JOURNAL OF SOCIAL WELFARE AND FAMILY LAW. Routledge, Taylor & Francis Grp.
2020, VOL. 42, NO. 1, 92–105 LINK w/IMAGES & Tables
https://doi.org/10.1080/09649069.2020.1701941 Check for UPDATES

U.S. child custody outcomes in cases involving parental
alienation and abuse allegations: what do the data show?
Joan S. Meier
George Washington University Law School, Washington, D.C., USA

ABSTRACT
Family court and abuse professionals have long been polarized over
the use of parental alienation claims to discredit a mother alleging
that the father has been abusive or is unsafe for the children. This
paper reports the findings from an empirical study of ten years of
U.S. cases involving abuse and alienation claims. The findings confirm
that mothers’ claims of abuse, especially child physical or
sexual abuse, increase their risk of losing custody, and that fathers’
cross-claims of alienation virtually double that risk. Alienation’s
impact is gender-specific; fathers alleging mothers are abusive are
not similarly undermined when mothers cross-claim alienation. In
non-abuse cases, however, the data suggest that alienation has
a more gender-neutral impact. These nuanced findings may help
abuse and alienation professionals find some common ground.

Introduction

Protective parents and domestic violence professionals have long asserted that courts dealing with child custody and their affiliated professionals frequently deny true claims of adult partner or child abuse and instead punish parents (usually mothers) who allege domestic violence, child physical or sexual abuse, or seek to limit the other parent’s child access for any reason.

Anecdotal reports1 have suggested that courts are even less receptive to mothers’ claims of child physical or sexual abuse than their claims of partner violence, and that many mothers alleging abuse – especially child abuse2 – are losing custody to the allegedly abusive father.

Studies describe the severe and damaging consequences for children forced by courts to be with fathers they or their protective parents claimed were harmful (Silberg et al. 2013). Sadly, there is even a growing list of U.S. children killed by a parent; as of the time of writing, the website for the Center for Judicial Excellence lists 704 children killed by a separating or divorcing parent; researchers have verified that at least 101 of the children were not protected by family courts despite requests (Center for Judicial Excellence 2019). A particular target of critique has been courts’ reliance on ‘parental alienation’ to refute mothers’ claims of abuse by fathers (Bruch 2001, Meier 2009, Milchman 2017, Neilson 2018).

An adaptation of the ‘parental alienation syndrome’ (‘PAS’) coined by CONTACT Joan S. Meier jmeier@law.gwu.edu This article has been republished with minor changes. These changes do not impact the academic content of the article. JOURNAL OF SOCIAL WELFARE AND FAMILY LAW 2020, VOL. 42, NO. 1, 92–105 https://doi.org/10.1080/09649069.2020.1701941 © 2020 Informa UK Limited, trading as Taylor & Francis Group Richard Gardner (1992).

Parental alienation, while lacking any universal definition, embodies the notion that when a child (or the primary parent) resists contact with the non-custodial parent without ‘legitimate’ reason, the preferred parent is ‘alienating’ the child, due to her own anger, hostility or pathology (Johnston and Kelly 2004, Zaccour 2018).

Although PAS itself – which Gardner defined as a mother’s false claim of child sexual abuse to ‘alienate’ the child from the father – has been largely rejected by most credible professionals (Meier 2009, p. 5, Thomas and Richardson 2015), alienation theory writ large continues to be the subject of a growing body of literature, and is frequently relied on in U.S. family court cases. Gardner’s ‘parental alienation syndrome’ treated mothers’ abuse claims as specious and illegitimate.

While some contemporary alienation proponents make little effort to distinguish alienation from PAS and utilize the identical criteria (Bernet 2017, Baker 2019, Children and Family Court Advisory and Support Service 2019), others have endeavored to distinguish their view by rejecting PAS’ attribution of blame solely to the preferred parent, acknowledging that there are typically multiple causes of children’s resistance to a parent post-separation, including the disliked parent’s own behaviors, and naming ‘legitimate’ cases ‘estrangement’ (Saini et al. 2016, p. 424, Drozd and Oleson 2004).

Despite the more refined discussions of parent rejection in some literature, however, these nuances rarely if ever appear in practice. When children reject contact, the concept of alienation is still regularly used to focus blame on the preferred parent, as did Gardner and PAS.3

Other causes of a child’s rejection of a parent, including direct abuse, witnessing their mother’s abuse, or other forms of bad parenting or injuries to a child’s affection (Johnston 2005, p. 762), are routinely ignored. Nor, after reviewing and litigating hundreds of cases, has this author ever seen a court order a disfavored parent (particularly a father) to take action to repair their own relationship with their child. Instead, a child’s favored parents (typically mothers) are expected to prioritize improving the other parent’s relationship with the child.4

In short, the widespread experience of protective parents and their experts and advocates has been that no matter what term is used – ‘alienation’ alone or PAS, the outcome is the same: Both are used to discredit and criticize a mother who is reporting domestic violence and/or child abuse in the custody context, and to ignore children’s expressions of distress about a parent. Despite extensive litigation, (DV LEAP Legal Resources), scholarship (Bruch 2001, Meier 2009, Milchman 2019), and the training (DV LEAP Training Materials, NIJDV) of judges and other professionals by domestic violence professionals, the gulf between family court professionals and abuse professionals has continued to widen. Informed by their focus on parental alienation, family court professionals and researchers reject the above critiques, asserting instead that domestic violence professionals are too credulous, that many mothers’ abuse clams are actually false or exaggerated, and that abuse professionals do not grasp the reality and perniciousness of parental alienation (Bala 2018, slide, p. 10), which they liken to psychological child abuse (Kruk 2018).

Some alienation professionals also assert that fathers commit parental alienation at least as often as mothers – arguing that therefore alienation is not a gender-biased theory5 (Gottlieb 2019).

The two groups generally lack both respect for and trust in each other. JOURNAL OF SOCIAL WELFARE AND FAMILY LAW 93

At bottom, the two fields differ fundamentally on (i) whether it is true that courts frequently disbelieve legitimate abuse claims by mothers and wrongly strip them of custody, subjecting children to ongoing risk; (ii) the degree to which parental alienation labels are the vehicle for such treatment; and (iii) whether gender bias influences these dynamics.

For all these reasons, obtaining objective data on what is really going on in family courts has become critical. Neutral data has the potential to speak to both groups as well as the wider public, and to establish an objective description of reality. Although such data-gathering cannot tell us whether particular abuse or alienation claims were true, an empirical picture can shed light on family court patterns of adjudication in such cases, including potentially the role of gender (Meier and Dickson 2017).

After completing a pilot study of 240 cases in 2012, (Meier and Dickson 2017), the author and a team of experts6 applied for federal funding to expand the pilot research.7 In 2014, the U.S. National Institute of Justice awarded a grant to support the ‘Child Custody Outcomes in Cases Involving Parental Alienation and Abuse Allegations Study’ (‘Family Court Outcomes (FCO) Study’ or ‘Study’).

Previous studies have examined non-protective custody outcomes in cases with domestic violence claims within particular jurisdictions (Zorza and Rosen 2005), but none has specifically discussed or analyzed courts’ responses to child abuse claims, nor have any provided a national picture. The Study was therefore designed both to provide a national empirical overview to assess whether the problems identified in prior localized research are systemic and pervasive, and to gather information about the impact of child abuse as well as domestic violence claims. Description of study

The Study sought to develop empirical measures of
(i) the rates at which courts credit (i.e. believe)8 different types of abuse and alienation allegations raised by either parent against the other;
(ii) the rates at which parents win/lose the case, or lose custody when alleging any type of abuse against the other parent;
(iii) the impact of alienation claims/defenses on (i) and (ii) above; and
(iv) the impact of gender on (i), (ii), and (iii) above. That is, do the rates of crediting of abuse, wins, or custody losses vary for mothers and fathers when one accuses the other of abuse or alienation?

Because there are thousands of state family courts across the United States, the only way to gather national data on family court outcomes is to examine judicial opinions posted online. Fortunately, by 2015, most appellate court opinions were available online, and, as we learned, so were a surprising number of trial court opinions. [edit note: Appellate courts typically do not consider the merits, but defer to the trial court judge unless there’s overwhelming evidence/indications of abuse of discretion. They look for procedural errors and errors in interpretation of law. The researchers did not weigh differences in income/representation of the litigants, education levels, other factors contributing to confirmation biases of judges, and other factors inherently embedded in the judge such as gender, experience, age, and socioeconomic background. The analysis is defective for failure to adequately weigh the myriad factors in the background noise, making it virtually impossible to extract the tune from the ‘data’ if one can call .it that. The study itself is rife w/confirmation biases]

The search for published opinions covered the 10-year period from 1 January 2005 through to 31 December 2014. [OLD!] The Study collected all cases reported online that matched these criteria within a 10-year period, thereby providing a complete ‘census.’ Two law graduates triaged over 15,000 cases that were identified by our comprehensive search string, and then coded, in detail, the 4338 cases that matched the Study’s criteria. Far more information was coded than could be analyzed during the Study time-frame; the complete dataset is available to future researchers for secondary analyses. Cases were coded for claims of partner abuse (DV), child physical abuse (CPA) and child sexual abuse (CSA), as well as mixed forms of abuse, i.e. DV + CPA or CSA (DVCh) and CPA + CSA (CPACSA).9 Altogether, these five categories constitute the coded abuse 94 J. S. MEIER types.

Courts’ acceptance or rejection of abuse and alienation claims, and their custody orders were coded. Regarding case outcomes, this paper focuses on custody switches, in which one parent started with primary custody or physical care of the children and the court switched custody to the other.

Limitations
The core limitation of the Study stems from its data source: since most trial courts do not publish their opinions (online or otherwise), the majority of the opinions analyzed were appellate decisions. This means that the dataset over-represents cases that are appealed and under-represents non-appealed cases. Fortunately, because our dataset netted hundreds of trial court opinions online, primarily from four states, we were able to do some comparisons.

We found that mothers losing custody were over-represented in the appeals [Yes, they normally have less $ to acquire competent representation.]; there were lower custody loss rates among the non-appealed cases. This should not be surprising. Otherwise, there was little difference between the cases that were and were not appealed. The second limitation is that the Study did not and could not review the facts and assess the correctness of courts’ rulings; some may have been justifiable in the light of facts unknown to us.

