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INTRODUCTION
Plaintiffs seek to hold the City of X, the Department of Children's Services (DCS), and individual caseworkers liable for injuries foster children suffered or might suffer at the hands of third parties. They argue that current foster care policies violate the children's right to be free from infliction of unnecessary harm while in state custody. Plaintiffs imply that DCS should investigate other people a foster child might come into contact with and impose a mandatory response time for investigations of allegations of abuse as a means of preventing potential future injury.1 However, the 14th Amendment's due process clause does not require a state to anticipate unforeseeable private violence. Current policies and practices sufficiently protect foster children, do not constitute deliberate indifference to the children's rights, and are consistent with professional standards. Summary judgment should be granted to defendants as plaintiffs have failed to provide evidence that City's policies or actions of city agents violated their substantive due process rights.2

QUESTION PRESENTED
Did the actions of DCS employees, the DCS policy of performing background checks solely on prospective foster parents, or the DCS policy allowing for discretion in following up on allegations of abuse violate foster children's substantive due process right to be free from infliction of unnecessary harm?3

STATEMENT OF FACTS
The City of X currently has 3,000 children in foster care. Funding for the City's foster care system is shared between the State of Y and the City of X. There are a total of ten foster care agencies throughout the State of Y. The agencies are equally divided between those that have a mandatory time restriction on investigation into allegations of abuse, and those that rely on the discretion of the caseworker and supervisor to determine when investigations must be made, allowing for timely response to emergencies and prioritizing of cases depending on the nature of the allegations. All agencies require that caseworkers place written reports of investigations into each child's file. The City is currently investigating a report by a non-profit organization that 5% of children experience abuse by foster parents.4

The City currently employs 300 caseworkers. All have Masters of Social Work or bachelor's degrees. Supervisors are certified social workers with Masters of Social Work degrees. Caseworkers receive a twenty-hour training that teaches how to exercise discretion in assessing allegations of abuse. An investigation into abuse could consist of a caseworker meeting with the foster parents and foster children both together and separately, without the presence of other household members.5 This system allows for the flexibility necessary to work within the city's resources to respond to emergencies.

Caseworkers fully investigate prospective foster parents. Most relevant to this case, applicants are asked who lives in their household and what childcare arrangements may be necessary. If the foster parent works and will need daily childcare, the caseworker investigates a day care center. Other potential caretakers are not identified or investigated.6 Prospective foster parents receive a one-time training and are re-certified each year. Re-certification requires a review of all caseworkers and an in-home interview. Other household members are not interviewed, investigated, or trained.6

Plaintiff Shorona J., five years old, was removed from her mother's home because of a drug addiction problem and placed with foster parent Julia Pons, who has two teenage daughters. Ms. Pons was a foster parent for ten years, having cared for a total of ten children. In the past, Ms. Pons had two foster children at a time. In January 2002, DCS determined Ms. Pons should have only one child at a time.7 Plaintiffs' Complaint alleges that Shorona's mother, Cecilia Jones, reported that Shorona had been abused in foster care four times8 and nothing was done. (Compl. ¶ 14.) However, agency records indicate that a caseworker investigated the home on November 21, 2002 and interviewed Shorona and Ms. Pons separately and together. The file reports that Shorona said Ms. Pons daughters were "mean" to her and that she wanted to go home, and that Ms. Pons said her daughters occasionally babysat for Shorona and they got along fine.9 On May 15, 2003, Shorona was taken to the hospital with a broken arm. Ms. Pons said that Shorona had fallen while playing with one of her daughters, Maria. Shorona said that Maria had pushed her, and that she had done so in the past. On this basis, the agency decided to remove Shorona from the Pons home and placed her with her grandmother, where she has now also been reunited with her mother who completed a drug rehabilitation program. Four of Ms. Pons' previous foster children had also experienced broken bones. Ms. Pons is no longer a foster parent.10

The mother of plaintiff Milton R., ten years old, voluntarily placed him into foster care in January 2003 because of domestic violence in their home. He has since been reunited with his mother as she has obtained an order of protection against her abusive husband, begun divorce proceedings, is now employed, and lives in her own apartment.11 While in foster care, Milton R. lived with foster parent Sam Sojo, beginning in January of 2003. Mr. Sojo has cared for four other foster children over the course of five years. On July 24, 2003, Mr. Sojo's nephew, Kevin, took Milton to the hospital with a head injury and concussion. Kevin had been caring for Milton while Mr. Sojo went to the doctor. Milton reported that he fell and hit his head on a wall when Kevin hit him. Milton was hospitalized for a week and suffered headaches and two seizures. He will likely require on-going medical care.12 Mr. Sojo has been re-trained and has agreed that Kevin will not have contact with his current foster child.

Plaintiff Janna S., twelve years old, was removed from her mother's custody because of an alcoholism problem and placed with foster parent Sybil Rivers. Ms. Rivers now has breast cancer and can no longer care for Janna. DCS plans to place Janna with a new foster family, the Jenisons. DCS has determined that Janna's mother, Susan, has not sufficiently dealt with her alcoholism and Janna cannot be returned to her custody at this time. Susan objects to Janna's placement with the Jenisons because she has heard their son, Jake, has been arrested in the past.13 She asked DCS to investigate Jake, who is nineteen years old. The caseworker, Irene Constan, told Susan the agency's policy does not encompass investigating a foster family's children. The Jenisons have cared for six foster children over the course of five years. Four children stayed with the Jenisons until they were returned to their natural families. DCS determined the two other children were incompatible with Jake14 so they were given other arrangements.

No complaints have ever been lodged against the caseworkers on all of the above cases. In annual reviews, DCS supervisors determined that each had satisfactory job performance.

