Ruling lets foster mother profit from baby's death to tune of $1 million, lawyer says
BY ZIVA BRANSTETTER World Enterprise Editor
Thursday, October 18, 2012
An appeals court ruling has allowed a Tulsa foster mother to “profit from her own neglect” by collecting about $1 million in insurance proceeds after a baby died in her care, according to court records and a motion by an attorney representing the child’s estate.
The ruling Wednesday by the 10th U.S. Circuit Court of Appeals found that children in Oklahoma’s foster care system or their estates have no right to file “bad faith” lawsuits against companies providing insurance for the state.
Although the baby’s estate won a $24 million judgment in state court against the foster mother, she had no funds to pay the judgment. Two insurance companies providing policies for DHS claimed that their policies shouldn’t have to pay the claim, and the matter wound up in federal court.
In order to collect the judgment, attorneys representing the baby’s estate had to agree to give the foster mother a portion of any settlement proceeds from their federal “bad faith” lawsuit against the insurance companies.
U.S. District Judge Gregory Frizzell ruled that foster children lack standing to bring such lawsuits, preventing the baby’s estate from collecting on the entire judgment, and the 10th Circuit’s ruling upheld that decision.
Michael Barkett, an attorney representing the estate of 7-month-old Aurora Espinal-Cruz, said the firm plans to contest the ruling.
“If it (the ruling) stands, it preserves the ability of insurance companies to collude with negligent foster parents, avoid accountability to foster kids, and forecloses foster kids’ rights to protect and enforce their rights against such conduct,” Barkett said.
However, Keith Taunton, a spokesman for Colony Insurance Co., said, “The holding by the 10th Circuit in this appeal merely reaffirms Oklahoma law regarding the interpretation of insurance contracts generally and does not change anything as far as foster parents or the DHS foster program are concerned.”
Colony was one of two insurance companies paid by the Oklahoma Department of Human Services to provide liability insurance under the foster care program.
Aurora was 7 months old when she died in 2002 in the Tulsa foster home of Deanza Jones. No criminal charges were filed against Jones in the death.
But Barkett’s appeal to the 10th Circuit alleges that “while under the custody and care of foster parent Deanza Jones, Aurora suffered and died an agonizing death while left neglected and unattended for many days.”
“Aurora was found to have been suffering from untreated viral respiratory illness for days. She died by suffocation on her own emesis and coughed up blood while left abandoned by Jones in a filthy crib infested by cockroaches. Aurora’s skin in and around her diaper area had been eaten away by cockroaches,” the appeal states.
In filings that were part of a state lawsuit against her, Jones denied allegations that she neglected the child.
Read more of this story in Friday's Tulsa World and at tulsaworld.com tomorrow.