Opposition Brief — Ledbetter v. Taylor

—

rey,’ Supreme Court, U.S.

\| “FTE BD

No. 87-521 yOT 30 Ber

JOSEPH E, SPANIOL, JR

CLERK

In The

Supreme Court of the United States

October Term, 1987

0

JAMES G. LEDBETTER, PH.D., et al.,

Petitioners,

KATHY JO TAYLOR,

Respondent.

0

RESPONDENT'S BRIEF IN OPPOSITION

TO THE PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

o——_—___——-

Carotyn A. KuBITSCHEK

Counsel of Record for Respondent

Horstra University Scnoou or Law

Hempstead, New York 11550

516) 560-5934

Davin S. Brits

Dow C. Keexan

Attornews for Resnondent

Tue Keexan Law Freo

Keenan Building

148 N; i Str NW

Atian (reorg VOUS

Jiji4 23-2900

QUESTIONS PRESENTED

1, Whether this Court should grant certiorari to re-

view the denial of a motion to dismiss the complaint, where

the questions raised by the petition are heavily dependent

upon the facets.

2. Whether this Court should grant certiorari to

review disputed issues of state law.

TABLE OF CONTENTS

STATEMENT OF THE CASE 2.2.65. 1

ARGUMENT

I. THIS COURT SHOULD NOT GRANT CER-

TIORARI TO AN INTERLOCUTORY DENI

AL OF A MOTION TO DISMISS THE COM-

of 1.) Sn nnnU En SD i 3

A. The Court of Appeals Properly Stated the

Legal Standard for Causation in a Civil

Wena AUN anesciesiciicnnicsicictcee 9)

B. The Court of Appeals Properly Stated the

Standard of LdAMRty q..:....ne eee 9

Il. THIS COURT SHOULD NOT REVIEW A DIS-

PUTED QUESTION OF STATE LAW. ................ 14

6 0 BE!) | Sree 52 Soe IRE Ls at es 22

| gg 4.51 > anne O Te \pp. 1

is onal

ill

TABLE OF AUTHORITIES

CasEs Page(s)

Belcher v. Stengel, 429 U.S. 118 (1976) 5

Bishop v. Wood, 426 U.S. 341 (1976) 16

Board of Regents v. Roth, 408 U.S. 564 (1972) ....... 15

Branti v. Finkel, 445 U.S. 507 (1980) 5

Brockett v. Spokane Arcades, Inc., 472 U.S. 491 .............. 16

Brotherhood of Locomotive Firemen and Engine-

men v. Bangor & Aroostook Railroad Co., 389

U.S. 327 (1967) - 4

Butner v. United States, 440 U.S. 48 (1979) neeeceeseccseene 16

Chardon v. Fumero Soto, 462 U.S. 650 (1983)... 16

City of Newport v. Facts Concerts, Inc., 453 U.S.

247 (1981) 6

City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985) ..7, 14

City of Springfield, Massachusetts v. Kibbe, —

U.S. —, 107 S.Ct. 1114 (1987) icy a

Commonwealth of Massachusetts v. Painten, 389

TR eee 4

Conley v. Gibson, 355 U.S. 41 (1957) 1,4

Daniels v. Williams, 474 U.S. 327 (1986) cccecccceeeceeeeneeten 14

Davidson v. Cannon, 474 U.S. 344 (1986) nnn eceeeeeesee 14

Doe v. New York City Department of Social Ser-

vices, 649 F.2d 134 (2d Cir. 1981), subsequent

appeal 709 F.2d 782 (2d Cir.), cert. denied sub

nom. Catholic Home Bureau v. Doe, 464 U.S.

a atemcalsiiasnicinnerssi - 8

Drummond v. Fulton County Department of

Family and Chilrden’s Services, 547 F.2d 838

(5th Cir. 1977), rev’d 563 F.2d 1200 (5th Cir.

1977) (en bane), cert. denied, 437 U.S. 910 (1978) ..... 20

lv

TABLE OF AUTHORITIES—Continued

Page(s)

E.I. Du Pont De Nemours & Co. v. Train, 430 U.S.