SUMMARY OF ARGUMENT
Summary judgment as to liability of all Defendants should15 be granted because there is no genuine issue of material fact and plaintiffs have failed to provide evidence for necessary elements of a claim under 42 U.S.C. § 1983. Specifically, plaintiffs have failed to demonstrate that the City or City agents violated their substantive due process rights through a City policy and/or practice. Children involuntarily placed into foster care do have the right to be free from infliction of unnecessary harm while in state custody. Deliberate indifference is the proper standard to determine whether a municipality has violated this right. Defendants are entitled to summary judgment on the issue of liability under either the deliberate indifference or professional judgment standards.16 Neither standard requires a municipality to anticipate unforeseeable third party violence. Neither standard imposes a mandatory response time to reports of allegations of abuse. Therefore, defendants have not displayed deliberate indifference or failed to exercise professional judgment in limiting background checks to prospective foster parents or allowing for discretion in agency responses to reports of allegations of abuse.17

Individual caseworkers' actions also fail to rise to the level of constitutional violation. On that basis, they are entitled to qualified immunity. Local officials with administrative and executive functions cannot be held liable unless their conduct violates a clearly established legal right. Because defendant caseworkers have not displayed deliberate indifference or failed to exercise professional judgment, they have not violated a clearly established right and are entitled to immunity. The court should grant partial summary judgment as to individual liability of Defendant caseworkers because they are entitled to qualified immunity, and partial summary judgment to all Defendants because plaintiffs have failed to establish violation of a federal constitutional right, an essential element of a § 1983 claim.

ARGUMENT

SUMMARY JUDGMENT SHOULD BE GRANTED AS TO LIABILITY OF ALL DEFENDANTS BECAUSE PLAINTIFFS HAVE FAILED TO PROVIDE EVIDENCE TO ESTABLISH NECESSARY ELEMENTS OF A § 1983 CLAIM

Summary judgment must be granted if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).18 All "justifiable inferences" are to be drawn in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citations omitted). Judgment for the movant is proper if the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The substantive law defines which facts are "material," Anderson, 477 U.S. at 248, but the court cannot make fact-finding or credibility determinations. Id. at 255.

For a proper claim under § 1983, a plaintiff must establish that he or she has suffered the violation of a right protected by the federal constitution and that the conduct of a person who acted under color of law was the proximate cause of the violation. In order for a municipality to be liable under § 1983, the unconstitutional action must be a municipal policy, practice, or custom. Monell v. Dep't of Soc. Serv. of the City of N.Y., 436 U.S. 658, 691. Municipalities are not liable under § 1983 for actions committed solely by employees through the theory of respondeat superior. Id.

Plaintiffs have not presented sufficient evidence to meet these essential elements of a claim under 42 U.S.C. § 1983. If there are any facts in dispute in this case, they are immaterial. Therefore, summary judgment must be granted.19

To succeed, Plaintiffs must establish that either Defendant caseworkers' actions or City policies, practices, or customs caused the violation of foster children's constitutional rights 20

Plaintiffs allege that City policies and practices violate a right to protection from physical, emotional, and developmental harm while in state custody. (Compl. ¶ 43.) The Complaint indicates this right is protected under the substantive due process guarantees of the 14th Amendment. (Id.) Since two of the plaintiffs were injured by third parties while in foster care (Compl. ¶ 14, 15.), the Complaint implies this right to protection would hold the state liable for private violence.21

Current doctrine does not support such a broad articulation of the rights guaranteed by the 14th Amendment's due process clause. As the U.S. Supreme Court noted in DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189 (1989):

The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without ‘due process of law,' but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Id. at 195.

The Court went on to say that the due process clause was intended to protect people from the state, "not to ensure that the State protected them from each other." Id. at 196. Courts have traditionally rejected proposed expansions of the due process clause that would "impose federal duties that are analogous to those traditionally imposed by state tort law." Collins v. City of Harker Heights, 503 U.S. 115, 127 (1992) (citing cases). See also Andrea L. v. Children & Youth Serv. of Lawrence County, 987 F.Supp. 418, 423 (W.D.Pa. 1997) (holding foster child had no due process right to be protected against pregnancy). The right to protection from all harm while in state custody, as articulated by plaintiffs, would constitute an undue expansion of due process rights.

However, courts do recognize a narrow substantive due process right to a certain level of protection or reasonable safety while in state custody, most broadly articulated as the right to be free from "infliction of unnecessary harm." E.g. Meador v. Cabinet for Human Res., 902 F.2d 474, 476 (6th Cir.), cert. denied, 498 U.S. 867 (1990); Norfleet v. Ark. Dep't of Human Serv., 989 F.2d 289 (8th Cir. 1993); K.H. v. Morgan, 914 F.2d 846 (7th Cir. 1990). This right emerged from a line of U.S. Supreme Court cases beginning with Estelle v. Gamble, 429 U.S. 97 (1976) and Youngberg v. Romeo, 457 U.S. 307 (1982) and was first considered in the foster care context in DeShaney.

In Estelle, the U.S. Supreme Court held that the 8th Amendment's guarantee against cruel and unusual punishment covers prisoners' right to medical care and state officials could be held liable under § 1983 for "deliberate indifference to serious medical needs." Estelle, 429 U.S. at 105.

Soon after Estelle, one lower court cited it while evaluating a similar right in the foster care context. In Doe v. N.Y. City Dep't of Soc. Serv., 649 F.2d 134 (2d Cir. 1981), two foster care children were abused while in foster care. Plaintiffs brought a § 1983 action for violation of rights under the 1st, 4th, 5th, 9th, and 14th Amendments. Id. at 137. The court held that a state foster care agency could be held liable under § 1983 if officials were "deliberately indifferent to plaintiff's welfare," implying that foster children did have the right to cared for while in state custody. Id. at 145.

