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.

Factors that can foster Parental Alienation

>Making the child choose between their parents
>Asking the child to keep secrets from the other parent
>Asking the child to spy on the other parent
>Bad­mouthing the other parent
>Changing the child’s name to remove the other parent’s association
>Confiding in the child
>Creating the impression that the other parent is dangerous
>Forcing the child to reject the other parent
>Limiting or interfering with communication with the other parent
>Referring to a stepparent as “Mom” or “Dad”
>Referring to the other parent by first name in front of the child
>Telling the child that the other parent does not love them
>Withholding love and approval
>Withholding medical, social, or academic information from the other parent

Did the person who compiled this know my ex, Kathryn Stoker?…because every single item accurately describes her and more–now she’s using her wealth to do the same thing to the grandchildren after destroying our missing daughter, Selena Smith. Ask me about ANY of the line items and I will cite proof she has done it. Where was the Family Court in all of this? Kathryn Stoker weaponized it, as always. Abolish the Family Court and God speed Kathryn Stoker to the Hell she created.

Selena Smith has been missing 2.5 years. If you know if she’s still alive or her whereabouts/circumstances, PM me. She has only 1 good hand, her left. 6’2″ blue eyes. born 1976. Her 3 children were kidnapped by Kathryn Stoker via criminally orchestrated color of state law.

FLAWED HEROES

”MLK Jr. is Not Who You Think He is”: We Didn’t Know These Historical Figures Were Incredibly Problematic Until Now

by Brandy

Helen Keller

It looks like even Helen Keller, the famous advocate for the disabled and the first deaf-blind person to earn a Bachelor of Arts degree, had some pretty problematic views. I mean, arguing that deformed babies should be left to die because they might become criminals? That’s not just offensive; it’s downright dangerous.

It’s almost like she was trying to set back the cause of disability rights by a century. But you know what they say, even heroes have feet of clay. Or, in her case, feet of braille. It’s hard to overlook the bad and focus on the positives. Advocating for eugenics is not the way to win any popularity contests.

F. Scott Fitzgerald

Well, isn’t that just peachy? It turns out that F Scott Fitzgerald, the author of “The Great Gatsby” and one of the greatest writers of the 20th century, was also a bit of a jerk. Plagiarizing your wife’s work and then locking her in the house when she asks for a divorce? That’s just low. 

He was trying to write his own tragic novel, complete with a dysfunctional marriage and a bitter end. Or maybe he was just a victim of his own success and couldn’t handle the pressure of being a literary superstar. Either way, we can all agree that locking your wife in the house is never a good idea.

George Washington

Oh boy, it looks like we’ve got another problematic historical figure on our hands. George Washington, the “Father of Our Country” and the first president of the United States, was actually a slave owner who refused to free his many slaves. It’s just not the kind of news you want to hear. 

But it’s a good reminder that nobody’s perfect, not even the guy on the dollar bill. Let’s focus less on idolizing these historical figures and more on understanding their flaws. Or we could just start putting pictures of puppies on our currency. After all, who doesn’t love a cute little puppy?

Frank Sinatra

There’s no doubt Frank Sinatra is one of the greatest figures in the history of American music, but this story surrounding Frank Sinatra’s connections to organized crime adds another layer of complexity to his larger-than-life persona. Sinatra’s affinity for the company of those connected to organized crime reveals shared interests and a blurred line between entertainment and the hidden world of illicit activities.

The convergence of their shared hobbies, such as gambling, women, and money, in casinos and nightclubs is something many fans may not have known. This untold side of Sinatra’s life sheds light on the complexities of fame and the choices individuals make within the shadowed realms of power and influence.

Florence Nightingale

Florence Nightingale is often held up as a hero in the nursing profession, but the truth is that her legacy is much more complicated than we might think. While it’s true that she made significant contributions to infection prevention and modern nursing, the fact that she held racist views and had some involvement in colonial atrocities is deeply troubling.

It’s important to remember that just because someone makes significant contributions to their field, it doesn’t excuse their problematic beliefs and actions. And while it’s commendable that Nightingale emphasized handwashing and infection prevention, it doesn’t negate the harm that she may have caused through her other actions.

Alexander Graham Bell

Alexander Graham Bell, the inventor of the telephone, may have revolutionized communication, but his views on Deaf people are definitely not something to phone home about. It’s troubling to think that someone who was so close with several Deaf individuals could hold such a prejudiced and harmful belief.

And let’s be real; we can still appreciate Bell’s contributions to communication technology while acknowledging that he had some messed up beliefs. It’s like admiring Picasso’s art while also acknowledging he was a womanizer. We don’t have to cancel Bell, but we do have to be critical of his beliefs.

Pablo Picasso

Sure, Pablo Picasso was a talented artist, but he was also a huge misogynist and abuser. I mean, who says “women are machines for suffering” and treats their lovers like garbage? Not cool. And don’t even get me started on the cheating and inability to stay faithful to a woman.

It’s not like we must erase his contributions to art, but we can’t just brush off his problematic behavior. It’s like trying to separate the art from the artist – sometimes, it’s just not possible. So next time you see a Picasso painting, take a moment to think about the women he hurt.

Abraham Lincoln

We all know him as the Great Emancipator, but did you know Abraham Lincoln ordered the public execution of 38 Dakota Indians? Yeah, that’s right. Hundreds of people watched them die as punishment for the Santee Sioux uprising. I mean, come on, Abe. What a hypocritical person he truly was.

You can’t preach about freedom and equality and then turn around and order a mass execution like it’s nothing. You can’t have it both ways, man. We need to acknowledge Lincoln’s problematic actions and hold him accountable for them, even if it means reevaluating our idea of him as a “hero.”

James Watson

Who let James Watson into the science club? This dude snubbed Rosalind Franklin, downplayed her role in his work, made terrible remarks about her character, and, let’s not forget, racism, sexism, and antisemitism. Oh, and he tried to use genetics to back up his claims that African Americans are less intelligent than whites. 

Yikes. It’s like he took all the -isms and rolled them into one problematic burrito. I don’t care how smart you are; if you’re spewing hate and disrespecting your colleagues, you don’t deserve a place in the scientific community. It’s time to kick Watson to the curb and make room for scientists who don’t let their bigotry overshadow their work.

Oprah Winfrey

The story of Oprah Winfrey shoving a child out of the way at an airport is a stark reminder that our favorite celebrities may not always be who we think they are. While it’s easy to get caught up in the glitz and glamour of fame, the fact is that these individuals are human beings with flaws and shortcomings like the rest of us.

If this story is true, it’s disappointing to think that someone as beloved and influential as Oprah Winfrey could be so callous toward a child. Let’s not forget that kindness and compassion are not just acts to be put on for the cameras. True empathy and understanding require a genuine desire to connect with others and make the world a better place.

Walt Disney

Walt Disney is often held up as a visionary and pioneer in the world of animation, but the fact that he had a racist side is truly scary. While it’s important to acknowledge that Disney was a product of his time, it’s also essential to recognize that his actions had real-world consequences.

By perpetuating harmful stereotypes and using racist language, Disney contributed to a culture of discrimination and inequality that continues to affect marginalized communities to this day. It may be time to start calling out Disney for its problematic past and demand they do better in the future.

Roald Dahl

Oh boy, Roald Dahl, more like Roald the RottenI. It’s one thing to cheat on your spouse, but to do it with her best friend while she’s recovering from a freaking stroke? That’s just low. I mean, how do you even live with yourself after that? He took all the worst qualities a person can have and embodied them.

It’s hard to reconcile the man who wrote beloved children’s books with the man who was such a jerk to his wife. It’s like finding out your favorite ice cream flavor is made with rotten milk – it’s just not a good feeling. But that’s the thing about people – they’re complex and sometimes disappointing.

Queen Victoria

The fact that Victoria found babies ugly and experienced postnatal depression does not excuse the neglect and emotional distance she showed toward her children. It’s heartbreaking to think that her children may have grown up feeling unloved and unwanted, despite their status as heirs to the throne.

We shouldn’t be too surprised – ruling a kingdom is hard work. Pregnancy can definitely put a damper on that! But the way she treated her children is a different story. It’s like she forgot that being a parent is more than just giving birth – it’s about nurturing and caring for your kids. Let’s hope future rulers remember that being a parent is just as important as being a monarch.

Martin Luther King

Okay, okay, so let me get this straight. Martin Luther King, the supposed champion of civil rights, was a plagiarizer, a cheater, and a bystander to sexual assault. Talk about problematic! I mean, is it possible that any of our heroes were real heroes and didn’t have any major flaws?

However, it’s also important to recognize that King was a human being with flaws and imperfections like the rest of us. We can acknowledge his shortcomings while also recognizing the incredible impact he had on our society and the ongoing struggle for civil rights and equality.

Johnny Cash

You’re telling me that Johnny Cash, the man in black, not only started a massive fire but almost killed off a bunch of endangered birds? That’s a whole new level of problematic. I knew his music could be fiery, but I didn’t think he’d take this statement so very literally.

And to think he only paid $82,000 in damages. That’s like giving someone a pack of gum to make up for burning down their house. But hey, at least he tried to make things right. Maybe he should’ve written a song about it, like “I Walked the Line and Started a Fire.” Okay, maybe not.

Aristotle

Anyone who thinks that women are nothing more than baby-making machines is absolutely insane. That’s like saying a pencil is only good for erasing mistakes. I mean, come on. As if women weren’t already facing enough struggles, this dude had to go and make it worse – even if it was in ancient times.

I guess it just shows that even the smartest people can have some seriously dumb ideas. And we still study his works today. We should stick to reading his thoughts on physics or matters that don’t involve equality. Or, instead, we could focus on uplifting voices that respect all humans.

Chuck Berry

Oh, Chuck Berry, the rock ‘n’ roll pioneer, right? Well, let me tell you, he sure had a talent for pushing boundaries – and I’m not talking about just his music. Turns out, ol’ Chuck was playing his own twisted version of “Roll Over Beethoven” with some pretty darn questionable antics.

I mean, who knew that “Johnny B. Goode” was actually “Johnny B. Bad” behind closed doors? So, next time you’re jamming or dancing along to one of his tunes, just remember: there’s more to some of these historical figures than meets the eye – or the bathroom camera, for that matter.

Teddy Roosevelt

Ah, Teddy Roosevelt, the rough-ridin’, big stick-wieldin’ president. Turns out he was also the OG “Teddy White Nationalist Bear.” I mean, I knew he loved nature, but who knew he was so keen on eugenics? And sure, he opposed slavery, which was pretty revolutionary to do so during that time.

But let’s not forget he was all about that “Euro-descendant” superiority. So, next time you think of Teddy as just a rugged outdoorsman, remember he had some not-so-cuddly views. It’s a good thing his face is carved in stone because it’d be pretty awkward if Mount Rushmore was able to blush!

Frank Llyod

Well, well, well, Frank Lloyd Wright – the architectural legend! But it seems like he was also a master of being a hot mess. Talk about a blueprint for disaster, am I right? I mean, we all know his designs were groundbreaking, but who knew he was a real-life soap opera? 

It’s a wonder he didn’t design a house just for his ego. So next time you marvel at a Frank Lloyd Wright creation, remember that behind those stunning lines and daring cantilevers, there’s a man who probably needed a few extra support beams in his own moral foundation. He wasn’t that nice!

Miles Davis

Oh, Miles Davis, the jazz icon! He had us all “Kind of Blue” with his melodies, but who knew he had a side that was more like “Kind of Cruel”? If you weren’t in his band of merry men, he’d give you a taste of his volcanic temper. And let’s not forget the ladies in his life.

Turns out, he wasn’t exactly serenading them with sweet trumpet solos. If you ever find yourself enjoying a sultry Miles Davis tune, remember that behind that smooth sound, there was a man who could’ve used a little more harmony in his personal life. Talk about hitting the wrong note, huh?

Joe Dimaggio

Ah, Joe DiMaggio – the baseball legend and, surprise, husband from hell! This guy had a real home run of marriage with Marilyn Monroe, didn’t he? More like a strikeout, if you ask me. He was all about that “till death do us part” vibe, but not in the right way.

It only applied if Marilyn agreed to trade the spotlight for an apron. Talk about being stuck in the wrong ballpark, Joe! Don’t think of DiMaggio as a hero of America’s favorite pastime; he was swinging for the fences in all the wrong ways. At least Marilyn was smart enough to call it “game over” on that one!

Patrick Henry

Well, Patrick Henry is the “Give me liberty or give me death” guy, right? Turns out he was also the “Give my wife the basement or give her a mental hospital” guy. Talk about taking DIY too far! Sure, those old-timey mental hospitals were grim, but chaining up your spouse in the basement? 

That’s a whole new level of “home improvement.” It’s not hard to be inspired by Mr. Henry’s impassioned cries for freedom, but he might have had a little too much creative liberty when it came to his wife’s living quarters. Being locked up in your own house is hardly freedom.

King Edward the VIII

King Edward VIII, the royal with a thing for abdicating thrones and, oh, let’s not forget, a little Nazi sympathy on the side! Now, I’m all for making friends, but buddy, you really picked the wrong crowd to do so. Plotting with the Germans to reclaim the throne after a British invasion?

That’s like saying, “Sure, come on in, but save a seat for me, will ya?” So, the next time you think about the glamor of British royalty, remember that this king was playing a dangerous game of “musical chairs” with some seriously bad company. Long live the king, eh? Not so much!

Andrew Jackson

Andrew Jackson is a fascinating and complicated figure in American history. While he may be remembered as the “common man’s president,” his treatment of Native Americans is a stain on his legacy that cannot be ignored. Jackson’s policy of Indian removal resulted in the forced relocation of thousands of Native Americans, including the infamous Trail of Tears.

His brutal and inhumane policy demonstrates the deep-seated racism and prejudice that was prevalent in Jackson’s era. As we continue to grapple with issues of race and inequality in our society, it’s important to remember that history is complex and nuanced.

Lyndon Johnson

Lyndon Johnson is a presidential powerhouse and a master of personal space invasion! LBJ sure had an interesting way of measuring people’s feelings toward him. I mean, who needs a handshake when you can just whip out the ol’ cucumber and water the nearest Secret Service agent, right? Talk about making a splash in politics! 

Whenever someone mentions Johnson’s Great Society, the only thing I’m going to remember now is his not-so-great social skills. I guess you could say he truly took “streaming” to a whole new level—way before Netflix made it cool! Either way – why did this guy let the President pee on him? Did he have no self-respect?

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#AdvocateTelevision 6.7.22 Yolo County CHILD ABUSE SCANDAL Yolo County Health & Human Services Agency (THE MOVIE)

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JOIN US FIGHT FOR CHILDREN OUR NEXT EVENT IS IN THE County of Fresno WE WILL BE EXPOSING FEDERAL CRIMES ON Lisa Sondergaard Smittcamp for Fresno Co DA

Every week a group of a dozen or so women gathers online to share information, support each other and help strategize for upcoming court hearings.  

They’re all divorcees. Some are in the midst of an ongoing court battle with their ex-husbands over child custody and child support payments; others have already been through the system and have come out on the other side with experience and knowledge to share. They’re an off-shoot of a much larger group of women who number in the hundreds and meet for the same purpose.

These women – and other groups like them – were brought together following the murder of Jennifer Dulos by her husband, Fotis, during a bitter battle in Connecticut’s family court system, which saw more than 500 court filings in just two years. 

The Dulos case, which garnered national attention when Jennifer went missing four years ago, was seen by these women as emblematic of the dangers women face when going through a divorce, particularly when their husbands have been abusive.

And, they say, Connecticut’s family court system is not only ignoring those abuse allegations – some substantiated by police and social workers, others not – but enabling it. They claim their exes use the court system to exert control over them and their children through its web of judges, attorneys, and guardians ad litem (GAL) who dismiss their safety concerns in a concerted push to side with fathers, even in cases when there is abuse against both the children and mother.