Nonetheless, the Study provides an accurate picture of general outcomes and trends when abuse and alienation are claimed, which can be compared to existing anecdotal and scholarly depictions of what happens in these cases. [The study is too old and too dull to reveal any trend based on the cited factors any more than fishing in a septic tank is going to reveal where the best fishing hole lies.]

The final limitation is that the data itself – judicial opinions – is imperfect, because some opinions may not mention allegations of abuse or alienation which could have been raised at some point, but had ‘fallen out’ along the way. Our comparisons of the ‘alienation’ and ‘non-alienation’ and ‘non-abuse’ cases are subject to that caveat; however, this data does reflect judges’ views of these allegations when they deem them significant enough to report in the opinion.

Findings [Lies, damn lies…and then, ‘statistics!]
The bulk of quantitative analyses discussed herein consist of simple frequencies, e.g. percentages of claims of abuse that were believed, and percentages of mothers who lost custody when alleging different types of abuse, when alienation cross-claims were or were not made. Regression analyses were brought to bear for selected purposes, most pertinently here, to examine gender bias.

This article focuses primarily on findings related to cases where a mother accused a father of abuse. There were some – although not many – cases where the genders were reversed. Where possible those reverse cases were analyzed for purposes of a gender comparison.

The following reports the Study’s findings on
(1) courts’ crediting of different types of abuse claims and custody switches from mothers to fathers;
(2) the impact of parental alienation cross-claims on crediting of abuse and custody switches; and
(3) some key findings related to gender bias and gender parity.

Outcomes in simple abuse cases (No alienation cross-claim)
There were 1946 cases where abuse was alleged by a mother against a father, and he did not cross-claim alienation. JOURNAL OF SOCIAL WELFARE AND FAMILY LAW 95

Crediting of abuse claims
Several conclusions can be drawn from the data in Table 1:

First, looking at mothers’ claims of abuse, less than half (41%) of any type of abuse claims are credited. That women’s claims of abuse are believed less than half the time will surprise many readers. Moreover, mothers’ claims of child abuse are credited even less. The odds of a court crediting a child physical abuse claim are 2.23 times lower than the odds of its crediting a domestic violence claim (CI 1.66–2.99).

Overall, child sexual abuse is rarely accepted by courts (15%). [Extraordinary claims require extraordinary proof.] Mothers’ custody losses Consistent with the above findings on courts’ skepticism toward mothers’ claims of abuse, the data show that mothers reporting a father’s abuse lost custody in 26% (284/ 1111) of cases.

Broken down by type of abuse alleged: 10
Again, these data do not prove that these custody reversals were ill-advised; the data tells us nothing about why the courts deemed the mothers to be worse parents than the fathers accused of abuse, nor how severe any credited abuse was. However, the experiences of myriad lawyers, advocates and litigants in custody/abuse cases is that courts and ancillary professionals frequently react to mothers’ claims of paternal abuse – particularly child abuse – with hostility and criticism (Meier 2003, Meier and Dickson 2017).

It is likely, therefore, that many of these mothers were penalized with loss of custody at least in part because they reported the father to have abused themselves or their children, and the court did not believe them. Remarkably, a fair number of mothers lost custody even when the court credited the father’s abuse:

Table 1. Rates at which courts credited mothers’ claims of fathers’ abuse. Domestic violence (DV):
45% (517/1137)
Child physical abuse (CPA):
27% (73/268)
Child sexual abuse (CSA):
15% (29/200)
Mixed DV with CPA or CSA (DVCh):
55% (165/302)
Mixed CPA & CSA (CPACSA):
13% (5/39)
Any:
41% (789/1946)

Table 2.
Custody switch to father by type of abuse mother alleged.
DV:
23% (149/641)
CPA:
29% (39/135)
CSA:
28% (37/131)
DVC:
26% (48/182)
CPACSA:
50% (11/22)
Any:
26% (284/1111)

Table 3.
Custody switch to father when courts credited fathers’ abuse.
DV:
14% (43/303)
CPA:
20% (7/35)
CSA:
0% (0/23)
DVC:
13% (13/103)
CPACSA:
0% (0/4)
Any:
13% (63/468) 96 J. S. MEIER

The good news in these data (Table 3) is that when courts believe a father has sexually abused his child, they do not switch custody from the mother to the father. However, overall, the data in Tables 2 and 3 powerfully affirm the reports from the field, that women who allege abuse – particularly child abuse – by a father are at significant risk (over 1 in 4) of losing custody to the alleged abuser. [Inter alia: Women who do allege child abuse prevail 3/4ths of the time.]

Even when courts find that fathers have abused the children or the mother, they award them custody 13% of the time. [This implies other critical factors may weigh on the judge’s mind, e.g. whether the mother is fit or able to care for the child.] And in cases with credited child physical abuse claims, abusers still win custody 20% of the time (Table 3).

It is also notable that when mothers allege mixed types of child abuse (both sexual and physical) their custody losses increase dramatically, from under 30% up to 50% (Table 2). In effect, mothers have 2.5 times the odds of losing custody when alleging both forms of child abuse than when they allege child sexual abuse alone.11

It is not clear what accounts for this: A child sexual abuse penalty (Meier and Dickson 2017) would be explainable by the well-known particular skepticism and hostility of courts and professionals toward such claims (Id.). But the data in Table 2 indicate that custody losses are about equivalent when mothers allege child sexual abuse as when they allege child physical abuse: It is only when they allege both that their custody losses skyrocket.

Paradigm cases with cross-claims:
(mother alleges abuse, father claims alienation)
Crediting of abuse
There were 669 cases in which one parent made an alienation12 claim against the other. In 312 of these there were cross-abuse-and-alienation claims. Of these, 222 met our definition of paradigmatic cases: where mothers accused fathers of abuse and fathers accused mothers of alienation.13

In these cases, mothers’ abuse claims were credited at even lower rates than in the non-alienation cases discussed above: The relative rates of crediting of abuse claims in alienation and non-alienation cases in Table 4 and Figure 1 below show that courts are even less likely to credit abuse claims when fathers invoke parental alienation.

The drop in crediting of abuse is even more significant when it comes to child abuse (from 27% to 18% for CPA and from 15% to 2% for CSA) (see Tables 2, 4, Figure 1). Child sexual abuse, in particular, appears to be virtually impossible to prove (only 1 case out of 51 was believed) when a father defends with an alienation claim (Table 4).

Overall, the findings in Tables 2, 4, and Figure 1 indicate that:
Table 4. Rates at which courts credited mothers’ abuse claims when fathers claimed alienation, by type of abuse.
DV: 37% (28/76)
CPA:
18% (4/22)
CSA:
2% (1/51)
DVCh:
31% (17/55)
CPACSA:
5% (1/18)
Any:
23% (51/222)
JOURNAL OF SOCIAL WELFARE AND FAMILY LAW 97

● When fathers cross-claim alienation, courts are more than twice as likely to disbelieve mothers’ claims of any type of abuse than if fathers made no alienation claim; and
● When fathers cross-claim alienation, courts are almost 4 (3.9) times more likely to disbelieve mothers’ claims of child abuse than if fathers made no alienation claim.

Custody losses
There were 163 cases in which it could be determined that mothers had physical possession of the children at the outset of the litigation and raised abuse claims in court, and fathers claimed that mothers were alienating. Similar to the above data on courts’ rates of crediting of abuse, fathers’ alienation cross-claims significantly increase the rate of courts’ removals of custody from mothers.

Table 5 shows rates of custody losses when fathers’ cross-claimed alienation.
Figure 2 compares rates at which mothers lose custody in cases with and without an alienation claim by the father:
As Table 5 (and Figure 2) indicate, when fathers claim alienation, the rate at which mothers lose custody shoots up from 26% to 50% for any abuse allegation. That is, fathers’ alienation claims roughly double mothers’ rates of losing custody driven primarily by child abuse cases.

Not surprisingly, when courts credit the alienation claim, rates of maternal custody losses increase more drastically, from an average of 26% where there is no alienation claim, to 50% where alienation is claimed, to 73% where alienation is credited by the court:

DV CPA CSA DVCh CACSA
Alien. Cases 0% 10% 20% 30% 40% 50% 60%
Non-Alien. Cases 45% 29% 15% 55% 13%

Overall, courts credited only 23% of mothers’ abuse claims in ALIENATION cases Comparison of Abuse Crediting with and without Alienation defenses 37% 18% 2% (1/51) 31% 5% (1/18) Figure 1. Comparison of Abuse Crediting with and without Alienation defenses.

Table 5. Mothers’ custody losses when father claims alienation.
DV: 35% (20/57)
CPA: 59% (10/17)
CSA: 54% (19/35)
DVCh: 58% (25/43)
CPACSA: 64% (7/11)
Any: 50% (81/163)
(98 J. S. MEIER)

Again, we see in Table 6 that the mixed child abuse (CPACSA) allegations are the most disastrous for mothers, when courts believe they are alienators: Every one of them lost custody to the alleged abuser.

Finally, while the numbers are small, the impact of credited alienation is apparent in cases where both abuse and alienation were credited by the court. Even when courts believe a father has abused a mother, if they also believe the mother is alienating, some mothers still lose custody to the [allegedly] abusive fathers. In other words, in these cases [alleged] alienation trumps abuse.

As Table 7 indicates, the zeros for credited child physical or sexual abuse show that no courts were prepared to believe that both a father’s child abuse and a mother’s alienation were true.
[Why in the f**k not? It’s not like they’re mutually exclusive!]

Table 6. When courts credit fathers’ alienation claims.
Type of Abuse Alleged
Mother Lost Custody
DV: 60% (15/25)
CPA: 59% (10/17)
CSA: 68% (13/19)
DVCh: 79% (19/24)
CPACSA: 100% (6/6)
Any: 73%
(60/82) 0% 10% 20% 30% 40% 50% 60% 70%

Comparison of Mothers’ Custody Losses with and without Alienation Defense
29% 59% (10/17) 23% 35% 26% 28% 50% 64% 54% (8/12) 58% 50% 26%
Figure 2. Comparison of mothers’ custody losses with and without alienation defense.

Table 7. When mother is found to be alienating and father is found to be an abuser.
Type of Credited Abuse Mother Lost Custody
DV: 29% (2/7)
CPA: 0% (no cases where both abuse & alienation were credited)
CSA: 0% (“ “)
DVCh: 57% (4/7)
CPACSA: 0% (no cases where both abuse and alienation were credited)
Avg: 43% (6/14)
JOURNAL OF SOCIAL WELFARE AND FAMILY LAW 99

Selected gender comparisons14
While additional gender analyses will be forthcoming, the following gender comparisons provide powerful insight into the dynamics of gender in family court cases involving abuse and alienation.

