9 YEARS OLD, 19 LBS., AND A FOSTER CHILD

AT the time it hit the newspapers and magazines, the photograph, in all its silent horror, shocked the sensibilities of an America that was not used to seeing emaciated, agonized children living within its bountiful borders. Biafra, yes. Ethiopia, yes. But not in America. Equally shocking, however, came the news that Eugene D., the severely handicapped child in the photo, never weighed more than 19 pounds, 11 ounces, during the entire 8 years he had spent in foster care.

Eugene had been taken as an infant from his mother, but no judicial finding of abuse was ever made against her. Now the pair is reunited at home - and in the courtroom. They have filed suit against the state, charging Eugene was injured in a state-licensed foster home in Louisville.

Almost four years after the lawsuit was filed, the quest for accountability remains out of reach. Still unanswered is a crucial question: When things go wrong for children in state care, who is ultimately responsible?

A federal appeals court is currently considering this very issue. The lawsuit filed on Eugene's behalf is a civil-rights action, charging that state officials violated the boy's constitutional right to be free from harm while in state custody.

``One of the biggest problems was figuring out who to sue,'' says Allen Button, the lawyer who filed the lawsuit for Eugene and his mother, Marie D. ``You can't sue the state [for damages] because it has immunity, so we sued 10 state workers individually. But if they lose, and have to pay, all the state's social workers will probably quit'' because of liability concerns.

On the other hand, if the lawsuit had sought only to force the state to change its policies, Eugene would be left without recourse for redress, Mr. Button says.

``We contend that through intentional actions or deliberate indifference, they allowed this child to be harmed - and he suffered as a result.'' Eugene's condition after 8 years in foster care ``was unbelievable to me,'' he adds. ``I couldn't believe that a kid, absent some reason he can't keep food down, should look like that - bones sticking out and skin flaking off.''

Kentucky officials refuse to comment on the case directly because litigation is going on. In its legal documents, however, the state argues that Eugene received ``loving, competent care'' while in state custody and that caseworkers complied with all regulations to monitor his care. Further, because of the boy's extraordinary physical and mental handicaps, which don't allow him to feed himself, talk, or walk, the state said that it ``relied upon and followed the reputable medical and professional advice in his care and treatment.''

Whatever the outcome, a closer examination of Eugene D.'s case provides an illuminating glimpse into the world of child welfare. The vision that emerges, however, is amorphous - a shapeless bureaucracy where decisions about children's lives are made by faceless ``teams'' with changing memberships because of high staff turnover.

Eugene came to the attention of state child-protection workers in February 1974, when his 17-year-old mother brought him to a Louisville hospital. Comatose and suffering from head injuries, the infant was subsequently diagnosed as having sustained brain damage that left him mentally retarded with spastic cerebral palsy. While no judicial finding of child abuse was made against Eugene's mother, the court decided to remove him from her care and place him in the custody of the state Cabinet for Human Resources.

In May, the state placed Eugene in a foster home of an older Louisville woman who had not received any state training on children with physical and mental disabilities. During the next 8 years, Eugene had at least six different caseworkers, only two of whom had some experience working with disabled children.

By 1976, according to court records, state workers who reviewed the foster home reported that the foster mother ``is elderly and thus not considered a good potential for long-term placement.'' They also noted a difficulty communicating with her, noting that ``she seems to be listening to what is being said but doesn't really hear or forgets quickly.''

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