“What I’ve been experiencing with the family court system since around 2009 and on is favoritism,” said “KC” who says she was twice strangled by her ex-boyfriend with who she had a daughter. “I’ve noticed a huge shift starting around 2010, 2011 in our case where I was being completely ignored on the abuse my child and I have suffered from, told not to discuss it in court, judge hushing me, not allowing me to speak. Literally just focusing more on father’s needs, father’s rights and access, things of that nature.”

KC was forced to get a total of four restraining orders and a protection order over the years. She was awarded sole custody of their daughter in 2008, and in 2011 she changed her identity and relocated out of state with the help of a domestic violence agency after the father had repeatedly tracked them down.

“They walked me through everything and then they paid to have me relocated,” KC said. “It was supposed to be out of the country, but I was too afraid after the years of abuse I’d gone through, and I still believed in my country, I still believed they would protect me as long as I was telling the truth and that is not what happened.”

What happened instead was that five years after being awarded sole custody, the GAL – an attorney charged with representing the child in a custody battle – who had been assigned to her case contacted the State Police alleging KC had skipped out on court dates – which she disputes – never mentioning that KC had sole custody and essentially making the claim she had kidnapped her child, although no arrest warrants were filed.

A state trooper was able to track down her location, called her ex-boyfriend who was living in Hawaii, and gave him the information. Her ex then tracked down KC and her daughter. “He has constantly located us since that happened and that was 2013,” KC said. “He’s constantly stalking us and threatening us ever since, causing my daughter and I to move practically every year since. We moved a total of 18 times.”

Another woman, Lisa, is still in the midst of her divorce for going on nine years now. She’s racked up over $400,000 in attorney’s fees alone and has cycled through numerous attorneys who she says have all stuck by her even when she wasn’t able to pay. She also has a protective order against her ex-husband after he threatened to “bash my head in.”

Lisa says she’s owed roughly $200,000 in child support and alimony payments and despite orders from a judge, her ex continues to file motions, and file for payment modifications sending them both back to the drawing board again and again. 

“It’s just been a nonstop situation of psychological abuse and harassment and from one attorney to the next,” Lisa said. “It’s hard to put into words because it’s gone on for so long and your motto is you tell the truth, you present the facts and what else is there because this is a court of law? I just wanted to be as amicable as possible in a divorce situation. I have three kids and I didn’t understand that someone was capable of pursuing all of this through the judicial system.”

Sue, whose case has seen roughly 500 motions filed, was threatened with jail if she didn’t get her 15-year-old son to visit his father, who has abused them both in the past. Her son, larger than she, refused and Sue told the court that she couldn’t force her son to go. Finally, the judge threatened her with jail time if her son did not visit his father.

“The judge put a gun to my head. Either I kick my son out and I get DCF called on me, or I go to jail. Either way, I don’t have a choice but to hand him over,” Sue said. “My son did it because he didn’t want me to go to jail, but my son is not going to able to last much longer.” 

Sue says at least one visit with the father resulted in the police being called when her son told employees of a gym he attended that he wasn’t comfortable with the man. “He cannot stand his father,” she said. “He’s trying to keep his cool because he doesn’t want to start a fight.”

“What it comes down to is there’s no neutral people regulating the behavior of judges attorneys, GALs, it’s basically the wild west in our courtroom and the judge knows that he can say and do whatever he wants and there’s zero accountability and no ramifications for whatever they do,” said Jessica, a woman from Texas who now says she has been trapped in Connecticut for 8 years after she fled here with her son to escape her abusive ex.

“I had a thriving career, my family lives in Texas. Every time I try to move there, he files a motion to restrain, and the court keeps granting, forcing me to remain here against my will,” Jessica said. “I could tell you a million abusive things my ex has done to me, but the issue is the people who are enabling it. He’s still gonna be an abuser at the end of the day. If not me then somebody else, but it’s the people, the key players, that are enabling these abusers and enabling this to keep going on.”

Those women and their stories are just a few, but there are hundreds if not thousands more like them who say the family court system is rigged against women, particularly those who have suffered abuse by their exes and are now in long-standing court battles. Those court battles, they say, are used by their exes to maintain control over their lives and their children’s, threatening them not only financially, but also physically, emotionally and mentally.

Betsy Keller, a public relations professional who underwent her own extensive divorce battle in family court and helped push through Jennifer’s Law in 2021 – a redefinition of what constitutes domestic abuse spearheaded by former state senator Alex Kasser, D-Greenwich – says these kinds of “high conflict” divorce cases are different from a typical divorce.

“What happens in a normal divorce is it’s acrimonious, it’s adversarial, it doesn’t feel good. Rarely is it a mutual, good feelings for one another but you get through it,” Keller said. “They say that 95 percent of people, even though it’s adversarial, they figure it out. They end up signing the divorce decree, they mediate, they collaborate, and they get the hell out of there without spending, in Fairfield County, it could be a million dollars.”

“The 5 percent of cases that end up in a courtroom, in a trial, whether its finances or whether it’s the children, there’s a problem,” Keller said. She estimates, based on judicial statistics, that there are roughly 30,000 divorces in Connecticut each year, leaving roughly 1,500 cases that are high conflict, ending up in trial court. “It’s a red flag for an abuser, it’s a red flag for somebody who has a personality disorder. You can’t possibly be empathetic and not see that if you harm the mother, you harm the child.”

Following the Dulos case, Keller created CT Protective Moms and says she now has 400 mothers who are going through or been through acrimonious divorce cases. 

“Five years ago, I founded Connecticut Protective Moms as I realized there was a need to reach out and support moms in family court and explain to them the chaos in their cases was not justice, but a industry built on the 5 percent of ‘high conflict’ cases which never end and are so lucrative to the appointed ‘professionals,’” Keller said. “What I found was none of the other mothers were talking to each other to lend support to lend information, not legal advice, but advice about how to deal with allegations of abuse. In my opinion from the thousand foot view, yes, the court is completely ignoring allegations of abuse and abuse in the past. It’s not physical harm in the present, but its coercive control and all the things that encompass that is being ignored.”

The mothers interviewed for this article also say abuse is being “swept under the rug,” in the court system and are often advised by attorneys to not even bring it up, even when there are arrests and substantiated cases of abuse because they’re afraid that they might actually lose their children if they “step out of line,” which keeps them silent as court proceedings continue for years on end. 

Family court is a difficult topic to cover. Individual cases are rife with allegations on both sides, hundreds of court filings, and, generally, both parties feel they have been wronged – not just women, but men – and the truth is difficult to ascertain.

But the belief that Connecticut’s family court system is broken is shared widely among those who have been through it. When word got out through various groups in late 2022 that Connecticut Inside Investigator was looking into the systemic issues of family court, our editor was so inundated with emails, texts, and late-night phone calls that he had to change his voicemail and shut off notifications. Calls, texts, and emails have been received at our newsroom almost every day since. Further tips on this or any other topic relevant to the people of Connecticut can be submitted to tips@insideinvestgator.org.

The women from those groups interviewed, however, say they rarely talk to the media for fear of retaliation, fear of losing their custody battles. 

“Many of these women in Connecticut, especially in the larger group, have already lost their children and they’re fighting desperately to get their children back. They’re spending hundreds of thousands of dollars but they’re not going to come forward and jeopardize that one bit of hope,” one of the women said. “They’re not going to waste that and talk to any journalists. That’s why you’re not hearing from women, and you won’t until they’re out of the system. It’s the women that are out of the system that are helping the women in the system now.”

However, they do write letters to the governor, the attorney general, really, anyone who they think might listen and be able to enact some kind of change in the law. But they say they know the court system won’t change itself – there’s too much money at stake and too many personal associations.

“You can take all the time to file complaints against family service people, judges, attorneys – it all goes to the bar association and these people are heavily intertwined into the court system, some of them are even GALs,” Jessica said. “So, you’re going to complain about a judge to a GAL that’s supposed to hold these judges accountable when these judges are putting tens of thousands of dollars in their pockets? It’s never going to happen.”

Throughout the 1970s and 1980s, the family court system was skewed in the opposite direction – toward mothers. Known as the Tender Years Doctrine, the policy was a product of the 19th-century women’s rights push in Great Britain and was used by U.S. family court throughout most of the 20^th century. It is probably the idea that most are familiar with when it comes to divorce: the mother gets the kids, especially if they are young, and the father has to pay.

But that doctrine has gradually fallen out of favor, with “best interest of the child,” now the main philosophy of the court system. Included in that transition away from the Tender Years doctrine, is the push by men’s rights groups with fathers who want to retain full or partial custody of their children.

For the most part, that is considered a positive development. Children tend to do better with both parents in their lives and actively engaged in their upbringing. However, that shift has had unintended consequences, according to these women, who say that push to keep fathers in the lives of their children at all costs is enabling their abusers to continue abusing them, albeit in different ways, and putting both them and their children at risk.

Connecticut established the Fatherhood Initiative in 1999 to “promote the positive involvement and interaction of fathers with their children,” according to the legislation. It was particularly focused on low-income families to encourage fathers, married or not, to remain active and engaged in the lives of their children – a noble idea, to be sure. The legislation was also tied to changes in how child support is determined and meted out in family court.

By 2003, it became the John S. Martinez Fatherhood Initiative, named after late state representative John Martinez, deputy speaker of the house, who passed away in 2002 and was an active member of the Fatherhood Advisory Council, according to the state’s website. That initiative became tied to federal funding in 2006 with a five-year, $5 million grant from the Department of Health and Human Services to promote responsible fatherhood in Connecticut. By 2009, legislation was enacted whereby the Commissioner of the Department of Social Services was to seek out federal and private funds to help support the state’s fatherhood initiative.

That shift toward promoting fathers in the lives of their children – again, not a bad thing in the majority of cases – was not limited to Connecticut, it was part of a broad federal push as well, particularly under President Barack Obama’s administration through the establishment of Fatherhood.gov, a website created by the National Responsible Fatherhood Clearinghouse, funded by the Office of Family Assistance.

It is a “national resource for fathers, practitioners, programs/Federal grantees, states, and the public at-large who are serving or interested in supporting strong fathers and families,” according to their website.

In 2010, numerous Connecticut state agencies, including the Judicial Branch, signed onto a memorandum of understanding (MOU) to “continue to actively participate in efforts that further the objectives of the John S. Martinez Fatherhood Initiative of Connecticut, both within our respective agencies and as interagency partners,” according to the MOU. The MOU also involved actively seeking funding to promote the initiative. 

The MOU encompasses a wide swath of Connecticut’s social agencies and their activities, including workforce training through the Department of Labor, assistance to incarcerated fathers through the Department of Corrections, education curricula through the State Department of Education, and to “provide Magistrate Court services for non-custodial parents, especially fathers, as it relates to access via the long established Federal Grant collaboration with the Department of Social Services,” among many other things.

So, there is clearly federal funding for Connecticut agencies tied to the fatherhood initiative, and the mothers who were in the family court system at the time of the MOU say they saw a dramatic shift in the years following: “It’s now become a bias and sexual discrimination problem,” one of the mothers said.

Danielle Pollack, policy manager for the National Family Violence Law Center at George Washington University, says that over the last 25 years, there has been a special emphasis on shared parenting and what’s called the “pro-contact culture,” but that doing so at all costs is not safe, particularly for children at the center of a custody case.

“Certainly, it’s a laudable goal to have healthy safe parents involved in kids’ lives whether the parents are divorced or separated or something in between,” Pollack said. “The problem is when you have domestic violence or family violence situations, and overwhelmingly the people who are perpetrating intentional and severe harms in family violence situations are predominantly male caregivers. That’s just a fact, there’s nothing ideological about it.”

“When parents can’t agree and they’re in court fighting about it, the majority of those cases have family violence allegations, whether it’s against adults or the child or a combination thereof,” Pollack said. “So, if you approach the idea that children should be equally shared amongst both parents and that should be the primary mission and the primary goal, rather than child safety and child well-being, you’re going to have some bad outcomes in those cases where children are in danger, if your primary goal is to ensure contact at all costs.”

Part of the philosophical shift in the family court system, both in Connecticut and nationally, has to do with parental alienation and reunification therapy. 

Parental alienation is a term that originated from the late Dr. Richard Gardner and, according to the National Center for State Courts (NCSC), is defined as “a collection of one parent’s behaviors aimed at causing the child to become alienated from the other parent.” Effectively saying that one parent is brainwashing the child against the other. However, proponents of parental alienation concept say the term does not include instances when the child is alienated from the other parent due to behavior such as abuse, addiction or abandonment.

Gardner’s work was largely self-published, lacking peer review and scientific rigor, but Pollack says it has taken hold in family courts throughout the country, particularly when there are allegations of abuse, and, as a legal strategy, it has been quite effective – part of the reason mothers now shy away from mentioning abuse in family court.

“In essence, it’s a concept that says that when moms allege abuse, they’re making it up or they’re hysterical or they’re mentally unstable or they’re vindictive and there’s not any abuse actually happening,” Pollack said. “That concept is still being used a lot in family courts everywhere when a parent, usually a father although there are exceptions, is accused of abusing the child and or the former partner. In response to that, the alleged abuser will claim the mother is alienating the child and that’s the reason the child is actually resisting contact, not that the child is actually at risk or has reasonable fears. It’s a very effective legal strategy.”

A study published by GW University and co-authored by Joan S. Meier who heads the National Family Violence Law Center, looked at 2,000 court opinions and found that courts are extremely skeptical of abuse allegations. When fathers make claims of parental alienation the courts frequently reject the abuse claims, and the mother often loses custody of the child.

“Analysis of over 2,000 court opinions confirms that courts are skeptical of mothers’ claims of abuse by fathers; this skepticism is greatest when mothers claim child abuse. The findings also confirm that fathers’ cross-claims of parental alienation increase (virtually doubling) courts’ rejection of these claims, and mothers’ losses of custody to the father accused of abuse,” the authors wrote, adding that the same did not hold true when the mother accused the father of parental alienation.

“Finally, the findings indicate that where Guardians Ad Litem or custody evaluators are appointed, outcomes show an intensification of courts’ skepticism toward mothers’ (but not fathers’) claims, and custody removals from mothers (but not fathers),” the study said. A similar finding was made in a report of the Special Rapporteur on violence against women and girls, published in April 2023 and to be presented to the United Nations Human Rights Council in July of 2023, which labeled parental alienation a “pseudo-concept,” by author Reem Alsalem.

“In the United States of America, data show that rates of custody losses between mothers and fathers differ significantly, depending on which parent alleges alienation,” Alsalem wrote. “When a father has alleged alienation by the mother, her custody rights have been removed 44 per cent of the time. When the situation was reversed, mothers gained custody from fathers only 28 per cent of the time. Thus, when alienation is accused, mothers were twice as likely to lose custody compared to fathers.”
[Editor’s note: In an egregious attempt to conflate the anecdotal with the apocryphal, the author resorts to a statistical ‘phallacy’: e.g. Most convicted mass murderers are males, therefore if a woman is convicted, it’s likely she is innocent. The author does not say how many cases are relied on for his statistic–one could presume many or few. It may be true that twice as many women LOSE as men when trying the parental alienation strategy, BUT there’s only a 15% difference in how many women WIN when trying this court strategy compared to men by the author’s own numbers. There are likely other contributing factors at work as well. e.g. It’s widely accepted women are more often the victims of rape than men. It’s also the case more women falsely claim to have been raped than men. Some crimes and strategies are more common to one gender than the other. It may well be the case more mothers than fathers resort to parental alienation when embroiled in custody battles. The author’s statistics and anecdotal references do little to shed light on this assertion. Falsum in uno, falsum omnibus. If the author is going to resort to such statistical sophistry/fallacy, then none of his statistical arguments can be trusted.]

“The consequences of biased custody decisions can be catastrophic, resulting in specific incidents when contact has been awarded to fathers with a violent history, in the death of children and women and children being placed at gunpoint,” the report said. “In some cases, women have been imprisoned for violating custodial rights and protective restraining orders have been overturned.”

A 2011 study financed by the U.S. Justice Department found judges, attorneys, custody evaluators and other judicial employees believed that 26 percent of abuse allegations made by women were false, and 31 percent of abuse allegations made by fathers were false. Critics, however, say the actual percentage of false abuse allegations by women is significantly lower.

