Estate of Bennett v. Philadelphia

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

8-22-2007

Estate of Bennett v. Philadelphia

Precedential or Non-Precedential: Precedential

Docket No. 06-2879

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 06-2879 and 06-2978

ALEXUS BENNETT, ALIYAHA BENNETT,

PRISCILLA BENNETT, Minors, by and through

their Guardian Ad Litem JONATHAN IRVINE,

Appellants in No. 06-2978

v.

CITY OF PHILADELPHIA

THE ESTATE OF PORCHIA BENNETT,

Decedent, by and through the Administrator

of the Estate, THOMAS BRUNO, Esq.,

Appellant in No. 06-2879

v.

CITY OF PHILADELPHIA; JOE MAIDEN

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Nos. 03-cv-05685 and 05-cv-00833)

District Judge: Hon. Berle M. Schiller

Argued July 10, 2007

Before: SLOVITER, WEIS, and ROTH, Circuit Judges

(Filed August 22, 2007 )

Teri B. Himebaugh (Argued)

Abramson & Deneberg, P.C.

1200 Walnut Street, Sixth Floor

Philadelphia, PA 19107

Attorney for Appellant,

The Estate of Porchia Bennett

Christopher J. Culleton (Argued)

Allan H. Gordon

Kolsby, Gordon, Robin, Shore & Bezar

1650 Market Street, 22 nd Floor

One Liberty Place

Philadelphia, PA 19103

Attorneys for Appellants,

Alexus Bennett, Aliyaha Bennett

and Priscilla Bennett

Romulo L. Diaz, Jr.

City Solicitor

Jane Lovitch Istvan (Argued)

Senior Attorney, Appeals

City of Philadelphia Law Department

1515 Arch Street, 17 th Floor

Philadelphia, PA 19102-1595

Attorneys for Appellee,

City of Philadelphia

Richard G. Tuttle, Esq.

Archer & Greiner

One South Broad Street, Suite 1620

Philadelphia, PA 19107

Attorney for Appellee,

Joe Maiden

OPINION OF THE COURT

2

SLOVITER, Circuit Judge.

One of the essential principles inherent in a multi-layered

judicial system is the requirement to adhere to legal decisions

pronounced by the highest court: in the case of the federal

courts, that is the Supreme Court of the United States. Those

decisions are supported by sound reasoning, and lower federal

courts generally have no difficulty in applying the precedent.

Occasionally, however, the factual situation in which the

principle is tested is heartrending, tempting the judge to seek a

way to circumvent the principle. This is one such case.1

I.

We borrow this background section almost verbatim from

the text of the unreported opinion of the District Court (Judge

Berle M. Schiller) because it is accurate and requires no

elaboration.

A. Iyonnah

Tiffany Bennett had five daughters: Alexus (born January

9, 1993), Iyonnah (born October 29, 1994), Aliyaha (born

October 3, 1996), Priscilla (born January 12, 1999) and Porchia

(born July 7, 2000). In December 1994, Iyonnah suffered brain

injuries from being shaken while in the care of a babysitter. An

investigation by the Philadelphia Department of Human Services

(“DHS”) concluded that Tiffany Bennett and Oliver Bynum, Jr.,

the father of Iyonnah and Alexus, were “perpetrators by

omission,” and therefore Iyonnah was permanently placed with

an adoptive family. Tiffany Bennett and Oliver Bynum, Jr.

subsequently separated.

B. Alexus and Aliyaha

1

There are two related appeals in this case. One appeal is

by the Estate of Porchia Bennett (06-2879), and the other is by

Alexus Bennett, Aliyaha Bennett, and Priscilla Bennett, by and

through their Guardian Ad Litem Jonathan Irvine (06-2978).

3

In 1997, DHS determined that Tiffany Bennett, a

substance abuser who did not provide her children with

necessary medical attention, posed a risk of serious harm to her

children. Tiffany Bennett compounded this risk by actively

avoiding contact with DHS. On May 30, 1997, DHS petitioned

the family court to rule Alexus and Aliyaha dependent children

because Tiffany Bennett was not cooperating with DHS in

implementing a plan for their care. On June 4, 1997, the family

court deferred adjudication of dependency but ordered DHS

supervision of Alexus and Aliyaha. In December 1997, the

family court learned Alexus was living in North Carolina with

her father and ordered DHS to assess her situation. The North

Carolina Department of Social Services visited Alexus in her

new home and provided DHS with a positive report. The family

court then discharged Alexus’ dependency petition on February

19, 1998.

