Drafting Briefs to a Court

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INTRODUCTION
Defendants City of X, Howard Stens, Department of Children’s Services (DCS), Jeffrey Hights, Alice Hand, Samuel Addidge, Milly Tills, and Irene Constan request the court to enter summary judgment in their favor on all counts of Plaintiffs’ Complaint.1 Defendants are entitled to summary judgment because Plaintiffs have failed to provide evidence for a necessary element of their § 1983 claim, namely, that Defendants’ policies or actions caused a violation of their constitutional rights.2 Current foster care policies sufficiently protect foster children’s substantive due process rights, do not constitute deliberate indifference to their welfare, and are consistent with professional standards.3 This case is an attempt to hold the City liable for harms caused by third parties, in contradiction to the purpose of the due process clause of the 14th Amendment. Municipal liability is not an alternative to suing the perpetrators of private violence in tort.4

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QUESTION PRESENTED
Whether Defendants are entitled to summary judgment because Plaintiffs have failed to establish the necessary element of a § 1983 claim since neither the actions of City employees nor City policy caused a violation of foster children’s substantive due process rights.5

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STATEMENT OF THE CASE
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.6

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.7 This system allows for the flexibility necessary to work within the city’s resources to respond to emergencies.

Caseworkers fully investigate prospective foster parents. 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.8 Prospective foster parents receive a one-time training and are re-certified each year. Re-certification requires a review of all caseworkers’ files and an in-home interview.9

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 and cared for a total of ten children.10 Plaintiffs’ Complaint alleges that Shorona’s mother, Cecilia Jones, reported she thought11 Shorona had been abused12 in foster care 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. On the basis of this investigation, the agency determined there was no problem with the placement.13 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. Based on this new evidence14 about problems with this placement, 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.15

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. 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. 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.16 Mr. Sojo has been re-trained and agreed that Kevin will not have contact with his current foster child. Milton has been reunited with his mother as she has obtained an order of protection against her abusive husband, begun divorce proceedings, is employed, and lives in her own apartment.

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 of rumors she has heard about their nineteen-year-old son, Jake.17 Susan asked the agency to investigate Jake. 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 incompatible18 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.

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SUMMARY OF ARGUMENT
Summary judgment must19 be granted to all Defendants because 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. Municipalities cannot be held liable for the actions of third parties. To allow the expansion of due process rights to include liability for private violence would be to expose municipalities to unending litigation.20

As a preliminary matter, summary judgment must be granted as to Defendants’ liability for injuries incurred by Plaintiff Milton R. because state liability does not extend to children voluntarily placed into foster care. As to remaining Plaintiffs, deliberate indifference is the proper standard to determine violation of the constitutional rights of individuals in state custody. However, Defendants are entitled to summary judgment even if the court adopts the professional judgment standard because municipal liability does not cover the actions of third parties. Neither standard imposes specific policies or procedures to prevent private violence and both allow city agencies to provide reasonable conditions of safety for foster children through the exercise of experts’ discretion, taking into consideration available resources.21

Furthermore, both standards require that City agents have significant notice of potential risk before finding liability for subsequent harm. Defendants’ policies sufficiently provide for Plaintiffs’ welfare, and the City did not have notice of the potential for risk. Summary judgment must be granted because Defendants’ actions do not rise to the level of deliberate indifference to Plaintiffs’ rights or a substantial departure from standards of professional judgment.22

Finally, regardless of this court’s decision on municipal liability, summary judgment must be granted as to Defendants’ individual liability. Defendants are entitled to qualified immunity since individual officials’ and caseworkers’ actions did not violate a clearly established constitutional right. Even if this court finds that the City’s policies violate Plaintiffs’ constitutional rights, individual officials and caseworkers are still entitled to immunity, as they had no notice of this new expansion of due process rights.23

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ARGUMENT

I. SUMMARY JUDGMENT MUST BE GRANTED AS TO LIABILITY OF ALL DEFENDANTS BECAUSE PLAINTIFFS HAVE FAILED TO PROVIDE EVIDENCE THAT DEFENDANTS’ ACTIONS OR CITY POLICIES, PRACTICES, OR CUSTOMS CAUSED THE VIOLATION OF A CONSTITUTIONAL RIGHT 24