Alienation’s use is generally highly gendered First, fathers’ and mothers’ rates of custody losses differ significantly when one or the other alleges alienation: Across all alienation cases (both with and without abuse claims), when a father alleged a mother was alienating they took custody from her 44% of the time (166/380). When the genders were reversed, mothers took custody from fathers only 28% of the time (19/67). [There’s no showing of cause and effect here. The fathers may have had better representation.] This means that when accused of alienation, mothers have twice the odds of losing custody compared to fathers. [Not necessarily–lying w/statistics and a false, straw man, argument.]

Second, narrowed down to the cases where one party alleged abuse and the other defended with alienation, mothers accused of alienation lost custody to the fathers they accused of abuse even more: 50% (81/163) of the time. Fathers who were accused of alienation by the mother they accused of abuse lost custody only 29% (5/17) of the time, but this is not a statistically significant result due to the relatively low numbers. [It could also be a result of the father having better representation along w/a host of other pertinent factors.]

In some contexts alienation is gender-neutral. Mothers and fathers fared equally in several circumstances: First, when a parent’s claim of alienation was credited (across abuse and non-abuse cases) mothers and fathers lost custody at identical rates (71%). More broadly, win15 rates were also identical (89%) for mothers and fathers when the other parent was found to have committed alienation. Second, and notably, virtual parity is apparent in the non-abuse alienation cases, where win rates are 58% (fathers) and 56% (mothers).

In contrast, when abuse and alienation are cross-alleged, this parity disappears16 (fathers win 66%; mothers 52%).

Discussion
The presence of a substantial number of alienation cases without abuse claims, and the apparent gender parity in those cases, suggest a nuanced, compelling, and ‘something-for -everyone’ potential explanation for how alienation operates in custody litigation.

First, the surprising presence of more alienation cases without abuse claims (357) than with abuse claims (312) in such a comprehensive dataset supports alienation specialists’ insistence that alienation is a problem in itself, not just a defense to abuse claims. Moreover, the apparent gender neutrality in courts’ handling of these non-abuse cases corroborates similar assertions that the alienation construct need not be intrinsically gender-biased. At the same time, however, the gendered outcomes in alienation cases where abuse is alleged strongly support the critiques of the domestic violence and protective parent fields, that when mothers report abuse in family courts, fathers’ cross-claims of alienation create an extraordinarily powerful thumb on the scale against serious consideration of the abuse. [Perjury and differences in representation do not lend themselves to statistical analysis. Moreover, the Family Court is incompetent and disinclined to conduct a genuine search for the truth.]

The fact that the same dynamic does not appear when the genders are reversed, i.e. fathers do not see a statistically significant reduction in the crediting of their abuse claims when mothers cross-claim alienation, supports the complaint that alienation in (100 J. S. MEIER) abuse cases is indeed deeply gendered and, it appears, weaponized to deny mothers’ abuse claims against fathers. [No more than the specious and suborned allegations against fathers of DV and child abuse]

The continued influence of PAS in alienation discussions is evident in several findings from this Study: First, the bias against women but not men in abuse/alienation cases is consistent with the stereotypical roots of the PAS theory, which framed the problem as a pathology of vengeful ex-wives falsely alleging abuse (see also Sheehy and Boyd 2020, Rathus 2020).

Second, given that PAS characterized mothers as falsely or pathologically accusing an innocent father of child sexual abuse, it is not surprising that alienation allegations continue to be particularly powerful in application to precisely those cases, and by extension, to child physical abuse.

As shown in Table 2 above, in only one out of 51 cases where a mother reported child sexual abuse and a father claimed alienation was the mother’s allegation considered valid by the court. Virtually the same finding appears in Canadian research (Sheehy and Boyd 2020).

While it is possible that some courts were right to reject a child sexual abuse claim, there is objective reason to suspect they were wrong more often than not. [Suspicions are no basis for deliberations nor reasonable argument.] Outside research undertaken by impartial researchers [Name them. Cite the studies. Moreover, a genuine search for the truth does not lend itself to mathematical extrapolations nor statistical analysis.] indicates that child sexual abuse claims in custody litigation are considered valid – even by conservative evaluators – 50-72% of the time (Thoennes and Tjadedn 1990, Faller 1998, Trocmé and Bala 2005). [Do they have a truth thermometer? I want one]

Intentionally false allegations are even rarer (Id.). [How is this known? How could it possibly be known?] The Study’s findings, therefore [False premise assumption], support women’s widespread complaints that custody courts are punishing them for raising child abuse by refusing to protect – and thereby endangering – genuinely at-risk children. [You get as much justice as you can afford and it’s imperfect to begin with…least of all in Family Court. The U.S. Supreme Court has ruled litigants are not entitled to a perfect trial, only a fair one. The Family Court can’t even manage that. Abolish it.] [What finding? Do you mean premise?]

We should all be able to agree that where abuse is real, children must be protected. [If it’s factual, try it in criminal court w/meaningful due process and a jury. Family Court is the wrong forum to try such allegations.] This finding [What finding? Do you mean premise?] alone should mobilize courts and other personnel involved in assessing, at minimum, child sexual abuse claims, to revisit their approaches. [That’s what criminal courts are for.]

Third, the striking finding (Table 7) that no court found both alienation and child abuse by the two opposing parents is consistent with PAS theory, which was built around false abuse claims, and asserted that true abuse meant there could be no parental alienation (Gardner 1992). [Agreed. They’re not mutually exclusive. PAS is child abuse as surely as DV.]

Ironically however, non-syndrome alienation is now more often defined without reference to false abuse claims, as simply one parent’s efforts to turn the child against the other parent (Bernet 2017, Bala 2018). Consistent with this wide-open concept, leading alienation experts are now touting ‘hybrid’ cases, suggesting that even where one parent is abusive, the other may also be alienating (Drozd et al. 2011, p. 28, 37, Bala 2018, slide, p. 9). The clear implication is that, in these cases, a parent’s abuse should be balanced against a protective parent’s supposed alienation. [Uh, yeah–they’re both forms of child abuse and PAS may be the more pernicious.]

As Lapierre et al. (2020) state: “domestic violence [is now treated] as a context that fosters the emergence of ‘alienating behaviors’’’. Unfortunately, the ‘hybrid’ concept is likely to perpetuate the misuses [Misuse? It is what it is.] of alienation to deny the implications – if not the fact – of abuse. Inviting courts to criticize protective parents for ‘alienating’ behavior inevitably undermines focus on the abuser, [Alienating behavior is inconsistent w/protective behavior. It is an extension of the adversarial barbarity in the Family Court forum.] while maintaining pressure even on parents who were abused or legitimately seek to protect a child, to remedy the abuser-child breach. After all, if courts are told that ‘yes, he hit the child and abused the mother, but she is over-reacting, criticizing him and sharing her irrational fear with the child,’ experience suggests that her ‘alienation’ will be seen as the more important problem (Sheehy and Boyd 2020; Lapierre et al. 2020, describing a case that ‘started with domestic violence and ended up with parental alienation’). [Don’t denigrate the other parent around the child or allow others to do so.]

This prediction is supported by the Study’s finding that, in 43% of cases where courts found both that (JOURNAL OF SOCIAL WELFARE AND FAMILY LAW 101) a father abused the mother and the mother was also alienating, the mother lost custody to the abusive father (Table 7).

So-called ‘hybrid’ cases aside, the Study’s clear indication that alienation allegations are widely used to deny abuse claims should be deeply concerning [They are a collateral form of attack in a Family Court deeply rooted in trial by combat w/o the protections of due process or a jury.] to all who care about children’s well-being and safety. [The genuinely concerned don’t denigrate the child’s parent around the child.]

Even experts in the alienation field have acknowledged that neither theory nor practice adequately differentiates between cases of illegitimate alienation from those where a child is ‘legitimately’ estranged (Saini et al. 2016, pp. 417–18, 423, Milchman 2019).17

This recognition logically implies that alienation can easily be misused to deny actual abuse or other destructive parenting; with one recent exception. To date, there has been very little attention paid to this problem by the alienation field (Warshak 2019). Similarly, that field’s acknowledgment that a child may resist contact for legitimate reasons stemming from the disfavored parent’s conduct should logically elicit calls for courts to address that conduct when concerned about a relationship breach.

This author is aware of no such discussion in the alienation literature. Both these lacunae may help explain abuse professionals’ distrust of alienation professionals. Logic and other thoughtful scholars18 urge that, if a parent has caused a child’s rejection or discomfort, particularly by abusing the child or other parent, addressing the breach in relationship should start with that parent’s conduct and that parent’s remediation. [The Family Courts are lawless, thus incapable and incompetent to administer such an approach. If there is factual child abuse, try it in criminal court w/due process and a jury. Children are not entitled to perfect parents because there are none. Any Family forum must defer to the heavy presumption parents act in their child’s best interest while exercising their fiduciary parental authority. Troxel v. Granville]

From this perspective, courts’ persistent focus on mothers’ responsibility for fathers’ relationships with their children smacks of patriarchy, and the beliefs that fathers should not be criticized and that mothers and children must respect their paternal rights regardless of their behavior (DV LEAP et al. Brief, Rathus 2020, Sheehy and Boyd 2020, Elizabeth 2020).
[So long as Family Court acts like a dependency hearing lite, no good can come of it. It’s an adversarial forum. Abolish it. Not only should the child respect the father’s parental authority as well as the mother, but the State is required to do so too except a lawless court respects no one. SCOTUS ruled the state has no legal authority to substitute its judgment for a fit parent’s. If an allegation of child abuse is to be made, try it in criminal court where some protections exist.]

This does not mean to suggest that one parent’s disparagement of the other to a child is unproblematic. [Unproblematic? You’re kidding? You’re trivializing parental alienation.] It does, however, suggest that if a child is frightened or hostile due to a parent’s conduct, regardless of potentially sub-optimal contributions from the preferred parent, the priority should be on curing the original reasons for the child’s fear or hostility, i.e. the parent who has frightened or angered the child should be responsible for addressing it. [Some kids are assholes. Ever raised one? Other’s are heavily influenced by a parent who is an asshole. Stop minimizing the child abuse resulting from PAS.]

