaining minimum standards for foster homes. Specifically, DFPS had the

responsibility (1) to complete a quarterly assessment on the Roe foster home, (2) to

document any noncompliance with DFPS policies and minimum standards, (3) to

follow-up on any noncompliance, and (4) to document that corrections had been

made. Under DFPS’s written “Minimum Standards and Guidelines,” the

responsibility for the care of a child placed by DFPS into a regulated child-care

facility becomes a joint responsibility between the agency and the facility, including

a licensed agency foster home, is required to meet minimum standards on an on-going

basis.

DFPS standards and policies required that the Roes make their home and

outdoor areas safe for the foster children in their care,

in this case, by building a

locking gate to block access to the above-ground swimming pool in the backyard.

The record demonstrates that, five days after the Atwood children were placed in the

Roe foster home, DFPS caseworker Linda Jayne completed a quarterly assessment

of the Roe home. At that time, Jayne became aware of the danger posed by the lack

of a locked gate to block access to the above-ground swimming pool in the Roe’s

backyard, and she instructed Linda Roe that it was DFPS Region 6 policy that there

must be a locked gate to block access to the pool from the deck. This condition was

not remedied; Jonathan Atwood drowned; and DFPS conducted an investigation in

which it found the Roes and their DFPS agency supervisor to be in violation of law.

The Atwoods pleaded:

Residential Child Care Licensing (hereinafter RCCL) is the [DFPS]

agency responsible for investigating allegations of abuse and neglect by

regulated childcare facilities. On or about August 2, 1999 and on behalf of

[DFPS], HCCPS, and LCCPS, RCCL began an investigation of the drowning

of Jonathan Atwood. RCCL determined:

[t]here is “Reason to Believe” that Linda Roe is a perpetrator of

neglectful supervision in the death of Jonathan Atwood as defined in the

Texas Family Code Chapter 261.001(4)(B)(I) “placing a child or failing

to remove a child from a situation that a reasonably prudent person

would realize requires judgment or actions beyond the child’s level of

maturity, physical condition, or mental abilities and that results in a

bodily injury or a substantial risk of immediate harm to the child.”

****

Mrs. Roe admitted that she was told by her FAD worker, Linda Jayne,

to put a gate at the deck’s entrance to the pool and [neither] she nor her

husband had placed a gate at the entrance until after Jonathan’s

drowning. Mrs. Roe also admitted that she normally places deck

furniture that consists of chairs and a hammock at the deck’s entrance

to the pool, but on the day that Jonathan drowned, she did not place the

deck furniture at the entrance. Mrs. Roe admitted that she had

knowledge that Jonathan knew how to lock and unlock the locks on the

doorknobs of her home. Linda Jayne’s quarterly report indicates that

she discussed with the Roes during her home visit on 7-19-99 that they

must have blocked access with a locked gate to keep the children from

accessing the pool. Linda Jayne stated that the Roes agreed to complete

this task.

On September 13, 1999, [DFPS], HCCPS and LCCPS, by and through

RCCL, issued findings of its investigation of the circumstances surrounding

the drowning of Jonathan Atwood. RCCL determined that Region Six

([DFPS], HCCPS, and LCCPS) was not in compliance with the following

Minimum Standards for Child Placing Agencies:

After staffing the case with RCCL supervisor, Sherry Loyd, I

determined a finding of “Reason to Believe” for Linda Roe in the

neglectful supervision of Jonathan A, as defined in the Texas Family

Code 261.001(4)(B)(I).

1610.1 The agency is responsible for protecting children’s rights while

a child is in substitute care and in adoptive placements prior to

consummation of the adoption.

Non-compliance- The agency did not ensure that Jonathan’s

rights were protected while he was in the Roe foster home which

resulted in his death.

****

1610.3 Children must be placed and supervised appropriately in the least

restrictive environment capable of meeting their needs. The placement

must meet the child’s physical and emotional needs, and must provide

consideration for sibling relationships and cultural needs.

Non-compliance- The agency did not ensure that Dolan and

Linda Roe adequately supervised Jonathan A. and the child was

able to gain access to the pool which ultimately led to his

drowning.

The RCCL findings were not contested or appealed by any party.

HCCPS is the regional headquarters for Region Six of [DFPS]. HCCPS

and [DFPS] approved and licensed the ROE foster home. The ROE foster

home and the Roe family operated with the permission of, and subject to the

supervision and control of [DFPS], HCCPS and LCCPS. The ROE foster

home and the appurtenances and fixtures thereto were subject to the approval,

control and supervision of [DFPS], HCCPS and LCCPS. LINDA ROE and

DOLAN E. ROE, as foster parents, were subject to the supervision and control

of [DFPS], HCCPS and LCCPS.

At all times relevant to the facts made the basis of the present cause,

Defendants LINDA ROE and/or DOLAN E. ROE were employees,

representatives, agents, servants, borrowed servants and/or under the control

of Defendants HCCPS, LCCPS and/or [DFPS]. At all times relevant to the

facts made the basis of the present cause, Defendants LINDA ROE and/or

DOLAN E. ROE were subject to the rules, policies and procedures of Defendants HCCPS, LCCPS and/or [DFPS].

(Emphasis in original.)

I would conclude that the Atwoods adequately pleaded that DFPS, through the

Roes as operators of a licensed child-care facility and through its supervisory

employees, exercised control over the premises as an agency foster home. See

Brown , 80 S.W.3d at 556 .