In July 1998, Aliyaha was temporarily committed to DHS

and placed in foster care for two days because Tiffany Bennett

was expelled from the shelter where they had been living. The

family court returned Aliyaha to her mother and ordered Tiffany

Bennett to enter another shelter, undergo a mental health

evaluation, and cooperate with DHS. Tiffany Bennett and

Aliyaha lived at the Salvation Army Shelter from August 1998

until May 1999. During that stay, Priscilla was born on January

12, 1999.

C. The Bennetts Leave the Shelter

On May 10, 1999, Tiffany Bennett left the Salvation

Army Shelter with Priscilla and Aliyaha. Two days later, DHS

social worker Yolanda Grant learned of Tiffany Bennett’s

unauthorized departure from the shelter. On June 1, 1999, Grant

checked the Department of Public Administration’s (“DPA”)

computer records and discovered that Tiffany Bennett’s DPA

benefits were still being sent to the Salvation Army Shelter. In

an effort to locate Tiffany Bennett, Grant spoke with a DPA

representative who confirmed that Bennett’s benefits would be

terminated on June 10, 1999, and that if Tiffany Bennett

contacted DPA for benefit reinstatement she would be told she

4

must first contact DHS. However, when Tiffany Bennett sought

benefit reinstatement, DPA allowed her to reinstate her benefits

without contacting DHS. Grant made several other efforts to

locate Tiffany Bennett, including: (1) contacting Priscilla’s

pediatrician; (2) visiting a former address at West Master Street;

(3) speaking with Adiam Debesai, a social worker who had

worked with Tiffany Bennett at the Salvation Army Shelter and

who had spoken with Tiffany Bennett’s mother, Dale Geiger;

and (4) trying to contact Dale Geiger and Alexus’ father by

telephone.

On September 14, 1999, DHS petitioned family court to

discharge DHS supervision and the dependency petition for

Aliyaha. At the hearing, the Child Advocate 2 objected based on

concern for Aliyaha’s safety. Judge James Murray Lynn refused

to terminate DHS’ involvement and stated, “I don’t want [this

case] just sitting on a desk somewhere. I want to see work done.

I want people to continue to look . . . . I want DHS to vigilantly

look for the baby [Aliyaha]. When they get the baby, I want them

to take the baby.”

By early 1999, Alexus and her father had returned to

Philadelphia, where Alexus attended public school. She lived

with her paternal grandfather for a period of time, before

returning to her mother’s control.3 In March 2003, Tiffany

Bennett directed Alexus’ school not to permit contact between

Alexus and her grandfather.

D. Bennett Case Reassigned & Discharged

In November 1999, the Bennett DHS case was reassigned

to social worker Iris Dejesus. On the case assignment sheet,

social work supervisor Patricia Wilson wrote, “If you cannot

2

A Child Advocate is member of the Child Advocacy Unit

of the Defender Association of Philadelphia.

3

The length of time Alexus lived primarily with her

paternal grandfather is in dispute, but it is not material to the issue

before us.

5

locate family by Nov. 14 [1999] request an early listing for

discharge of this case, again, as floater SW [social worker] did.

If you do locate family, J. Lynn made an order to take Aliyaha

into DHS custody!!!” Dejesus did not try to locate the Bennetts

until late March of 2000. On March 27, 2000, Dejesus sent

search letters to the Department of Public Welfare and to the

Office of Services to the Homeless and Adults. On April 17,

2000, Dejesus checked DPA’s computer records and learned that

Tiffany Bennett was receiving DPA benefits at a Grandsback

Street address in Philadelphia. That same day, Dejesus visited

the Grandsback Street address, but the house appeared

abandoned.

On April 18, 2000, DHS again petitioned family court to

discharge DHS supervision and Aliyaha’s dependency petition

because the “family is unable to be located.” The child advocate

did not object, and DHS supervision and the dependency petition

were discharged by agreement.