Youngberg involved the rights of involuntarily committed mentally disabled individuals. The lower court decided that the 8th Amendment's cruel and unusual punishment prohibition for prisoners was not appropriate, but that the 14th Amendment did offer protection. Youngberg, 457 U.S. at 312. The U.S. Supreme Court agreed and recognized that the liberty interest of the 14th Amendment's due process clause requires the state to provide "minimally adequate or reasonable training to ensure safety and freedom from undue restraint" for involuntarily committed mentally disabled individuals. Id. at 319. This requirement follows from the state's "unquestioned duty to provide reasonable safety" for those in state custody. Id. at 324. State officials' decisions within this context are "entitled to a presumption of correctness" and officials will not be held liable unless these decisions substantially depart from accepted professional judgment. Id. at 323-34.

The next foster care case relied on Youngberg, in addition to Estelle and Doe. In Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987), the 11th Circuit analogized the foster care system to the state institution at issue in Youngberg. Taylor, 818 F.2d at 797. The court decided that the same 14th Amendment liberty interest, "the right to be free from infliction of unnecessary harm…and the fundamental right to physical safety," applied to foster children. Id. at 794. Following Doe, the court used the deliberate indifference standard. Id. at 796-97.22


The only U.S. Supreme Court case considering the due process rights of children in foster care is DeShaney. In DeShaney, the state took custody of the plaintiff because of allegations of abuse by his father, but then returned the plaintiff to his father's custody, where he suffered further abuse. DeShaney, 489 U.S. at 192. The Court held that the state's actions or omissions did not violate the due process clause of the 14th Amendment. Id. at 191. The Court rejected the argument that the state had an on-going duty to protect the plaintiff after having once assumed his custody. Id. at 198. Distinguishing Estelle and Youngberg, the Court stated that although the state had taken temporary custody of the plaintiff, the state "does not become the permanent guarantor of an individual's safety by having once offered him shelter." DeShaney, 489 U.S. at 200-01. In a footnote, however, the Court noted that if the state had removed the plaintiff and placed him in foster care, his rights would equal those of the prisoners and institutionalized persons in Estelle and Youngberg. DeShaney, 489 U.S. at 201 n.9. The Court recognized that lower courts had applied Estelle and Youngberg to such cases. DeShaney, 489 U.S. at 201 n.9 (citing Doe and Taylor).

After DeShaney, a number of federal circuits utilized this language to clearly establish the right to be free from unnecessary harm for foster children involuntarily placed into state custody. Lintz v. Skipski, 25 F.3d 304 (6th Cir. 1994); Norfleet v. Ark. Dep't of Human Serv., 989 F.2d 289 (8th Cir. 1993); Yvonne L. v. N.M. Dep't of Human Serv. (10th Cir. 1992); K.H. v. Morgan, 914 F.2d 846 (7th Cir. 1990); Meador v. Cabinet for Human Res., 902 F.2d 474 (6th Cir. 1990). However, the circuits also developed some limitations to this right that are relevant to plaintiff's case.23

The right to be free from harm while in state custody does not include children voluntarily placed into foster care 24

DeShaney made clear that children currently outside state custody cannot claim protection of the due process clause against the state in a § 1983 action. DeShaney, 489 U.S. at 198. See also Charlie & Nadine H. v. Whitman, 83 F.Supp.2d, 476, 506-07 (D.N.J. 2000) (granting defendants' motion to dismiss as to non-custodial children); Marisol v. Guiliani, 929 F.Supp. 662, 674 (S.D.N.Y. 1996) (holding non-custodial children do not have same rights as those in custody). The DeShaney opinion also emphasized that the state duty of protection only extends to an individual the state holds "against his will." DeShaney, 489 U.S. at 200.

Subsequent cases have interpreted DeShaney to limit the state's liability under the 14th Amendment to children involuntarily placed into foster care. Milburn v. Anne Arundel County Dep't of Soc. Serv., 871 F.2d 474 (4th Cir. 1989) (holding DeShaney barred plaintiff's claim as he was voluntarily placed into foster care by his parents); Charlie & Nadine H., 83 F.Supp.2d at 506-07 (granting defendants' motion to dismiss as to voluntarily placed children). See also Taylor, 818 F.2d at 797 (stating that a child "involuntarily placed in a foster home" has rights analogous to those outlined in Estelle and Youngberg.) Cf. Camp v. Gregory, 67 F.3d 1286, 1296 (7th Cir. 1995) (refusing to decide that voluntary placement could preclude state liability); Nicini v. Morra, 212 F.3d 798, 809 (3rd Cir. 2000) (finding the fact that foster care child chose his temporary guardians irrelevant because he was officially in state custody at the time); Walton v. Alexander, 20 F.3d 1350, 1355 (5th Cir. 1994) (finding that child voluntarily placed into special education school would have same rights as those involuntarily placed into foster care because the school had 24 hour custody and provided the only viable option for handicapped children in the state).

Following the DeShaney pronouncements limiting liability to those involuntarily placed in state custody, the court should grant summary judgment as to Milton R. because his mother voluntarily placed him into state custody. Milton R. is not in state custody "against his will" as the U.S. Supreme Court would require.25 Precedent does not support an extension of due process rights to children in his situation.