“Among custody evaluators, the belief that allegations of domestic violence (DV) by mothers are false was strongly related to four other beliefs: (1) DV survivors alienate children from the other parent; (2) DV is not an important factor in making custody decisions; (3) children are hurt when survivors are reluctant to co-parent, and (4) DV survivors falsely allege child abuse. Similar results were found among judges,” the study said. 

The redress for parental alienation in the court system, even when there are confirmed instances of abuse against either the parent or the child is “reunification therapy,” a concept that Pollack says migrated from the family welfare system. 

Essentially, when a child was removed from a parent and placed in state or foster custody, the state would attempt to reunify the child and parent to get the child out of foster care or a congregate living situation – a way to save money for the state and allow the child to rejoin their family and community for the best outcome.

But Pollack says such a system doesn’t translate well to private custody cases, where there isn’t the choice between state or foster care and an abusive parent, but rather a choice between an abusive parent and a protective parent.

In these situations, the child is required to attend this reunification therapy, even against their wishes, in order to bond with the supposedly alienated parent, something that can be damaging, coercive and troubling even in cases where there isn’t confirmed abuse. 

“That’s a big business and it is also not supported by science and the purveyors of it are unregulated and they duck licensing requirements by saying that they’re ‘psychoeducational’ rather than real psychology or therapy,” Pollack said. “It’s something that has really become a cottage industry and they charge upwards of thirty or forty thousand for five days of treatment. It’s not treatment that’s valid or can be proven to be effective or beneficial for kids.”

ProPublica has documented several cases arising out of a reunification camp in Texas that children forced into those sessions said are abusive.

But the push of parental alienation and reunification therapy is deeply embedded in the court system, despite scientific misgivings. 

For instance, retired Judge Lynda B. Munro previously served as the Chief Administrative Judge for Family Matters for five years in Connecticut. She developed the training process for GALs and was the Presiding Judge for the Family Division of the New Haven Superior Court.

She was also a founding board member of the Connecticut chapter of the Association of Family and Conciliation Courts (AFCC), a national trade association that provides services-for-hire to family courts through its members, which include judges, lawyers, mediators and custody evaluators. They also provide training for judicial employees, including in Connecticut. 

AFCC has been instrumental in the push toward courts recognizing parental alienation and pushing for reunification therapy. The Connecticut chapter subsequently went defunct after it was revealed they had never registered as a business or nonprofit in the state and hadn’t made any tax filings.

Munro, after serving as the top judge in Connecticut’s family court system, continues to list her professional affiliation with AFCC and served on the Connecticut Bar Association’s Family Law Executive Committee. She then worked for Pullman & Comley, one of the largest law firms in Connecticut with deep ties to the capitol, in their Alternative Dispute Resolution (ADR), family and appellate law groups. She currently serves as a GAL in addition to her own legal practice. 

Notably, Munro is listed as a team member for Overcoming Barriers (OCB), an organization out of Massachusetts that, up until the COVID-19 pandemic, ran reunification camps.

According to OCB’s website: “Both parents, including the favored parent and the resisted parent must attend Family Camp and other OCB programs, because each member of the family has a role to play in any solution to move the family forward. In our experience the problem is a shared and very complex issue.”

The organization now focuses on education for “clinicians, lawyers and judges who work with families in high-conflict divorces,” according to their website.

“It’s quite a business. A lot of times the courts will abdicate their decision-making power and give it to the reunification therapist,” Pollack said. “So, if the child and or the protective parent don’t meet their demands, it’s stipulated the child can never come back. In many cases, the child goes into this reunification treatment and it’s premised on a custody switch, so the child just remains in perpetuity with the alleged abusive parent.”

Casey is still embroiled in a divorce proceeding, even though it technically is over. After four years of a marriage that included escalating verbal altercations, he threatened to kill her. Shortly thereafter, he broke through a locked bathroom door and trapped her in the bathroom, physically not allowing her to leave as she screamed for help and taking away her phone so she couldn’t call the police. Casey says she thought he would kill her right then. 

Casey says she managed to get out by throwing a glass bowl onto the floor “to create a distraction,” and was then able to get away. When she broke the glass bowl, her husband actually called the police. The responding officers let her stay at the house with the children and made her husband leave. 

Pictures provided to CII show severe bruising on Casey’s legs following her restraint. Additionally, text messages show her husband apologizing for making the death threat.

Although no one was arrested at the time of the incident, Casey says she filed a complaint against one of the officers, at the encouragement of a Department of Children and Families (DCF) worker. The officer had made disparaging remarks about women in domestic abuse situations. Following the complaint, that officer filed an arrest warrant for both Casey and her husband. The charges against Casey were immediately dropped, but her husband was required to attend a domestic violence program.

Casey filed for a restraining order. DCF was involved because her two young children witnessed both the initial death threat and the incident in the bathroom. Casey’s husband then initiated the divorce proceeding by filing first. It was determined there should be a GAL for the children. Her husband’s attorney submitted a list of GALs to choose from, even though the court should have provided such a list. Her husband’s attorney pushed heavily for Adam Teller, an attorney with a law firm out of East Hartford.

“In no way did I want anybody they were recommending,” Casey said. “I had an attorney at the time who told me that I had no justifiable reason to say no to this person, and I was very new in my situation and abuse so, I was scared. I was scared having a male say to me you have no say, you can’t say no to this, there’s no reason to, so I was like okay, I have no choice.”

Casey says that although the GAL was assigned in July of 2020, he didn’t speak with her until March of 2022 outside an initial family demographic meeting. He never spoke to her oldest child and, to her knowledge, only once spoke to her youngest child. “To this day he has never spoken to any of the people I requested him to. There are records I have from therapists and providers that state they feel he is biased against me, and he is not there for the best interest of the children,” Casey said.

Teller immediately pushed for visitation, arranging between attorneys for all parties to arrive for a supervised visit. “Of course I’d like to speak to some of the third parties involved (therapist(s), DCF) and see the arrest warrant applications if that is possible before ramping up more access,” Teller wrote in an email. “That said, I consider an agreement for some kind of regular ongoing access with father (under whatever conditions) to be a VERY high priority and that should not wait for any specific item of information.”

The children were enrolled in therapy. Both were diagnosed with Post Traumatic Stress Disorder and the oldest did not want to attend supervised visits with his father. The child was scared and had difficulty sleeping, according to DCF reports in Casey’s possession. According to those same reports, DCF had investigated and substantiated a child abuse allegation against the father. Although, the oldest child was refusing, the GAL continued to push for visitation.

The reports in Casey’s possession indicate the GAL did not communicate with Casey, did not acknowledge the abuse by her ex-husband and did not agree with DCF’s child abuse substantiation. Furthermore, it indicates the GAL never discussed trauma with the child, nor what the child wanted regarding visitation and continued to believe that visitation with the father was in the child’s best interest, despite the child’s fear and refusal to visit.

Teller went on to recommend to the court that his father get “full and unsupervised access starting immediately – Wednesdays, full weekends overnight, everything.”

Casey was also forced to put her children into reunification therapy, now moving on to their fourth attempt. “The first one was extremely unsuccessful,” Casey said. “The second one the judge tried to claim was successful, yet a few weeks later my ex hurt my oldest child and that landed a DCF substantiation of child abuse, so I fail to see how that’s successful.”

The third attempt was put on hold when the therapist said the child would need more time to be ready and willing for reunification, but the judge and the GAL forced the issue, saying the child now had to work with Bruce Freedman, a psychologist who also happened to be a former board member of the Connecticut chapter of AFCC.

Freedman, together with Lynda Munro and another attorney and psychologist, gave a presentation about parental alienation and child custody to the Connecticut Bar Association in June of 2019. According to Freedman’s notes, he references Gardner’s work directly and points out that parental alienation is an “active campaign, whether deliberate or unconscious, to damage a child’s relationship with the other parent.” 

Freedman goes on to write: “Severe alienators may be unaware of their behavior and its effects on a child,” essentially making the argument that if you are unaware you are alienating your child from the other parent, then you may be the worst offender of all, something that leaves the parent unable to defend themselves against accusations of alienation.

Casey says Freedman’s involvement with the children was minimal and he has refused to communicate with their prior therapists. She also alleges that he was not following the judge’s orders. Representing herself, Casey filed motions to have both Freedman and Teller removed from her case. Neither were heard by the judge.

Casey then filed a complaint against Teller with the Standing Committee on Guardians ad Litem in December of 2022, which has the power to review complaints and remove GALs from their approved list. The grounds for removal is a fairly high bar. According to the 2019 Notice of Procedures, a GAL must show “an imminent risk of significant harm to the health, safety, or welfare of the public.”

Casey’s extensive complaint alleges numerous instances which she claims showed Teller’s bias toward the father, his refusal to listen to the children’s therapists, attempting to discredit DCF reports, and his continual push for extended unsupervised paternal visitation and reunification therapy. “He has put not just my life but my kids’ lives in a great deal of danger, by empowering and enabling our abuser,” Casey wrote.

Teller’s appointment as GAL was initially vacated by the judge but was then changed to “terminated” in her final decision, according to emails. Teller forwarded her a bill for $26,935 of which she is responsible to pay 30 percent – a little more than $8,000.

Although Casey filed her complaint and claims to have ample evidence, including audio recordings of the GAL speaking with her son and herself in her home which is outfitted with numerous nanny cameras, she did not hold out hope that much would be done by the GAL Committee.

Since December 2019, when the committee had finally created its process for removing a GAL based on a complaint, the committee has received 29 complaints and dismissed all of them following an executive session, according to a review of the committee’s meeting minutes.

Reached for comment via email, Teller says that he cannot comment on the matter of his representation of the children, but said he remains in good standing as a GAL.

“I can only tell you that there is no pending complaint against me with the Committee, and the Committee has never found probable cause to proceed on any complaint against me. I remain in good standing on the Committee’s list of GALs and have never been otherwise. [Casey’s] unsubstantiated claims are not news,” Teller wrote. “Neither the judge who tried her case on multiple court days over a period of 2 years, nor the Committee, nor any other objective observer, has found any reason to criticize my work as GAL.”

The complaint against Teller was dismissed during a March 2023 meeting of the committee.

“It is so hard to file for a GAL removal. I had to file my complaint myself because the attorney wouldn’t take the chance.” Casey said. “I think that attorney’s don’t want to muddy the waters with GALs they may face in future cases. They don’t want to get on their bad sides. Which makes sense in this current system.”

Although Casey still has to return to court, the final decision by the judge requires the children to continue attending reunification therapy with Dr. Freedman, and while there is joint legal custody shared between the two parents, the children remain living with Casey with no visitation orders until the completion of reunification therapy.

In her final decision the judge in Casey’s case, the judge writes that Casey “has had difficulty, if not an inability, to see beyond her history with the plaintiff. This is especially true regarding what she views as a relationship marked with intimate partner violence.” The judge goes on to write that Casey is not able to be objective and that “whether intentional or unintentional,” her feelings have spread to the children, souring their ability to visit with their father.

The judge acknowledges the fear and reluctance of the two children to visit with their father, including the father’s claim that Casey was attempting to alienate him, and goes on to praise Teller’s work as a GAL.

“The GAL has, in the court’s opinion, made Herculean efforts to meet with the parties and the children, to gather relevant information by third party providers, relatives, and DCF, and to review reports and documents to formulate an opinion as to the children’s best interests related to the custody dispute,” the judge wrote. “Most importantly, the GAL has provided guidance to the parties to assist in reunifying the children and the plaintiff.”

“From the stories I’ve heard, my case is not an outlier. When domestic abuse is involved, it seems a pretty common theme,” Casey said.

In 2021, the State of Connecticut passed Senate Bill 1091, also dubbed “Jennifer’s Law,” which expanded the definition of domestic abuse to include “coercive control.”

Coercive control doesn’t necessarily include physical violence but rather a pattern of control through intimidation, isolation, financial control, and threats. It would allow for coercive control allegations to be used in restraining orders, investigations and family court matters.

Part of the reason it was dubbed Jennifer’s Law is that Jennifer Dulos was denied a restraining order because she could not show physical abuse. 

“Judge Heller, when she said no to Jennifer Dulos’s restraining order, she was following Connecticut state statute. It said imminent harm and physical danger, and the way her divorce was playing out there was emotional abuse, verbal abuse, litigation abuse,” Keller said. “Their case had 500 pleadings in only two years but none of those things counted when Judge Heller said no to a family court restraining order because coercive control was not defined in our law.”

Now, coercive control is part of Connecticut law, joining only a handful of other states, like Hawaii and Washington, in recognizing coercive control as a form of abuse that doesn’t result in physical injury and police interventions. Part of that definition of coercive control also includes “frivolous litigation.” 

According to the bill analysis, “In any family relations matter, including restraining order actions involving domestic violence, if the court finds that a pattern of frivolous and intentionally fabricated pleadings or motions are filed by one party, then it must sanction the party in an appropriate manner that allows the matter to proceed without undue delay or obstruction.”

Of course, determining when filed motions are frivolous and intentionally fabricated in cases fraught with “he said/she said,” might prove difficult – and it also goes both ways. Mothers who may have had their children, rightly or wrongly, removed from their custody and are fighting to win them back could also find themselves sanctioned under the law. 

The law also places new guidelines on GALs requiring them to consider “the effect of an abuser’s actions on the child, whether any domestic violence has occurred between the parents or between a parent and another individual or the child, whether the child or his or her sibling has been abused or neglected, and the stability of the child’s existing or proposed residence.”

Although the law was seen as a massive win for women facing issues of coercive control and those critical of the family court system, Keller says the practical effects of Jennifer’s Law have not yet been seen.

“A lot of stuff ended up on the editing room floor,” Keller said, adding she believes there is resistance to the law by Connecticut judges and the Bar Association on financial grounds; “The more conflict you have, the more people get a bill.”

Liza Andrews, director of public policy and communications for the Connecticut Coalition Against Domestic Violence (CCADV), says they agree that “the response of many systems, including family court, can pose challenges to survivors.” Andrews also serves on the GAL Committee.

“CCADV has in recent years worked on both legislation policy and administrative policy to strengthen that system,” Andrews said. “Some proposals have included increased judicial training, a comprehensive family court bench book focused on domestic violence, safe space in court houses for victims, and increased oversight of frivolous motions, among others. Some of these proposals have moved forward and others have not.”

CCADV offers free legal consultation and assistance in filing restraining orders for victims of domestic violence. “This is some of the work we have been focused on to help support survivors in family court,” Andrews said.

But Keller, and the other moms interviewed, say more needs to be done. That the family court system, not only in Connecticut but nationally, is still ignoring and enabling abuse, still under the sway of concepts like parental alienation, reunification, AFCC, and the ability to charge large sums of money for legal services and court-mandated interventions. 

“Domestic violence has become a cash cow for a lot of people, for organizations, for the states, for people and attorneys,” one of the moms said.

Keller says, to that end, she and the other members of CT Protective Moms have been educating each other, going to court with each other for support and even representing themselves in their cases.

“We decided the best approach was to work with our moms as foot soldiers. So, I educate my moms, hundreds of them. We spend time speaking with them, going to court with them, we court watch with them, we send them materials,” Keller said. “When our team works with the mom, and we prepare them for court, they walk in and they’re having success. We have five cases where the mothers went pro se because they ran out of money and, in a way, good for them. They ran out of money and took charge of their own case instead of letting it continue and continue and create billable hours for the machine that family court is.”

While Keller referred to the family court system as a “machine,” the group of women interviewed had other words to describe it: Abusive; Corrupt; Enabling; The gateway to Hell when you walk in the door. 

“It has nothing to do with kids and nothing to do with law and order,” one of them said.

Of course, such sentiments are not limited only to women and many women interviewed acknowledge that fathers are wronged by the system as well. But, they say, they want more accountability and oversight of a system they liken to the “wild west” – something that may benefit everyone involved, including men who aren’t abusive.

It is seen as a systemic logjam with few clear outlets. There is little reprieve when judges, attorneys, or GALs have made poor decisions, factual errors, failed to do their due diligence, been outwardly hostile toward one party, or even lied. And that is enabling abusers to continue inflicting emotional, psychological and financial damage.

