(Modeled after a brief writing checklist prepared by Professor Janet Calvo, CUNY School of Law)<\/p>\n\n\n\n
I. Introduction (or Preliminary Statement)<\/strong><\/p>\n\n\n\n II. Statement of Facts<\/strong><\/p>\n\n\n\n III. Question Presented (or, alternatively, Summary of Argument)<\/strong><\/p>\n\n\n\n IV. Point Headings<\/strong><\/p>\n\n\n\n B. Content of Rule<\/strong><\/p>\n\n\n\n C. Rule Proof<\/strong><\/p>\n\n\n\n D. Application of Rule to Fact<\/strong><\/p>\n\n\n\n E. Counterargument<\/strong><\/p>\n\n\n\n F. Organization<\/strong><\/p>\n\n\n\n G. Form<\/strong><\/p>\n\n\n\n Narratives in Law: the Statement of Facts in a Trial Brief<\/strong><\/p>\n\n\n\n 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<\/strong>. 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\u2019ve 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 \u201cwhat happened.\u201d 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.<\/p>\n\n\n\n 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 \u201cflow\u201d (e.g., it would be risky here to experiment with post-modern approaches that fracture time frames or juxtapose perspectives \u2013 it won\u2019t accredit your client\u2019s case if you confuse or disorient the reader!). The reader should be able to get a clear sense of \u201cwhat happened,\u201d 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 \u201cbegin.\u201d It\u2019s 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\u2019s perspective involves making your client or its representative the subject or agent in the story line \u2013 the focus of attention and action.<\/p>\n\n\n\n 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 \u2013 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 \u2013 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 \u2013 what happened and to whom \u2013 and usually this presentation of facts will occur in a chronological order.<\/p>\n\n\n\n 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\u2019s 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 \u2013 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\u2019s perspective. Defendants may draw upon fair inferences from the facts that are alleged, however, and may point out negative facts \u2013 facts that are not alleged in the Complaint \u2013 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.<\/p>\n\n\n\n For additional discussion of the ways in which narratives function in law, see Anthony G. Amsterdam and Jerome Bruner,\u00a0Minding the Law<\/em>\u00a0(Harvard University Press, 2000), particularly chapters 4 and 5.<\/p>\n\n\n\n Use of Paragraphs and Thesis Development in Legal Argument<\/strong><\/p>\n\n\n\n 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:<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n Case Study: Two Versions of a Trial Brief<\/strong><\/p>\n\n\n\n Below are two versions of a well-analyzed defendants\u2019 brief written by a fourth-semester student at the CUNY School of Law. The version on the left represents the student\u2019s 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.<\/p>\n\n\n\n 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\u2014how might these omissions change the reader\u2019s 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\u2019s claims, as well as the use of transitional phrases to make sections of the argument more tightly cohesive.<\/p>\n\n\n\n First Draft<\/strong> QUESTION PRESENTED<\/strong> STATEMENT OF FACTS<\/strong> The City currently employs 300 caseworkers. All have Masters of Social Work or bachelor\u2019s 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<\/sup> <\/a>This system allows for the flexibility necessary to work within the city\u2019s resources to respond to emergencies.<\/p>\n\n\n\n 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<\/sup> <\/a>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<\/sup><\/a><\/p>\n\n\n\n Plaintiff Shorona J., five years old, was removed from her mother\u2019s 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<\/sup> <\/a>Plaintiffs\u2019 Complaint alleges that Shorona\u2019s mother, Cecilia Jones, reported that Shorona had been abused in foster care four times8<\/sup> <\/a>and nothing was done. (Compl. \u00b6 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 \u201cmean\u201d 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<\/sup> <\/a>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\u2019 previous foster children had also experienced broken bones. Ms. Pons is no longer a foster parent.10<\/sup><\/a><\/p>\n\n\n\n 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<\/sup> <\/a>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\u2019s 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<\/sup> <\/a>Mr. Sojo has been re-trained and has agreed that Kevin will not have contact with his current foster child.