Deliberate indifference is the proper standard to determine whether Defendants have violated plaintiffs' right to be free from infliction of unnecessary harm while in state custody 26

There is some confusion in the federal circuits about the proper standard to be applied in order to determine whether an agency's policy, practice, or custom has violated a foster child's right to be free from infliction of unnecessary harm.27 The vast majority of circuits apply the "deliberate indifference" standard outlined in Estelle and first used in the foster care context in Doe v. N.Y. City Dep't of Soc. Serv., 649 F.2d 134, 141 (2d Cir. 1981): Nicini v. Morra, 212 F.3d 798, 812 (3rd Cir. 2000); White v. Chambliss, 112 F.3d 731, 737 (4th Cir. 1997); Walton v. Alexander, 20 F.3d 1350, 1355 (5th Cir. 1994); Lintz v. Skipski, 25 F.3d 304, 306 (6th Cir. 1994); Norfleet v. Ark. Dep't of Human Serv., 989 F.2d 289, 293 (8th Cir. 1993); Taylor v. Ledbetter, 818 F.2d 791, 795 (11th Cir. 1987). Two circuits have instead employed the professional judgment standard subsequently articulated in Youngberg. The Seventh Circuit first adopted it in K.H. v. Morgan, 914 F.2d 846, 853 (7th Cir. 1990). See also Camp v. Gregory, 67 F.3d 1286, 1297 (7th Cir. 1995). Then the Tenth Circuit followed with Yvonne L. v. N.M. Dep't of Human Serv., 959 F.2d 883, 894 (10th Cir. 1992) (expressing doubt whether there is any difference between the two standards but deciding to follow the Seventh Circuit).

No clearly distinct definitions of the two standards have emerged from these lines of cases. The two standards, both in definition and implementation, are essentially the same. In the earliest foster care case, the Second Circuit explained the deliberate indifference standard by comparing gross negligence and deliberate indifference, gross negligence being a type of conduct, and deliberate indifference, a state of mind. Doe, 649 F.2d at 143. "[T]he two are closely associated, such that gross negligent conduct creates a strong presumption of deliberate indifference." Id.

An important element of the standard is the requirement of notice. Doe emphasized that "[deliberate] indifference cannot exist absent some knowledge triggering an affirmative duty to act…but actual knowledge of a specific harm is not the only type of knowledge that will suffice." Doe, 649 F.2d at 145. Along this line, other courts have explained deliberate indifference as "at minimum that defendants were plainly placed on notice of danger and chose to ignore the danger notwithstanding the notice," White, 112 F.3d at 737, and as "failing to take action that was obviously necessary to prevent or stop the abuse," Walton, 20 F.3d at 1355.

The professional judgment standard was first articulated in Youngberg. The U.S. Supreme Court stated that a violation of the professional judgment standard would be "such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Youngberg, 457 U.S. at 323. The court is not to determine which of several professionally acceptable choices should be made. Id. at 321. The standard has a notice requirement that is very similar to deliberate indifference:

Failure to exercise professional judgment does not mean mere negligence; while it does not require actual knowledge the children will be harmed, it implies abdication of the duty to act professionally. In other words, only if without justification based either on financial constraints or on considerations of professional judgment state welfare workers and their supervisors place the child in hands they know to be dangerous or otherwise unfit do they expose themselves to liability in damages. Thus, if defendants knew of the asserted danger to plaintiffs or failed to exercise professional judgment with respect thereto, and if an affirmative link to the injuries plaintiffs suffered can be shown, then defendants violated plaintiffs' constitutional rights.

Bailey v. Pacheco, 108 F.Supp.2d 1214, 1220 (D.N.M. 2000) (citing Yvonne L. v. N.M. Dep't of Human Serv., 959 F.2d 883, 893-94 (10th Cir. 1992) (internal citations omitted). See also Wendy H. v. City of Phila., 849 F.Supp. 367, 374 (E.D.Pa. 1994).

If the professional judgment standard is distinctly different from that of deliberate indifference, it may represent an erosion of the basic liability requirement of a § 1983 action. A recent district court case engaged in an extensive discussion of the two standards and the apparent circuit split, ultimately deciding to apply the professional judgment standard. T.M. v. Carson, 93 F.Supp.2d 1179, 1188 (D.Wyo. 2000). The court noted, however, that insofar as professional judgment has been equated with negligence, the standard conflicts with the § 1983 requirement of "some culpability above gross negligence." Id. (citing Daniels v. Williams, 474 U.S. 327 (1986)). See also Brendan P. Kearse, Abused Again: Competing Constitutional Standards for the State's Duty to Protect Foster Children, 29 Colum. J.L. & Soc. Probs. 385, 404. The court resolved this problem by defining the professional judgment standard as "somewhere between simple negligence and intentional misconduct." T.M., 93 F.Supp. at 1189. But the court admitted that if "‘deliberate indifference' is equated with recklessness or gross negligence and failing the ‘professional judgment' standard demands more misconduct than simple negligence, then at first blush it seems we dance on the head of a pin." Id. at 1191 (internal citations omitted).

The distinction, the T.M. court said, was that in the professional judgment standard, designated professional standards form the baseline for the measurement, while an analysis for negligence, gross negligence, and recklessness (and impliedly, deliberate indifference) considers the conduct of the "reasonable man." Id. However, this purported distinction does not hold true in practice. Even in cases applying the deliberate indifference standard, courts consider agency policies and caseworker actions in the professional context. For example, in Nicini v. Morra, 212 F.3d 798 (3rd Cir. 2000), plaintiffs alleged a caseworker should have performed additional background checks on a temporary foster parent to those required by agency policy. Id. at 812. The court considered evidence presented by an expert witness and the practical feasibility of performing the various background checks. Id. at 813. No case employing the deliberate indifference standard discusses, let alone turns on, a difference between the actions of a "reasonable man" versus the "professional standards."

Youngberg involved the question of whether an institutionalized mentally disabled person has the right to habilitation—the "training and development of needed skills." Youngberg, 457 U.S. at 317. The professional judgment standard is irrelevant to the foster care contexts since it has its roots in the standard for medical malpractice claims. Id. at 314. The court decided the plaintiff did have the right to "minimally adequate or reasonable training to ensure safety and freedom from undue restraint." Id. at 319. The Court applied the professional judgment standard as an appropriate way to balance the right against the State's reasons for restraining him in the first place, as well as the financial costs of new services. Id. at 320-21.