It should be reiterated that this is not the vast majority of divorce cases, but rather the relatively few high conflict cases. Naturally, no one gets married to get divorced and it is always painful. But in these cases, there exists an elevated danger for the parties, particularly those who may find themselves in a judicial system swayed by questionable concepts and philosophies.

“The ways that state custody laws are constructed are based on ideology rather than research or science,” Pollack said.

“There’s something going on here and it’s not okay,” Sue said. “Every day, I walk around with mace in my hand, I’m still in court and the idea is to get you to the point that you give up and I’m sure I can speak for everyone here that you say is it worth it? I’ve sold everything that I have, my children and I have moved three times in the last four years. Everything we have is from tag sales. I know others have it a lot worse than me, but it doesn’t matter.”

“There needs to be a triage and a separate unit,” Sue said. “It’s not a ‘high conflict case,’ it’s something more and something needs to be done about it.”

BY: Marc E. Fitch
Marc worked as an investigative reporter for Yankee Institute and was a 2014 Robert Novak Journalism Fellow. He previously worked in the field of mental health is the author of several books and novels, along with numerous freelance reporting jobs and publications. Marc has a Master of Fine Arts degree from Western Connecticut State University.

Thirteen SCOTUS Decisions on Parenting!
by T. Matthew Phillips, Attorney-at-Law
U.S. Supreme Court Bar No. 317048

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Meyer vs. Nebraska — (1923)

Meyer vs. Nebraska,262 U.S. 390 (1923):  One hundred years ago, SCOTUS first recognized the right to parent as a “liberty” interest that the 14th Amendment guarantees.  Mr. Meyer, a school-teacher, was convicted on a criminal statute for teaching the German language, in a parochial school, to a 10-year-old.  SCOTUS held that the statute invaded the “liberty” interest that the 14th Amendment guarantees.

SCOTUS ruled that the 14th Amendment, “denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men,” [Meyer vs. State of Nebraska, 262 U.S. 390, 399 (1923); (bold italics added)].

“Corresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life,” [id. at 400].  “His right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the Amendment,” [id. at 400].

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Pierce vs. Society of Sisters – (1925)

Pierce vs. Society of Sisters, 268 U.S. 510 (1925):  SCOTUS held that the 14th Amendment “liberty” interest excludes any general power of the State to standardize its children — by forcing them to accept instruction from public teachers only.

“The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations,” [Pierce vs. Society of Sisters, 268 U.S. 510, 535 (1925); (bold italics added)].

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Prince vs. Massachusetts – (1944)

Prince vs. Massachusetts, 321 U.S. 158 (1944):  SCOTUS struck-down a state statute, which provided that no minor shall sell, in public places, any newspapers, magazines or periodicals.

“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder . . . And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter,” [Prince vs. Commonwealth of Massachusetts, 321 U.S. 158, 166 (1944); (bold italics added)].

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Stanley vs. Illinois – (1972)

Stanley vs. Illinois, 405 U.S. 645 (1972):  Under state law, children of unmarried fathers, upon the death of the mother, were declared wards of the state — with no hearing on the father’s fitness and no proof of child neglect by the father.  The Illinois Supreme Court held that a father could be separated from his children upon mere proof that he and the dead mother were not married and they further held that father’s fitness was irrelevant.  SCOTUS reversed, holding that unmarried fathers have a 14th Amendment liberty interest in raising their children. 

“[T]he State registers no gain towards its declared goals when it separates children from the custody of fit parents,” [Stanley vs. Illinois, 405 U.S. 645 (1972)].

“Under the Due Process Clause of the Fourteenth Amendment petitioner was entitled to a hearing on his fitness as a parent before his children were taken from him,” [id. at 645; (bold italics added].  “Parental unfitness must be established on the basis of individualized proof,” [id. at 645].

“The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection,” [id., at 651].  “We think the Due Process Clause mandates a similar result here.  The State’s interest in caring for Stanley’s children is de minimis if Stanley is shown to be a fit father,” [id., at 658].

SCOTUS ruled that, under the Due Process Clause of the 14th Amendment, father was “entitled to a hearing on [his] fitness” as a parent before the state took his children and placed them in guardianships, [id., at 647–658; (bold italics added)].

Under the Due Process Clause, the state cannot “justify refusing a father a hearing when the issue at stake is the dismemberment of his family,” [id. at 658]. “[A]ll Illinois parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody,” [id., at 658; (bold italics added)].

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Wisconsin vs. Yoder – (1972)

Wisconsin vs. Yoder, 406 U.S. 205 (1972):  Members of the Amish community were convicted for violating the State’s compulsory school attendance law.  SCOTUS reversed these convictions under the Free Exercise Clause of the First Amendment.

“The values of parental direction of the religious upbringing and education of  their children in their early and formative years have a high place in our society,” [Wisconsin vs. Yoder, 406 U.S. 205, at 213–214 (1972)].  “Even more markedly than in Prince, therefore, this case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children,” [id., at 232; (bold italics added)].  “This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition,” [id., at 232; (bold italics added)].

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Moore vs. East Cleveland – (1977)

Moore vs. East Cleveland, 431 U.S. 494 (1977):  An Ohio housing ordinance limited occupancy of dwelling units to members of a single family; however, the ordinance defined “family” in such a way that one particular household — consisting of a mother, her son, and her two grandsons — did not qualify for occupancy, and in fact, constituted a crime.  SCOTUS overturned the mother’s criminal conviction.

“Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.  It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural,” [Moore vs. East Cleveland, 431 U.S. 494, at 503–504 (1977); (bold italics added)].

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Smith vs. Organization of Foster Families – (1977)

Smith vs. Organization of Foster Families, 431 U.S. 816 (1977):  This case raised the novel question of whether foster homes are entitled to the same constitutional deference as biological families.  SCOTUS ruled that, “[t]he liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights, as they have been understood in “this Nation’s history and tradition.” ” [Smith vs. Organization of Foster Families, 431 U.S. 816, 845 (1977), citing Moore vs. East Cleveland, 431 U.S. 494, at 503; (bold italics added)].

“If a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest, I should have little doubt that the State would have intruded impermissibly on “the private realm of family life which the state cannot enter,” ” [Smith, supra, at 862-863, citing Prince vs. Massachusetts, 321 U. S. 158, 166 (1944); (bold italics added)].

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Quilloin vs. Walcott – (1978)

Quilloin vs. Walcott, 434U.S. 246 (1978):  Georgia law required only the mother’s consent for the adoption of an illegitimate child.  Here, an unmarried father tried to halt adoption of his illegitimate child.  However, the father had taken no steps to support or legitimate the child over a period of 11 years; so too, the father had never been a member of the child’s family unit.  As a result, SCOTUS upheld the adoption.

“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected,” [Quilloin  vs. Walcott, 434 U.S. 246, 255 (1978); (bold italics added)].  “We have little doubt that the Due Process Clause would be offended, “if a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest,” ” [Quilloin, supra, at 255; citing Smith vs. Organization of Foster Families, 431 U.S. 816, 862-863 (1977); (bold italics added)].

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Parham vs. J.R. – (1979)

Parham vs. J. R., 442 U.S. 584 (1979):  SCOTUS validated the State’s procedures for admitting children to state mental hospitals.  “The law’s concept of the family rests  on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.  More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children,” [Parham vs. J. R., 442 U.S. 584, 602 (1979); (bold italics added)].

“The statist notion that governmental power should supersede parental authority  in all cases because some parents abuse and neglect children is repugnant to American tradition,” [Parham vs. J. R., 442 U.S. 584, 602 (1979)].  “Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state,” [id., at 603].  “[W]e conclude that our precedents permit the parents to retain a substantial, if not the dominant, role in the decision, absent a finding of neglect or abuse, and that the traditional presumption that the parents act in the best interests of their child should apply,” [id. at 604; (bold italics added)].

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Santosky vs. Kramer – (1982)

Santosky vs. Kramer, 455 U.S. 745 (1982):  Under New York law, the state could terminate, over parental objection, the rights of parents in their children — upon a finding that the child is permanently neglected.

“The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State,” [Santosky vs. Kramer, 455 U.S. 745 (1982); (bold italics added)].  “Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life,” [id., at 753].  

“Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence,” [id., at 746; (bold italics added)].  “[U]ntil the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship,” [id., at 760); (bold italics added)].

“[T]he parens patriae interest favors preservation, not severance, of natural familial bonds,” [id., at 767–768); (bold italics added)].  “Nor is it clear that the State constitutionally could terminate a parent’s rights without showing parental unfitness,” [id., at footnote 10; (bold italics added)].  “Any parens patriae interest in terminating the natural parents’ rights arises only at the dispositional phase, after the parents have been found unfit,” [id., at footnote 17].

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Rotary Int’l vs. Rotary Club of Duarte – (1987)

Rotary Int’l vs. Rotary Club of Duarte, 481 U.S. 537 (1987):  Rotary Int’l excluded women from membership, while Rotary Duarte admitted women; as a result, Rotary Int’l terminated Rotary Duarte’s membership in the international organization.  By requiring Rotary Clubs in California to admit women, California’s anti-discrimination statute does not violate the First Amendment.  So too,  the statute did not unduly interfere with club members’ freedom of private association.

“We have emphasized that the First Amendment protects those relationships, including family relationships, that presuppose “deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs, but also distinctively personal aspects of one’s life.” ” [Rotary Int’l vs. Rotary Club of Duarte, 481 U.S. 537, 545 (1987), citing, Roberts vs. United States Jaycees, 468 U.S. 609, 619-620 (1984); (bold italics added)].

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Reno vs. Flores – (1993)

Reno vs. Flores, 507 U.S. 292 (1993):  Immigration and Naturalization Service regulation provided that alien juveniles — detained on suspicion of being deportable — may be released only to a parent, legal guardian, or other related adult.  SCOTUS held that the regulation accords with the Due Process Clause and the Immigration and Nationality Act.

SCOTUS held that the Due Process Clause provides heightened protection against government interference with fundamental rights and liberty interests, [Reno vs. Flores, 507 U.S. 292, 301-302 (1993)].

“ “The best interests of the child,” a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody.  But it is not traditionally the sole criterion — much less the sole constitutional criterion — for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others,” [Reno vs. Flores, 507 U.S. 292, 304 (1993)].

“ “[T]he best interests of the child” is not the legal standard that governs parents’ or guardians’ exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves,” [id., at 304; (bold italics added)].

Troxel vs. Granville – (2000)

Troxel vs. Granville, 530 U.S. 57 (2000):  The State of Washington had allowed “any person” to petition for visitation rights, and further allowed family courts to grant visitation where it served a child’s “best interests.”  The grandparents, (the Troxels), successfully petitioned for visitation with the children of their deceased son.  The mother, (Granville), objected to the amount of visitation ordered.  The Washington Supreme Court held that state law unconstitutionally infringed on the mother’s fundamental right to parent.  SCOTUS affirmed, holding that the Washington law, as applied, exceeded the bounds of the Due Process Clause.  “First, the Troxels did not allege, and no court has found, that Granville was an unfit parent.  There is a presumption that fit parents act in their children’s best interests,” [Troxel vs. Granville, 530 U.S. 57, citing Parham vs. J. R., 442 U.S. 584, 602; (bold italics added)].

“[T]here is normally no reason for the State to inject itself into the private realm  of the family to further question fit parents’ ability to make the best decisions regarding their children,” [Troxel vs. Granville, 530 U.S. 57 (2000), citing Reno vs. Flores, 507 U.S. 292, at 304 (1993)].

According to the Washington Supreme Court, “the Constitution permits a State to interfere with the right of parents to rear their children only to prevent harm or potential harm to a child,” [id. at 57; (bold italics added)].  The state statute was too broad; it allowed “any person” to petition, with the only requirement being whether visitation served the child’s “best interests.”  States may interfere with the right to parent only to prevent harm to a child.  “[T]here is normally no reason for the State to inject itself into the private realm of the family to further question fit parents’ ability to make the best decisions regarding their children,” [Troxel vs. Granville, 530 U.S. 57, 58 (2000); (bold italics added)]. “[T]he State lacks a compelling interest in second-guessing a fit parent’s decision regarding visitation with third parties,” [id. at 58].

“The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court,” [Troxel vs. Granville, 530 U.S. 57, 65 (2000); (bold italics added)].

SCOTUS noted that “the Troxels did not allege, and no court has found, that Granville was an unfit parent.  That aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children,” [id. at 68].

“In effect, the judge placed on Granville, the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters,” [id. at 69].  “In that respect, the court’s presumption failed to provide any protection for Granville’s fundamental constitutional right to make decisions concerning the rearing of her own daughters,” [id. at 69–70].  “Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance.  And, if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination,” [id. at 70].

“The Washington Superior Court failed to accord the determination of Granville, a fit custodial parent, any material weight,” [id. at 72].  “As we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made,” [id. at 72–73].

“We have long recognized that a parent’s interests in the nurture, upbringing, companionship, care, and custody of children are generally protected by the Due Process Clause of the Fourteenth Amendment,” [id. at 77].

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These Supreme Court case law citations form the basis of our proposed Parental Bill of Rights (click below!)

The Parental Bill of Rights

THE PARENTAL BILL of RIGHTS
by T. Matthew Phillips, Attorney-at-Law
U.S. Supreme Court Bar No. 317048

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A proposed BILL to ensure the CONSTITUTIONAL RIGHTS of PARENTS are honored and protected in the nation’s FAMILY COURTS.

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1. The 14th Amendment guarantees “liberty,” which includes the People’s right to raise children; this fundamental right to parent includes the right to care, custody, and control of one’s children; so too, children enjoy an accompanying right, i.e., the right to be parented by their natural parents.
2. All parents are presumed fit. No court may restrict or terminate a parent’s custodial rights unless there is first a fitness trial — where the state proves child abuse or neglect by clear and convincing evidence, i.e., which can be objectively verified without resort to judicial discretion.
3. A properly noticed fitness trial must include: (i) notice to the accused parent concerning the factual allegations of child abuse or neglect, and (ii) an admonition that, if the accused parent is found unfit — based on clear and convincing evidence — the state may restrict or terminate that parent’s custodial rights.
4. Fit parents are presumed to act in the best interests of their children; absent findings of unfitness, equal protection demands that two fit parents share equal and undivided custodial rights.
5. A child’s best interests reside with fit parents; absent findings of unfitness, the state may not enter the private family realm. No court has legal authority, (“jurisdiction”), to determine a child’s best interests — unless both parents are deemed unfit after a properly noticed fitness trial.
6. Unless there is actual harm to a child — meaning abuse or neglect as defined by black-letter law — a parent’s bad behavior or felonious misconduct provides no legal basis to restrict or terminate custodial rights. No court may restrict or terminate custodial rights as punishment for misconduct against any person, including the other parent.
7. All orders restricting or terminating custodial rights must include strict scrutiny analyses, i.e., was the custody order narrowly tailored to effectuate a compelling gov’t interest?—and, did the court employ the least-restrictive means of effectuating that interest?
8. The First Amendment guarantees a fundamental right to familial association — including the right to private speech with one’s children. No court may impose time, place, or manner restrictions on a parent’s right to free speech with a child, (e.g., at supervised visits), unless that parent is found unfit.
9. All temporary custody orders must have expiration dates; temporary custody orders with no expiration dates are null and void. No temporary order restricting custodial rights shall remain in effect longer than 60 days, after which: (i) the order must expire, or (ii) a fitness trial must commence.
10. All parents in domestic proceedings are presumed innocent of criminal accusations unless or until the state, in a criminal proceeding, proves guilt beyond a reasonable doubt, pursuant to a criminal complaint, (“indictment”). No court may sua sponte conclude that a parent committed a crime.

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E P I L O G U E

Our proposed bill declares rights that are both fundamental and well-established by the U.S. Supreme Court and the federal circuits.

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“Stare decisis is not dead; it just smells funny.”
T. Matthew Phillips, Esq.