<\/p>\n\n\n\n Plaintiff Janna S., twelve years old, was removed from her mother\u2019s 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\u2019s mother, Susan, has not sufficiently dealt with her alcoholism and Janna cannot be returned to her custody at this time. Susan objects to Janna\u2019s placement with the Jenisons because she has heard their son, Jake, has been arrested in the past.13<\/sup> <\/a>She asked DCS to investigate Jake, who is nineteen years old. The caseworker, Irene Constan, told Susan the agency\u2019s policy does not encompass investigating a foster family\u2019s 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<\/sup> <\/a>so they were given other arrangements.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n SUMMARY OF ARGUMENT<\/strong> Individual caseworkers\u2019 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 \u00a7 1983 claim.<\/p>\n\n\n\n ARGUMENT<\/strong><\/p>\n\n\n\n SUMMARY JUDGMENT SHOULD BE GRANTED AS TO LIABILITY OF ALL DEFENDANTS BECAUSE PLAINTIFFS HAVE FAILED TO PROVIDE EVIDENCE TO ESTABLISH NECESSARY ELEMENTS OF A \u00a7 1983 CLAIM<\/strong><\/p>\n\n\n\n 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<\/sup> <\/a>All \u201cjustifiable inferences\u201d are to be drawn in the nonmoving party\u2019s favor. Anderson v. Liberty Lobby, Inc.<\/em>, 477 U.S. 242, 255 (1986) (citations omitted). Judgment for the movant is proper if the nonmoving party \u201cfails to make a showing sufficient to establish the existence of an element essential to that party\u2019s case.\u201d Celotex Corp. v. Catrett<\/em>, 477 U.S. 317, 323 (1986). The substantive law defines which facts are \u201cmaterial,\u201d Anderson<\/em>, 477 U.S. at 248, but the court cannot make fact-finding or credibility determinations. Id.<\/em> at 255.<\/p>\n\n\n\n For a proper claim under \u00a7 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 \u00a7 1983, the unconstitutional action must be a municipal policy, practice, or custom. Monell v. Dep\u2019t of Soc. Serv. of the City of N.Y.<\/em>, 436 U.S. 658, 691. Municipalities are not liable under \u00a7 1983 for actions committed solely by employees through the theory of respondeat superior. Id.<\/em><\/p>\n\n\n\n Plaintiffs have not presented sufficient evidence to meet these essential elements of a claim under 42 U.S.C. \u00a7 1983. If there are any facts in dispute in this case, they are immaterial. Therefore, summary judgment must be granted.19<\/sup><\/a><\/p>\n\n\n\n To succeed, Plaintiffs must establish that either Defendant caseworkers\u2019 actions or City policies, practices, or customs caused the violation of foster children\u2019s constitutional rights<\/strong> 20<\/sup><\/a><\/p>\n\n\n\n Plaintiffs allege that City policies and practices violate a right to protection from physical, emotional, and developmental harm while in state custody. (Compl. \u00b6 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. \u00b6 14, 15.), the Complaint implies this right to protection would hold the state liable for private violence.21<\/sup><\/a><\/p>\n\n\n\n Current doctrine does not support such a broad articulation of the rights guaranteed by the 14th Amendment\u2019s due process clause. As the U.S. Supreme Court noted in DeShaney v. Winnebago County Dep\u2019t of Soc. Serv.<\/em>, 489 U.S. 189 (1989):<\/p>\n\n\n\n The Clause is phrased as a limitation on the State\u2019s 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 \u2018due process of law,\u2019 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.<\/em> at 195.<\/p>\n\n\n\n The Court went on to say that the due process clause was intended to protect people from the state, \u201cnot to ensure that the State protected them from each other.\u201d Id.<\/em> at 196. Courts have traditionally rejected proposed expansions of the due process clause that would \u201cimpose federal duties that are analogous to those traditionally imposed by state tort law.