Indeed, if enraged or traumatized protective parents – who may behave inappropriately in their fight to keep their child safe – see a court holding the abuser accountable by asking him to remedy the relationship consequences of his abuse, such protective parents are likely to become less enraged and traumatized – and so, less ‘alienating.’ [Conjecture calling for speculation.]

Conclusion
The Family Court Outcomes Study provides the first set of national, objective data describing what U.S. courts are doing when confronted with abuse and alienation claims. The data support the widespread critiques of family court proceedings sending children into the care of destructive and dangerous parents. The gender disparity in how much more powerfully alienation claims work for fathers as opposed to mothers also reinforces critics’ claims that, in abuse cases, alienation is little different from PAS, operating in an illegitimate, gender-biased manner. At the same time, the Study’s evidence that alienation need not be – and is not – gendered in non-abuse cases is a reminder to abuse professionals that alienation may have some independent legitimacy. Hopefully these nuanced findings will encourage specialists on both sides of the ideological divide to turn their 102 J. S. MEIER attention to ensuring that alienation’s use is constrained so as to avoid its misuse in abuse cases while exploring its legitimate contours in non-abuse cases. Notes 1. The author’s former non-profit organization, the Domestic Violence Legal Empowerment and Appeals Project (DV LEAP), receives 30–40 urgent requests for help per month from protective parents – primarily mothers – from across the country; similar reports have been made by other domestic violence organizations and lawyers. 2. This paper uses the term ‘child abuse’ to refer to any sort of child abuse – physical or sexual. When only one is intended, it is specified. 3. This describes the scenario found in well over a thousand custody cases reviewed by the author and described by other attorneys and litigants. 4. A well-regarded custody evaluator suggested to the author that the preferred parent, even if a victim of abuse by the other parent, should be expected to ‘take the high road’ and help repair the child’s relationship with the abusive parent. For a powerful example of this singleminded focus on the preferred parent over an abusive and frightening other parent, see Brief of Amici Curiae DV LEAP et al, available at https://drive.google.com/file/d/ 10dTGOh2AZLVPASBCiC3yFjeQ8LcC4sqw/view (describing case where father had abused mother and was harsh and terrifying to child, yet only mother was blamed for child’s resistance to contact). 5. It is well known that male batterers typically denigrate the mother to the children and aggressively seek to instill children’s disrespect and hostility to her (Meier 2009). However, courts paid little attention to alienating conduct in this context; it only became a behavior of grave concern to courts after it was newly coined as a basis for disbelieving mothers’ abuse claims (Id.). Thus, the mere fact that abusive men may alienate children against their mothers does not lessen abuse specialists’ concerns about the misuse of alienation claims to deny mothers’ abuse claims. 6. The Study team consisted of Joan Meier (Principal Investigator), J.D., Sean Dickson,J.D., MPh; Leora Rosen, PhD; and Chris O’Sullivan, PhD (consultants); with Jeff Hayes, PhD, Institute for Women’s Policy Research (contractor). Particular thanks are owed Sean Dickson, whose inter-disciplinary expertise made him a critical ‘bridge’ and translator for the team. 7. See Meier and Dickson (2017). 8. Allegations were coded as ‘credited’ if the court expressly found them to be true, or a criminal conviction existed. This paper uses ‘credited,’ ‘believed’ and ‘proven’ interchangeably. 9. The categories ‘domestic violence,’ ‘child physical abuse’ and ‘child sexual abuse’ include only cases where that was the sole type of abuse claimed. Where multiple types of abuse were alleged, they are captured in the ‘mixed’ categories (DVCh or CPACSA). When coding whether abuse claims were credited, mixed abuse cases were coded ‘credited’ if one or both of the types of abuse was credited. 10. ‘Alleged’ means the abuse claim may or may not have been credited. 11. This finding is significant at the P < .05 level (CI 1.01–6.36). The difference in rates between CPA and mixed CPA/CSA is not statistically significant. 12. We conservatively only coded cases as alienation cases if the court used that word. When courts used similar analyses but different language, cases were coded as a.k.a. (‘AKA’) cases. AKA cases included in the study were limited to those in which courts expressly found one parent committed such conduct, not those in which it was claimed but not found by the court. Discussion of these findings are beyond the scope of this article. 13. The small number of ‘paradigmatic’ cases (222) – and of cases with explicit alienation claims by either parent (669) in the entire dataset – surprised the Study team. There were also 304 AKA cases. JOURNAL OF SOCIAL WELFARE AND FAMILY LAW 103 14. For simplicity and efficiency, these data are pulled from the Study directly, without Tables or Figures. 15. A litigant was coded as winning if they ‘substantially won,’ i.e. received all or part of their own custody/visitation request or defeated the other parent’s request. 16. The difference is not statistically significant at the .05 level, but it is at the 0.1 level. 17. This author has previously proposed such an approach (Meier 2010). 18. Milchman’s peer-reviewed model (2019) requires all legitimate reasons for a child’s discomfort with a parent to be ruled out before alienation can be considered a causal factor. Disclosure statement No potential conflict of interest was reported by the author. References Baker, A., 2019. About parental alienation syndrome [online]. Available from: https://www.amyjl baker.com/parental-alienation-syndrome.html [Accessed 21 July 2019]. Bala, N., 2018. Powerpoint, parental alienation: social contexts and legal responses. 5th Annual Conference of AFCC, Australia. Bernet, W., et al., 2017. An objective measure of splitting in parental alienation: the parental acceptance-rejection questionnaire. Journal of forensic sciences, 63 (3), 776–783. Bruch, C.S., 2001. Parental alienation syndrome and parental alienation: getting it wrong in child custody cases. Family law quarterly, 35 (3), 527–552. Center for Judicial Excellence. US divorce child murder data [online]. Available from: http:// centerforjudicialexcellence.org/cje-projects-initiatives/child-murder-data [Accessed 30 August 2019]. Children and Family Court Advisory and Support Service (CAFCASS). Typical behaviours exhibited where alienation may be a factor tool. [online]. Available from: https://www.cafcass.gov.uk/ grown-ups/professionals/ciaf/?highlight=CIAF [Accessed 21 July 2019]. Drozd, L.M., Kuehnle, K., and Olesen, N.W., 2011. Rethinking abuse and alienation with gatekeeping in mind [online]. Available from: http://www.lesliedrozd.com/lectures/ AFCCOrlando0611_DrozdKuehnleOlesen.pdf [Accessed 21 November 2019]. Drozd, L.M. and Olesen, N.W., 2004. Is it abuse, alienation, and/or estrangement? A decision tree. Journal of child custody, 1 (3), 65–106. DV LEAP. Legal resources [online]. Available from: https://www.dvleap.org/legal-resource-librarycategories/briefs-court-opinions. [Accessed 30 June 2019a]. DV LEAP. Training resources [online]. Available from: https://www.dvleap.org/legal-resourcelibrary-categories/training-materials [Accessed 30 June 2019b]. DV LEAP et al., 2019. Brief of amici curiae [online]. Available from: https://drive.google.com/file/ d/10dTGOh2AZLVPASBCiC3yFjeQ8LcC4sqw/view [Accessed 20 November 2019]. Elizabeth, V., 2020. The affective burden of separated mothers in PA(S) inflected custody law systems: A New Zealand case study. Journal of social welfare and family law, 42 (1), 118–129. Faller, K.C., 1998. The parental alienation syndrome: what is it and what data support it? Child maltreatment, 3 (2), 100–115. Gardner, R.A., 1992. The parental alienation syndrome: A guide for mental health and legal professionals. Cresskill, NJ: Creative Therapeutics. Gottlieb, L., May 2019. Conversation with author at AFCC 56th annual conference. Toronto, Canada. Johnston, J., 2005. Children of divorce who reject a parent and refuse visitation: recent research and social policy implications for the alienated child. Family law quarterly, 38 (4), 757–775. 104 J. S. MEIER Johnston, J. and Kelly, J., 2004. Rejoinder to gardner’s “Commentary on Kelly and Johnston’s ‘The alienated child: A reformulation of parental alienation syndrome”’. Family court review, 42 (4), 622–628. Kruk, E., 2018. Parental alienation as a form of emotional child abuse: current state of knowledge and future directions for research. Family science review, 22 (4), 141–164. Lapierre, S., et al., 2020. The legitimization and institutionalization of ‘parental alienation’ in the Province of Quebec. Journal of social welfare and family law, 42 (1), 30–44. Meier, J., 2003. Domestic violence, child custody and child protection: understanding judicial resistance and imagining the solutions. American university journal of gender, social policy & the law, 11 (2), 657–731. Meier, J., 2009. A historical perspective on parental alienation syndrome and parental alienation. Journal of child custody, 6 (3–4), 232–257. Meier, J. 2010. Getting Real About Abuse and Alienation: A Critique of Drozd and Olesen’s Decision Tree. Journal of Child Custody, 7 (4), 219–252. Meier, J. and Dickson, S., 2017. Mapping gender: shedding empirical light on family court’s treatment of cases involving abuse and alienation. Law & inequality, 35 (2), 311–334. Milchman, M.S., 2017. Misogynistic cultural argument in parental alienation versus child sexual abuse cases. Journal of child custody, 14 (4), 211–233. Milchman, M.S., 2019. Commentary on “Parental alienation syndrome/parental alienation disorder” (PAS/PAD): a critique of a “Disorder” frequently used to discount allegations of interpersonal violence and abuse in child custody cases. APSAC Advisor. Neilson, L.C., 2018. Parental alienation empirical analysis: child best interests or parental rights? (Fredericton: muriel McQueen Fergusson centre for family violence research and vancouver: the FREDA centre for research on violence against women and children). [online]. Available from: http://www.fredacentre.com/wp-content/uploads/2018/02/Parental-Alienation-Linda-Neilson. pdf [Accessed 21 November 2019]. Rathus, Z., 2020. A history of the use of the concept of parental alienation in the Australian family law system: contradictions, collisions and their consequences. Journal of social welfare and family law, 42 (1), 5–17. Saini, M., et al., 2016. Empirical studies of alienation. In: L. Drozd, M. Saini, and F. Olesen, eds. Parenting plan evaluations: applied research for family court. 2d ed. New York: Oxford University Press, 374–430. Sheehy, E. and Boyd, S.B., 2020. Penalizing women’s fear: intimate partner violence and parental alienation in Canadian child custody cases. Journal of social welfare and family law, 42 (1), 80–91. Silberg, J., Dallam, S., and Samson, E., 2013. Crisis in family court: lessons from turned-around cases. Final Report to the Office on Violence against Women, Department of Justice. [online]. Available from: http://www.protectiveparents.com/crisis-fam-court-lessons-turned-aroundcases.pdf. [Accessed 21 November 2019]. Thoennes, N. and Tjaden, P.G., 1990. The extent, nature and validity of child sexual abuse allegations in custody/visitation disputes. Child abuse & neglect, 14 (2), 151–163. Thomas, R.M. and Richardson, J.T., 2015. Parental alienation: thirty years on and still junk science. The judges’ journal, 54 (3), 22–24. Trocmé, N. and Bala, N., 2005. False allegations of abuse and neglect when parents separate. Child abuse & neglect, 29 (12), 1333–1345. Warshak, R.A. 2019. When evaluators get it wrong: False positive IDs and parental alienation. Psychology, Public Policy, and Law. [Advance Online publication]. Available from: https://doi. org/10.1037/law0000216 Zaccour, S., 2018. Parental alienation in Quebec custody litigation. Les Cahiers de Droit, 59 (4), 1073–1111. Zorza, J. and Rosen, L., 2005. Guest editors’ introduction. Violence against women, 11 (8), 983–990.

