BLOOMINGTON -- The July 1993 suffocation of 3-year-old Louise Osborn at a Bloomington foster home set in motion 15 years of civil court proceedings to determine if any person or agency should be held accountable for her death.

In May, a decision by the Illinois Court of Claims that the state Department of Children and Family Services was not liable in Louise's death ended the avenues of appeal for attorneys representing the child's estate. The court handles claims made against state agencies.

The Bloomington lawyer for Louise's estate disagrees with the recent ruling and a previous appellate court decision that reversed a $640,000 jury award against Youth Services of Mid-Illinois, the now-defunct child care agency hired by the state to care for Louise and her brother Sean, who was 4 when his sister died inside a cabinet in the Bloomington home of her foster parents.

Sean would have received proceeds from the lawsuit.

Attorney Doug Koth is calling on Illinois lawmakers to correct what he considers a series of mistakes by Illinois courts in the Osborn case that effectively extends parental immunity to foster parents and protects them from lawsuits involving the supervision of children placed in their care.

"It was a major defeat for the foster children in the state of Illinois. When a little kid dies, who is responsible? The poor foster kids have no civil remedy if they are neglected. That's the state of the law we have in Illinois right now," said Koth.

Koth is not alone in his opinion.

In a settlement with Catholic Charities of the Archdiocese of Chicago, attorney Christopher Hurley secured $12 million in damages in 2006 for three children abused in a foster home. The agency dropped its foster care program after the settlement, saying it could not find liability insurance.

"When these horrific things happen to foster children, they need to have the chance to get their fair compensation for it. It boggles my mind that you can put children in homes where they can be victimized on a serial basis for years and there's no place to turn in terms of justice," said Hurley.

In its ruling in the Osborn case, the Court of Claims rejected arguments that DCFS was responsible for what happened to Louise, but agreed with Koth's concerns about the potential consequences of giving foster parents the same immunity from their actions as custodial parents.

"We must agree with (the) contention that current applicable precedent may severely limit opportunities for recovery when a foster parent is granted parental immunity in like circumstances," stated the ruling.

Jason Cannell, Koth's co-counsel during the Osborn trial, said limited accountability could mean limited protection for children.

"The Osborn court rulings significantly eliminated the accountability of the private foster care agency, and when there is no accountability, we all know what happens - we have a higher prevalence of abused and neglected foster children," he said.

DCFS declined to comment specifically on the Osborn case, saying parents in the state's 12,176 licensed foster homes, including 274 in McLean County, have the best interests of children in mind when they take on the difficult and necessary role.

"People don't become foster parents because of what is said in any court case. They become foster parents because they love children and want what is best for them," said Kendall Morgan, a DCFS spokesman.

'A parade of errors'

Louise and Sean were taken into DCFS custody on April 10, 1992 after their parents, Tennyson and Paula Osborn, were arrested in Bloomington for writing bad checks. The family was living out of their car at the time and the children were without adequate clothing and needed medical attention, according to a DCFS report.

Youth Services placed the siblings with Matt and Sarah the Augsburger, who have since divorced. The couple also had three young children of their own. Matt Augsburger was away from home for extended periods of time working as a city firefighter, according to records in the civil case.

"It was a parade of errors. This was a situation that was doomed," Koth said of placing the Osborn siblings in the home.

On July 29, 1993, Sarah Augsburger, now known as Sarah Hany, told police she fell asleep downstairs and Louise likely crawled into the cupboard in an upstairs closet. She said when she checked on the child more than two hours later, she found Louise unresponsive on the floor near the cabinet.

Louise's temperature was 105 degrees when she was taken to a local hospital where she died a short time later.

A coroner's jury ruled the death an avoidable accident. Police reports related to Louise's death and suspected abuse of other children supervised by Youth Services were sent to a special prosecutor who declined to file any criminal charges.

Fifteen months later, the DCFS Office of Inspector General, an agency charged with investigating complaints against the child welfare agency, issued a report highly critical of Youth Services. Perhaps most damaging was a finding that Youth Services staff was instructed to handle allegations of abuse within the agency, rather than reporting them to the state as required by law.

Failing Louise

While there was disagreement after Louise's death over what led to the tragedy, there was little doubt that adults who should have protected her during her short life had failed. At the end of the legal battle, the Illinois courts should be added to that list, said Koth.

His efforts on behalf of Louise's estate started in 1994 with the filing of a wrongful death lawsuit against Youth Services for negligence. Jurors found in favor of the agency in 1998, but the verdict was overturned on appeal when the 4th District Appellate Court ruled that jurors should have been allowed to consider whether Youth Services had "an agency relationship" that would hold it liable if the Augsburgers had been negligent.

In a 2001 retrial, a jury awarded the estate $640,000, deciding that the foster parents were negligent and Youth Services was responsible for their actions.

At the heart of Koth's concerns is a 2002 appellate court decision that overturned the jury award and a 3-3 vote by the Illinois Supreme Court two years later that left the appellate ruling in place.

"It's absolutely mind boggling to me. The appellate court took this case away from the jury," said Koth, adding he doesn't regret all the years he spent on the case. "I know in my heart I was right and so was the jury."