\u201d Collins v. City of Harker Heights<\/em>, 503 U.S. 115, 127 (1992) (citing cases). See also Andrea L. v. Children & Youth Serv. of Lawrence County<\/em>, 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.<\/p>\n\n\n\n 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 \u201cinfliction of unnecessary harm.\u201d E.g. Meador v. Cabinet for Human Res.<\/em>, 902 F.2d 474, 476 (6th Cir.), cert. denied<\/em>, 498 U.S. 867 (1990); Norfleet v. Ark. Dep\u2019t of Human Serv.<\/em>, 989 F.2d 289 (8th Cir. 1993); K.H. v. Morgan<\/em>, 914 F.2d 846 (7th Cir. 1990). This right emerged from a line of U.S. Supreme Court cases beginning with Estelle v. Gamble<\/em>, 429 U.S. 97 (1976) and Youngberg v. Romeo<\/em>, 457 U.S. 307 (1982) and was first considered in the foster care context in DeShaney<\/em>.<\/p>\n\n\n\n In Estelle, the U.S. Supreme Court held that the 8th Amendment\u2019s guarantee against cruel and unusual punishment covers prisoners\u2019 right to medical care and state officials could be held liable under \u00a7 1983 for \u201cdeliberate indifference to serious medical needs.\u201d Estelle<\/em>, 429 U.S. at 105.<\/a><\/p>\n\n\n\n Soon after Estelle<\/em>, one lower court cited it while evaluating a similar right in the foster care context. In Doe v. N.Y. City Dep\u2019t of Soc. Serv.<\/em>, 649 F.2d 134 (2d Cir. 1981), two foster care children were abused while in foster care. Plaintiffs brought a \u00a7 1983 action for violation of rights under the 1st, 4th, 5th, 9th, and 14th Amendments. Id.<\/em> at 137. The court held that a state foster care agency could be held liable under \u00a7 1983 if officials were \u201cdeliberately indifferent to plaintiff\u2019s welfare,\u201d implying that foster children did have the right to cared for while in state custody. Id.<\/em> at 145.<\/p>\n\n\n\n Youngberg<\/em> involved the rights of involuntarily committed mentally disabled individuals. The lower court decided that the 8th Amendment\u2019s cruel and unusual punishment prohibition for prisoners was not appropriate, but that the 14th Amendment did offer protection. Youngberg<\/em>, 457 U.S. at 312. The U.S. Supreme Court agreed and recognized that the liberty interest of the 14th Amendment\u2019s due process clause requires the state to provide \u201cminimally adequate or reasonable training to ensure safety and freedom from undue restraint\u201d for involuntarily committed mentally disabled individuals. Id.<\/em> at 319. This requirement follows from the state\u2019s \u201cunquestioned duty to provide reasonable safety\u201d for those in state custody. Id.<\/em> at 324. State officials\u2019 decisions within this context are \u201centitled to a presumption of correctness\u201d and officials will not be held liable unless these decisions substantially depart from accepted professional judgment. Id.<\/em> at 323-34.<\/p>\n\n\n\n The next foster care case relied on Youngberg<\/em>, in addition to Estelle<\/em> and Doe<\/em>. In Taylor v. Ledbetter<\/em>, 818 F.2d 791 (11th Cir. 1987), the 11th Circuit analogized the foster care system to the state institution at issue in Youngberg<\/em>. Taylor<\/em>, 818 F.2d at 797. The court decided that the same 14th Amendment liberty interest, \u201cthe right to be free from infliction of unnecessary harm\u2026and the fundamental right to physical safety,\u201d applied to foster children. Id.<\/em> at 794. Following Doe<\/em>, the court used the deliberate indifference standard. Id.<\/em> at 796-97.22<\/sup><\/p>\n\n\n\n The only U.S. Supreme Court case considering the due process rights of children in foster care is DeShaney<\/em>. In DeShaney<\/em>, the state took custody of the plaintiff because of allegations of abuse by his father, but then returned the plaintiff to his father\u2019s custody, where he suffered further abuse. DeShaney<\/em>, 489 U.S. at 192. The Court held that the state\u2019s actions or omissions did not violate the due process clause of the 14th Amendment. Id.<\/em> 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.<\/em> at 198. Distinguishing Estelle<\/em> and Youngberg<\/em>, the Court stated that although the state had taken temporary custody of the plaintiff, the state \u201cdoes not become the permanent guarantor of an individual\u2019s safety by having once offered him shelter.\u201d DeShaney<\/em>, 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<\/em> and Youngberg<\/em>. DeShaney<\/em>, 489 U.S. at 201 n.9. The Court recognized that lower courts had applied Estelle<\/em> and Youngberg<\/em> to such cases. DeShaney<\/em>, 489 U.S. at 201 n.9 (citing Doe<\/em> and Taylor<\/em>).