T. Matthew Phillips is a California attorney, musicologist, art historian, astronomer, Orwellian scholar, registered cinephile, and part-time particle physicist. TMP advocates the unconditional abolition of vaccines, GMOs, chemtrails, Tidepods, Lysol, Windex, Febreeze, glyphosate, fluoride, and mainstream science. BIO: TMP has no college degree, but he did win a spelling contest in the seventh grade. TMP is principally known, in academic circles, for his masterly translation, into Latin, of “The Wizard of Oz,” which remains, even today, the standard Latin version of that work.

Thoughts on “The Parental Bill of Rights”

1. KATHRINE THOMAS March 9, 2023 at 10:17 am
   SO where is this at as of right now?
   1. T. Matthew Phillips, Esq.March 10, 2023 at 6:59 am We are trying to get an Arizona Congressperson to submit it to Congress. 
2. Theresa Sanzi March 23, 2023 at 6:12 am
   Thank you for leading all the fathers in this direction. The fathers and some moms are in slavery along with their kids.
   This is no worse than the Slavery in the 1800s and also taking of the American Indian children.
   You are the strongest we have working for the American children. And their fathers.
   Your words have so much meaning and I hope you can demolish family court and give them some time before the kids have lost their childhood. Bless you for your gift and for working toward this.
   1. T. Matthew Phillips, Esq.March 23, 2023 at 8:14 am Thank you! 