However, the Court never distinguished the professional judgment standard and the deliberate indifference standard. The Court did decide the 8th Amendment was not the proper avenue to protect the plaintiff's rights (Id. at 325.), and stated that people in the plaintiff's situation were entitled to "more considerate treatment" than the criminals in Estelle (Id. at 321-22.). But the decision did not reject deliberate indifference. Instead, the Court contrasted the professional judgment standard with the "compelling necessity" standard a State must meet in order to justify the use of restraints, stating that the latter standard would "place an undue burden on the administration of institutions [like Defendants] and also would restrict unnecessarily the exercise of professional judgment as to the needs of residents." Id. at 322.

The foster care cases choosing the professional judgment standard analogize foster children to the mental patients in Youngberg, stating they both should be treated with more consideration than criminals. K.H. v. Morgan, 914 F.2d 846 (7th Cir. 1990); Camp v. Gregory, 67 F.3d 1286, 1297 (7th Cir. 1995); Yvonne L. v. N.M. Dep't of Human Serv., 959 F.2d 883, 894 (10th Cir. 1992). Foster children are concededly more analogous to mental patients than convicts. However, this reasoning is not what drove the Court in Youngberg to apply what, in name at least, is a different standard than deliberate indifference. The question of the right of the mentally ill to habilitation, with its roots in medical malpractice, is simply irrelevant to the question of the more general right to reasonable safety enjoyed by all those in state custody, regardless of the institution.

The application of the deliberate indifference standard to the foster care context, Doe, 649 F.2d 134, pre-dates the development of the professional judgment standard in Youngberg. A majority of circuits have adhered to precedent and continued to require a showing of deliberate indifference for state liability under § 1983 in foster care cases. The professional judgment standard, if at all different from deliberate indifference, threatens to erode the important § 1983 requirement of culpability above gross negligence, and has its roots in medical malpractice, not state custody. For these reasons, the court should apply the long-accepted deliberate indifference standard to this case.

Regardless of the standard applied, plaintiffs have failed to demonstrate that a city policy, practice or custom caused a violation of their right to be free from infliction of unnecessary harm while in state custody. The actions of City employees do not amount to deliberate indifference to plaintiffs' rights, and are supported by the professional standards of foster care.

The deliberate indifference or professional judgment standards do not require a municipality to anticipate unforeseeable third party violence, therefore, neither the actions of individual Defendant caseworkers nor City policies have violated plaintiffs' constitutional rights 28

Plaintiffs' Complaint attempts to hold the City liable for unforeseeable private violence. Shorona J. was injured by the minor daughter of her foster parent. Milton R. was injured by the nephew of his foster parent. The mother of Janna S. fears future violence against her daughter while in foster care. The City is very serious about eliminating the potential for abuse of foster children in state custody. The City's current policies and practices are developed precisely to best prevent such problems and quickly deal with emerging issues. City policies allow caseworkers to, first, thoroughly investigate foster parents and place foster children with the most responsible people, and second, have the most flexibility to allow for response to emergencies when allegations of abuse are reported. § 1983 is not an avenue for citizens to receive redress from the state for injuries caused by third parties. Such an outcome would bankrupt the state and force the City to cease offering foster care services altogether.

Furthermore, the developing body of case law about municipal liability to children in the foster care system does not support Plaintiffs' claims. Neither the deliberate indifference nor professional judgment standard requires a municipality to anticipate third party violence. First, a number of cases clearly establish that there is no right to an optimal level of care or treatment while in foster care. Charlie & Nadine H. v. Whitman, 83 F.Supp.2d, 476, 507 (D.N.J. 2000) (granting defendants' motion to dismiss as to claims based on right to least restrictive, most family-like environment); Marisol v. Guiliani, 929 F.Supp. 662, 675 (S.D.N.Y. 1996) (holding foster children do not have the right to optimal level of treatment); B.H. v. Johnson, 715 F.Supp. 1387, 1398 (N.D.Ill. 1989) (holding foster children do not have the right to optimal level of care or least restrictive setting). These holdings indicate that foster care agencies are not to be held responsible for unforeseeable incidents that may make a foster child's experience less than ideal. See also T.M. v. Carson, 93 F.Supp.2d 1179, 1194 (D.Wyo. 2000) (stating that liability does not attach for every mishap).

Second, some cases have specifically denied relief to foster children attempting to make the state liable for third party violence. For example, in Lewis v. Neal, 905 F.Supp. 228, 233 (E.D.Pa. 1995), a foster child was killed by the nephew of her foster parent. The plaintiff based one of her claims on a theory of § 1983 liability based on municipal policy and practice, much like this case. Id. The court dismissed this claim, holding that if private actors committed the underlying acts, the municipality could not be held liable. Id.

Finally, both the deliberate indifference and professional judgment standards require some notice of the risk of violence before an agency may be liable for injuries subsequently suffered by a foster child. Actual knowledge of the specific harm is not required. Doe v. N.Y. City Dep't of Soc. Serv., 649 F.2d 134, 145 (2d Cir. 1981) (applying deliberate indifference standard and stating that actual knowledge is not required); Wendy H. v. City of Phila., 849 F.Supp. 367, 374 (E.D.Pa. 1994) (applying professional judgment standard and stating that actual knowledge is not required). But liability cannot follow unless the agency has some notice of the risk such that the injuries are foreseeable. White, 112 F.3d at 737 (applying deliberate indifference standard and stating defendants must be "plainly placed on notice of danger"); Walton, 20 F.3d at 1355 (applying deliberate indifference standard and stating defendants must have "fail[ed] to take action that was obviously necessary to prevent or stop the abuse").