From: Wise, Laurel <Laurel.Wise@courts.wa.gov>
Date: Fri, Jun 16, 2023, 2:03 PM
Subject: 83518-1 Heather Tosic, Respondent v. Predrag Tosic, Appellant
To: pedja.tosic@gmail.com <pedja.tosic@gmail.com>, 
valerie@washingtonappeals.com <valerie@washingtonappeals.com>, 
cate@washingtonappeals.com <cate@washingtonappeals.com>
Cc: o’donnell.court@kingcounty.gov <o’donnell.court@kingcounty.gov>

LEA ENNIS, Court Administrator/Clerk
The Court of Appeals of the State of Washington
Division I, One Union Square
600 University Street
Seattle, WA, 98101-4170
(206) 464-7750

The attached documents are being transmitted to counsel electronically. This will be the only notice you will receive from the court.

ATTENTION: Beginning September 1, 2021, per new RAP 18.17, the Washington State Court of Appeals will be shifting from page count limits to word count limits. For more information see www.courts.wa.gov/wordcounts

Effective August 1, 2020 and pursuant to the intent of GR 30(b)(4), all electronic filing of documents in the Court of Appeals should be through the web portal. Electronic filing through the Court of Appeals’ e-filing Internet portal is mandatory for any case participant who is admitted to practice law in the State of Washington.

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Letter Denying Motion

Order Terminating Review

Becky Woodrow
Senior Office Administrative Assistant
WA State Supreme Court
Becky.Woodrow@courts.wa.gov

WA Supreme Court Effectively Sanctions Pro Se Litigant for Life

Spokane County True Filing Electronic Document Submission Portal

Case Information

17-2-00395-23 | GRETCHEN JACOBS vs GEORGE R WEST
Case Number
17-2-00395-23

Court
Mason

File Date
07/05/2017

Case Type
DVP Domestic Violence

Case Status
Completed/Re-Completed

Party

Respondent (WIP)
WEST, GEORGE R

DOB
XX/XX/1943

Active Attorneys

Lead Attorney

Steele, George Alan

Retained

---

Petitioner (WIP)
JACOBS, GRETCHEN

DOB
XX/XX/1955

Disposition Events

08/15/2018 Judgment

Judgment Type
Transcript of Judgment

Monetary/Property Award

Creditors: JACOBS, GRETCHEN

Debtors: WEST, GEORGE R

Signed Date: 08/15/2018

Filed Date: 08/15/2018

Effective Date: 08/15/2018

Current Judgment Status:

Status: Fully Satisfied

Status Date: 04/19/2019

Monetary Award:

Fee: Attorney Fee, Amount: $1,290.00

Total: $1,290.00

Comment

Comment ()

---

Events and Hearings

• 07/05/2017 Confidential Information Form
• 1 07/05/2017 Petition for Order for Protection View Document Petition for Order for Protection
• 2 07/05/2017 Temporary Order for Protection View Document Temporary Order for Protection Judicial Officer
  Goodell, Daniel L
• 07/05/2017 Ex Parte Action With Order Judicial Officer
  Goodell, Daniel L
• 3 07/10/2017 Sheriffs Return on Service View Document Sheriff’s Return on Service
• 4 07/10/2017 Notice of Appearance View Document Notice of Appearance
• 5 07/19/2017 Domestic Violence View Document Mason Minutes Judicial Officer
  Adamson, Richard C Hearing Time
  9:00 AM Result
  Continued Parties Present Petitioner (WIP): JACOBS, GRETCHEN Respondent (WIP): WEST, GEORGE R
• 6 07/19/2017 Order Reissuing Temporary Protection Order View Document Order Reissuing Temporary Protection Order Judicial Officer
  Adamson, Richard C
• 7 07/19/2017 Motion Hearing View Document Mason Minutes
• 8 07/19/2017 Email View Document Email
• 9 07/31/2017 Declaration Affidavit View Document Declaration/Affidavit
• 10 08/02/2017 Domestic Violence View Document Mason Minutes Judicial Officer
  Finlay, Amber L Hearing Time
  9:00 AM Result
  Held Parties Present Petitioner (WIP): JACOBS, GRETCHEN Respondent (WIP): WEST, GEORGE R
• 11 08/02/2017 Order for Protection View Document Order for Protection Judicial Officer
  Finlay, Amber L
• 08/02/2017 Case Resolution Closed by Court Order After a Hearing
• 12 08/02/2017 Motion Hearing View Document Mason Minutes
• 13 12/06/2017 Motion and Affidavit Declaration View Document Motion and Affidavit Declaration Comment
  TO MODIFY ORDER FOR PROTECTION
• 14 12/06/2017 Declaration Affidavit View Document Declaration Affidavit Comment
  OF ADAM PACZKOWSKI
• 15 12/06/2017 Declaration Affidavit View Document Declaration Affidavit Comment
  OF JUSTUS KANDOLL
• 16 12/06/2017 Notice of Hearing View Document Notice of Hearing Comment
  MOTION TO MODIFY/TERMINATE PROTECTION ORDER
• 17 12/11/2017 Return of Service View Document Return of Service
• 18 & 19 12/27/2017 Motion Hearing View Document Mason Minutes View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D Hearing Time
  1:30 PM Result
  Held Comment
  TO MODIFY/TERMINATE PROTECTION ORDER I called Paczkowsi’s office and informed them of when to schedule future Protection order hearings (M-F 9:00 a.m.) – Cheryl Parties Present Petitioner (WIP): JACOBS, GRETCHEN Respondent (WIP): WEST, GEORGE R
• 20 12/27/2017 Motion Hearing View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D
• 21 12/27/2017 Notice of Appearance View Document Notice of Appearance
• 01/10/2018 Presentation of Order Judicial Officer
  Sauerlender, Robert D Hearing Time
  1:30 PM Cancel Reason
  Duplicate Hearing Comment
  Mtn to Modify/Terminate Protection Order
• 22 01/10/2018 Presentation of Order View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D Hearing Time
  1:30 PM Result
  Held Comment
  BEFORE COMMISSIONER SAUERLENDER
• 23 01/10/2018 Motion Hearing View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D
• 24 01/10/2018 Order Denying Motion Petition View Document Order Denying Motion Petition Judicial Officer
  Sauerlender, Robert D Comment
  to Modify and awards attorney fees in the amount of $1,270.60
• 07/20/2018 Confidential Report in Sealed Envelope
• 25 07/20/2018 Petition View Document Petition
• 26 07/20/2018 Order for Protection Renewal Reissue View Document Order for Protection Renewal Reissue Judicial Officer
  Cobb, Monty D
• 07/20/2018 Ex Parte Action With Order Judicial Officer
  Cobb, Monty D
• 27 07/30/2018 Declaration Affidavit View Document Declaration Affidavit Comment
  of Gretchen Jacobs
• 28 07/30/2018 Declaration Affidavit View Document Declaration Affidavit Comment
  of Kenneth Hackett
• 29 07/30/2018 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 30 07/30/2018 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 08/01/2018 Protection Order Judicial Officer
  Goodell, Daniel L Hearing Time
  9:00 AM Result
  Held Parties Present Petitioner (WIP): JACOBS, GRETCHEN
• 31 08/01/2018 Notice Withdraw and Substitution of Counsel View Document Notice Withdraw and Substitution of Counsel
• 32 08/01/2018 Order for Protection Renewal Reissue View Document Order for Protection Renewal Reissue Judicial Officer
  Finlay, Amber L
• 33 08/08/2018 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 08/14/2018 Confidential Information Form
• 34 08/14/2018 Return of Service View Document Return of Service
• 35 08/15/2018 Protection Order View Document Mason Minutes Judicial Officer
  Finlay, Amber L Hearing Time
  9:00 AM Result
  Held Parties Present Respondent (WIP) Attorney: Steele, George Alan
• 08/15/2018 Domestic Violence Judicial Officer
  Finlay, Amber L Hearing Time
  9:00 AM Cancel Reason
  Duplicate Hearing
• 36 08/15/2018 Motion Hearing View Document Mason Minutes Judicial Officer
  Finlay, Amber L
• 37 08/15/2018 Declaration Affidavit View Document Declaration Affidavit
• 38 08/15/2018 Order for Protection Renewal Reissue View Document Order for Protection Renewal Reissue Judicial Officer
  Finlay, Amber L
• 39 08/15/2018 Acceptance of Service View Document Acceptance of Service
• 40 08/15/2018 Judgment View Document Judgment Judicial Officer
  Finlay, Amber L Comment
  FOR ATTORNEY FEES
• 41 12/28/2018 Notice of Withdrawal of Attorney View Document Notice of Withdrawal of Attorney
• 42 04/17/2019 Satisfaction of Judgment View Document Satisfaction of Judgment

by James Kelly 6-3-23 (NY)

I asked earlier today in Questions Presented if there was a due process right to an accurate transcript because Judge Gliedman cited “There is no constitutional right to videotape or audiotape court proceedings, and there is an absolute prohibition against recording some court proceedings.” CC v. DD, 64 Misc.3d 828 at 845 (NY County Supreme Ct, 2019).

Here is my answer that affirms my “Yes.”