<CLICK>

Case Information

17-3-00240-23 | ELMER ALLEN LEWIS vs TERA ANN REED

Case Number
17-3-00240-23

Court
Mason

File Date
08/25/2017

Case Type
PPS Parenting Plan/Child Support

Case Status
Completed/Re-Completed

Party

Respondent (WIP)
REED, TERA ANN

DOB
XX/XX/1980

Active Attorneys

Lead Attorney
Stein, Renee’ Elizabeth

Retained

Petitioner (WIP)
LEWIS, ELMER ALLEN

DOB
XX/XX/1984

Minor (WIP)
Lewis, Rebel

DOB
XX/XX/2016

Events and Hearings

• 1 08/25/2017 Case Information Cover Sheet View Document Case Information Cover Sheet
• 2 08/25/2017 Motion for Waiver of Fees View Document Motion for Waiver of Fees
• 3 08/25/2017 Order to Proceed In Forma Pauperis View Document Order to Proceed In Forma Pauperis Judicial Officer
  Sheldon, Toni A.
• 08/25/2017 Ex Parte Action With Order Judicial Officer
  Sheldon, Toni A.
• 08/25/2017 Confidential Information Form
• 4 08/25/2017 Summons View Document Summons
• 5 08/25/2017 Petition for a Parenting Plan and or Child Support View Document Petition for a Parenting Plan and or Child Support
• 6 08/25/2017 Proposed Parenting Plan View Document Proposed Parenting Plan
• 7 08/25/2017 Declaration in Supp of Parenting Plan View Document Declaration in Supp of Parenting Plan
• 8 08/25/2017 Motion for Temporary Family Law Order and Restraining Order View Document Motion for Temporary Family Law Order and Restraining Order
• 9 08/25/2017 Affidavit of NonPayment of Public Assistance View Document Affidavit of NonPayment of Public Assistance
• 08/25/2017 Confidential Report in Sealed Envelope Comment
  copy of Birth Certificate
• 10 08/25/2017 Notice of Hearing View Document Notice of HearingComment
  Temporary Parenting Plan
• 11 08/31/2017 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 12 09/08/2017 Temporary Parenting Plan View Document Mason MinutesJudicial Officer
  Sauerlender, Robert D Hearing Time
  9:00 AM Result
  Held Parties Present Petitioner (WIP): LEWIS, ELMER ALLEN Respondent (WIP): REED, TERA ANN
• 13 09/08/2017 Motion Hearing View Document Mason Minutes
• 14 09/08/2017 Order of Continuance View Document Order of Continuance Judicial Officer
  Sauerlender, Robert D
• 15 09/08/2017 Notice of Appearance View Document Notice of Appearance
• 16 09/19/2017 Proposed Parenting Plan View Document Proposed Parenting Plan
• 17 09/19/2017 Declaration in Supp of Parenting Plan View Document Declaration in Supp of Parenting Plan
• 18 09/19/2017 Declaration Affidavit View Document Declaration Affidavit Comment
  Terra Reed in Support of Proposed Parenting Plan
• 19 09/19/2017 Declaration Affidavit View Document Declaration Affidavit Comment
  ELMER LEWIS
• 20 09/19/2017 Declaration Affidavit View Document Declaration Affidavit Comment
  JAMIE STANTON
• 21 09/19/2017 Declaration Affidavit View Document Declaration Affidavit Comment
  MYRIAH AVERY
• 22 09/19/2017 Declaration Affidavit View Document Declaration Affidavit Comment
  ELSA HEWITT
• 23 09/19/2017 Copy View Document Copy Comment
  TEXT MESSAGES
• 24 09/20/2017 Temporary Parenting Plan View Document Mason MinutesJudicial Officer
  Sauerlender, Robert D Hearing Time
  1:30 PM Result
  Held
• 25 09/20/2017 Motion Hearing View Document Mason Minutes
• 26 09/20/2017 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 27 09/20/2017 Order of Continuance View Document Order of Continuance Judicial Officer
  Sauerlender, Robert D
• 28 09/25/2017 Declaration Affidavit View Document Declaration AffidavitComment
  Jamie Lynn Stanton
• 29 09/25/2017 Copy View Document Copy Comment
  TEXT CONVERSATION
• 30 09/25/2017 Declaration Affidavit View Document Declaration AffidavitComment
  ELMER LEWIS
• 31 09/26/2017 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 32 09/27/2017 Temporary Parenting Plan View Document Mason MinutesJudicial Officer
  Sauerlender, Robert DHearing Time
  1:30 PMResult
  Held Parties Present Petitioner (WIP): LEWIS, ELMER ALLEN Respondent (WIP): REED, TERA ANN
• 33 09/27/2017 Order of Continuance View Document Order of Continuance Judicial Officer
  Sauerlender, Robert D Comment
  Temporary Parenting Plan
• 34 09/27/2017 Motion Hearing View Document Mason Minutes
• 35 10/03/2017 Declaration Affidavit View Document Declaration AffidavitComment
  TERA REED
• 36 10/04/2017 Temporary Parenting Plan View Document 
  37 Mason Minutes View Document 
  38 Mason Minutes View Document 
  39 Mason Minutes View Document 
  40 Mason Minutes View Document Mason Minutes Judicial Officer
  Sheldon, Toni A. Hearing Time
  1:30 PM Result
  Held Parties Present Petitioner (WIP): LEWIS, ELMER ALLEN Respondent (WIP): REED, TERA ANN
• 41 10/04/2017 Order for Hearing View Document Order for Hearing
• 42 10/04/2017 Motion Hearing View Document Mason Minutes Judicial Officer
  Goodell, Daniel L
• 43 10/10/2017 Notice of Intent to Withdraw View Document Notice of Intent to Withdraw
• 44 10/11/2017 Presentation of Order View Document Mason Minutes Judicial Officer
  Sheldon, Toni A. Hearing Time
  9:00 AM Result
  Held Comment
  Hearing on 10-4-17 on Courts Ruling Parties Present Petitioner (WIP): LEWIS, ELMER ALLEN Respondent (WIP): REED, TERA ANN
• 45 10/11/2017 Order of Continuance View Document Order of Continuance Comment
  TO 10-18-17 @ 8:30 AM
• 46 10/11/2017 Motion Hearing View Document 
  47 Mason Minutes View Document Motion Hearing Judicial Officer
  Sheldon, Toni A.
• 10/18/2017 Presentation of Order Judicial Officer
  Goodell, Daniel L Hearing Time
  9:00 AM Comment
  @ 8:30 AM
• 48 10/18/2017 Order Appointing Parenting Evaluator Investigator View Document Order Appointing Parenting Evaluator Investigator Judicial Officer
  Goodell, Daniel L Comment
  AND TEMPORARY ORDER
• 10/18/2017 Motion Hearing
• 49 11/01/2017 Motion and Affidavit Declaration View Document Motion and Affidavit Declaration
• 50 11/01/2017 Notice of Hearing View Document Notice of Hearing
• 51 11/02/2017 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 52 11/08/2017 Declaration Affidavit View Document Declaration Affidavit
• 53 11/09/2017 Motion Hearing View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D Hearing Time
  2:00 PM Result
  Held Parties Present Petitioner (WIP): LEWIS, ELMER ALLEN Respondent (WIP): REED, TERA ANN
• 54 11/09/2017 Motion Hearing View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D
• 55 11/09/2017 Order Modifying View Document Order ModifyingJudicial Officer
  Sauerlender, Robert D Comment
  Visitation Schedule
• 11/14/2017 Confidential Report in Sealed Envelope Comment
  Custody Investigator Report
• 56 11/30/2017 Report View Document Report Comment
  Visitation Notes November 20th, 22nd, 27th
• 57 12/01/2017 Temporary Order View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D Hearing Time
  9:00 AM Result
  Held Comment
  Sonya Miles to call in at 10:30 a.m. 360-990-8677 Parties Present Petitioner (WIP): LEWIS, ELMER ALLEN
• 58 12/01/2017 Motion Hearing View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D
• 59 12/01/2017 Order Terminating View Document Order Terminating Comment
  Supervised Visitation
• 60 12/04/2017 Order Authorizing View Document Order Authorizing Judicial Officer
  Goodell, Daniel L
• 12/04/2017 Ex Parte Action With Order Judicial Officer
  Goodell, Daniel L
• 61 12/04/2017 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 62 01/22/2018 Certificate View Document Certificate Comment
  Consider the Children for Elmer Lewis
• 63 07/27/2018 Motion for Order to Show Cause View Document Motion for Order to Show Cause
• 64 07/27/2018 Temporary Restraining Order and Order to Show Cause View Document Temporary Restraining Order and Order to Show Cause
• 07/27/2018 Ex Parte Action With Order Judicial Officer
  Finlay, Amber L
• 08/01/2018 Confidential Information Form Comment
  LES
• 65 08/03/2018 Motion for Order to Show Cause View Document Motion for Order to Show Cause
• 66 08/03/2018 Declaration in Supp of Parenting Plan View Document Declaration in Supp of Parenting Plan
• 67 08/03/2018 Temporary Restraining Order and Order to Show Cause View Document Temporary Restraining Order and Order to Show Cause
• 68 08/08/2018 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 69 08/10/2018 Restraining Order View Document Mason MinutesJudicial Officer
  Sauerlender, Robert D Hearing Time
  9:00 AM Result
  Stricken
• 70 08/10/2018 Hearing Stricken Not Confirmed and Not Heard View Document Mason Minutes
• 71 08/16/2018 Declaration Affidavit View Document Declaration Affidavit Comment
  ELMER LEWIS
• 72 08/17/2018 Restraining Order View Document Mason MinutesJudicial Officer
  Sauerlender, Robert D Hearing Time
  9:00 AM Result
  Held Parties PresentPetitioner (WIP): LEWIS, ELMER ALLEN Respondent (WIP): REED, TERA ANN
• 73 08/17/2018 Motion Hearing View Document Mason MinutesJudicial Officer
  Sauerlender, Robert D
• 74 08/17/2018 Order of Continuance View Document Order of Continuance
• 75 08/27/2018 Proposed Parenting Plan View Document Proposed Parenting Plan
• 76 08/27/2018 Declaration Affidavit View Document Declaration Affidavit Comment
  Tera Reed
• 08/27/2018 Medical Report Comment
  Discharge Orders & Aftercare Plan
• 77 08/27/2018 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 78 08/29/2018 Declaration Affidavit View Document Declaration Affidavit Comment
  of Elmer Lewis
• 79 08/31/2018 Restraining Order View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D Hearing Time
  9:00 AM Result
  Held Parties Present Petitioner (WIP): LEWIS, ELMER ALLEN Respondent (WIP): REED, TERA ANN
• 80 08/31/2018 Temporary Order View Document Temporary Order Judicial Officer
  Sauerlender, Robert D
• 81 08/31/2018 Motion Hearing View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D
• 08/31/2018 Medical Report
• 82 09/04/2018 Declaration Affidavit View Document Declaration Affidavit Comment
  ELMER LEWIS
• 83 09/04/2018 Declaration Affidavit View Document Declaration Affidavit Comment
  ELMER LEWIS
• 84 09/06/2018 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 85 09/07/2018 Review Hearing View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D Hearing Time
  9:00 AM Result
  Held Comment
  Special Set @ 10Parties Present Petitioner (WIP): LEWIS, ELMER ALLEN Respondent (WIP): REED, TERA ANN
• 86 09/07/2018 Order of Continuance View Document Order of Continuance Judicial Officer
  Sauerlender, Robert D
• 87 09/07/2018 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 88 09/07/2018 Motion Hearing View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D
• 89 09/10/2018 Declaration Affidavit View Document Declaration Affidavit Comment
  TERA REED
• 90 09/14/2018 Temporary Restraining Order Judicial Officer
  Hayes, Lynn K Hearing Time
  9:00 AM Comment
  Special Set 10:30
• 91 09/14/2018 Order of Continuance View Document Order of Continuance Comment
  AND MODIFICATION OF TEMPORARY FAMILY LAW ORDER
• 92 09/14/2018 Declaration Affidavit View Document Declaration Affidavit Comment
  TERA REED
• 93 09/14/2018 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 94 09/14/2018 Motion Hearing View Document Motion Hearing
• 95 09/20/2018 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 96 09/21/2018 Temporary Restraining Order View Document Mason Minutes Judicial Officer
  Hayes, Lynn K Hearing Time
  9:00 AM Result
  Held Parties Present Petitioner (WIP): LEWIS, ELMER ALLEN Respondent (WIP): REED, TERA ANN
• 97 09/21/2018 Motion Hearing View Document Mason Minutes Judicial Officer
  Hayes, Lynn K
• 98 09/21/2018 Temporary Order View Document Temporary Order
• 99 10/01/2018 Motion and Affidavit Declaration View Document Motion and Affidavit Declaration Comment
  FOR ORDER TO WAIVE MEDIATION, ADDRESS RESTRAINING ORDER AND SCHEDULE TRIAL DATE
• 100 10/01/2018 Notice of Hearing View Document Notice of Hearing Comment
  TEMPORARY ORDER
• 101 10/04/2018 Declaration Affidavit View Document Declaration Affidavit Comment
  ELMER LEWIS
• 102 10/05/2018 Temporary Order View Document Mason MinutesJudicial Officer
  Sauerlender, Robert D Hearing Time
  9:00 AMResult
  Held Parties Present Petitioner (WIP): LEWIS, ELMER ALLEN Respondent (WIP): REED, TERA ANN
• 103 10/05/2018 Motion Hearing View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D
• 104 10/05/2018 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 105 10/05/2018 Order View Document Order Comment
  Terminating Restraints
• 106 12/13/2018 Proposed Parenting Plan View Document Proposed Parenting Plan
• 107 05/17/2019 Motion for Order to Show Cause View Document Motion for Order to Show Cause
• 108 05/17/2019 Temporary Restraining Order and Order to Show Cause View Document Temporary Restraining Order and Order to Show Cause
• 05/17/2019 Ex Parte Action With Order Judicial Officer
  Sauerlender, Robert D
• 109 05/24/2019 Response View Document Response
• 110 05/24/2019 Motion for Order to Show Cause View Document Motion for Order to Show Cause
• 111 05/24/2019 Declaration Affidavit View Document Declaration Affidavit Comment
  TERA REED
• 05/24/2019 Medical Report
• 112 05/24/2019 Copy View Document Copy Comment
  DOCUMENTS FROM CAUSE # 19-2-254-23
• 113 05/24/2019 Certificate View Document Certificate Comment
  CONSIDER THE CHILDREN FOR TERA REED
• 114 05/24/2019 Notice of Hearing View Document Notice of Hearing
• 115 05/28/2019 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 116 05/30/2019 Declaration Affidavit View Document Declaration Affidavit Comment
  JOE COLEMAN
• 117 05/30/2019 Proposed Parenting Plan View Document Proposed Parenting Plan
• 118 05/30/2019 Social Media Message View Document Social Media Message
• 119 05/30/2019 Copy View Document Copy Comment
  VISIT SUMMARY FROM ER
• 120 05/30/2019 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 121 05/31/2019 Restraining Order View Document Mason MinutesJudicial Officer
  Sauerlender, Robert D Hearing Time
  9:00 AM Result
  Held Parties Present Petitioner (WIP): LEWIS, ELMER ALLEN Respondent (WIP): REED, TERA ANN
• 05/31/2019 Temporary Parenting Plan Judicial Officer
  Sauerlender, Robert D Hearing Time
  9:00 AM
• 122 05/31/2019 Motion Hearing View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D
• 123 05/31/2019 Order View Document Order Comment
  TEMPORARY & TRIAL SETTING
• 124 06/19/2019 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 125 06/19/2019 Motion and Affidavit Declaration View Document Motion and Affidavit Declaration
• 126 06/19/2019 Notice of Hearing View Document Notice of Hearing Comment
  SCHEDULED FOR MAY 28TH 2019
• 127 06/19/2019 Motion for Order to Show Cause View Document Motion for Order to Show Cause
• 128 06/19/2019 Declaration Affidavit View Document Declaration Affidavit Comment
  TERA REED
• 129 06/19/2019 Order to Show Cause View Document Order to Show Cause
• 130 06/21/2019 Motion and Affidavit Declaration View Document Motion and Affidavit Declaration Comment
  AMEND VISITATION/CUSTODY
• 131 06/21/2019 Declaration Affidavit View Document Declaration Affidavit Comment
  TERA REED
• 132 06/21/2019 Notice of Hearing View Document Notice of Hearing
• 133 06/24/2019 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 134 06/28/2019 Show Cause/Contempt View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D Hearing Time
  9:00 AM Result
  Held Parties Present Petitioner (WIP): LEWIS, ELMER ALLEN Respondent (WIP): REED, TERA ANN
• 06/28/2019 Motion Hearing Judicial Officer
  Sauerlender, Robert D Hearing Time
  9:00 AM
• 135 06/28/2019 Motion Hearing View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D
• 136 06/28/2019 Order to Show Cause View Document Order to Show Cause Judicial Officer
  Sauerlender, Robert D
• 137 07/03/2019 Declaration Affidavit View Document Declaration Affidavit Comment
  ANGELICA ZAMBRANO
• 138 07/10/2019 Declaration Affidavit View Document Declaration Affidavit Comment
  ELMER LEWIS
• 139 07/10/2019 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 140 07/10/2019 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service Comment
  BY MARISSA CAVANAUGH
• 141 07/10/2019 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service Comment
  BY ANGELICA ZAMBRANO
• 142 07/12/2019 Show Cause View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D Hearing Time
  9:00 AMResult
  Held Parties Present Petitioner (WIP): LEWIS, ELMER ALLEN Respondent (WIP): REED, TERA ANN
• 143 07/12/2019 Motion Hearing View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D
• 144 07/12/2019 Temporary Family Law Order View Document Temporary Family Law Order Judicial Officer
  Sauerlender, Robert D
• 145 07/12/2019 Temporary Family Law Order View Document Temporary Family Law Order Judicial Officer
  Sauerlender, Robert D
• 07/12/2019 Ex Parte Action With Order Judicial Officer
  Sauerlender, Robert D
• 146 07/15/2019 Declaration of Mailing View Document Declaration of Mailing
• 147 07/17/2019 Motion and Affidavit Declaration View Document Motion and Affidavit Declaration Comment
  FOR ISSUANCE OF SUBPOENA KATHY AUSETH
• 148 07/17/2019 Order Authorizing View Document Order Authorizing Judicial Officer
  Goodell, Daniel L Comment
  ISSUANCE OF SUBPOENA
• 07/17/2019 Ex Parte Action With Order Judicial Officer
  Goodell, Daniel L
• 149 07/17/2019 Motion and Affidavit Declaration View Document Motion and Affidavit 150 150 DeclarationView Document Subpoena Comment
  FOR ISSUANCE OF SUBPOENA BRITTANY PARTON
• 151 07/17/2019 Order Authorizing View Document Order AuthorizingJudicial Officer
  Goodell, Daniel LComment
  FOR ISSUANCE OF SUBPOENA
• 152 07/17/2019 Motion and Affidavit Declaration View Document Motion and Affidavit Declaration Comment
  FOR ISSUANCE OF SUBPOENA GAIL REED
• 07/17/2019 Ex Parte Action With Order Judicial Officer
  Goodell, Daniel L
• 153 07/17/2019 Order Authorizing View Document Order AuthorizingJudicial Officer
  Goodell, Daniel L Comment
  FOR ISSUANCE OF SUBPOENA
• 154 07/17/2019 Ex Parte Action With Order Judicial Officer
  Goodell, Daniel L
• 155 07/18/2019 Subpoena View Document Subpoena Comment
  KATHY AUSETH
• 156 07/18/2019 Subpoena View Document Subpoena Comment
  BRITTANY PARTON
• 157 07/18/2019 Subpoena View Document Subpoena Comment
  GAIL REED
• 158 07/26/2019 Return on Subpoena View Document Return on Subpoena Comment
  BRITTANY PARTON
• 159 07/26/2019 Return on Subpoena View Document Return on Subpoena Comment
  GAIL REED
• 160 07/26/2019 Return on Subpoena View Document Return on Subpoena Comment
  KATHY AUSETH
• 161 08/01/2019 Trial Brief View Document Trial Brief
• 162 08/02/2019 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 163 08/02/2019 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 164 08/06/2019 Correspondence View Document Correspondence
• 08/13/2019 Non-Jury Trial Judicial Officer
  Cobb, Monty D Hearing Time
  9:00 AM
• 165 08/13/2019 Exhibit List View Document Exhibit List
• 166 08/13/2019 Stipulation and Order for Return of Exhibits and or Unopen View Document Stipulation and Order for Return of Exhibits and or Unopen Judicial Officer
  Cobb, Monty D
• 167 08/13/2019 Witness List View Document Witness List
• 168 08/14/2019 Parenting Plan Final Order View Document Parenting Plan Final Order Judicial Officer
  Cobb, Monty D
• 169 08/14/2019 Child Support Worksheet View Document Child Support WorksheetJudicial Officer
  Cobb, Monty D
• 170 08/14/2019 Order for Support View Document Order for Support Judicial Officer
  Cobb, Monty D
• 171 08/14/2019 Judgment Final Ord and Findings for Par Plan or Support View Document Judgment Final Ord and Findings for Par Plan or Support Judicial Officer
  Cobb, Monty D
• 172 08/14/2019 Trial Minutes View Document Trial Minutes Comment
  2 day trial 8/13/19 and 8/14/19
• 173 09/13/2019 Notice of Appeal to Court of Appeals View Document Notice of Appeal to Court of Appeals
• 174 09/13/2019 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 175 10/16/2019 Transmittal Letter Copy Filed View Document Transmittal Letter Copy Filed Comment
  COA
• 176 02/03/2020 Mandate View Document Mandate
• 177 06/12/2020 Motion Hearing View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D Hearing Time
  9:00 AM Result
  Held Parties Present Petitioner (WIP): LEWIS, ELMER ALLEN Respondent (WIP): REED, TERA ANN
• 178 06/12/2020 Case Information Cover Sheet View Document Case Information Cover Sheet
• 179 06/12/2020 Summons View Document Summons
• 180 06/12/2020 Motion for Waiver of Fees View Document Motion for Waiver of Fees
• 181 06/12/2020 Order to Proceed In Forma Pauperis View Document Order to Proceed In Forma Pauperis Judicial Officer
  Sauerlender, Robert D
• 06/12/2020 Ex Parte Action With Order Judicial Officer
  Sauerlender, Robert D
• 06/12/2020 Confidential Information Form
• 182 06/12/2020 Motion for Order to Show Cause View Document Motion for Order to Show Cause
• 183 06/12/2020 Motion for Adequate Cause Decision View Document Motion for Adequate Cause Decision
• 184 06/12/2020 Petition Motion to Modify View Document Petition Motion to Modify
• 185 06/12/2020 Proposed Parenting Plan View Document Proposed Parenting Plan
• 186 06/12/2020 Declaration in Supp of Parenting Plan View Document Declaration in Supp of Parenting Plan
• 187 06/12/2020 Email View Document Email
• 188 06/12/2020 Email View Document Email
• 189 06/12/2020 Declaration Affidavit View Document Declaration Affidavit
• 190 06/12/2020 Declaration Affidavit View Document Declaration Affidavit
• 06/12/2020 Sealed Confidential Reports Cover Sheet Comment
  HEALTH
• 191 06/12/2020 Temporary Family Law Order View Document Temporary Family Law OrderJudicial Officer
  Sauerlender, Robert D
• 192 06/12/2020 Motion Hearing View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D
• 193 06/15/2020 Notice of Hearing View Document Notice of Hearing
• 194 06/16/2020 Social Media Message View Document Social Media Message Comment
  TEXT MESSAGES EXB A
• 195 06/16/2020 Social Media Message View Document Social Media Message Comment
  TEXT MESSAGES EXB B
• 196 06/16/2020 Social Media Message View Document Social Media Message Comment
  TEXT MESSAGES EXB C
• 197 06/16/2020 Social Media Message View Document Social Media Message Comment
  TEXT MESSAGES EXB D
• 198 06/16/2020 Social Media Message View Document Social Media Message Comment
  TEXT MESSAGES EXB E
• 199 06/16/2020 Social Media Message View Document Social Media Message Comment
  TEXT MESSAGES EXB F
• 200 06/16/2020 Social Media Message View Document Social Media Message Comment
  TEXT MESSAGES EXB G
• 201 06/16/2020 Social Media Message View Document Social Media Message Comment
  TEXT MESSAGES EXB H
• 202 06/16/2020 Social Media Message View Document Social Media Message Comment
  TEXT MESSAGES EXB I
• 203 06/16/2020 Social Media Message View Document Social Media Message Comment
  TEXT MESSAGES EXB J
• 204 06/16/2020 Social Media Message View Document Social Media Message Comment
  TEXT MESSAGES EXB K
• 205 06/16/2020 Social Media Message View Document Social Media Message Comment
  TEXT MESSAGES EXB L
• 206 06/18/2020 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 207 06/22/2020 Show Cause View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D Hearing Time
  9:00 AM Result
  Held Comment
  1000A Parties Present Petitioner (WIP): LEWIS, ELMER ALLEN Respondent (WIP): REED, TERA ANN
• 208 06/22/2020 Motion Hearing View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D
• 209 06/22/2020 Order of Continuance View Document Order of Continuance
• 210 07/06/2020 Response View Document Response
• 211 07/06/2020 Declaration Affidavit View Document Declaration Affidavit Comment
  COPY OF CURRENT PP AND VARIOUS PAGES WITH MODIFICATIONS
• 07/06/2020 Sealed Confidential Reports Cover Sheet Comment
  HEALTH
• 07/06/2020 Sealed Confidential Reports Cover Sheet
• 07/06/2020 Sealed Confidential Reports Cover Sheet
• 212 07/06/2020 Declaration Affidavit View Document Declaration Affidavit
• 213 07/06/2020 Declaration Affidavit View Document Declaration Affidavit Comment
  JORGE ZAMBRANO-MORALES
• 214 07/06/2020 Copy View Document Copy Comment
  BOWLING INFO
• 215 07/06/2020 Copy View Document Copy Comment
  MEMBERSHIP CARD
• 216 07/06/2020 Declaration Affidavit View Document Declaration Affidavit Comment
  IN RESPONSE TO RESTRAINING ORDER
• 217 07/06/2020 Declaration Affidavit View Document Declaration Affidavit Comment
  TERRY BASH
• 218 07/06/2020 Declaration Affidavit View Document Declaration Affidavit Comment
  DANETTE MAGERSTAEDT
• 219 07/08/2020 Social Media Message View Document Social Media Message Comment
  TEXTS
• 220 07/08/2020 Declaration Affidavit View Document Declaration Affidavit Comment
  LINDA RUTLEDGE
• 221 07/09/2020 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 222 07/13/2020 Show Cause View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D Hearing Time
  9:00 AM Result
  Held Comment
  11:00a Parties Present Petitioner (WIP): LEWIS, ELMER ALLEN Respondent (WIP): REED, TERA ANN
• 223 07/13/2020 Motion Hearing View Document Mason Minutes Judicial Officer
  Sauerlender, Robert D
• 224 07/13/2020 Order Re Adequate Cause Denied View Document Order Re Adequate Cause Denied Judicial Officer
  Sauerlender, Robert D Comment
  AND DENYING PETITION
• 225 07/13/2020 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 07/22/2020 Case Resolution Statistical Completion
• 226 02/26/2021 Correspondence View Document Correspondence Comment
  RE PT EXHIBITS
• 227 02/26/2021 Correspondence View Document Correspondence Comment
  RE RSP EXHIBITS
• 228 04/09/2021 Affidavit View Document Affidavit Comment
  OF DESTRUCTION
• 229 04/09/2021 Log Sheet View Document Log Sheet
• 230 10/18/2021 Motion for Order to Show Cause View Document Motion for Order to Show Cause
• 231 10/18/2021 Declaration Affidavit View Document Declaration Affidavit
• 232 10/18/2021 Copy View Document Copy Comment
  SPD Call Log
• 233 10/18/2021 Order to Show Cause View Document Order to Show Cause Judicial Officer
  Cobb, Monty D
• 234 10/18/2021 Motion Hearing View Document Motion Hearing Judicial Officer
  Cobb, Monty D Comment
  Ex Parte
• 235 10/18/2021 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 236 10/25/2021 Show Cause/Contempt Original Type
  Show Cause/Contempt View Document Mason Minutes Judicial Officer
  Ferguson-Brown, Cadine Hearing Time
  9:00 AM Result
  Continued Parties Present Petitioner (WIP): LEWIS, ELMER ALLEN
• 237 10/25/2021 Contempt Hearing View Document Mason Minutes Judicial Officer
  Ferguson-Brown, Cadine
• 238 10/25/2021 Order on Contempt View Document Order on Contempt Judicial Officer
  Ferguson-Brown, Cadine
• 239 04/26/2022 Motion for Order to Show Cause View Document Motion for Order to Show Cause
• 240 04/26/2022 Declaration Affidavit View Document Declaration Affidavit
• 241 04/26/2022 Copy View Document Copy Comment
  Text Message 3.11.2022
• 242 04/26/2022 Copy View Document Copy Comment
  Text / Call Records 4.02.2022
• 243 04/26/2022 Copy View Document Copy Comment
  Text Messages
• 244 04/26/2022 Copy View Document Copy Comment
  Text Messages
• 245 04/26/2022 Order to Show Cause View Document Order to Show Cause Judicial Officer
  Cobb, Monty D
• 04/26/2022 Ex Parte Action With Order Judicial Officer
  Cobb, Monty D
• 246 05/02/2022 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 247 05/09/2022 Show Cause/Contempt Original Type
  Show Cause/Contempt View Document Mason Minutes Judicial Officer
  Ferguson-Brown, Cadine Hearing Time
  9:00 AM Result
  Held Parties Present Petitioner (WIP): LEWIS, ELMER ALLEN Respondent (WIP): REED, TERA ANN
• 248 05/09/2022 Motion Hearing View Document Mason Minutes Judicial Officer
  Ferguson-Brown, Cadine
• 249 05/09/2022 Order of Continuance View Document Order of Continuance Judicial Officer
  Ferguson-Brown, Cadine
• 250 05/13/2022 Declaration Affidavit View Document Declaration Affidavit
• 251 05/13/2022 Copy View Document Copy Comment
  Text Messages Set # 1
• 252 05/13/2022 Copy View Document Copy Comment
  Text Messages Set # 2
• 253 05/13/2022 Copy View Document Copy Comment
  Text Messages Set # 3
• 254 05/13/2022 Report View Document Report Comment
  Incident
• 255 05/16/2022 Show Cause/Contempt Original Type
  Show Cause/Contempt View Document Mason Minutes Judicial Officer
  Ferguson-Brown, Cadine Hearing Time
  9:00 AM Result
  Held Comment
  Elmer Lewis called to confirm at 8:31 AM on 5/11/2022Parties Present Petitioner (WIP): LEWIS, ELMER ALLEN Respondent (WIP): REED, TERA ANN
• 256 05/16/2022 Contempt Hearing View Document Mason Minutes Judicial Officer
  Ferguson-Brown, Cadine
• 05/16/2022 Order on Contempt View Document Order on Contempt Judicial Officer
  Ferguson-Brown, Cadine
• 05/16/2022 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of ServiceComment
  Photos
• 05/16/2022 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 08/16/2022 Motion for Temporary Order View Document Motion for Temporary Order
• 08/16/2022 Motion for Order to Show Cause
• 08/17/2022 Declaration Affidavit View Document Declaration AffidavitView Document Declaration Affidavit
• 08/17/2022 Case Information Cover Sheet View Document Case Information Cover Sheet
• 08/17/2022 Confidential Information Form
• 08/17/2022 Summons View Document Summons
• 08/17/2022 Petition Motion to Modify View Document Petition Motion to Modify
• 08/17/2022 Declaration in Supp of Parenting Plan View Document Declaration in Supp of Parenting Plan
• 08/17/2022 Proposed Parenting Plan View Document Proposed Parenting Plan
• 08/17/2022 Motion for Adequate Cause Decision View Document Motion for Adequate Cause Decision
• 08/17/2022 Notice of Hearing View Document Notice of Hearing
• 08/17/2022 Law Enforcement and Confidential Information Form
• 08/17/2022 Motion for Order to Show Cause View Document Motion for Order to Show Cause
• 08/17/2022 Declaration Affidavit View Document Declaration Affidavit
• 08/17/2022 Temporary Restraining Order and Order to Show Cause View Document Temporary Restraining Order and Order to Show CauseJudicial Officer
  Ferguson-Brown, Cadine
• 08/17/2022 Order to Show Cause View Document Order to Show CauseJudicial Officer
  Ferguson-Brown, CadineComment
  NOTED ON DOC @ 231
• 08/17/2022 Motion Hearing
• 08/22/2022 Motion and Affidavit Declaration View Document Motion and Affidavit DeclarationComment
  for Order Amending Immediate Restraining Order
• 08/22/2022 Declaration Affidavit View Document Declaration Affidavit
• 08/22/2022 Copy View Document CopyComment
  of Request for Records
• 08/22/2022 Copy View Document CopyComment
  Text Messages from Tera Reed
• 08/22/2022 Summons View Document Summons
• 08/22/2022 Proposed Order Findings View Document Proposed Order Findings
• 08/22/2022 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 08/22/2022 Order Denying Motion Petition View Document Order Denying Motion PetitionJudicial Officer
  Ferguson-Brown, Cadine
• 08/22/2022 Motion Hearing View Document Motion HearingJudicial Officer
  Ferguson-Brown, CadineComment
  Ex Parte
• 08/26/2022 Report View Document ReportComment
  Mason County Sheriff
• 08/29/2022 Show Cause Judicial Officer
  Butler, Tirsa CHearing Time
  9:00 AMCancel Reason
  Duplicate Hearing
• 08/29/2022 Adequate Cause Judicial Officer
  Butler, Tirsa CHearing Time
  9:00 AMCancel Reason
  Duplicate Hearing
• 08/29/2022 Restraining Order Original Type
  Restraining OrderView Document Mason MinutesJudicial Officer
  Butler, Tirsa CHearing Time
  9:00 AMResult
  HeldComment
  ADEQUATE CAUSE, TEMP RESTRAINING ORDER & SHOW CAUSE ORDER ** CONFIRMED via phone 8/23/2022 by Elmer Lewis. -BHParties PresentPetitioner (WIP): LEWIS, ELMER ALLENRespondent (WIP): REED, TERA ANN
• 08/29/2022 Extension of Immediate Restraining Order and Hearing Notice View Document Extension of Immediate Restraining Order and Hearing NoticeJudicial Officer
  Butler, Tirsa C
• 08/29/2022 Order on Contempt View Document Order on ContemptJudicial Officer
  Butler, Tirsa C
• 08/29/2022 Motion Hearing View Document Mason MinutesJudicial Officer
  Butler, Tirsa C
• 09/12/2022 Confidential Information Form
• 09/12/2022 Appearance Pro Se View Document Appearance Pro SeComment
  Tera Reed
• 09/12/2022 Response View Document Response
• 09/12/2022 Copy View Document CopyComment
  Exhibit 1B Educational Printouts
• 09/12/2022 Proposed Parenting Plan View Document Proposed Parenting Plan
• 09/12/2022 Declaration Affidavit View Document Declaration Affidavit
• 09/13/2022 Copy View Document CopyComment
  Texts to Gail Reed
• 09/13/2022 Copy View Document CopyComment
  Screenshots from Video
• 09/13/2022 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 09/14/2022 Appearance Pro Se View Document Appearance Pro SeComment
  Tera Reed
• 09/14/2022 Motion for Order to Show Cause View Document Motion for Order to Show Cause
• 09/14/2022 Declaration Affidavit View Document Declaration Affidavit
• 09/14/2022 Order to Show Cause View Document Order to Show CauseJudicial Officer
  Ferguson-Brown, Cadine
• 09/14/2022 Motion Hearing View Document Motion HearingJudicial Officer
  Ferguson-Brown, CadineComment
  Ex Parte
• 09/19/2022 Restraining Order Original Type
  Restraining OrderView Document Mason MinutesJudicial Officer
  Butler, Tirsa CHearing Time
  9:00 AMResult
  HeldComment
  Elmer Lewis confirmed in person at the counter on 9/12/2022 at 9:09 AMParties PresentPetitioner (WIP): LEWIS, ELMER ALLENRespondent (WIP): REED, TERA ANN
• 09/19/2022 Motion Hearing View Document Mason MinutesJudicial Officer
  Butler, Tirsa C
• 09/19/2022 Restraining Order View Document Restraining OrderJudicial Officer
  Butler, Tirsa C
• 09/19/2022 Order Re Adequate Cause Granted View Document Order Re Adequate Cause GrantedJudicial Officer
  Butler, Tirsa C
• 09/19/2022 Parenting Plan Temporary View Document Parenting Plan TemporaryJudicial Officer
  Butler, Tirsa C
• 09/20/2022 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 09/23/2022 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 09/26/2022 Show Cause/Contempt Original Type
  Show Cause/ContemptView Document Mason MinutesJudicial Officer
  Butler, Tirsa CHearing Time
  9:00 AMResult
  HeldComment
  Received confirmation phone call on 9/21/22 @3:36 pm from Tera Reed – SLParties PresentPetitioner (WIP): LEWIS, ELMER ALLENRespondent (WIP): REED, TERA ANN
• 09/26/2022 Contempt Hearing View Document Mason MinutesJudicial Officer
  Butler, Tirsa C
• 09/26/2022 Order on Contempt View Document Order on ContemptJudicial Officer
  Butler, Tirsa C
• 09/28/2022 JIS Check Confidential Document Cover Sheet
• 09/28/2022 JIS Check Confidential Document Cover Sheet
• 11/08/2022 Motion for Temporary Order View Document Motion for Temporary Order
• 11/08/2022 Proposed Parenting Plan View Document Proposed Parenting Plan
• 11/08/2022 Declaration Affidavit View Document Declaration Affidavit
• 11/08/2022 Notice of Hearing View Document Notice of Hearing
• 11/08/2022 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 11/21/2022 Temporary Parenting Plan Original Type
  Temporary Parenting PlanView Document Mason MinutesJudicial Officer
  Butler, Tirsa CHearing Time
  9:00 AMResult
  HeldComment
  ELMER CONF BY PHONE ON 11/15/22 AT 11:35AM HWParties PresentPetitioner (WIP): LEWIS, ELMER ALLEN
• 11/21/2022 Motion Hearing View Document Mason MinutesJudicial Officer
  Butler, Tirsa C
• 11/21/2022 Parenting Plan Temporary View Document Parenting Plan TemporaryJudicial Officer
  Butler, Tirsa C
• 01/11/2023 Motion Hearing View Document Motion HearingJudicial Officer
  Goodell, Daniel LComment
  EXPARTE
• 01/11/2023 Restrained Persons Motion to Terminate PO View Document Restrained Persons Motion to Terminate PO
• 01/11/2023 Motion to Dismiss View Document Motion to Dismiss
• 01/11/2023 Declaration Affidavit View Document Declaration Affidavit
• 01/11/2023 Declaration Affidavit View Document Declaration Affidavit
• 01/11/2023 Statement View Document StatementComment
  EXHIBIT 1
• 01/11/2023 Statement View Document StatementComment
  EXHIBIT 2
• 01/11/2023 Order Denying Motion Petition View Document Order Denying Motion PetitionJudicial Officer
  Goodell, Daniel L
• 04/04/2023 Notice of Appearance View Document Notice of Appearance
• 04/13/2023 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
• 04/13/2023 Motion View Document MotionComment
  Motion and Declaration for order waving mediation requirement and scheduling trial date
• 04/13/2023 Notice of Hearing View Document Notice of Hearing
• 04/26/2023 Waive Mediation/Arbitration Original Type
  Waive Mediation/ArbitrationJudicial Officer
  Sauerlender, Robert DHearing Time
  1:30 PMResult
  HeldComment
  and set trial date Elmer called to confirm 4/20/2023 @ 9:35am. HB Renee Stein (RStein Law) confirmed via email on 4.24.23 at 12:46pm AHParties PresentPetitioner (WIP): LEWIS, ELMER ALLENRespondent (WIP): REED, TERA ANNAttorney: Stein, Renee’ Elizabeth
• 04/26/2023 Declaration of Mailing View Document Declaration of MailingComment
  E-Mailed
• 04/26/2023 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of ServiceComment
  Hand-Delivered
• 04/26/2023 Order View Document Order
• 06/05/2023 Settlement Conference Judicial Officer
  Goodell, Daniel LHearing Time
  1:30 PM
• 06/05/2023 Settlement Conference Hearing Held View Document Settlement Conference Hearing Held
• 09/28/2023 Pre-Trial Conference Judicial Officer
  Cobb, Monty DHearing Time
  8:30 AM
• 10/25/2023 Non-Jury Trial Hearing Time
  9:00 AM
• 10/26/2023 Non-Jury Trial Hearing Time
  9:00 AM
• 10/27/2023 Non-Jury Trial Hearing Time
  9:00 AM