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).25 Judgment for the movant is proper when, as here, the nonmoving party has “fail[ed] 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). For a claim under 42 U.S.C. § 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 this case, Plaintiffs have failed to demonstrate violation of a constitutional right, either by individual or municipal Defendants. Municipalities are not liable under § 1983 for actions committed solely by employees through the theory of respondeat superior. Monell v. Dep’t of Soc. Serv. of New York City, 436 U.S. 658, 694. A municipality cannot be liable under § 1983 unless the unconstitutional action is a municipal policy, practice, or custom, which must also be shown to have actually caused the injury at issue. City of Canton v. Harris, 489 U.S. 378, 391 (1989). This suit attempts to impose municipal liability for harm caused by third parties. Summary judgment must be granted because Plaintiffs have not shown that a City policy or actions of City agents violated their rights by causing their injuries, thereby failing to establish essential elements of their § 1983 claim.26

A. Defendants cannot be held liable for the actions of third parties under the 14th Amendment’s due process clause 27

The due process clause is a limitation on state power, not a guarantee of a specific level of safety. DeShaney v. Winnebago County Dep’t of Soc. Serv., 489 U.S. 189, 195 (1989). The U.S. Supreme Court’s sole ruling on foster children’s substantive due process rights clearly stated that the due process clause does not impose “an affirmative obligation on the State to ensure that [the interests of life, liberty, or property] do not come to harm through other means.” Id. 28 Current doctrine does not support Plaintiffs’ broad articulation of the rights guaranteed by the 14th Amendment’s due process clause. Plaintiffs invoke a right to protection from all physical, emotional, and developmental harm while in state custody. (Compl. ¶ 43.) 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. While federal circuits have recognized a limited right for foster children to be free from infliction of unnecessary harm while in state custody (E.g. Meador v. Cabinet for Human Res., 902 F.2d 474, 476 (6th Cir.), cert. denied, 498 U.S. 867 (1990)), this right does not extend so far as to hold municipalities liable for third party harm.29

The Supreme Court specifically rejected state liability for harms caused by third parties in DeShaney, explaining 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 196.30 Plaintiffs’ harm is best redressed in tort claims against the individuals who caused their injuries. 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). Finding the right to protection from all harm while in state custody would be an undue expansion of due process rights.

Broadening the due process right to hold the city liable for private violence would require the city to constantly spend scarce resources defending against unwarranted litigation. Courts should not be involved in micro-managing city agencies, but instead should defer to the expertise of city officials and allow them the flexibility to use their discretion to best serve foster children. Chief Justice Rehnquist’s statements in regards to the prison context are equally applicable to foster care: “[F]ederal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment.” Sandin v. Conner, 515 U.S. 472, 482 (1995).31

Federal circuit courts have recognized only a limited right to be free from infliction of unnecessary harm while in state foster care custody. 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); Meador, 902 F.2d 474.32 This right emerged from a line of U.S. Supreme Court cases recognizing a similar right in other institutional contexts (Estelle v. Gamble, 429 U.S. 97, 105 (1976) and Youngberg v. Romeo, 457 U.S. 307 (1982)), but the Supreme Court has never explicitly applied this right to foster children. In fact, the only Supreme Court ruling on the rights of foster children severely limits the extent of the state’s responsibility, especially in regard to private violence. DeShaney, 489 U.S. at 195.

In Estelle the 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. One lower court cited Estelle 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 by a foster parent. Plaintiffs brought a § 1983 action for violation of constitutional rights. Id. at 137. The court held that a state foster care agency could only be held liable under § 1983 for foster children’s injuries if officials were “deliberately indifferent to plaintiff’s welfare.” Id. at 145.

Youngberg involved the rights of involuntarily committed mentally disabled individuals. The U.S. Supreme Court 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. Youngberg, 457 U.S. at 319. In meeting this duty, however, state officials’ decisions 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. 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, but that liability was predicated on a showing of deliberate indifference. Id. at 794, 796-97.33

The U.S. Supreme Court subsequently issued strong statements limiting state liability in the foster care context. In DeShaney, the state took custody of the plaintiff because of allegations of abuse by his father, but then returned him to his father’s custody, where he suffered further abuse. DeShaney, 489 U.S. at 192. The Court held the state’s actions did not violate the due process clause of the 14th Amendment, rejecting the argument that the state had an on-going duty to protect the plaintiff after having once assumed his custody. Id. at 191, 198. Distinguishing Estelle and Youngberg, the Court stated that 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. This ruling clearly establishes that states cannot be held liable for harm to foster children caused by third parties. Id. at 196.