There is a substantive due process right to a substantially accurate court transcript:

“It is well-settled that a criminal defendant’s right to a trial transcript is of constitutional dimension. See Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). A defendant has a due process right, ipso facto, to a substantially accurate record of sentencing proceedings. See Curro v. Watson, 884 F.Supp. 708, 719 (E.D.N.Y. 1995) (“Because effective appellate review would be substantially hampered if the trial transcript were materially in error, it stands to reason, therefore, that this substantive due process right would be meaningless unless it also embraced the right to a reasonably accurate transcript….”).” Argentieri v. Majerowicz, 158 F. App’x 306 (U.S. Ct. App. 2nd Cir. 2005)

“Because effective appellate review would be substantially hampered if the trial transcript were materially in error, it stands to reason, therefore, that this substantive due process right would be meaningless unless it also embraced the right to a reasonably accurate transcript that, among other things, preserves the criminal defendant’s objections for purposes of appeal, and readily lends itself to a just resolution of any material inaccuracies in said transcript through a transcript settlement procedure.” Curro v. Watson, 884 F. Supp. 708 (E.D.N.Y. 1995).

However, and despite the verbatim requirements upon court reporters, there is no case law to support a substantive due process right to a verbatim official court transcript.

With respect to the absolute right to procedural due process:

“Consistently with procedural due process, the State Supreme Court’s affirmance of petitioner’s conviction upon a seriously disputed record, whose accuracy petitioner had no voice in determining, cannot be allowed to stand. Pp. 164-165.” Chessman v. Teets, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253 (1957)

“Chessman v. Teets, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253 (1957), is perhaps the most interesting precedent of all. There, the reporter at the state court trial had died after transcribing a small portion of the trial and there was great difficulty in reading his notes. The state court undertook a procedure for the creation by others of a purported transcript. The defendant was not represented during that procedure and challenged the accuracy of the purported transcript. After exhausting his state remedies, he applied to the federal court for a writ of habeas corpus. The Supreme Court held that the state court procedure in creating the purported transcript lacked the requirements of due process and remanded the case to the District Court with instructions to enter an order as prescribed by the Supreme Court in its opinion. The prescribed order permitted the state courts a reasonable time within which to comply with constitutional requirements in connection with the transcript, and, failing such action, ordered that the petitioner be discharged. 354 U.S. at 166, 77 S.Ct. 1127. … procedural due process would of course require that the transcript be accurate and that defendant participate in person or by counsel at hearings to reconstruct the record of his trial.” Hart v. Eyman, 458 F.2d 334 (9th Cir. 1972).

“Generally, a deprivation of liberty or property is not cognizable under 42 U.S.C. § 1983 when state post-deprivation remedies are adequate to protect the plaintiff’s procedural due process rights, and the conduct causing the deprivation is random and unauthorized, rather than effected pursuant to an established state procedure. … Accordingly, if the State is able, through adequate state post-deprivation remedies, to compensate the plaintiff for unauthorized intentional deprivations, or otherwise to resolve the issues presented, the State has provided all the process that is due for purposes of § 1983. See, e.g., Katz v. Klehammer, 902 F.2d 204, 206-07 (2d Cir. 1990) … The State of New York provides postdeprivation remedies that are adequate to cure errors or omissions in a transcript of a criminal defendant’s trial. Specifically, section 5525(c) of the New York Civil Practice Law Rules, and section 460.70(1) of the New York Criminal Procedure Law, provide mechanisms for challenging inaccuracies in a transcript through a transcript settlement hearing, which, whenever possible, is to be presided by the same judge who presided at the trial in question. See Cousart v. Hammock, 745 F.2d 776, 778 (2d Cir. 1984); N.Y.Civ.Prac.L. R. § 5525(c); N.Y.Crim.Proc. Law § 460.70(1). Further, New York law firmly rests ultimate responsibility for the integrity and accuracy of the record and transcript of the judicial proceeding upon the trial judge. See N.Y.Jud. Law § 7-a; People v. Roldan, 96 A.D.2d 476, 465 N.Y.S.2d 35, 36 (App.Div. 1st Dep’t 1983). In addition, any significant unresolved questions concerning the transcript’s accuracy could be raised on appeal, and if found to be substantial, would permit a remand of the proceedings back to the original trial judge to resettle the transcript. See People v. Locke, 154 A.D.2d 622, 546 N.Y.S.2d 452, 453 (App.Div.2d Dep’t 1989); Roldan, 465 N.Y.S.2d at 36.” Curro v. Watson, 884 F. Supp. 708 (E.D.N.Y. 1995).

Procedural Unfairness

1) NYS CPLR § 5525 (c) fails to provide any meaningful procedure to settle the trial transcript prior to the deliberations of the trier of the facts.

2) Should judicial misconduct have occurred and been omitted from the official court transcript, and is challenged, the judge as the final arbiter of the transcript, has the opportunity to select the version of the transcript without the preservation of evidence of judicial misconduct as the official version.

3) There is no civil equivalent in the form of a reconstruction hearing that is available in criminal proceedings.

4) Arguments unpreserved in the certified record are not available for judicial review and for appellate decisions involving judicial misconduct the remand to the trial court for settlement is inherently unfair.

5) The statutory prohibition and judicial rules prohibiting the independent preservation of evidence of what transpires in the courtroom is unconstitutional prior restraint.

The prohibition against recording in court proceedings violates the confrontation clause of the Sixth Amendment because it is prior restraint against the settlement of the official record.

The court reporter is an expert witness, presenting an expert opinion of who said what in the proceedings, in the form of a certified official court transcript. They are not infallible.

Independent recordings render reconstruction hearings academic.

6) NYS CVR § 52 & 22 N.Y.C.R.R. § 29 both unfairly and unlawfully infringe upon the right to bare the defensive “arms” generally called recording devices which are protected by the Second Amendment.

The “Universe 25” experiment is one of the most terrifying experiments in the history of science, which, through the behavior of a colony of mice, is an attempt by scientists to explain human societies. The idea of ​​”Universe 25″ Came from the American scientist John Calhoun, who created an “ideal world” in which hundreds of mice would live and reproduce. More specifically, Calhoun built the so-called “Paradise of Mice”, a specially designed space where rodents had Abundance of food and water, as well as a large living space. In the beginning, he placed four pairs of mice that in a short time began to reproduce, resulting in their population growing rapidly. However, after 315 days their reproduction began to decrease significantly. When the number of rodents reached 600, a hierarchy was formed between them and then the so-called “wretches” appeared. The larger rodents began to attack the group, with the result that many males begin to “collapse” psychologically. As a result, the females did not protect themselves and in turn became aggressive towards their young. As time went on, the females showed more and more aggressive behavior, isolation elements and lack of reproductive mood. There was a low birth rate and, at the same time, an increase in mortality in younger rodents. Then, a new class of male rodents appeared, the so-called “beautiful mice”. They refused to mate with the females or to “fight” for their space. All they cared about was food and sleep. At one point, “beautiful males” and “isolated females” made up the majority of the population.

According to Calhoun, the death phase consisted of two stages: the “first death” and “second death.” The former was characterized by the loss of purpose in life beyond mere existence — no desire to mate, raise young or establish a role within society. As time went on, juvenile mortality reached 100% and reproduction reached zero. Among the endangered mice, homosexuality was observed and, at the same time, cannibalism increased, despite the fact that there was plenty of food. Two years after the start of the experiment, the last baby of the colony was born. By 1973, he had killed the last mouse in the Universe 25. John Calhoun repeated the same experiment 25 more times, and each time the result was the same.

Calhoun’s scientific work has been used as a model for interpreting social collapse, and his research serves as a focal point for the study of urban sociology.

We are currently witnessing direct parallels in today’s society..weak, feminized men with little to no skills and no protection instincts, and overly agitated and aggressive females with no maternal instincts.

Court stops Mass. family police from crushing minimal due process rights for families

The Massachusetts Department of Children and Families found that their determinations of “child abuse” and “neglect” were being overturned after a hearing half the time. Guess what they did:

A. Realized their process for labeling people child abusers was rife with error and fixed it.

B. Invented a way to evade the hearings.

(After a court saw through DCF’s ploy, the agency started providing the hearings).

Every state has some version of a “central register” of people accused of child abuse or neglect.  The process and the consequences vary from state to state, but they have one thing in common: It is extremely easy to be put on these registers and extremely difficult to get off again.  They amount to state databases of rumor and innuendo. 

In almost every state, getting on the register requires only that a caseworker check a box on a form stating it is slightly more likely than not that you are a child abuser – or simply slightly more likely than not that you are guilty of “neglect,” a label that can be slapped on almost anyone who is poor, if a caseworker is so inclined.  In some states, including Massachusetts, the standard is even lower. 

Sometimes a supervisor has to check the box, too.  That’s it.  There’s no independent factfinding beforehand, no chance to present a defense, no neutral arbiter evaluating all sides. The caseworker’s word is law.  Once on the register, you have to fight your way out.  The process varies from state to state, but again, there’s one thing in common: If you can’t afford a lawyer you’re unlikely to get one.  It’s you, on your own, vs. the entire family police bureaucracy.  And since overwhelmingly the people labeled “child abusers” are poor, well … 

All this does enormous harm to children.  A listing on a central register can be a barrier to a huge number of jobs – often the very jobs most likely to be open to poor people. So the listing drives them further into poverty, harming their children and, of course, making it more likely that the poverty will be confused with neglect. 

And the listing increases the odds that, even if the children weren’t thrown into foster care this time, it will happen if the family is reported again – because the listing raises suspicions, whether it’s the guess of a human caseworker or a computer algorithm raising a family’s “risk score.” 

In spite of the way the deck is stacked, a stunning number of people who fight these determinations win. 

So in Massachusetts, where you can seek an administrative hearing to fight your way out, even though the burden of proof is on you to show you are innocent, families win about half the time.  

One might hope that a record like that might give a family police agency second thoughts; that they might think: Hey, wait a minute, if as soon as a neutral arbiter looks at this, despite the way we’ve stacked the deck, the arbiters say we’re wrong half the time maybe that means we’re wrong half the time and we need to fix this. 

As far as I know, that’s never happened.  Not in Massachusetts and not in other states where the rate at which these findings are overturned on appeal can be even higher. 

But only Massachusetts DCF came up with this oh-so-clever little workaround: make up an entire new category out of whole cloth, make it slightly less harmful than the really bad category  and unilaterally deny families fair hearings!  