by Samuel K. Darling,  Bellevue Divorce and Family Law Attorney

This article explains how divorce and family law trials work in Washington State, and it’s written with the expectation you might try representing yourself, sometimes called “pro se” representation. Despite skimming over many details, this explains what we think the typical family law litigant most needs to know. It’s divided into eight parts, which you can skip to by clicking these links:

1) Overview of Trial,
2) Local Rules,
3) 35+ Days Before Trial,
4) Two Weeks Before Trial (the most important part),
5) Pretrial (the morning of trial),
6) Trial, and
7) Entry of Orders

I. Overview of Trial.

Unless the parties settle beforehand, divorce and family law cases end in a “bench trial”. That means the final decision come from a judge. There is no jury.

People typically begin preparing for trial over a month in advance, and those preparations become rigorous the two weeks prior to trial.

During the preparation stage, each party usually drafts a trial notebook for submission to the court and the other parties. Each copy of a trial notebook should contain, at a minimum, the parties’ trial brief and intended exhibits.

The trial itself has four stages: 1) opening statements (optional), 2) presentation of live testimony and exhibits, 3) closing arguments, and 4) the judge’s decision.

Opening statements are an opportunity to explain the case to the judge. Petitioner goes first, followed by respondent, followed by other parties, if any.

After opening statements, petitioner has the opportunity to present testimony and exhibits. This is done by calling witnesses forward to sit in front of the judge and answer questions.

When a party calls a witness to testify, it’s referred to as direct examination, or simply direct. Upon completion of petitioner’s direct examination of a witness, respondent can cross examine the same witness, sometimes simply called cross. If there are other parties, they can take turns crossing the witness as well. Then petitioner can ask questions of that same witness again, called re-direct. Finally the other parties can once again cross examine the witness, called re-cross. Typically the parties finish examining a witness – direct, cross, re-direct, and re-cross – before moving on to another witness. All petitioners witnesses go one after the other.

Respondent calls witnesses next. The process is essentially the same as when petitioner called witnesses. It begins with respondent’s direct examination of the witnesses, followed by petitioner and other parties cross examining the witness, followed by re-direct, and re-cross.

Once respondent has no more witnesses, other parties, if any, call theirs.

Parties introduce exhibits – usually documents – through the witnesses’ testimony. The witnesses have to provide foundation for the exhibits to come into evidence. Foundation means establishing basic information about an exhibit and the witness’s knowledge of it.

Parties sporadically object during presentation of witnesses and exhibits. For example, a party might say “Objection, hearsay”. The judge will then rule one whether the witnesses’ statement or the proffered exhibit should be allowed. The judge will usually give his or her decision by saying “sustained” or “denied”. These terms can be confusing even though we frequently see people use them on TV. “Sustained” means the court agrees with the objection, and the witness’s statement or exhibit is DISALLOWED. “Denied” means the court disagrees with the objection, and the witness’s statement or exhibit is “allowed in”. The phrase “allowed in” or “comes in” means the judge can consider the information when rendering his or her final decision in the case.

After each party has finished calling all his or her witnesses, the petitioner is allowed to call rebuttal witnesses. The process is the same – direct, cross, re-direct, and re-cross. Respondent can then call rebuttal witnesses, followed by other parties’ rebuttal witnesses, if any.

Once all parties have “rested” (are finished calling witnesses), it’s time for closing arguments. Each party is allowed to orally explain why he or she should win. As usual, petitioner goes first, then respondent, followed by any other parties.

At last, the judge renders a decision.

II. Local Rules.

Each of Washington’s counties have their own applicable local rules in addition to what this article explains. You can find each counties’ local rules here. You might try at least reading the local civil rule on trial assignment (usually local civil rule 40) and any local rules for divorce and family law proceedings (try searching the local rules for the keywords “divorce”, “family law”, and “domestic”). You should also follow any scheduling order the county court issues in your case. Scheduling orders sometimes create unique procedural requirements, such as the need to disclose witnesses and evidence before trial. The county’s family law facilitator(s) can help you follow the county’s scheduling orders and local court rules. Meeting with a family law facilitator costs about $10 per session, and facilitators are typically located in the county’s superior court building.

Aside from the scheduling order and local rules, this guide probably explains the most essential aspect of your upcoming trial.

III. 35+ Days Before Trial.

Ideally you should start planning your trial at least 35 days in advance. The focus of this early preparation is identifying your intended exhibits and witnesses, if you haven’t already. No state-level rule requires you to disclose your exhibits or witnesses to the other party prior to trial, but disclosure might be necessary under local rules, a scheduling order, or a discovery request. Our firm has or will write a separate article on discovery.

You’ll want to determine your exhibits and witnesses promptly even if there is no early disclosure requirement applicable to you. As explained next, you’ll need to know your intended exhibits and witnesses to draft an ER 904 notice and arrange witness testimony.

1. ER 904 Notice. If at all possible, you should submit an ER 904 notice at least 30 days before trial. ER 904 stands for Washington Evidence Rule 904. In short, this evidence rule allows you to propose to the opposing party your intended exhibits at least 30 days in advance of trial. Any documents on the list become automatically admissible at trial unless the other side objects to them within 14 days of receiving the notice.

The idea is to make it faster and easier for undisputed, trustworthy documents to come in. Documents that commonly come into evidence this way include bank statements, credit card statements, bills and invoices, the parties’ family pictures, medical records, text messages, and police reports.

