Reprinted with the permission of the Atlanta Journal and the Atlanta Constitution.

TERRELL PETERSON: State may be liable for kids it places with kin
Steve Visser and Jill Young Miller - Staff
Saturday, April 6, 2002

Don Keenan keeps a picture of Terrell Peterson on his desk. It's not a happy picture of a 5-year-old. It depicts a frightened, abused child. And the little light left in his eyes was snuffed out not too long after the photo was taken.

Keenan, a lawyer who sued the state Department of Family and Children Services over Terrell's death, hopes a dry, three-page legal ruling he received Friday will mean happier prospects for other children under the control of the child welfare agency.

The 11th U.S. Circuit Court of Appeals overturned a lower court that had ruled DFCS couldn't be held liable for children like Terrell --- children seized from parents but placed with relatives.

"The proper test is whether the state had dominion and control over the child's life, and the extent of that dominion and control," the appellate court wrote. The court directed a federal district court to look into whether the state had sufficient control of Peterson to be liable for his well-being, even though he was not officially in state custody.

"For 15 years there has been this tremendous gap of thousands of kids who are not taken into 'custody' but who are in fact controlled by the state," Keenan said. "The court is saying custody is not the test. The test is control. That opens up to thousands of kids constitutional rights that they never had."

Keenan said he believes this is the first case in the United States to establish this right. He said it plows new legal ground, as another Georgia case did 14 years ago, establishing that children could hold the state liable for their treatment in state custody.

A more skeptical view of the ruling's impact came from Ted Hall, a family law attorney in Atlanta who represented DFCS in severing the parental rights to two surviving children of Terrell Peterson's mother, Audry Mitchell.

"I don't see it as anything significant at all," said Hall. "It's really a procedural type of reversal, sending it back down so that discovery can be done on the issue of dominion and control."

But for Keenan, the case is about forcing DFCS to draw up new regulations to ensure that children placed with relatives or with non-state groups are protected. Terrell was placed with his step-grandmother, whom authorities said tortured and starved the child to death. The 5-year-old boy weighed 29 pounds when the picture on Keenan's desk was taken at Grady Memorial Hospital. He died in 1998.

Bob Cullen, another lawyer who has battled DFCS, agreed a new standard has been established by the court.

"The decision reflects a change in the law in that it will now be easier to hold the Department of Family and Children Services liable when they place children in situations where they're harmed," Cullen said.

The state claimed it never formally took custody of Terrell and therefore was not responsible for his welfare.

Keenan said Terrell's case was following the same path as Kathy Jo Taylor, who was 2 when she lapsed into a coma in a Gwinnett County foster home. She died 15 years later. Her case allowed state workers to be sued if children were harmed in state custody.

A ruling by the U.S. Supreme Court forced DFCS to establish new court-monitored regulations to better safeguard children in custody.

"Kathy Jo's life was not in vain, and I'm very hopeful that will happen again here," Keenan said. "Terrell's life was not in vain."

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