E. Porchia

In late 1999, Tiffany Bennett and her daughters began

living periodically with Dale Geiger. Porchia was born on July

7, 2000. The Bennett sisters were exposed to unsuitable,

unstable living conditions and to unfit care givers. For example,

Jayson Chambers, a convicted child sex offender, was a

babysitter for the Bennett sisters. Beginning in the fall of 2002,

Tiffany Bennett paid Jerry Chambers, who suffered from a

schizoaffective bipolar type disorder and a history of drug and

alcohol abuse, fifty to eighty dollars per week to look after her

children. With rare visits from their mother, the four Bennett

sisters lived with Jerry Chambers and his girlfriend, Candace

Geiger, who was Tiffany Bennett’s younger sister.

Through its telephone hotline, DHS received a report at

7:25 p.m. on August 14, 2003 that Jerry Chambers beat the

6

Bennett sisters.4 The hotline report was classified as a General

Protective Services report, which applies to allegations of

neglect, and a DHS social worker was required to respond within

twenty-four hours. During the morning of August 15, 2003,

DHS social worker Joe Maiden was assigned to investigate the

hotline report. Maiden reported that he visited the Bennett

sisters’ home twice on August 16, 2003, leaving a note at the

first visit, and once on August 17, 2003, but he never got a

response at the door. The facts surrounding Maiden’s response

to the hotline report are disputed, but the parties agree that

Maiden did not respond as he reported in his case progress notes.

On August 17, 2003 at approximately 1 p.m., emergency

personnel rushed a brutally beaten Porchia to a hospital, where

she was pronounced dead shortly after arrival. Alexus described

the events leading to Porchia’s death as follows.

SHE STATED THAT ON SATURDAY PORTIA

[sic] GOT A BEATING FROM JERRY WITH

AN EXTENSION CORD. SHE STATED THAT

PORTIA’S [sic] WOUNDS WERE SO SEVERE

THAT SHE COULD NOT LAY DOWN AND

GO TO SLEEP. JERRY BEAT HER AGAIN

FOR MAKING NOISE. HE PICKED HER UP

AND SLAMMED HER TO THE FLOOR IN THE

4

The DHS Report Referral Data Narrative, which refers to

Chambers as “Smokie,” reads:

RFRL REPORTER ALLEGED THAT “SMOKIE” (FAT)

BEATS THE CHILDREN LIKE THEY ARE MEN.

ACCORDING TO THE REPORTER FAT HANDS ARE

SWOLLEN FROM BEATING ON THE CHILDREN.

FAT MAKES THE GIRLS STAY IN THE HOUSE ALL

THE TIME. REPORTER STATED THAT RECENTLY

SHE SAW THE OLDEST GIRL COME TO THE DOOR

AND SHE HAD A SWOLLEN EYE. HOWEVER,

REPORTER HAS NEVER SEEN OR HEARD THE

CHILDREN BEING BEAT.

7

CORNER. HE TOLD HER TO STAND UP IN

THE CORNER ALL NIGHT BUT THE SLAM

TO THE FLOOR HAD INJURED HER LEG

AND SHE COULD NOT STAND UP. HE THEN

CHOKED AND KICKED HER. SHE STATED

THAT THEY ALL WENT TO SLEEP AND IN

THE MORNING THEY FOUND PORTIS [sic]

WEDGED BETWEEN THE MATTRESS AND

THE RADIATOR. “WE COULD NOT WAKE

HER.”

Porchia’s cause of death was listed as multiple blunt

trauma, asphyxia and inanition.5 Porchia’s autopsy revealed

malnourishment, laceration of the liver, “[m]ultiple blunt force

injuries to the head, chest, abdomen, back and extremities,” and

“[m]ultiple scars and healing injuries of varying ages from past

episodes of blunt force injuries to head, trunk and extremities.”

Alexus, Aliyaha and Priscilla were admitted to the Children’s

Hospital of Philadelphia (“CHOP”), and they were given

admission and discharge diagnoses of child abuse. Alexus had

facial injuries, a fractured eye socket, bruised and swollen eyes,

scabbed-over back lesions, and scars on her buttocks. Aliyaha

and Priscilla also had scars, lesions, and bruises.

F. The Aftermath from the Bennett Sisters’ Tragedy

In relation to Porchia’s death, Jerry Chambers was

convicted of first-degree murder and sentenced to death and

seventy-three to one hundred forty-six years in prison. Candace

Geiger was convicted of third-degree murder and sentenced to

seventeen to thirty-four years in prison. Tiffany Bennett was

5

Inanition “covers not getting enough food; or in very

stressed infants, even if they get enough food and they are forced

to digest it, they just don’t derive any nourishment from it. It’s a

peculiar condition, well recognized in neglected and abused infants

and children.” Young children “have to receive emotional support

and feel safe; and when they don’t, you tend to see this phenomena

of wasting away. We call that inanition, for want of a better term.”