DFPS’s Duty Not to Injure the Licensee and Duty to Warn the Licensee or

Make the Premises Reasonably Safe

The duty of control of premises entails a responsibility not to injure a licensee

through willful, wanton, or grossly negligent conduct. Brown , 80 S.W.3d at 554

(citing Payne , 838 S.W.2d at 237 ). The duty of control also entails a responsibility

either to warn the licensee or to make the condition reasonably safe if the property

possessor has knowledge of a dangerous condition and the licensee does not. Id . at

554-55.

The Atwoods pleaded that

At the time of the incident made the basis of the present litigation, the

[Roe] foster home contained a premise defect, the deck attached to the

back of the Roe home extended to the pool and provided open access to

the pool. This condition or defect presented an unreasonable risk of

harm in which there was sufficient probability of a harmful event

occurring that a reasonable prudent person would have foreseen it or

some similar event was likely to happen. Defendants [DFPS and

HCCPS] along with Linda Roe and Dolan E. Roe were the possessors

of the property in that they exercised control over the Roe home and/or

the premise defect and had the power or authority to manage, direct,

restrict, superintend, regulate, govern, administer or oversee the [Roe]

home and/or the premise defect. Defendants [DFPS, HCCPS, and the

Roes] owed Plaintiffs the same duty owed to a licensee to exercise

ordinary care to warn Plaintiffs or to make reasonably safe a known

dangerous condition about which Plaintiffs were unaware and not to

injure Plaintiffs through willful, wanton, or grossly negligent conduct.

Defendants breached this duty. Additionally, Defendants had

knowledge of the dangerous condition and therefore had the duty to

warn Plaintiffs of the condition or to make the condition reasonably

safe. Defendants breached this duty. Plaintiffs were unaware of the

condition, Defendants failed to warn Plaintiffs of the condition, and

Defendants failed to make the condition reasonably safe. Defendants

breach was a proximate cause of the injuries sustained by Plaintiffs and

the death of three year old Jonathan Atwood.

The Atwoods asserted that DFPS waived sovereign immunity from this claim because

Plaintiffs claims involved personal injury and death caused by a

condition and/or use of real property, the deck attached to the back of

the Roe home provided open access to the pool. This condition and/or

use of the real property was defective and/or negligent, such that under

Texas law, a private person would be liable to Plaintiffs for this

defective and/or negligent condition and/or use.

In my view, the Atwoods pleaded facts sufficient to state a claim for premises

liability based on DFPS’s duty not to injure the Atwood children through willful,

wanton, or grossly negligent conduct. They also pleaded facts sufficient to show that

DFPS employees had statutory and contractual responsibilities to make the pool area

of the Roe foster home reasonably safe and that they breached those duties. Finally,

they pleaded facts that would show, if proved, that DFPS had knowledge of the

dangerous condition posed by the Roes’ above-ground swimming pool, that the

Atwoods did not have that knowledge, and that DFPS neither warned the Atwoods

about the danger nor made the premises reasonably safe, proximately causing the

Atwoods’ injuries.

I would hold that the Atwoods adequately pleaded a premises-defect claim

against DFPS for which sections 101.021(2) and 101.022 of the Tort Claims Act

waive sovereign immunity. See Tex. Civ. Prac. & Rem. Code §§ 101.021(2),

101.022.

I agree with the panel that the Atwoods did not establish the existence of a joint

venture between the Roes and DFPS.

CONCLUSION

The implications of the panel’s holding in this important case of first

impression are far-reaching. The stated purpose of Chapter 42 of the Human

Resources Code is the protection of the health and safety of children in the care of the

State. If state agencies charged with the placement, custody, and supervision of

children are as, as the panel holds, immune from liability for claims arising from the

injury or death of those children whom the State has removed from their parents and

placed in foster care in state-licensed and state-supervised agency foster homes, then

I fear that the effectiveness of Chapter 42 will be severely undermined.

I do not believe that the Legislature intended that state agencies be immune

from liability when a child in the care of the State is killed or injured at a state-licensed agency foster home by the use or misuse of tangible property by persons

charged by the State with the protection of the health and safety of that child or by a

premise defect at that child-care facility. Nor do I believe that the Legislature

intended that foster parents who maintain state-licensed agency foster homes not be

considered state employees in performing their statutory and contractual duties as

foster parents or that agency foster-homes not be considered property controlled by

the State. Rather, I believe that state agencies are responsible for the protection of

children they have placed in foster care in state-licensed agency foster homes and that

the Legislature provided for a waiver of sovereign immunity in cases such as this one

precisely to ensure that the laws protecting the health and safety of children in state

care are respected and enforced. I also fear the chilling effect of the panel’s opinion

on the willingness of persons to operate state-licensed agency foster homes because,

under that opinion, the full brunt of liability for any injury to the child falls on the

foster parents personally, as independent contractors, and not on the state agencies

or departments that license, regulate, supervise, and inspect such foster homes.

I would hold that the Atwoods’ petition alleges a cause of action that falls

within two of the three categories for which the Texas Tort Claims Act waives

sovereign immunity; thus, the trial court correctly denied DFPS’s plea to the

jurisdiction. Accordingly, I would grant en banc consideration, affirm the order of

the trial court denying DFPS’s plea to the jurisdiction, and remand the cause for

further proceedings.

Evelyn V. Keyes

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

En banc consideration was requested.

A majority of the justices voted to deny en banc consideration.

Justice Keyes, dissenting from denial of en banc consideration, joined by Justice

Jennings and joined by Justice Higley in regard to premises defect.