Not A Child

The Babcock Center describes itself as:

…a private, nonprofit organization founded in 1970, serving men and women with mental retardation, autism, head and spinal cord injury and related lifelong disabilities.

We believe that all persons have the right to choose where and how they learn, live, work, play and socialize.

Our mission is to commit and invest our talents, resources, time and energy so as to support and protect each man or woman we serve, to empower each individual to enjoy a productive and independent life, and to achieve his or her greatest potential.

According to this article, last year the Babcock Center accepted $43 million from the South Carolina Department of Disabilities and Special Needs to run group homes and provide related services. After the parents of a 21 mentally disabled woman alleged that she was raped by two men will living in a group home run by the Babcock Center, here is a newspaper account of what transpired after both South Carolina and the Babcock Center denied any responsibility, and a subsequent lawsuit was brought:

The state argued it had no implicit duty to provide care to patients in the facilities it operates or contracts out.

That argument succeeded in lower court but was reversed by the Supreme Court.

In 2005, attorneys for the disabilities agency persuaded Circuit Judge Casey Manning the department was not charged with providing total care to its clients.

Attorneys for the Babcock Center, the private agency that operated the group home and last year contracted with Disabilities and Special Needs for $43 million to run group homes and other facilities, made an identical plea.

Manning declared a summary judgment for the department and Babcock Center.

He held the agencies basically free of responsibility for events that occur to patients under their care.

The facts of the case were described by the SC Supreme Court as follows:

…Appellant, although physically an adult, alleges she has the emotional and intellectual maturity of a seven- to ten-year-old child. She can read, write, and understand math at the level of a first- or second-grade child. Appellant alleges her mental disability means she is not able to live or work independently. She cannot, for example, cook, wash clothes, run bath water, use a toaster oven, put on her own makeup, or perform personal hygiene tasks without adult supervision. Appellant cannot tell time, understand a sequence of dates or use a calendar, make change for a dollar, or give or follow simple geographical directions. Appellant is not allowed to leave either her parent’s home or the Babcock Center home without permission and adult supervision.

While living at Babcock Center, Appellant worked at an animal shelter and a dump site sorting recyclable materials. Babcock Center personnel took her to and from work, where she was supervised by a job coach. Appellant’s”lack of perspective and judgment is so limited that she needs help with every significant decision she makes about even the smallest matters that require assessment of consequences, potential danger, or comparing alternative courses of action,”according to Brenda Bryant, Appellant’s mother and court-appointed guardian.

On August 30, 1995, Appellant, then twenty-one years old, placed her luggage on the front porch of the Babcock Center home and went to bed fully clothed. After everyone was asleep, she secretly slipped out of the house sometime after 1 a.m. and left in a car with two men who either lived or recently had lived in a home managed by Babcock Center. Another woman already was in the car. Appellant believed the four of them planned to go to an unknown location and set up housekeeping on their own. Instead, the other woman was taken home a short while later after an argument.

Appellant and the two men went to a house, where she had sex with one or both of them. Appellant initially told police and her mother she was raped, but testified at a deposition in this case she was”talked into having sex.” Appellant returned to her Babcock Center home the following morning. Appellant alleges she was a virgin when she was admitted to the Babcock Center home. She contracted herpes simplex type I, a sexually transmitted disease, after one or more sexual encounters with men while staying at the Babcock Center home.

A probate court judge in 1997 issued an order appointing Appellant’s mother as her guardian and conservator. The judge found Appellant was mentally retarded and lacked the capacity to exercise good judgment with regard to her person, assets, and financial affairs.

Appellant’s amended complaint alleges causes of action for negligence, gross negligence, and willful indifference against Respondents. Appellant alleges, among other things, that both Babcock Center and Department owed a duty of care to Appellant, which they breached by failing to exercise sufficient control and supervision over Appellant and other Babcock Center residents. Appellant alleges both entities failed to properly supervise facility staff, both failed to heed the previous warnings of Appellant’s mother about inappropriate sexual contacts between Appellant and current or former male residents of Babcock Center, and both ignored the requests of her parents that she be released from Babcock Center. Appellant’s mother testified that, prior to August 30, 1995, she personally made repeated complaints about the sexual contacts to staff at the Babcock Center home where Appellant lived, Babcock Center director Risley Linder, and James Hill, Department’s general counsel.

The circuit court granted summary judgment to Respondents. The judge ruled in two separate orders that, as a matter of law, Respondents”had no legal duty to maintain a constant watch over the plaintiff so as to prevent her surreptitious elopement.” Furthermore, the proximate cause of any damages suffered by Appellant, as a matter of law, was Appellant’s”own voluntary and intentional acts.”…

The SC Supreme Court reversed the circuit court, holding:

Babcock Center had a special relationship with Appellant because she was a client with special needs and disabilities admitted for care and treatment at the center. Babcock Center voluntarily undertook the duty of supervising and caring for Appellant as provided in its contractual relationship with Department. Babcock Center allegedly acted negligently in creating the risk of injury to Appellant by not properly supervising her and allowing improper sexual contacts between Appellant and men. Furthermore, the center had a statutory duty to exercise reasonable care in supervising Appellant. See e.g. S.C. Code Ann. § 44-20-30(2), (11), and (17) (2002) (defining client, mental retardation, and residential programs); S.C. Code Ann. § 44-20-710 to -1000 (2002) (addressing licensing of facilities and programs for mentally disabled persons); S.C. Code Ann. § 44-26-10 to -220 (2002) (rights of mental retardation clients). In short, Babcock Center undertook a duty, for consideration, to render services to Appellant which the center should have recognized as necessary for the protection of Appellant. Thus, Babcock Center had a duty to control Appellant’s conduct to the extent necessary to prevent her from harming herself or to prevent others from harming her while staying at the center.

The SC Supreme Court also wrote:

We further hold that, if Appellant proves at trial she has the limited emotional and intellectual capacity she has demonstrated at the summary judgment stage, Appellant should be treated as the equivalent of a willful, immature child who really has no idea of what is best for her in determining whether Babcock Center breached the duty of care owed to her. “Children, wherever they go, must be expected to act upon childish instincts and impulses; and others, who are chargeable with a duty of care and caution towards them must calculate upon this and take precautions accordingly.” Franks v. Southern Cotton Oil Co., 78 S.C. 10, 18, 58 S.E. 960, 962 (1907).

I’m glad the SC Supreme Court held that the SC Dept. of Disabilities and Special Needs and the Babcock Center are responsibile for their actions and inactions with respect to group home residents. However, this is an offensive and problematic way for the law to account for a woman with mental disabilities. She isn’t a child. She’s a woman with the same physical and emotional needs and desires we all have. Desiring intimacy with another person does not render her the equivalent of a willful, immature child. She is an adult who may be especially vulnerable to exploitation, but she is an adult nonethless.

–Ann Bartow