8

convicted of conspiracy and endangering the welfare of her

children, and she was sentenced to twenty to forty years in

prison.

A DHS Employee Violation Report was filed on Maiden

for his activities related to the Bennett hotline report. The report

stated that Maiden was being disciplined for failing to make

reasonable efforts to access the Bennetts’ home, for failing to

notify his supervisors that he did not make the required home

visit within twenty-four hours, and for making false and

misleading representations regarding his response to the hotline

report. Maiden resigned before DHS could proceed with its

disciplinary process. Since August 2003, Alexus, Aliyaha and

Priscilla have required a variety of mental health services, and

they remain severely traumatized.

II.

As we stated in note 1, two actions were filed following

Porchia’s death, and the appeals in both cases were argued

together. Three Bennett sisters, Alexus, Aliyaha and Priscilla,

through their guardian ad litem, sued the City of Philadelphia,

DHS and its Director, and social workers Dejesus, Grant, and

Wilson. They assert a claim under 42 U.S.C. § 1983 for

violation of their due process right to bodily integrity from harm

inflicted by private parties under the state-created danger

doctrine.

The Estate of Porchia Bennett also filed a suit against the

City and Maiden under 42 U.S.C. § 1983, asserting in addition

conspiracy, wrongful death and survival action claims. The

District Court ordered that the Estate’s case and the Bennett

sisters’ case be tried simultaneously, but granted the defendants’

motion for summary judgment before trial.6 Plaintiffs in both

6

The District Court also granted summary judgment in the

City’s favor as to the Estate’s: (1) § 1983 conspiracy claim on the

grounds that its “vague and unsubstantiated allegations fail[ed] to

create a genuine issue of material fact that a conspiracy existed[,]”

9

cases appeal.7

The “state-created danger” doctrine emanates from

language in DeShaney v. Winnebago County Department of

Social Services, 489 U.S. 189 (1989), a case where the United

States Supreme Court confronted a factual scenario markedly

similar to that presented here. There, the county Department of

Social Services (“DSS”) and several of its social workers

received complaints that a child, Joshua, was being abused by

his father. The caseworker assigned to Joshua recorded her

observations in her files, along with her continuing suspicions

that someone in the DeShaney household was physically abusing

Joshua, but she did nothing more. Id. at 193. The caseworker

was later notified that Joshua had been treated again for injuries

that appeared to have been the result of child abuse. She made

two visits to the DeShaney household, but was informed that

Joshua was too ill to see her and the department again took no

action. Id. Joshua was eventually beaten so badly that he

suffered permanent brain damage and was rendered profoundly

retarded. Id.

Joshua and his mother brought an action under 42 U.S.C.

§ 1983 against the county, DSS, and various individual

employees of the department. “The complaint alleged that

respondents had deprived Joshua of his liberty without due

process of law, in violation of his rights under the Fourteenth

Amendment, by failing to intervene to protect him against a risk

of violence at his father’s hands of which they knew or should

have known.” Id. The district court granted summary judgment

App. at 40; and (2) wrongful death and survival act claims against

the City and Maiden on the ground that they are immune from tort

liability pursuant to Pennsylvania’s Political Subdivision Tort

Claims Act, 42 Pa. Cons. Stat. § 8541 et seq. We do not consider

these rulings in this appeal because they have not been raised in the

Appellants’ brief. See Couden v. Duffy, 446 F.3d 483, 492 (3d

Cir. 2006).

7

The District Court had jurisdiction under 28 U.S.C. §

1331. This court has jurisdiction under 28 U.S.C. § 1291.

10

for defendants, and the Court of Appeals affirmed, holding that

petitioners had failed to state an actionable § 1983 claim. The

United States Supreme Court granted certiorari to remedy

inconsistent approaches taken by appellate courts in determining

when, if ever, the failure of a local governmental entity or its

agents to provide an individual with adequate protective services

constitutes a violation of the individual’s due process rights. Id.

at 194.

The Court explained that because the harms that Joshua

suffered did not occur while he was in the State’s custody, but

occurred while he was in the custody of his natural father, who

was not a state actor, his claim could not succeed. Id. at 201.