In a footnote, the DeShaney Court noted that if the plaintiff had remained in state custody, his rights might 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 have relied on this footnote to claim violation of a right to be free from unnecessary harm for foster children in state custody. Lintz v. Skipski, 25 F.3d 304 (6th Cir. 1994); Norfleet, 989 F.2d 289; Yvonne L. v. N.M. Dep’t of Human Serv. (10th Cir. 1992); K.H. v. Morgan, 914 F.2d 846; Meador, 902 F.2d 474. However, DeShaney imposes important limitations to this right, including withholding liability for third party harm. The right is also limited to children involuntarily placed into state custody. See Taylor, 818 F.2d at 797 (stating a child “involuntarily placed in a foster home” has rights as in Estelle and Youngberg.)34

B. Summary judgment must be granted as to Milton R. because state liability does not extend to children voluntarily placed into foster care 35

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 required in DeShaney. Deshaney, 489 U.S. at 200. Since there is no precedent in this jurisdiction to support an extension of due process rights to children in Milton R.’s situation, this court must follow the Supreme Court’s limitations to state liability for foster children voluntarily placed into foster care, as interpreted by several federal circuits.36

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 claim by child voluntarily placed into foster care); Charlie & Nadine H., 83 F.Supp.2d at 506-07 (granting defendants’ motion to dismiss as to voluntarily placed children). Despite DeShaney‘s strong language to the contrary, some courts have extended some protection to voluntarily placed children. Walton v. Alexander, 20 F.3d 1350, 1355 (5th Cir. 1994); Camp v. Gregory, 67 F.3d 1286, 1296 (7th Cir. 1995); Nicini v. Morra, 212 F.3d 798, 809 (3d Cir. 2000). Because there is no such extension in this jurisdiction, this court must follow the U.S. Supreme Court and the circuits that have correctly interpreted DeShaney to limit state liability as to foster children voluntarily placed into state custody and grant summary judgment as to Plaintiff Milton R.37

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II. DELIBERATE INDIFFERENCE IS THE PROPER STANDARD TO DETERMINE VIOLATION OF THE RIGHTS OF FOSTER CHILDREN IN STATE CUSTODY AND THE PROFESSIONAL JUDGMENT STANDARD IS INAPPROPRIATE FOR THE FOSTER CARE CONTEXT 38

As to remaining Plaintiffs, this court should follow the vast majority of circuits and apply the “deliberate indifference” standard in evaluating the rights of foster children in state custody: Nicini v. Morra, 212 F.3d 798, 812 (3d 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).39 Two circuits have instead employed the professional judgment standard articulated in Youngberg: K.H. v. Morgan, 914 F.2d 846, 853 (7th Cir. 1990); 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). The use of the deliberate indifference standard in the foster care context pre-dates the creation of the professional judgment standard, as well as its application to foster care. Doe v. N.Y. City Dep’t of Soc. Serv., 649 F.2d 134, 141 (2d Cir. 1981). Furthermore, the professional judgment standard is inapposite for foster care as it emerged in the context of habilitation of mentally disabled people and is rooted in medical malpractice cases. See Youngberg, 457 U.S. at 314. Finally, the professional judgment standard threatens to erode the basic liability requirements of claims under § 1983. T.M. v. Carson, 93 F.Supp.2d 1179, 1188 (D.Wyo. 2000)

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 143.40 “[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.” 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,” 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.40 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 similar to deliberate indifference: only “if without justification based either on financial constraints or on considerations of professional judgment [caseworkers] place the child in hands they know to be dangerous or otherwise unfit do they expose themselves to liability in damages.” Bailey v. Pacheco, 108 F.Supp.2d 1214, 1220 (D.N.M. 2000) (citing Yvonne L., 959 F.2d 883, 893-94 (internal citations omitted)).

The professional judgment standard is inappropriate for the foster care context because it has roots in the standard for medical malpractice claims. See Youngberg, 457 U.S. at 314.40 Youngberg involved a man who had to be physically restrained so that he would not hurt himself or others. Id. at 310-11. The case turned on the question of whether an institutionalized mentally disabled person had the right to habilitation: the “training and development of needed skills” in order to avoid placing him under restraint. Youngberg, 457 U.S. at 317. 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 to balance this right against the State’s reasons for restraining the plaintiff in the first place, as well as the financial costs of new services. Id. at 320-21. This context is far removed from the situation of foster children in state custody who are under no restraints and do not require habilitation. The standard is simply inapposite.