Until 2015, DCF had two boxes a worker could check: “supported” and “unsupported.”  An unsupported finding did not lead to a listing in the central register and other adverse consequences, a supported finding did. 

But then, faced with all those supported findings being overturned on appeal, DCF suddenly decreed
the existence of a third category: “substantiated concern.”  There’s supposed to be a formal rulemaking process, complete with public comment, before a Massachusetts agency does something like that; but hey, they’re the family police – rules are for other people, right?  They just pulled this new category out of their – uh, imagination.  Only after the lawsuit described below, did DCF go through the rulemaking process (which was, of course, a foregone conclusion since they already had the rule). 

Here’s what made this new category so dangerous: 

DCF unilaterally decided that victims of “substantiated concern” findings are not entitled to fair hearings.  Instead, they can write to DCF itself and ask them to please reconsider. 

So-called “substantiated concern” determinations don’t result in a listing in the central registry – but they still go into DCF’s internal database.  That means they can still be used, by humans or computers, to ratchet up suspicion if there’s another report, increasing the risk of needless foster care placement.  The new category means DCF can stay in the family’s life for months or more, placing them under constant onerous, stressful surveillance. 

The new category also imposes limits on whether someone so listed can become a foster parent.  That’s what happened to a mother known in court documents as Jane Doe.  She sought to appeal the “substantiated concern” finding and was told that wasn’t allowed.  So she used the only appeal mechanism open to her – writing to DCF – and lost. 

Then she sued.  And won. 

As Superior Court Justice Katie Rayburn wrote in her ruling: 

[M]ore than half* of the DCF’s initial “supported” determinations were wrong.  There is no obvious reason that the DCF’s determinations of “substantiated concern” would be any more accurate than its “supported” determinations.  As such, there is a great risk that DCF will make “substantiated concern” determinations which would be more likely than not to be overturned on a quasi-judicial appeal proceedings.

In fact, the odds of injustice may be even greater with this category, as a story in Massachusetts Lawyers Weekly explained, citing Susan Elsen of the Massachusetts Law Reform Institute. MLRI and the firm of Brown, Rudnick represented Jane Doe.  From the story:

By its nature, the “substantiated concern” finding is designed for cases in which there is a low risk of harm to a child, making it that much more important to provide parents a means to challenge DCF’s initial findings, Elsen says.

DCF’s intervention is not “benign,” Elsen notes. … “Once DCF intervenes, the family lives in fear that their child will be taken from them.”… 

Elsen expects that families facing “substantiated concern” determinations may be even more successful in fair hearings, given that it is an even vaguer standard requiring less evidence and thus less likely to withstand a “competent, careful administrative review.”

And Elsen raised another vital issue: 

From the beginning, Elsen says, one concern was that the creation of the “substantiated concern” category would only perpetuate racial bias in the child welfare system.

Statewide, Black and Latinx families are reported to DCF more than three times as much as white families, according to Elsen, while in the Boston area, the numbers are even starker, with Latinx families and Black families reported at more than six and nine times the rate of white families, respectively. 

DCF is now providing administrative hearings for those who appeal “substantiated concern” determinations.  But what about the thousands of families slapped with this label since 2015?** (There were 7,929 such determinations in 2021 alone.) 

And who is going to stop DCF from running amok like this the next time it comes up with a similarly brilliant idea? 

*-The “More than half” statement is based on 2020 figures, when DCF was reversed 54% of the time. The Boston Globe reports that in 2022, DCF did better – they were reversed only 48% of the time. 

** – News accounts make clear that the category took effect in 2015, though it’s not clear if all of the harm dates back that far.  The Globe story says the designation was “revised” in 2020.

James O’Keefe

BREAKING NEWS:

PORTLAND, Ore. (OMG) the Ninth Circuit Court of Appeals has OVERTURNED the law that prohibits recording in the state of Oregon on the grounds it violates the 1st amendment. I filed the lawsuit (PVA v Schmidt) with attorney Benjamin Barr and Steve Klein at the Marc O. Hatfield courthouse in Chapman square in downtown Portland with heavy security in August 2020.

Oregon Revised Statute 165.540(1)(c) prohibited anyone from making an audio recording unless that person “specifically informed” others they were recording. But the law also included special permissions from government to allow for non-notified recording of the police, but not any other government employee.

That just leaves government putting its thumb on the lens of newsgathering, deciding which news is easiest to get and skewing reporting. Like the Ninth Circuit has explained before, whatever concerns Oregon has over shoddy reporting or “fake news,” the remedy for speech that is false is speech that is true and not the suppression of speech.

Oregon has no power to protect the conversational privacy of some people in a public place from the First Amendment protected newsgathering of other individuals. Because the law lets government distort the newsgaterhing process and bans entirely too much effective journalism, it violated the First Amendment on its face.

Circuit Judge Sandra S. Ikuta out of the 9th circuit in Pasadena, California authored the opinion. Ikuta wrote, “Oregon does not have a compelling interest in protecting individuals’ conversational privacy from other individuals’ protected speech in places open to the public, even if that protected speech consists of creating audio or visual recordings of other people.”

By ALANNA MADDEN / July 3, 2023

Siding with a conservative media organization famous for its ambush and undercover work, the Ninth Circuit ruled 2-1 Monday that Oregon trampled the First Amendment in requiring consent to record conversations.

“Oregon law generally prohibits unannounced recordings of conversations, subject to several exceptions,” U.S. Circuit Judge Sandra Segal Ikuta wrote in the majority opinion. “We conclude that Oregon’s law is a content-based restriction that violates the First Amendment right to free speech and is therefore invalid on its face.”

The statute at issue requires all persons of a conversation to be “specifically informed” for individuals to record oral communications. Project Veritas, an organization dedicated to revealing supposed liberal bias in the media, filed suit over the law in August 2020, claiming the law limits the First Amendment rights of investigative journalists to engage in undercover newsgathering.

While Oregon is only one of five states that prohibit individuals from recording conversations without notice or consent, most professional journalists identify themselves and inform their subjects if they are recording a conversation. Indeed, when it comes to the style of reporting favored by Project Veritas, the Society of Professional Journalists recommends in its Code of Ethics to avoid “undercover or other surreptitious methods of gathering information unless traditional, open methods will not yield information vital to the public.”

Oregon’s recording law did exempt those recording a conversation during a felony that endangers human life, and it permitted recordings of on-duty law enforcement. Another exemption covered instances where it’s evident that a recording is taking place, in circumstances where someone should have reasonably known a recording was being made or during phone calls if at least one person on the call knows that the conversation is being recorded.

Were it not for Oregon’s law, Project Veritas said it would investigate allegations of corruption” involving the Oregon Public Records Advocate and the Public Records Advisory Council.

“In 2019, Oregon’s Public Records Advocate resigned due to alleged pressure from or mismanagement by Governor Kate Brown,” the group wrote in its complaint, adding that it would have also investigated the “dramatic rise in violent protests in Portland between the police and members of Antifa and other fringe groups.”

“Because protests and even ordinary public life in Portland have proven dangerous to reporters,” the group explains, it fears that the safety and lives of its journalists would be endangered if it were to record conversations openly or inform participants of the recording. Outside of organized rallies, the group said it would do most of its secret recording in public.

Project Veritas went to the U.S. Court of Appeals in Pasadena, California, after the city won a partial dismissal of the case.

“Here, the state law at issue regulates individuals’ conduct in making an audio or video recording. Under our case law, such conduct qualifies as speech entitled to the protection of the First Amendment,” wrote Ikuta, citing Animal Legal Defense Fund v. Wasden, a case in which an animal rights group secretly filmed an Idaho dairy farm abusing its cows.

Ikuta notes that, at the outset, Oregon does not assert a compelling interest but argues that it has a significant interest in protecting individuals’ conversational privacy.

“In analyzing this interest, we are bound by Wasden’s conclusion that ‘the act of recording is itself an inherently expressive activity’ that merits First Amendment protection,” the George W. Bush appointee added. “Therefore, prohibiting a speaker’s creation of unannounced recordings in public places to protect the privacy of people engaged in conversation in those places is the equivalent of prohibiting protesters’ or buskers’ speech in public places for the same purpose.”

Ikuta also found that Oregon’s law is not narrowly tailored to be the least restrictive or intrusive means of achieving the government’s interest either. Tailoring is required for a law that regulates protected speech, as here. Because the law also distinguishes between topics by which subjects are restricted — the official activities of a state executive officer cannot be recorded without consent, but those of a police officer can — the law is additionally considered content-based, the court found.

U.S. Circuit Judge Morgan Christen wrote in dissent that Oregon adopted its law with a goal of ensuring that Oregonians would be free to engage in the “uninhibited exchange of ideas and information,” without fearing that their words would be broadcasted, disseminated or “worse, be manipulated and shared across the internet devoid of relevant context.”

Christen accused the majority of rewriting the state’s articulated purpose for the law and recasting its interest as one in “protecting people’s conversational privacy from the speech of other individuals.”

That reframing, the Obama appointee wrote, “serves as the springboard for the majority’s reliance on an inapplicable line of Supreme Court authority that pertains to state action aimed at protecting people from unwanted commercial or political speech; not protection from speech gathering activities like Project Veritas’s, which are qualitatively different because they appropriate the speech of others.”

Christen also noted that the majority’s rationale contravenes that of the Ninth Circuit, which has explained that hidden mechanical contrivances are not indispensable tools of newsgathering.

“Investigative reporting is an ancient art; its successful practice long antecedes the invention of miniature cameras and electronic devices,” Christen wrote, citing Dietemann v. Time Inc. “Because modern technology now allows voice recordings to be manipulated and disseminated worldwide with a few keystrokes and clicks, the protection afforded by section 165.540(1)(c) is more important than ever. For all these reasons, I respectfully dissent.

CHECKLIST FOR DRAFTING A TRIAL BRIEF

(Modeled after a brief writing checklist prepared by Professor Janet Calvo, CUNY School of Law)

I. Introduction (or Preliminary Statement)

• Does the Introduction articulate the party’s claim and introduce the theory of the case by referring to the case facts?
• Are the parties identified?
• Is the procedural history included?

II. Statement of Facts

• Does the Statement set forth the facts in a narrative that will be easy to follow for a reader who is unfamiliar with the case?
• Does it include all legally significant facts?
• Does it include relevant background facts?
• Does it include facts that have an emotional resonance or sympathetic value for the party on whose behalf you write?
• Are the facts stated accurately?
• Does the Statement include the facts that you use in the Argument?
• Has the Statement been edited to remove legal conclusions and editorializing?
• Do favorable facts appear in positions of emphasis?
• Does the Statement include significant unfavorable facts without overemphasizing them?
• Does the Statement present and develop the theory of the case?