The Court concluded that:

While the State may have been aware of the

dangers that Joshua faced in the free world, it

played no part in their creation, nor did it do

anything to render him any more vulnerable to

them. That the State once took temporary custody

of Joshua does not alter the analysis, for when it

returned him to his father’s custody, it placed him

in no worse position than that in which he would

have been had it not acted at all; the State does not

become the permanent guarantor of an individual’s

safety by having once offered him shelter. Under

these circumstances, the State had no

constitutional duty to protect Joshua.

Id. (emphasis added).

Justice Blackmun began the last paragraph of his dissent

with the now memorable words, “Poor Joshua!” He continued,

Victim of repeated attacks by an irresponsible,

bullying, cowardly, and intemperate father, and

abandoned by respondents who placed him in a

dangerous predicament and who knew or learned

what was going on, and yet did essentially nothing

except, as the Court revealingly observes, ante, at

11

193, “dutifully recorded these incidents in [their]

files.” It is a sad commentary upon American life,

and constitutional principles – so full of late of

patriotic fervor and proud proclamations about

“liberty and justice for all” – that this child, Joshua

DeShaney, now is assigned to live out the

remainder of his life profoundly retarded. Joshua

and his mother, as petitioners here, deserve – but

now are denied by this Court – the opportunity to

have the facts of their case considered in the light

of the constitutional protection that 42 U.S.C. §

1983 is meant to provide.

Id. at 213 (Blackmun, J., dissenting).

Notwithstanding the views of the dissenting Justices

(Brennan and Marshall, in addition to Blackmun), the state-

created danger doctrine has become a staple of our constitutional

law. As this court recently held, to establish a claim based on

the state-created danger doctrine, a plaintiff must satisfy the

following elements: (1) the harm caused was foreseeable and

fairly direct; (2) a state actor acted with a degree of culpability

that shocks the conscience; (3) some relationship existed

between the state and the plaintiff that renders plaintiff a

foreseeable victim; and (4) “a state actor affirmatively used his

or her authority in a way that created a danger to the citizen or

that rendered the citizen more vulnerable to danger than had the

state not acted at all.” Bright v. Westmoreland County, 443 F.3d

276, 281 (3d Cir. 2006).

This court has consistently adhered to the Supreme

Court’s pronouncements in DeShaney. For example, in Kaucher

v. County of Bucks, 455 F.3d 418 (3d Cir. 2006), this court

stated that petitioners must allege affirmative acts that were the

“but for cause” of the risks they faced, id. at 433 n.10, and noted

that we have held that failures to act cannot form the basis of a

valid § 1983 claim. See id. at 433 n.10 (citing Bright, 443 F.3d

at 283-84 (failure to hold revocation hearing for an individual in

violation of his parole prior to killing an eight-year-old girl);

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 907-08 (3d

12

Cir. 1997) (failure to prevent mentally disturbed individual from

entering school and attacking teacher); D.R. v. Middle Bucks

Area Vocational Tech. Sch., 972 F.2d 1364, 1376 (3d Cir. 1992)

(failure of school officials to investigate and stop instances of

sexual abuse of students) (en banc); Brown v. Grabowski, 922

F.2d 1097 (3d Cir. 1990) (failure to file criminal charges against

an individual who repeatedly threatened and assaulted former

girlfriend, despite reports to the police by the victim and her

family)).

In Bright, this court relied on DeShaney in rejecting

appellant’s claim that a police officer’s knowledge of a danger to

the victim creates an affirmative duty to protect the victim from

that harm. Rather, we explained that DeShaney clearly holds

that “no affirmative duty to protect arises from the State’s

knowledge of the individual’s predicament.” Bright, 443 F.3d at

284 (internal citation and quotation marks omitted). “Liability

requires affirmative state action; mere ‘failure to protect an

individual against private violence’ does not violate the Due

Process Clause.” Id. (quoting DeShaney, 489 U.S. at 197).

In granting summary judgment to the defendants, the

District Court concluded that Plaintiffs in both cases had failed

to meet their burden of establishing a genuine issue of material

fact with regard to the fourth element of their state-created

danger claims – that a state actor affirmatively used his or her

authority to render the citizen more vulnerable to danger than

had the state not acted at all.

In Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996), the one

case that has often been cited as deviating from the court’s

otherwise unbroken series of holdings following the state-

created danger doctrine, we expressly stated that “we adopt the

‘state-created danger’ theory as a viable mechanism for

establishing a constitutional violation under 42 U.S.C. § 1983.”

Id. at 1201. The Kneipps, who were returning on foot from a

night of drinking at a neighborhood tavern, were stopped by the

police on the highway for causing a disturbance. They were

one-third of a block from their home. Mr. Kneipp requested and

was given permission by the police to go home to relieve the

13

babysitter. He assumed that because Mrs. Kneipp was

inebriated, the police would take her either to the hospital or to

the police station, and therefore he proceeded home without her.

Instead, the police officer sent her on her way alone; she never

reached home, but instead ended up unconscious at the bottom

of an embankment next to a parking lot across the street from her

home. As a result of her exposure to the cold, she suffered

permanent brain damage impairing many basic body functions.

This court did not rely on the state-created danger

doctrine to affirm the district court’s grant of summary judgment

to the City defendants. Instead, we reversed, holding that there

was sufficient evidence in the record to show that the police

officers used their authority to create a dangerous situation or to

make Mrs. Kneipp more vulnerable to harm than had they not

intervened. The court explained,

It is conceivable that, but for the intervention of

the police, [Mr. Kneipp] would have continued to

escort his wife back to their apartment where she

would have been safe. A jury could find that [Mrs.

Kneipp] was in a worse position after the police

intervened than she would have been if they had

not done so.

Id. at 1209 (emphasis added).

The Bennett sisters contend that the closing of their

dependency case rendered them more vulnerable to harm by their

mother and acquaintances because closing the case effectively

prevented a private source of aid, the Child Advocate, from

looking for the children. They argue that the District Court erred

in concluding “that DHS’ misrepresentation and the subsequent

discharge of supervision and Aliyaha’s dependency [petition] did

not violate the Bennett sisters’ substantive due process rights by

making them more vulnerable to danger from inappropriate care

givers than if DHS had not acted at all.” Appellants’ Br. at 24-

25 (quoting Dist. Ct. Op. at 16).

The District Court’s conclusion that DHS’ case closure

14

did not prevent the Child Advocacy Unit from searching for the

children is supported by the record. It remained free to search

for the Bennett children even after the case was closed. We

must agree with the District Court that Appellants failed to

demonstrate a material issue of fact that the City used its

authority to create an opportunity for the Bennett sisters to be

abused that would not have existed absent DHS intervention.

The Estate makes a slightly different argument. It

contends that because Maiden asked his superiors at DHS to

assign the Bennett case to him, although it was destined for

another social worker, he was responsible for the type of

affirmative act for which the City should be held responsible. It

is undisputed that after he was assigned the case Maiden did not

perform the duties vis-à-vis Porchia that were incumbent upon a

dedicated social worker. Although we believe Maiden’s actions

(or more accurately, inactions) were beyond the pale, we

conclude that in essence the Estate’s argument is no more than

another effort to circumvent the state-created danger doctrine.

We are not free to do that.

The District Court did not err in concluding that the City

did not take action in the constitutional sense. Maiden’s actions

did not result in the creation of dangers by the state, but rather

those dangers already existed. Maiden was therefore not the

“but for” cause of the harm to Porchia Bennett in this case.

III.

We return to the point made at the beginning of this

opinion. If a municipality, state or other public body is to be

liable under the Constitution for harm caused by private parties

to persons not in custody, the liability would be unlimited.

There is no legal doctrine that supports imposition of such

liability. Without legislative activity, we are not prepared to

hold that a city that fails to respond promptly to a 911 call must

pay for the harm that befalls the caller as a result of the failure.

The fact is that most 911 calls are answered, that the police use

their best efforts in many cases, and that they prevent egregious

harm. We have less personal experience with DHS but are

15

willing to assume, for this purpose, that this is also true of DHS

social workers, notwithstanding the well-publicized cases of

failures in that connection.

However, it is not the role of the courts, certainly not the

federal courts, to rectify the failures that do happen. That is the

responsibility of the citizens of the body politic, who elect the

leaders of the executive branch of the respective city, state or

municipality. If the public raises its voice and demands

accountability, and is willing to use the ballot to support those

demands, then change and improvement can and will occur.

Unfortunately, it will be too late for Porchia Bennett.

IV.

For the reasons set forth above, we will affirm the

judgment of the District Court.

16