Getting documents in this way can greatly increase your odds of winning, especially if you don’t have an attorney. It’s common for unrepresented parties to have extreme difficulty getting documents admitted into evidence at trial otherwise. The evidence rules for trial are complex and often require you to introduce documents using the right words and witnesses. For example, business documents that don’t come in through ER 904 usually need to be “authenticated” at trial by the business’s “records custodian”. That’s a mess you should avoid if you can. You might consider offering all your intended exhibits through ER 904 if you’re pro se.

Our firm’s template ER 904 notice is available here. Of course remove any reference to our firm. Then fill out the template, number and attach each of your exhibits, make copies, and have an adult (other than you) deliver a set directly to the opposing party or drop off the set at opposing counsel’s office. Have the same person deliver identical sets to all parties in the case, such as the Guardian ad Litem and the state prosecutor’s office, if they’re involved in the case. Save a set for yourself. Then court file the notice WITHOUT the attached exhibits. Have the person who delivered the documents take note of the date deliveries occurred, and include him or her among your intended trial witnesses. You’ll need him or her to testify about submitting the ER 904 notice on time.

If you need to object to any documents an opposing party has offered under ER 904, here is our firm’s template. Fill it out, deliver copies to the parties or their attorneys, keep a copy for yourself, and court file the original. Don’t object to all the other side’s documents out of spite. The trial judge can sanction you for objecting without basis.

2. Subpoena/Notify Witnesses. Once you’ve figured who you intend to call as your witnesses, make arrangements for them to testify live at trial. Arranging for testimony often entails nothing more than asking witnesses to show up in-person. Telephonic testimony, video testimony, affidavits, and written declarations generally aren’t allowed. Judges will occasionally allow telephonic or video testimony, but only in extreme circumstances, such as during the COVID pandemic.

You probably shouldn’t arrange for your children to testify, especially if they’re minors and the children of the opposing party. Washington calls it “putting the children in the middle”, and it can lead to a presumption you’re a bad parent.

If a witness might not show up voluntarily, subpoena him or her. You can find our firm’s template subpoena by clicking here. Only fill out the relevant sections. The subpoena should be served upon the witness directly if possible, and the person effecting service should fill out a document proving service took place. The template for proof of service is here. A trial subpoena subjects witnesses to possible arrest if they don’t show up to testify.

Subpoenas cannot force a witness to travel long distances. You can find the geographic limitations of subpoenas in CR 45(e)(2).

Obtaining deposition testimony from uncooperative witnesses who live far away is possible but difficult and expensive. An explanation would exceed the scope of this article unfortunately.

IV. Two Weeks Before Trial (the most important part).

Preparation can make all the difference, so attorneys (or at least good attorneys) often dedicate themselves exclusively to trial-related work during the week or two in advance. You should do the same if you want to perform well.

This is where you essentially draft nearly everything you intend to say and do at trial. Unexpected events always occur, which means these plans cannot be rigid. But your preparations should be thorough. The most famous and successful trial attorneys have one thing in common – careful and complete preparation.

It is also advisable to have a theme, or story, that you weave throughout the trial. A theme might be something such as “the other party is highly abusive and controlling”, “the other party lies a lot”, or “I just need enough financial help to finish college”. A story might be a simple, easy-to-summarize plot that the judge can relate to. Weave that theme or story into everything you do to the extent possible. Otherwise the facts you present at trial will seem unconnected to the judge, and he or she will be less likely to remember them. With any theme or story for trial, repeat it. Emphasize the key points in the evidence you present. The judge should be reciting your theme/story in his or her sleep after the trial. To accomplish this, you should weave it into all your drafting preparations.

The following are typical preparations during the two-week homestretch.

1. Trial Confirmation. Depending on the court’s local rules, you might need to “confirm” around two weeks prior to your trial date. Confirmation signals to the court that you intend to go forward with the trial. If confirmation is required and no party does it, the court usually strikes the trial date. Sometimes failure to confirm results in a judge dismissing the case in its entirety, forcing you to start over again. Generally you’ll have received something in writing warning you of the need to confirm, if applicable. To be on the safe side, you might ask the county’s family law facilitator whether confirmation is necessary and how it’s done.

2. Exhibits. Print and number your anticipated exhibits.

3. Outlines. You should draft outlines of what you intend to say at trial. Those outlines typically include the following:

A. Opening Statement. Opening statement is an opportunity to orally convey what type of case it is, what you are asking for, and the facts of the case. You are not allowed to “argue”. In this context, argue means to construe the facts, mention the law, or explain why you should win. You can simply state what happened, without coloration. If you state the right facts in the right order, the listener often emotionally sides with you anyhow.

Given that there is no jury, opening statements tend to be redundant of what you will write to the court in your trial brief. Family law attorneys often agree ahead of time to waive opening statements in an effort to reduce preparation time.

If you do not waive your opening statement, you should expect to spend significant time on it. Create a bullet point outline, and practice, practice, practice. Don’t expect to read it to the judge. Reading an opening statement largely defeats the point and can even cause the judge annoyance. Instead rehearse enough that you can look the judge in the eye and speak with inflection.

B. Direct Examination Questions for Each Witness You Intend to Call. Direct examination is the term for asking questions of yourself and your own witnesses. You should outline the questions you intend to ask, often with a bullet point list or on some index cards. This ensures you don’t waste the court’s time thinking of what to say at trial. Wasting time makes judges grumpy.

Leading questions generally aren’t allowed on direct examination. A leading question is one that suggests the answer to the witness, essentially leading him or her to answer with the details you want. Yes or no questions are often leading, but not always. Typically a question is leading if it includes significant information that has not yet come into evidence. This is probably leading: “John got angry, start yelling, and then punch my son in the nose two weeks ago, correct?” This probably is not: “Has John hit my children?” Admittedly, the determination of whether a question is leading is a gray area.

Judges sometimes grant permission to ask leading questions on direct if your witness demonstrates evasiveness or hostility towards you. This might happen if you call one of the opposing party’s family members as a witness to a domestic violence incident. Ask the judge for “permission to treat the witness as hostile.” If the judge grants your request, leading questions are allowed.

Witnesses generally cannot testify about hearsay. Hearsay is an out-of-court statement offered to prove the truth of the statement. It’s a difficult and nuanced definition, but typically hearsay means relating someone else’s out-of-court communication. For example, “Sally said John hit her” is probably hearsay. The speaker doesn’t have firsthand knowledge of whether John hit Sally. The speaker is retelling what Sally said. You’d need someone who saw the event or the physical aftermath to explain what he or she saw. Organize your questions to avoid hearsay if possible.

There are many exceptions to the hearsay rule, most of which are relatively rare. The most common exception is a statement by the other party, called “admission of a party opponent”. A witness can testify about what the other side communicated. For example, in a divorce you could say “My spouse said John hit Sally.”

Introduce all your intended exhibits through your own testimony or your witnesses, if possible. Introducing the exhibits through your witnesses is easier than trying to do it through the other side’s. Presumably your witnesses will want to cooperate; the other side’s might not.

Admission of ER 904 documents can often be done by agreement with the other side on the record. If not, you can call as witness the person who served the ER 904 notice. You just need to establish that the documents were served on time and the other side made no objection within the 14-day window. Then ask the court to admit the documents into evidence.

Introducing exhibits that don’t come in through ER 904 can be trickier, because you need to establish foundation. Generally the following script will work:

[You:] Your Honor, I am handing to the witness what I had pre-marked as document [#]. [Hand the document to the witness.]
[You to the witness:] Do you recognize this document?
[Witness:] Yes.
[You to the witness:] What is it?
[Witness says what the document is.]
[You to the witness:] How do you know?
[Witness explains how he or she knows about the document, such as if he or she drafted it, created, etc.]
[You:] I move to admit this into evidence.
[Judge rules on whether to admit.]

Usually written documents should be introduced through someone with first-hand knowledge of them, such as the person who drafted them, created them, or can verify circumstances suggesting the opposing party drafted or created them.

Practice with your witnesses so you know what they’ll answer to your questions. At trial, you should never ask a witness a question unless you know the answer.

C. Cross Examination of Opposing Party’s Anticipated Witnesses. Cross examination is when you pose questions to the other side and his or her witnesses. The main difference between direct and cross is you can ask leading questions. In fact, most questions on cross are leading. Done right, it’s almost as if you’re testifying and simply asking the other side to confirm. Never ask a question on cross unless you know the answer and can prove it with a reliable document. Otherwise the question is likely to lead to an answer that hurts your position. Take the following script as an example of effective cross:

[You to the opposing party:] Isn’t it true you punched our son in the head two weeks ago?
[Opposing party:] No, that’s not true.
[You:] Your Honor, I’m handing the witness Exhibit 10.
[You hand the witness a police incident report.]
[You:] What is this document?
[Opposing party:] I dunno.
[You:] Isn’t this the police incident report from two weeks ago?
[Opposing party:] Maybe.
[You:] Would you mind flipping to page two, lines 11-13?
[Opposing party flips to the page.]
[You:] Isn’t that your statement to the police?
[Opposing party:] It might be.
[You:] Isn’t that your name and signature at the bottom of the page?
[Opposing party:] Maybe.
[You:] On lines 11-13, doesn’t it say, quote “During the fight, I got so mad I punched him in the nose”?
[Opposing party:] Maybe.

You aren’t supposed to harass or argue with a witness on cross. Questions can be deemed argumentative. Save argument for closing arguments, which is next.

D. Closing Argument. Closing argument is your last word to the judge before he or she renders a decision. In it, you can talk about the facts, the law, and why you think you should win. You cannot refer to facts that weren’t part of allowed oral testimony or in the admitted exhibits.

Some attorneys prefer drafting their closing arguments in advance, ensuring adequate time to write and rehearse. Others prefer waiting until the end of trial, so they can structure the argument according to what transpires. Like with opening statements, you should avoid reading to the judge if possible. Use an outline, try to look the judge in the eye, and speak with inflection. Speak slowly. Speaking slowly helps with your delivery and allows the judge to take notes. Judges often write their thoughts nonstop during closing arguments.

4. Trial Brief. Your trial brief is what you submit in writing to the judge (and other parties). It should tell the court your position, the most relevant facts, and any law you’d like to bring to the court’s attention. Click here for an example.

Along with your trial brief, you should provide your proposed parenting plan (if relevant), your proposed child support worksheets (if relevant), your financial declaration (if any financial issues are at stake), and an asset/debt spreadsheet (if dividing property). Click here for an example asset/debt spreadsheet. Include the parenting plan, proposed child support worksheets, financial declaration, and asset/debt spreadsheet as exhibits in addition to being trial brief attachments.

5. Motions in Limine. Motions in limine are motions at the beginning of trial. Usually they pertain to evidentiary issues, such as whether to allow witness to testify by phone. Those same issues can be addressed when they arise during the trial, but presenting them as motions in limine can be better for you and the court, because it provides an opportunity to fully brief the court on the issue. Click here for an example motion in limine. Self-represented parties rarely file motions in limine, but they should if they have the time.

6. Pocket Briefs. A pocket brief is like a motion in limine’s little brother. It’s an evidentiary brief you can use during the middle of the case if an anticipated evidentiary issue arises. Click here for an example. Pocket briefs are rare for both attorneys and self-represented parties, but they can provide a significant advantage. Our firm uses them regularly.

7. Trial Notebook. A trial notebook is an organized compilation of the documents you are supposed to provide to everyone at the beginning of trial. It typically consists of a table of contents, your trial brief (and attachments, if any), your motion(s) in limine, a numbered list of your intended exhibits, and each of your exhibits.

Usually you prepare four sets – one for the opposing party, a working copy for the judge, the original for the clerk (the official set), and one for yourself. If there are additional parties, such as a GAL or state prosecutor, you should prepare sets for them as well. Judges appreciate if you hole-punch each set, place each set in its own three-ring binder, and tab your exhibits with their numbers.

V. Pretrial (the day of trial).

Some counties assign cases to trial judges in advance of trial. In other counties, you show up for “trial call” on the morning of your trial date for assignment to a judge. Once you learn of your judge, you walk to his or her courtroom with all your documents.

Unless local rules say otherwise, you give the trial notebooks to their intended recipients when you reach your assigned judge’s courtroom. If local rules did not require advance notice of motions in limine, you should inform the clerk if you have any motions you want heard. Then you wait, often for several hours, while everyone reviews each other’s trial notebooks. The judge usually reviews them in an office behind the courtroom. Take this chance to review the other side’s motions in limine and exhibits. Make notes of what you intend to say in response to the motion(s) and any objections you intend to make to exhibits. You might want to speak with opposing counsel about agreeing to the admission of exhibits you don’t intend to object to.

In some counties, such as King County, much of this information will have been exchanged in advance of trial, and there will be no need to review trial notebooks. Trial begins immediately.

VI. Trial.

Honestly, most of the work is done by the time you get to this point. You’ve already prepared everything, and now you just put that preparation into play in the following order:

1. Opening Statements. As mentioned above, opening statements are optional. You can object to the opposing party’s opening statement if he or she goes beyond the scope of what is allowed. The objection is typically phased, “objection, argumentative.”

2. Motions in Limine. Each party is allowed to present his or her motions in limine, the other party is allowed to orally respond, and the court makes rulings.

3. Testimony and Evidence. After any motions in limine, petitioner is allowed to put on his or her case. As mentioned above, this means petitioner calls each of his or her witnesses for direct examination. After direct examination, there may be cross, re-direct, and re-cross. Re-direct is limited to asking questions that rebut cross examination, and re-direct is similarly limited to rebutting or clarifying the answers to re-direct. Re-direct and re-cross are rare. Often our firm’s attorneys don’t even cross, because we can usually get the same information in through our own witnesses, who are more cooperative.

Then the other parties are allowed to put on witnesses, potentially followed by rebuttal witnesses. See sections I (overview) and IV(3)(b)&(c) (direct and cross examination) for a reminder of how this works.

There are countless objections at this stage in the case, but the most common are “hearsay” and “foundation”. As discussed above, hearsay typically means the witness has related what someone said rather than relating his or her first-hand knowledge. A party can also object to a document as hearsay if it contains an out-of-court statement. That’s yet another reason you hopefully got your documents in through ER 904, discussed in section III(1), above.

Foundation usually means the witness has not demonstrated he or she has sufficient knowledge to introduce an exhibit. If you encounter this objection, remember the script from section IV(3)(b), above. You can often cure an objection and still get the document or information. You do so by asking the witness the appropriate question(s) to overcome the basis for the objection.

4. Closing Arguments. Once all parties have rested, the court usually takes a short recess or adjourns for the parties to finalize their closing arguments. Once trial resumes, petitioner presents oral argument first, followed by respondent. Then the court typically gives petitioner the opportunity for a short rebuttal, called a reply.

5. Judge’s Decision. The judge usually adjourns to review exhibits and draft an oral or memorandum decision. The decision is usually ready several days or weeks later. Memorandum decisions are typically sent to the parties, so there is no need to return to the courtroom for the result. If the judge elects to render an oral decision, the parties return to the courtroom upon a date set by the judge. The parties take notes while the judge states or reads the oral decision. Don’t worry too much about getting all the information in your notes. A court reporter transcribes the oral decision, and either party can order the transcript.

VII. Entering Orders.

After the decision is rendered, the substantially prevailing party customarily drafts final orders for the court’s signature. You can usually find templates for the final orders on the state’s mandatory forms website. For example, a divorce trial would often end with entry of a decree, findings of fact, parenting plan, child support order, and child support worksheets, which you can find in this section of the state’s mandatory forms website. Once the prevailing party has drafted the orders, he or she sends them to the other party to review. Typically the other party requests changes. If the parties can agree to the wording of the final orders, they sign and submit them to the judge for entry. If they cannot agree, the judge or one of the parties sets a presentation hearing, where the judge resolves the drafting disputes and signs the orders into effect. If the court is entering a parenting plan, the parties must submit to a JIS background check so the judge can determine whether the child(ren) would be safe in each parties’ care. The court will typically walk a pro se party through the JIS process.

That’s it! We hope you found this article useful. We at Genesis believe in making high quality legal information freely available on the internet. You can find many more articles, guides, and videos by clicking our website’s resources tab.

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