Furthermore,41 the Court did not consider or reject the deliberate indifference standard in Youngberg.40 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. Id. at 322. The standard used to evaluate possible violations of the right of the mentally ill to habilitation, with its roots in medical malpractice, is simply irrelevant to the parameters of the more general right to reasonable safety enjoyed by all those in state custody, regardless of the institution, where the deliberate indifference standard has consistently been employed.

Finally,42 the professional judgment standard may represent an erosion of the basic liability requirement of a § 1983 action.40 A recent district court noted that insofar as professional judgment has been equated with negligence, the standard conflicts with the § 1983 requirement of “some culpability above gross negligence.” T.M., 93 F.Supp.2d at 1188 (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 (1996). Because the deliberate indifference standard as applied to foster care pre-dates creation of the professional judgment standard, the vast majority of circuits require deliberate indifference for state liability in this context, and the professional judgment standard is both inapplicable and threatens to erode the basic § 1983 liability requirements, this court should apply the deliberate indifference standard.43

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III. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT EVEN IF THE COURT DECIDES TO APPLY THE PROFESSIONAL JUDGMENT STANDARD BECAUSE NEITHER STANDARD HOLDS A MUNICIPALITY LIABLE FOR UNFORESEEABLE PRIVATE VIOLENCE 44

A. Neither the deliberate indifference nor the professional judgment standard would impose specific policies to prevent third party harm and would instead require that any alternatives be obviously necessary, allowing agencies to employ a flexible approach exercising discretion in consideration of available resources 45

Neither the deliberate indifference nor professional judgment standards dictate specific foster care policies. Case law about municipal liability to children in the foster care system does not support Plaintiffs’ attempts to hold the City liable for harms caused by third parties based on the speculation that alternative policies could have prevented such harm.

First,46 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., 83 F.Supp.2d. at 507 (granting defendants’ motion to dismiss as to claims based on right to least restrictive, most family-like environment); Marisol, 929 F.Supp. at 675 (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., 93 F.Supp.2d at 1194 (stating that liability does not attach for every mishap).

Second,46 neither standard would mandate specific responses to the risk of injury. The deliberate indifference standard simply requires the City to provide “reasonable conditions of safety” for children in state custody. Walton, 20 F.3d at 1355. 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, and kept the students physically separated. Id. Unfortunately, the plaintiff was assaulted again. Id. The complaint alleged the caseworker should have taken other actions. Id. The court held that the caseworker took all the actions to provide “reasonable conditions of safety” and therefore did not display deliberate indifference. Id. at 1356.

According to Walton, the deliberate indifference standard would allow for the exercise of discretion in order to accommodate the circumstances of each situation. Similarly, in Lintz v. Skipski, 25 F.3d 304, a caseworker discovered a foster father had sexually assaulted his foster children. She took steps to find a new placement for the siblings, but kept the children in the foster home for another month with specific safeguards. Id. at 307. The court held these actions did not show deliberate indifference (Id. at 306), implying that the standard does not impose certain procedures and supports policies flexible enough to respond to each case as necessary. Similarly, rather than mandate specific policies, the professional judgment standard simply requires that a caseworker’s actions be consistent with the policies of other agencies. Cases finding liability under this standard require “substantial departure” from standards of professional judgment. Youngberg, 457 U.S. at 323.

Finally,46 both standards allow an agency to consider financial resources in deciding which actions are most appropriate to provide safety for foster children. In Walton, the court discussed the fact that the school had only one boys’ 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., 914 F.2d at 853, 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., 715 F.Supp. at 1398 (rejecting argument based on allocation of resources).

Defendants cannot be held liable for unforeseeable private violence, as Plaintiff’s Complaint attempts to do. § 1983 is not an avenue for citizens to receive redress from the state for injuries caused by third parties. Such claims should be resolved by suing those who caused the harm in tort. Plaintiffs speculate that different policies could have prevented their injuries. However, the City’s current policies are developed precisely to prevent harm to foster children and deal with emergencies. City policies allow caseworkers to, first, thoroughly investigate foster parents and place foster children with the most responsible people, and second, have flexibility to allow for response to emergencies when allegations of abuse are reported. Current due process case law supports the City’s background check and abuse investigation policies.