<\/p>\n\n\n\n After DeShaney<\/em>, 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<\/em>, 25 F.3d 304 (6th Cir. 1994); Norfleet v. Ark. Dep\u2019t of Human Serv.<\/em>, 989 F.2d 289 (8th Cir. 1993); Yvonne L. v. N.M. Dep\u2019t of Human Serv.<\/em> (10th Cir. 1992); K.H. v. Morgan<\/em>, 914 F.2d 846 (7th Cir. 1990); Meador v. Cabinet for Human Res.<\/em>, 902 F.2d 474 (6th Cir. 1990). However, the circuits also developed some limitations to this right that are relevant to plaintiff\u2019s case.23<\/sup><\/a><\/p>\n\n\n\n The right to be free from harm while in state custody does not include children voluntarily placed into foster care<\/strong> 24<\/sup><\/a><\/p>\n\n\n\n DeShaney<\/em> made clear that children currently outside state custody cannot claim protection of the due process clause against the state in a \u00a7 1983 action. DeShaney<\/em>, 489 U.S. at 198. See also Charlie & Nadine H. v. Whitman<\/em>, 83 F.Supp.2d, 476, 506-07 (D.N.J. 2000) (granting defendants\u2019 motion to dismiss as to non-custodial children); Marisol v. Guiliani<\/em>, 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<\/em> opinion also emphasized that the state duty of protection only extends to an individual the state holds \u201cagainst his will.\u201d DeShaney<\/em>, 489 U.S. at 200.<\/p>\n\n\n\n Subsequent cases have interpreted DeShaney<\/em> to limit the state\u2019s liability under the 14th Amendment to children involuntarily placed into foster care. Milburn v. Anne Arundel County Dep\u2019t of Soc. Serv.<\/em>, 871 F.2d 474 (4th Cir. 1989) (holding DeShaney<\/em> barred plaintiff\u2019s claim as he was voluntarily placed into foster care by his parents); Charlie & Nadine H.<\/em>, 83 F.Supp.2d at 506-07 (granting defendants\u2019 motion to dismiss as to voluntarily placed children). See also Taylor<\/em>, 818 F.2d at 797 (stating that a child \u201cinvoluntarily placed in a foster home\u201d has rights analogous to those outlined in Estelle<\/em> and Youngberg<\/em>.) Cf. Camp v. Gregory<\/em>, 67 F.3d 1286, 1296 (7th Cir. 1995) (refusing to decide that voluntary placement could preclude state liability); Nicini v. Morra<\/em>, 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<\/em>, 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).<\/p>\n\n\n\n Following the DeShaney<\/em> 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 \u201cagainst his will\u201d as the U.S. Supreme Court would require.25<\/sup> <\/a>Precedent does not support an extension of due process rights to children in his situation.<\/p>\n\n\n\n\n
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NARRATIVES IN LAW: THE STATEMENT OF FACTS IN A TRIAL BRIEF<\/h5>\n\n\n\n
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.<\/p>\n\n\n\nUSE OF PARAGRAPHS AND THESIS DEVELOPMENT IN LEGAL ARGUMENT<\/h5>\n\n\n\n
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CASE STUDY: TWO VERSIONS OF A TRIAL BRIEF<\/h5>\n\n\n\n
Click the highlighted text for the corresponding annotation.<\/p>\n\n\n\n
INTRODUCTION<\/strong>
Plaintiffs seek to hold the City of X, the Department of Children\u2019s 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\u2019s 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<\/sup>\u00a0<\/a>However, the 14th Amendment\u2019s 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\u2019s rights, and are consistent with professional standards.\u00a0Summary judgment should be granted to defendants as plaintiffs have failed to provide evidence that City\u2019s policies or actions of city agents violated their substantive due process rights.2<\/sup><\/a><\/p>\n\n\n\n
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\u2019s substantive due process right to be free from infliction of unnecessary harm?3<\/sup><\/a><\/p>\n\n\n\n
The City of X currently has 3,000 children in foster care. Funding for the City\u2019s 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\u2019s file. The City is currently investigating a report by a non-profit organization that 5% of children experience abuse by foster parents.4<\/sup><\/a><\/p>\n\n\n\n
Summary judgment as to liability of all Defendants should15<\/sup> <\/a>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. \u00a7 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<\/sup> <\/a>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<\/sup><\/a><\/p>\n\n\n\n