In Camp v. Gregory, 67 F.3d 1286 (7th Cir. 1995), the Seventh Circuit detailed certain parameters to the professional judgment standard when outside violence is involved, incorporating this same requirement of notice or foreseeability: 1) the caseworker must have failed to exercise bona fide professional judgment, 2) the foster parent's actions or omissions must have fallen short of a reasonable degree of supervision, 3) the injury suffered must have been reasonably foreseeable, 4) there must have been a sufficient causal link between the injury and failure to provide supervision. Id. at 1297. See also Taahira W. v. Travis, 908 F.Supp. 533, 540 (N.D.Ill. 1995) (applying same parameters to the professional judgment standard). This case law establishes that the City should not be liable for unforeseeable third party violence.

Defendant caseworkers are entitled to qualified immunity because their conduct did not constitute deliberate indifference or a substantial departure from professional judgment so as to violate a clearly established legal right 29

State and local officials with administrative and executive functions are entitled to qualified immunity unless their conduct violates a clearly established legal right. Anderson v. Creighton, 483 U.S. 635 (1987). The unlawfulness of the action must be apparent based on pre-existing law, as a reasonable person would understand it. Id. at 640. Individual liability of public officials is limited because, as the U.S. Supreme Court noted, "permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties." Id. at 638 (citing Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982)).

As noted above, foster children's right to be free from infliction of unnecessary harm while in state custody is now clearly established. The actions of each caseworker, then, form the basis of the determination of whether that caseworker is immune from suit. Unless a caseworker's actions constitute deliberate indifference or a substantial departure from professional judgment so that a child's right is violated, he or she is entitled to immunity from suit in his or her individual capacity. See White v. Chambliss, 112 F.3d 731, 734 (4th Cir. 1997) (holding caseworkers entitled to qualified immunity because they had not displayed deliberate indifference); Lintz v. Skipski, 25 F.3d 304, 306 (6th Cir. 1994) (holding social worker entitled to qualified immunity because there was no evidence of deliberate indifference); Bailey v. Pacheco 108 F.Supp.2d 1214, 1225 (D.N.M. 2000) (holding caseworkers entitled to qualified immunity because they had not acted in substantial departure from professional judgment).

Defendant caseworkers did not display deliberate indifference or substantially depart from professional judgment in their investigations of allegations of abuse of plaintiffs

Given that neither standard would require a foster care agency to anticipate unforeseeable third party violence, caseworkers cannot be liable for failing to prevent plaintiffs' injuries. The facts in this case are distinguishable from those cases in which courts have held agencies liable for abuse foster children suffered in foster care. In such cases, agency workers ignored clear and substantial indications that abuse had occurred or was ongoing and, therefore, injuries were foreseeable. Meador v. Cabinet for Human Res., 902 F.2d 474, 475-76 (6th Cir. 1990) (applying deliberate indifference standard and holding complaint sufficiently claimed a § 1983 violation by including allegations that caseworkers had previously removed another child from foster parent's home due to sexual abuse by foster father); Taahira W. v. Travis, 908 F.Supp. 533, 535 (N.D.Ill. 1995) (applying professional judgment standard and holding agency liable after placing young girl in foster home where other foster child had sexually assaulted another girl, agency had noted the foster parent was unable to supervise, and court order said no small girls should be placed there); Wendy H. v. City of Phila., 849 F.Supp. 367, 374-76 (E.D.Pa. 1994) (applying professional judgment standard and holding agency liable when caseworker had failed to read report that previous foster children had been abused in that home before and failed to follow up after abuse was reported).

In another case, a foster child died in a gang-related incident. Camp, 67 F.3d at 1289. The court held the plaintiff did have a viable due process claim, and remanded for the lower court to develop the facts specifically about whether the violence was foreseeable and whether the agency had notice that the child's caretaker could not adequately supervise him, as some of the facts indicated this might be true. Id. at 1297-98. In contrast to these cases, plaintiffs have not established that the City had notice of the potential for abuse in their foster homes, such that the injuries that later occurred were foreseeable.

Instead, this case is similar to those in which the courts have dismissed claims for lack of evidence that the municipality had notice of the potential for abuse. In White v. Chambliss, 112 F.3d 731, 735 (4th Cir. 1997), an eleven-month-old girl died from blows to the head while in foster care. Before her death, her mother reported that she noticed the girl had scratches and bruises when she visited her. Id. The agency investigated and concluded any injuries were the result of child's play. Id. The court held that this did not rise to the level of sufficient evidence that the foster care agency had notice of any problems. Id. at 737. The case of Shorona J. is similar to White. Plaintiff claims Shorona's mother reported allegations of abuse to the agency four times and nothing was done. Agency records indicate one investigation took place and the agency decided to continue Shorona's placement with Ms. Pons. Like the facts in White, the facts here do not rise to the level of sufficient notice to make the injuries that later occurred foreseeable. Caseworkers cannot be held liable for private violence for which they had no notice. Therefore, Defendant caseworkers are entitled to qualified immunity as to their individual liability since their conduct did not constitute deliberate indifference or substantial departure from professional judgment.

The City's policy of limiting training, investigations, and background checks to prospective foster parents does not rise to the level of deliberate indifference or failure to exercise professional judgment

Given that neither standard would require a foster care agency to anticipate unforeseeable third party violence, the City's current policies provide sufficient protection of foster children's substantive due process rights. Plaintiffs' Complaint implies that one way for the city to fully protect foster children from all possible harm would be to train, investigate, and perform background checks on any person the child may come into contact with. This would not only be impossible, but would still not ensure foster children's complete safety. While the due process clause gives a state the duty to provide reasonable safety for people in state custody, that duty does not include preventing all possible injury. More specifically, the deliberate indifference or professional judgment standards do not require that foster care agencies perform a specific kind of background check or exhaustive investigation in order to prevent harm to foster children.