1. The City’s current background check policy does not constitute deliberate indifference or substantial departure from professional judgment 47

Clearly, both standards fully support the City’s current policies as they provide sufficient protection of foster children’s substantive due process rights.48 Plaintiffs’ Complaint implies that the City could protect foster children from all possible harm by training, investigating, and performing background checks on any person with whom the child may come into contact. This would not only be impossible, but would not ensure foster children’s complete safety. The state’s duty to those in its custody under the due process clause does not include preventing all possible injury. Specifically, the deliberate indifference or professional judgment standards do not require that foster care agencies perform a specific kind of background check or investigation.

In Nicini v. Morra, 212 F.3d at 804, a child in state custody chose to stay with a temporary guardian who later gave him drugs and sexually assaulted him.49 The child brought suit and alleged the foster care agency should have more fully investigated the man. Id. The caseworker had followed the agency policy of performing a limited background check. Id. at 815. The Plaintiff argued the caseworker should have gone beyond the policy and collected urine samples to check for drug abuse or conducted a national criminal background check. Id. at 812. But the court found the caseworker’s actions did not amount to deliberate indifference.

A similar case evaluated under the professional judgment standard had the same result.50 In Bailey, 108 F.Supp.2d 1214, 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, but the foster father lied about his arrest for domestic violence. Id. at 1225. 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 were not a problem. Id.

In this case, Plaintiffs’ Complaint contains similar claims to those that failed in Nicini and Bailey: they imply that if the City had performed additional investigations and background checks on all relatives and neighbors of foster parents, DCS may have been able to prevent the harms Plaintiffs suffered.51 Since the 14th Amendment does not require specific investigations into the background of foster parents, it surely cannot require investigations of all those who may surround a foster child. The current policy does not demonstrate deliberate indifference or a substantial departure from professional judgment and therefore did not violate Plaintiffs’ rights.

2. Defendants have not displayed deliberate indifference or substantial departure from professional judgment in allowing for discretion in determining the time necessary to respond to allegations of abuse 47

The City’s discretionary policy for responding to allegations of abuse is well within the parameters of the due process clause.52 Both standards support a discretionary policy and allow an agency to consider the limits of financial resources. Additionally, cases addressing systemic deficiencies of foster care provision are inapplicable to this case because they involve complete failure to investigate abuse or provide services, which is not at issue here.

Under the deliberate indifference standard, as seen in Walton, case law requires that another policy must be “obviously necessary,” as well as feasible within the agency’s budgetary constraints, before the City might be liable for not changing the policy.53 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. A discretionary policy is better suited to protecting foster children’s substantive due process rights, especially since the case law emphasizes the importance of responding appropriately to each situation’s particular circumstances. See Lintz v. Skipski, 25 F.3d 304.

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.54 Plaintiffs have presented no evidence that the City’s policy is “a substantial departure from accepted professional judgment.” Youngberg, 457 U.S. at 323. In fact, the challenge here is similar to cases challenging agency practices that result in “shuttling” children between foster homes. E.g. K.H., 914 F.2d 846; Eric. L. v. Bird, 848 F.Supp. 303 (D.N.H. 1994). A placement policy that might result in “shuttling” is a discretionary policy designed to meet foster children’s needs within an agency’s resources. Courts have repeatedly rejected claims based on the “shuttling” policy, preferring to defer to agencies to determine how to appropriately expend resources. K.H., 914 F.2d at 853. See also Eric L., 848 F.Supp. at 307. The same kind of deference is merited in this case.

Additionally, both the deliberate indifference and professional judgment standards allow the City to consider its financial resources in developing policies most appropriate to protect the safety of children in state custody.55 As Judge Posner pointed out in K.H., a municipality cannot be held liable for not taking actions its budgetary constraints will not allow. The City of X has developed a policy to best protect foster children within its resources. Lack of resources does not itself violate professional standards or demonstrate deliberate indifference and is a problem more appropriately resolved by the legislature.