III. Question Presented (or, alternatively, Summary of Argument)

• Does the Question combine the legal claim and controlling legal standard with the legally significant facts that raise the legal issue?
• Is the Question framed so as to suggest an affirmative answer?
• Does the Summary (if applicable) present a short statement of the legal and factual theory of the case?

IV. Point Headings

• Do the point headings and subheadings provide the reader with an outline of the argument?
• Are the headings framed as legal assertions that are favorable to the party you represent, and are they supported with legally relevant facts?
• Do the headings answer the question(s) presented?
  • V. Argument
  • A. Overall
• Is the Argument organized into points and subpoints?
• Do the points and subpoints follow the CRRACC paradigm (Conclusion/Rule Synthesis/Rule Proof/ Application of Rule to Facts/Counterargument/Conclusion Restated)?
• Does the Argument address the procedural context and the arguments based upon it?

B. Content of Rule

• Is the synthesized rule (legal standard) set forth clearly and completely?
• Does the synthesized rule discuss the “common threads” (as that term is used in Laurel Oates et al., The Legal Writing Handbook (3d ed., Aspen), at pp. 78-82 ) or patterns among cases?
• Is the synthesized rule framed favorably for the party you represent, supporting the conclusion that you want the court to reach?

C. Rule Proof

• Does the Rule Proof carry forward and develop each of the ideas stated in the Rule Synthesis in a section of one or more paragraphs that begins with a thesis (idea) sentence?
• Do the cases discussed in the Rule Proof illustrate and support the idea expressed in each thesis sentence?
• Does the Rule Proof address the holdings, legally significant facts, and reasoning of the cases discussed?
• Are the facts of the cases included in the Rule Proof related to/illustrative of the legal point that you have asserted?
• Are the parts of cases that counter your argument distinguished or explained?
• Does the Argument raise and address relevant policy arguments?

D. Application of Rule to Fact

• Does the Application relate all the components of the rule/legal standard to the facts of the case that you are arguing?
• Does the Argument demonstrate how underlying policy objectives in the law are met if the court accepts the application of law to fact?
• Does the Application of rule to fact illustrate the theory of the case?

E. Counterargument

• Does the Counterargument address and dispose of the arguments raised by the opponent, without overemphasizing them?

F. Organization

• Does each paragraph within a point or subpoint advance the argument being made?
• Are there clear transitions between paragraphs?
• If the thesis or topic sentences of each paragraph within a point or subpoint were arranged in order, would a sound structure or outline of the point emerge?
• Do the sentences within a paragraph relate to one another coherently, such that each successive sentence builds on the idea that is being addressed in preceding sentences?

G. Form

• Have you checked all sentences for correct grammar, spelling, and citation form?

Narratives in Law: the Statement of Facts in a Trial Brief

NARRATIVES IN LAW: THE STATEMENT OF FACTS IN A TRIAL BRIEF

The Statement of Facts in a brief to a court performs specific work: we can think of it as a strategic staging or presenting of facts in a way that addresses the legal issues in a case, without overtly arguing them.

Typically, a judge will read the Statement of Facts in a brief before reading the Argument; a well-crafted Statement of Facts that engages in covert persuasion can influence the way in which the arguments will be evaluated. At its best, a Statement of Facts will have the attributes of a narrative, including a plot line based on a certain temporality, a series of events, a cast of characters, and a point of view. If it is skillfully crafted, it will elicit interest and build dramatic tension. Unlike other narratives, though, a Statement of Facts in a brief is subject to parameters that are based on the elements of the law that applies. The facts you choose to include in the Statement of Facts should bear a relationship to the factual criteria in the case law or statute that governs the legal issue. For example, in a case involving the special relationship doctrine in torts, in which New York case law has identified four elements for meeting its requirements (knowledge, assumption of duty, direct contact, reliance), plaintiffs and defendants should include facts in the Statement that tend to support or disprove these elements.

Thus, in the Statement of Facts there is interplay between law and fact. The Statement of Facts should be written with a consciousness of what will be argued in the Argument; there should be a correspondence of facts in both, though the language, level of detail, and tone will differ. With these parameters in mind, consider the possible approaches to developing a narrative that you’ve encountered in other contexts. Narratives can be character-driven, event-driven, place-centered. Narratives can unfold in chronological order of events, through flashbacks, or through some other point in time that is neither at the beginning nor the end of the sequence of events constituting “what happened.” Narratives can be told from the perspective of a particular person, including the narrator or some other person, or a narrative can shift its perspective in the course of the telling.

In a Statement of Facts in a brief, the need to present a compelling, coherent plot or story line that addresses the legally significant facts will limit some of the options otherwise available to storytellers. The narrative should “flow” (e.g., it would be risky here to experiment with post-modern approaches that fracture time frames or juxtapose perspectives – it won’t accredit your client’s case if you confuse or disorient the reader!). The reader should be able to get a clear sense of “what happened,” though the choice of where to begin the narrative (i.e., what, in the telling of it, constitutes the beginning) can be critical to creating a compelling effect. As always, you would need to think strategically when choosing where to “begin.” It’s also crucial to narrate in a way that embeds the point of view of your client (and that avoids highlighting the perspective or the experience of the opposing party). Typically, presenting a narrative from your client’s perspective involves making your client or its representative the subject or agent in the story line – the focus of attention and action.

The Statement of Facts is not the only written factual narrative that advocates produce in a litigated case. The Complaint is also a source of facts, and in some instances, such as in a motion to dismiss, it is the only source available to the parties, because its allegations are taken as true. The Complaint serves legal and rhetorical functions that are distinct from the way in which a Statement of Facts works. The legal function of the Complaint is primary: it alleges facts necessary to state all elements of a legal claim. Thus, it is written from the perspective and within the knowledge base of the pleader. Secondarily, the Complaint may have a persuasive or narrative function – when it is framed with more detail. As writing, it is its own legal genre. Its form has legal significance: the factual substance must be set out in separately numbered paragraphs; each paragraph should deal with one idea that can be admitted or denied in an answering pleading; the language should be clear and precise. The Complaint may not present a narrative that is artful in the telling, but at the very least it purports to narrate a legal story – its facts fit within all the requirements prescribed for a cause of action. If the Complaint is fairly specific, it may also get across a factual narrative – what happened and to whom – and usually this presentation of facts will occur in a chronological order.

Yet, given these considerations of function and form, the Complaint is rarely a good model of a narrative for the Statement of Facts. Even when working within the more specialized modes and genres of legal writing, it’s important for advocates to cultivate a sensibility about storytelling and language that is literary. The goal, then, for plaintiffs, is to create an engaging narrative in the Statement of Facts, without simply replicating the elements and the organization of the Complaint. The challenge for both plaintiffs and defendants is to identify a credible plot line, which can derive from a variety of sources: from the facts of the case; from the legal doctrine itself – from ideas that emerge from the cases or statutory criteria; from legislative policy; or from the accumulated bank of human experience, and the frameworks or values prevalent in a culture. That task is complicated for defendants when the Complaint is the only source of facts because, as noted, it is written from the plaintiff’s perspective. Defendants may draw upon fair inferences from the facts that are alleged, however, and may point out negative facts – facts that are not alleged in the Complaint – that arguably are necessary to meet the requirements of the cause of action. Both parties should consider the choices that are possible concerning character, perspective, sequencing of information, selection of facts, and level of factual specificity. In short, to maximize the persuasive impact of the Statement of Facts, advocates should keep in mind the attributes and uses of narratives.

For additional discussion of the ways in which narratives function in law, see Anthony G. Amsterdam and Jerome Bruner, Minding the Law (Harvard University Press, 2000), particularly chapters 4 and 5.

Use of Paragraphs and Thesis Development in Legal Argument

USE OF PARAGRAPHS AND THESIS DEVELOPMENT IN LEGAL ARGUMENT

The general guidelines for writing and using Paragraphs in the development of an idea apply as well when you write in a legal context. For example, in persuasive writing, the paradigm for arguing a legal point follows a conventional structure:

• Conclusion = C
• Rule Synthesis = R
• Rule Proof = R
• Application of Rule to Fact = A
• Counterargument = C
• Conclusion Restated = C

With the exception of the Conclusions at the beginning and end of the point, which may only require one or two sentences, an advocate develops the other parts of the paradigm by means of one or (usually) more than one paragraph for each part. What is key is that each paragraph should develop a single concept (thesis); successive paragraphs should have a demonstrable relationship to that concept-providing an additional illustration of it, extending it, contrasting it, or moving to a related but different category of idea.

In this paradigm of legal argument, the Rule Synthesis pulls together common threads of ideas from multiple cases. A Rule Synthesis usually draws several idea threads from case law; a complete articulation of the Rule includes all of these threads; here, the ideas comprising the Rule should be stated in general terms, without delving into the details of the cases. The Rule Proof illustrates and explains the ideas that the Rule Synthesis states more generally by addressing the facts, holding, and reasoning of the cases cited in the Rule Synthesis. A thesis sentence at the beginning of a paragraph should carry forward into the Rule Proof each of the ideas or theses covered in the Rule Synthesis. The thesis sentence is the link between Rule Synthesis and Proof.

Case Study: Two Versions of a Trial Brief

CASE STUDY: TWO VERSIONS OF A TRIAL BRIEF

Below are two versions of a well-analyzed defendants’ brief written by a fourth-semester student at the CUNY School of Law. The version on the left represents the student’s first draft, while the version on the right is a final product. In moving from first to final draft, the writer did a great deal of editing and reworking of the text to maximize its persuasive potential.

As you compare the two drafts, take note of the many strategic changes the writer has made. Consider, for example, the factual details given in the first draft that were omitted in the final version—how might these omissions change the reader’s perceptions of the plaintiffs and defendants? Notice also how the writer has rephrased and reorganized many of the headings and subheadings in the argument section, attempting to lead the reader more clearly to the conclusion most favorable to the defendants. Other features to look for include the amount of space given to discussing the opposing party’s claims, as well as the use of transitional phrases to make sections of the argument more tightly cohesive.

First Draft
Click the highlighted text for the corresponding annotation.

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.

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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.

Final Draft

Click the highlighted text for the corresponding annotation.

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.