In Nicini v. Morra, 212 F.3d 798, 804 (3rd Cir. 2000), a child in state custody chose to stay with a temporary guardian who later provided him with drugs and sexually assaulted him. The child brought suit and alleged the foster care agency should have more fully investigated the temporary guardian. Id. The caseworker followed the agency policy of performing a limited background check. Id. at 815. The Plaintiff argued the caseworker should have gone above and beyond the policy and collected urine samples to check for drug abuse or performed more extensive national criminal background checks on the foster parents. Id. at 812. The court refused to accept this argument and found the caseworker's actions did not display deliberate indifference. Id. at 815. The court noted that the Plaintiff "also fail[ed] to establish that [the caseworker] was more than negligent, if it even establishes that," implying that the caseworker's actions would also have satisfied the professional judgment standard, if it is indeed different from deliberate indifference. Id.

A similar case evaluated under the professional judgment standard had the same result. In Bailey v. Pacheco, 108 F.Supp.2d 1214 (D.N.M. 2000), a caseworker performed a criminal background check on prospective foster parents, who later abused the plaintiff foster children. When the checks revealed minor convictions, she questioned them about the incidents. Id. at 1225. The foster father lied about his arrest, which was for domestic violence. Id. Plaintiffs argued the caseworker could have discovered the truth if she had requested police reports from the incident. Id. The court found the caseworker's actions did not constitute a substantial departure from professional judgment, as she had performed the required checks, discussed the incidents with the family, and determined, based on the information she had, that the prior convictions did not involve felonies, crimes against children, or a history of violence. Id.

In this case, Plaintiffs' Complaint contains similar claims to those that failed in Nicini and Bailey: they appear to allege that if the City had performed additional investigations and background checks on relatives, neighbors, and other people coming into contact with the plaintiffs, DCS may have had notice of the potential for abuse and been able to prevent it. Case law indicates that the 14th Amendment does not require a specific kind of investigation into the background of foster parents, therefore, it surely cannot require investigations of all those who may surround a foster child. The current policies sufficiently protect the rights of foster children.

City policies have not violated plaintiffs' constitutional rights because the deliberate indifference or professional judgment standards do not impose a mandatory response time to reports of allegations of abuse

As noted above, half of the foster care agencies in the State of Y have the same process for dealing with allegations of abuse of foster children as the City of X. The current policy does not impose a mandatory response time, which allows for flexibility to respond to emergencies. Caseworkers are trained in how to exercise their discretion to best manage problems as they arise. This policy does not rise to the level of deliberate indifference to plaintiffs' rights and does not violate the professional standards of foster care provision.

The deliberate indifference standard simply requires the City to provide "reasonable conditions of safety." Walton v. Alexander, 20 F.3d 1350, 1355 (5th Cir. 1994). If an agency should have taken other actions to protect a child, those actions must have been "obviously necessary." Id. In Walton, a fellow student sexually assaulted the plaintiff at a boarding school for the deaf. Id. at 1353. The caseworker investigated the incident, provided medical treatment, both students were suspended and kept physically separated when they returned. Id. Unfortunately, the plaintiff was assaulted again. Id. The complaint alleged the caseworker should have taken other actions to prevent the second assault. Id. The court held that the caseworker took all the actions to provide "reasonable conditions of safety" as required by substantive due process and therefore did not display deliberate indifference. Id. at 1356.

According to Walton, the deliberate indifference standard would not mandate specific responses to the risk of injury for children in state custody, but would instead allow for the exercise of discretion in order to accommodate the specific circumstances of each situation. See also Lintz v. Skipski, 25 F.3d 304 (6th Cir. 1994) (finding no deliberate indifference where caseworker was notified that foster children were sexually assaulted by the foster father, took steps to find a new placement for the siblings, kept the children in the foster home for another month with specific safeguards). The professional judgment standard might dictate the same outcome if a caseworker's actions were consistent with the policies of other foster care agencies. See Wendy H. v. City of Phila., 849 F.Supp. 367 (E.D.Pa. 1994) (finding violation of the professional judgment standard when caseworker had failed to read report that previous foster children had been abused in that home before and failed to follow up after abuse was reported).

Both standards also allow an agency to consider its financial resources in deciding which actions are most appropriate for seeking safety for children in foster care. In Walton, the court discussed the fact that the school had only one boy's dorm in deciding whether a caseworker took sufficient action to protect a student who had been sexually assaulted by a fellow student. Walton, 20 F.3d at 1356. The court decided that the caseworker had "separated Walton from his assailant as best she could under the circumstances created by the School's budgetary constraints," and therefore, she had not displayed deliberate indifference to his rights. Id.

Similarly, in K.H. v. Morgan, 914 F.2d 846, 853 (7th Cir. 1990), the court applied the professional judgment standard and rejected a claim that the general practice of "shuttling" children between foster homes violated their due process rights, given that there was no clearly established right to a stable foster home. "The underlying problem is not lack of professional competence but lack of resources, a problem of political will unlikely to be soluble by judicial means," Judge Posner wrote. Id. He went on to show the U.S. Supreme Court's support for using financial resources as a factor in analyzing municipal liability: "Youngberg implies that if, because of resource constraints, the defendants cannot find a safe placement for a child, they cannot be held liable in damages for a risky placement; they have no choice." Id. at 854 (citing Youngberg, 457 U.S. at 323). Cf. B.H. v. Johnson, 715 F.Supp. 1387, 1398 (N.D.Ill. 1989) (rejecting argument based on allocation of resources and stating that was not part of the constitutional decision-making process).