Finally, cases addressing broad systemic failure of foster care systems are inapplicable to this case.56 Such general claims of total collapse of foster care provision sometimes include claims based on timely investigation into allegations of abuse. E.g. Charlie & Nadine H., 83 F.Supp.2d, 476. However, the list of alleged deficiencies in such cases far exceed those claimed here. In Charlie & Nadine H., the court cited staff turnover rates and failure to institute reforms, provide medical treatment, and meet special needs, as well as abuse of children resulting in near death. Id. at 481. Similarly, in LaShawn A. v. Dixon, 762 F.Supp. 959, 996-97 (D.C.Cir. 1991), aff’d and remanded, 990 F.2d 1319 (D.C.Cir. 1993) cert denied, 510 U.S. 1044 (1994), the foster care agency admitted it had no adequate medical screening facilities and no automated placement tracking system, among numerous other problems. See also B.H., 715 F.Supp. at 1389 (stating that “Plaintiffs assert there is little hope that children…will receive services to which they are entitled”). In contrast, in this case, systemic deficiencies and complete failure to investigate abuse are not at issue. Plaintiffs merely speculate that third party harms could have been prevented if the City maintained different policies, but they have failed to establish that the City’s flexible policy for responding to allegations of abuse violates either the deliberate indifference or professional judgment standard.

B. Both the deliberate indifference and the professional judgment standards require that City agents have significant notice of risk before imposing liability 47

City agents must have significant notice of the risk of violence before an agency may be liable for injuries subsequently suffered by a foster child. Cases applying deliberate indifference clearly impose this notice requirement. 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, 67 F.3d 1286, the Seventh Circuit detailed certain parameters to the professional judgment standard, incorporating this same notice requirement: 1) the caseworker must have failed to exercise 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; Taahira W. v. Travis, 908 F.Supp. 533 (N.D.Ill. 1995)

The cases impose a significantly high level of notice before imposing liability, although actual knowledge of the specific harm is not required. Doe, 649 F.2d at 145 (applying deliberate indifference standard and stating that actual knowledge is not required); Wendy H., 849 F.Supp. at 374 (applying professional judgment standard and stating that actual knowledge is not required). In cases finding liability, agency workers ignored clear and substantial indications that abuse had occurred or was ongoing and, therefore, injuries were foreseeable.

For example, in Meador, 902 F.2d at 475-76, a court imposed liability on an agency that placed children in a foster home where previous foster children had been removed because they were sexually abused by the foster father (applying deliberate indifference standard). Similarly, in Taahira W., 908 F.Supp. at 535 the court held an agency liable after a caseworker placed a young girl in a foster home where one foster child had sexually assaulted another. In this case, the agency had noted the foster parent was unable to supervise and a court order said no small girls should be placed there (applying professional judgment standard). Id. Wendy H. resulted in the same outcome. A caseworker failed to read a report stating that previous foster children had been abused in a particular foster home and placed other children there, where they were also abused. Wendy H., 849 F.Supp. at 374-76. In yet another case, a foster child died in a gang-related incident. Camp, 67 F.3d at 1289. His guardian had repeatedly told City agents that she could not adequately supervise the child, but caseworkers ignored her plea to place the child in a more restrictive environment. Id. at 1288. Clearly, both standards require significant notice of risk: court orders, written reports that children have been previously removed for abuse by a particular foster parent, and a caretaker’s own repeated reports of her inability to supervise. The City had no such notice in this case.

The facts of this case do not rise to the level of significant notice required by both standards in order to impose liability. 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 harm. In White, 112 F.3d at 735, a 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 the mother’s reports did not rise to the level of sufficient evidence of notice. Id. at 737. The case of Shorona J. is similar to White. Plaintiff claims Shorona’s mother reported allegations of abuse to the agency and nothing was done, but agency records indicate an 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. As for remaining Plaintiffs, the agency had absolutely no indication of risk of harm before a third party injured Milton R., and Plaintiff Janna S. has suffered no injuries. In contrast to cases finding liability, plaintiffs have not established that Plaintiffs’ injuries were foreseeable. Defendants cannot be held liable for private violence for which they had no notice.

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IV. SUMMARY JUDGMENT MUST BE GRANTED AS TO INDIVIDUAL LIABILITY OF INDIVIDUAL DEFENDANTS AS THEY ARE ENTITLED TO QUALIFIED IMMUNITY 57

A. Individual Defendants are entitled to qualified immunity because their conduct did not constitute deliberate indifference or a substantial departure from professional judgment in violation of a clearly established legal right

Summary judgment must be granted as to Defendants’ individual liability. 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)).

A municipal official is entitled to immunity from suit in her individual capacity unless her actions constitute deliberate indifference or a substantial departure from professional judgment and a child’s right is violated. For example, in White, 112 F.3d at 737, the court found caseworkers were not deliberately indifferent to a foster child’s welfare because they had no notice of any potential for risk of abuse in the foster home. Therefore, caseworkers were entitled to qualified immunity. Id. at 740. Accord Lintz, 25 F.3d at 306 (holding social worker entitled to qualified immunity because there was no evidence of deliberate indifference); Bailey, 108 F.Supp.2d at 1225 (holding caseworkers entitled to qualified immunity because they had not acted in substantial departure from professional judgment). As discussed above, Defendants’ actions did not rise to the level of deliberate indifference or substantial departure from professional judgment because they had no notice of the potential for risk, which both standards require before imposing liability. Therefore, Defendants are entitled to qualified immunity.

B. Individual Defendants are entitled to qualified immunity even if the court finds that municipal policies violated Plaintiffs’ constitutional rights because pre-existing law has not clearly established that municipalities could be liable for third-party harm and officials could not have known their actions might be unlawful 58

Additionally, even if this court decides that municipal policies or practice violated Plaintiffs’ constitutional rights, individual Defendants are still entitled to immunity because they could not have known their actions would be unlawful based on pre-existing law as a reasonable person would understand it. Anderson, 438 U.S. at 640. Given that current due process case law would not hold a municipality liable for third party harm, if this court decides to the contrary, City agents did not know their actions would be unlawful.

White, discussed above, presents an example. The court found caseworkers were also entitled to immunity because at the time of the events of the case, the Fourth Circuit had squarely held that foster children had no federal constitutional right to state protection and the state had no affirmative constitutional obligation to protect individuals against private violence. White, 112 F.3d at 737 (citing Milburn, 871 F.2d 474). Similarly, in this case, if this court extends due process rights to hold municipalities liable for third party harm, individual Defendants will be entitled to qualified immunity as any expansion of current due process rights would not be the “clearly established legal right” necessary for abrogation of qualified immunity. Anderson, 438 U.S. at 640. Defendants are entitled to qualified immunity as to their individual liability since their conduct did not constitute deliberate indifference or substantial departure from professional judgment under the current law as a reasonable person would understand it.

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CONCLUSION
The incidents that led to this case are undeniably upsetting. The City is concerned about eliminating the potential for harm to 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 caused a violation of their constitutional rights and therefore have failed to provide evidence for a necessary element of their § 1983 claim, so summary judgment must be granted to all Defendants. Summary judgment must also be granted as to the individual liability of Defendants. Because their actions did not constitute deliberate indifference or substantial departure from professional judgment, they did not violate a clearly established legal right and are entitled to qualified immunity.

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1) Introduction properly begins with the relief defendants seek.

2) The second sentence follows appropriately with the defendants’ basis for relief.

3) This sentence elaborates on the preceding sentence stating defendants’ basis for the relief sought.

4) The fourth and fifth sentences of the introduction further support basis for defendants’ relief by identifying how plantiffs’ claim undermines the purpose of the Fourteenth Amendment’s due process clause.

5) Writer frames question to incorporate basis for relief defendants seek, asserting that defendants had not caused violation of children’s substantive due process rights. Writer uses “because” as a conjunction to link relief of summary judgment to plaintiffS’ asserted failure to provide evidence of defendants’ liability.

6) Note omission of sentence from original version pertaining to report that 5% of children experience abuse by foster parents.

7) Note omission of statement appearing in original version that other household members are not included in investigations of abuse.

8) Note omission of sentence appearing in original version that other potential caretakers are not investigated.

9) Note omission of sentence appearing in original version that other household members are not interviewed or trained.

10) Note omission of sentences indicating decrease in number of foster children that DCS permitted Ms. Pons to care for at a time.

11) Note addition of this phrase that characterizes mother’s report of abuse as based on her belief rather than on observed or documented conduct.

12) Note omission of statement in original version that Shorona’s mother reported that Shorona had been abused four times in foster care.

13) Note omission of facts developed in DCS investigation of claim against Ms. Pons and addition of statement of favorable determination of the challenge to Shorona’s placement.

14) Note addition of this phrase that emphasizes the responsiveness of DCS to new information.

15) Note omission of statements in original version that four of Ms. Pons’ previous foster children suffered broken bones and that Ms. Pons is no longer a foster parent.

16) Note omission of sentences in original describing Milton’s injuries and medical prognosis.

17) Note omission of reference in original to Jake’s arrests.

18) Note omission of reference in original to the phrase “with Jake.”

19) Note substitution of “must” for “should” in original version.