Defendants have not displayed deliberate indifference or failed to exercise professional judgment in allowing for discretion in agency responses to reports of allegations of abuse

Given that both standards support a discretionary policy for response to allegations of abuse, plaintiffs have failed to demonstrate that the City has violated plaintiffs' substantive due process right to be free from infliction of unnecessary harm by maintaining such a policy. Under the deliberate indifference standard, as seen in Walton, case law would require that another policy would be "obviously necessary" as well as feasible within the agency's budgetary constraints before the City might be liable for not changing the policy. Here, plaintiffs have presented no evidence that a mandatory response period is so clearly necessary to provide "reasonable conditions of safety" to all foster children. Walton, 20 F.3d at 1356. In fact, it may be that a discretionary policy is better suited to protecting foster children's substantive due process rights, given the emphasis of the case law on responding appropriately to each situation's particular circumstances.

Similarly, under the professional judgment standard, the discretionary policy is clearly within the professional standards of foster care provision, given that half of the agencies in the State of Y follow a similar policy as the City of X. Plaintiffs have presented no evidence that the City's policy is "such a substantial departure from accepted professional judgment, practice, or standards." Youngberg, 457 U.S. at 323.

Finally, both standards allow the City to consider its financial resources in developing policies most appropriate to protect the safety of children in state custody. As Judge Posner pointed out in K.H. v. Morgan, a municipality cannot be held liable for not taking actions its budgetary constraints will not allow. The City of X has developed the policy that can best protect its foster children within the resources it has been given. Lack of resources does not itself violate professional standards or demonstrate deliberate indifference and is a problem more appropriately resolved in the legislature. Plaintiffs have failed to establish that the City discretionary policy for responding to allegations of abuse violates either the deliberate indifference or professional judgment standard.

CONCLUSION
The incidents that led to this case are undeniably tragic. The City is deeply concerned about eliminating the potential for abuse of foster children. However, Plaintiffs' Complaint attempts to hold the City liable for unforeseeable private violence, in contradiction to the purpose of the due process clause of the 14th Amendment. Plaintiffs have not established that City policies constitute deliberate indifference to their right to be free from infliction of unnecessary harm, or that City policies violate the professional standards of foster care provision. Therefore, Plaintiffs have failed to provide evidence for a necessary element of their § 1983 claim, so summary judgment must be granted to all Defendants in this case. Summary judgment must also be granted as to the individual liability of Defendant caseworkers. Their actions did not constitute deliberate indifference or substantial departures from professional judgment, therefore, they did not violate a clearly established legal right and are entitled to qualified immunity.


1 Note that the first three sentences of defendants' introductory statement describe the plaintffs' claim.

2 Defendants do not state the relief sought—summary judgment—until the sixth and final sentence of their introductory statement.

3 Note that the question identifies the conduct that plaintiffs allege as the basis for a substantive due process violation. It is not framed in a way that highlights the defenses or legal arguments advanced by the defendants.

4 The revised version omits this fact, which is not specifically relevant to plaintiffs' claim involving failure to investigate members of a foster parent's household, but nonetheless suggests the risk of harm generally to foster children, and the accompanying responsibility of the defendants to avert it.

5 Revised version omits this fact pertaining to the scope of DCS investigations of prospective foster parents. At issue in this case is whether an investigation should extend to other family and household members who would have access to foster children.

6 Revised version omits this fact pertaining to challenged scope of investigation.

7 Revised version omits these facts indicating some level of concern about limiting the number of children for whom this foster parent would be responsible.

8 Revised version omits this detail that highlights existence of risks to children in foster care and suggests lack of responsiveness by DCS.

9 Revised version omits these details of the investigation.

10 Revised version omits these facts that suggest how DCS practices exposed Shorona to risk of harm.

11 Revised version places this sentence at the end of the paragraph.

12 Revised version omits these details of Milton's injuries.

13 Revised version states this fact more generally, without explicit mention of Jake's arrests.

14 Revised version omits this detail emphasizing previous instances of incompatibility with Jake specifically.

15 Revised version substitutes "must" for "should."

16 Note that writer refers to a second standard of liability—professional judgment—without previously alerting the reader to the existence of a second standard.

17 Writer has not stated factual basis for this conclusion, which would require pointing to absence of link between defendants' conduct and the standards for liability.

18 Argument begins with general statement of law rather than specific conclusion disposing of case in defendants' favor.

19 States relief sought and basis for it at end of introductory section of argument rather than at the beginning.

20 Subpoint heading states rule governing liability but does not frame heading as a conclusion in defendants' favor.

21 Opening paragraph of this subpoint describes theory of plaintiffs' action. It does not frame law favorably to the defendants.

22 Writer discusses at length cases addressing rights of those in state custody prior to DeShaney. Note how revised version tightens and sharpens this discussion.

23 Revised version refers specifically to limitations created by DeShaney on right of children to be free of harm while in state custody and cites case explaining limitation of right to those children involuntarily placed in state custody.

24 Subpoint heading states rule governing this section on voluntary placements but does not apply it to facts of this case. Nor is it framed as a conclusion in favor of the outcome defendants seek.

25 This statement of a conclusion supporting defendants' position would work more appropriately at the beginning of this subpoint.

26 Note length of this subpoint—11 paragraphs—in contrast with revised version—six paragraphs. Note also the degree to which a logical relationship does/does not exist among the topic/thesis sentences of each of the 11 paragraphs. Consider the extent to which a reader would be able to follow the gist of the argument by reading each of the thesis sentences in turn.

27 Opening lacks a strong conclusory statement concerning the appropriate standard of liability to apply.

28 Note differences in content and organization of point headings between the balance of this section on standards of liability and point III in revised brief.

29 Revised version places this point after arguments concerning defendants' liability under either "deliberate indifference" or "professional judgment" standard and adds subpoint about lack of notice that municipalities could be held liable for third-party conduct.