20) Note tighter, more succinct opening statement of basis of defendants’ claim for relief in revised version, including elimination of discussion of standards of liability.

21) Note how second paragraph reinforces the first in asserting defendants’ entitlement to summary judgment. Note introduction of competing standards of liability and succinct disposing of plaintiffs’ claim under either standard.

22) Note repeated invocation of summary judgment with addition of more specific supporting reasons.

23) Note stronger, tighter statement of individual defendants’ qualified immunity in revised version.

24) Note omission of second sentence in original version of this paragraph that elaborates on law.

25) Note repetition of asserted entitlement to summary judgment to close this section.

26) Note addition of strong conclusory statement of plaintiffs’ failure to establish basis of defendants’ liability.

27) Note subpoint framed as a conclusion favorable to defendants.

28) Note how revised version begins with strong, favorable statement of applicable law rather than a description of plaintiffs’ claim.

29) Note how revised version covers in one paragraph the substance of the first three paragraphs of this section in the original version.

30) Note how DeShaney continues to focus and drive the discussion here.

31) Note strong statement of policy reasons following discussion of cases to buttress argument in favor of narrow application of substantive due process right.

32) Note emphasis on limited application of substantive due process right among federal circuits, and briefer discussion of these cases in revised version.

33) Note more succinct, pointed discussion of Estelle and Youngberg in revised version.

34) Note addition of these concluding sentences emphasizing limitations of substantive due process right.

35) Note strong conclusory statement of defendants’ entitlement to summary judgment incorporating applicable rule limiting liability to children who are involuntarily placed.

36) Note how revised version begins with statement of relief sought and basis for it—Milton was placed in custody voluntarily—rather than with a general, decontextualized discussion of the law.

37) Note reinforcement of statement in opening paragraph of this subpoint that courts in this jurisdiction had not extended a substantive due process right to children who were voluntarily placed in foster homes.

38) Note how revised version adds that competing professional judgment standard is inappropriate in foster care context.

39) Note how revised version begins with invitation to court to follow the majority rule and apply deliberate indifference standard, and omits statement that there is confusion in courts about applicable standard.

40) Note how the topic/thesis sentences in each of the succeeding paragraphs in this section focus on the standard of liability and continue or amplify the discussion from the preceding paragraphs.

41) Note use of transitional expression “furthermore” to indicate additional development of the idea from the preceding paragraph.

42) Note addition of the transitional expression “finally” to indicate a concluding point in support of this discussion of standards of liability.

43) Note succinct treatment of this discussion in revised version—six paragraphs compared to 11 in original version.

44) Note addition of strong overarching point heading stating defendants’ entitlement to summary judgment under either standard of liability. Note rephrasing and reorganization of subpoint headings in original version of this section.

45) Note rephrasing and reorganization of subpoint headings in original version of this section.

46) Note use of “signpost” expressions that enumerate components of the ensuing discussion.

47) Note rephrasing and reorganization of subpoint headings in original version of this section.

48) Note strong thesis asserting that city’s current policies comport with both standards.

49) Note shift to specific case illustrating the “deliberate indifference” standard. To make this transition even clearer, writer could have begun the paragraph with a sentence indicating that courts give caseworkers leeway in determining the scope of investigations in child placement cases.

50) Note how topic sentence signals link with substance of preceding paragraph by use of expressions such as “similar,” “same,” and “standard.”

51) Note how thesis sentence signals through the use of “in this case” that it is applying Nicini and Bailey cases discussed in preceding paragraphs to the facts of plaintiffs’ claim.

52) Note use of strong thesis sentence and the way in which thesis sentences in succeeding paragraphs connect with and develop the idea in this opening paragraph.

53) Note continuaton of idea introduced in first paragraph, here focusing on the “deliberate indifference” standard.

54) Note use of transitional expression “similarly” to argue that the DCS policy is also acceptable under the “professional judgment” standard.

55) Note use of transitional expression “additionally” to communicate that sentence points to another reason why the defendants’ conduct is permissible under either standard.

56) Note use of transitional expression “finally” to indicate that sentence contains one additional argument in support of defendants’ position that they are not liable under either standard.

57) Note rephrasing and reorganization of subpoint headings in original version of this section. In this section, the preferred course would be for the writer to eliminate this single sub-subpoint and incorporate it into the subpoint.

58) Note addition of strong overarchng point heading pertaining to qualified immunity defense.