I ide arash ec henna ndaempamnestelibeetetinectie nila 4

Estate of Bailey v. County of York, 768 F.2d 503

(ara Cir. 1965) sc SME A AL Stet RO OT 8

Fortner Enterpriscs, Inc. v. United States Steel

Corp., 394 U.S. 495 (1969) 2s ticeoaee a

Foz v. Custis, 712 F.2d 84 (4th Cir. 1983) ou 8

Hewitt v. Helms, 459 U.S. 460 (1983) ou 15, 16

Martinez v. California, 444 U.S. 277 (1980) oo 8

Mills v. Rogers, 457 U.S. 291 (1982)

Monell v. Department of Soctal Services of the

City of New York, 436 U.S. 658 (1978) 0. 6, 7

National Labor Relations Board v. Sears, Roebuck

Ee Ee Me COD rset

Owen v. City of Independence, Missourt, 445 U.S.

1 | ES eer ee Rate poet eee 6

Parham v. J. R., 442 U.S. 584 (1979) d, 17, 19

Pembauer v. City of Cincinnati, — U.S. —, 106

BAx. 1908 (2966) SRR ae Nae fn ee

Pierson v. Ray, 386 U.S. 547 (1967) ................ ; oo ae

Ramos v. Montgomery, 313 F.Supp. 1179 (S.D.

Cal. 1970) aff’d 400 U.S. 1003 (1971) psoas ath 9

Rizzo v. Goode, 423 U.S. 362 (1976) .... eee 6

Sanchez v. Walker County Department of Family

and Children’s Services, 237 Ga. 406, 229 S.E.2d

66 (1976) ..... " % ae 18, 19

Scheuer v. Rhodes, 416 U.S. 232 (1974) 1,4, 6, 7,9

Smith w. Organization of Foster Familtves, 431

U.S. 816 (1977) ) 3

TABLE OF AUTHORITIES—Continued

Page(s)

Smith v. Wade, 461 U.S. 30 (1983) 14

Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987)..passtm

Tennessee v. Garner, — U.S. —, 105 S.Ct. 1694

(1985) 4,7

Thorpe v. Housing Authority of City of Durham,

393 U.S. 268 (1969) 5, 14

Washington v. Washington State Commercial Pas-

senger Fishing Vessel Association, 443 U.S.

658 (1979) 4

Youngberg v. Romeo, 457 U.S. 307 (1982) 6, 8, 9, 12

STATUTES

42 U.S.C. § 672(c) (1) 21

42 U.S.C. § 1983 6, 12

O.C.G.A. § 15-11-34 . 18

O0.C.G.A. § 15-11-43 18

ais TIED iiesninesvtcceinsiiatttiicdloedcanntsge ec uekumalee 18, 20

O.C.G.A. § 49-5-8 9,18

Cs I ace ices intchicsctrrcmnrarertnens 9, 20

O.C.R.R.G. § 290-2-12-.01 ......... a 19

O.C.B.2.G. § 290-2-12-06 9, 16, 18, 19, 20

CoNSTITUTION

United States Constitution, Amendment VIII .............. 11, 12

United States Constitution, Amendment XIV .......... 1, 11,15

STATEMENT OF THE CASE

According to the allegations in the complaint, which

must be accepted as true on a motion to dismiss, Scheuer

v. Rhodes, 416 U.S. 232, 236 (1974); Conley v. Gibson, 355

U.S. 41, 46 (1957), respondent Kathy Jo Taylor, a seven

year old child, lies in an irreversible coma in a Georgia

hospital because her state-chosen, licensed and supervised

foster parents beat her mercilessly five years ago. The

state foster case officials who are the petitioners herein

placed Kathy Jo in that foster home after they had re-

moved her from her home because of parental neglect.

Kathy Jo, through her guardian, brought a federal

civil rights action against the state foster care officials,

claiming that they were ‘‘deliberatejy indifferent’ to their

nondiscretionary duties and her welfare. Complaint %% 12,

13, 22-25. The District Court granted the foster care offi-

cials’ motion to dismiss, a decision affirmed by a panel of

the Eleventh Circuit. The en banc Eleventh Circuit, re-

versed, denying the motion to dismiss, and remanded for

trial. Taylor v. Ledbetter, 818 F.2d 791, 800 (11th Cir.

1987).

Based on well-established precedents of this Court,

the Eleventh Circuit held that the complaint pleaded that

the petitioners violated Kathy Jo’s constitutional rights.

The Constitutional right at stake was Kathy Jo’s right to

be protected by her state custodians from ‘‘the infliction

of unnecessary pain,’’ Jd. at 794, a right guaranteed by

the Fourteenth Amendment to the United States Consti-

tution, 7d. at 794, and the statutes and regulations of

the state of Georgia. Id. at 798-799. Kathy Jo stated

a claim on which relief could be granted because she

adequately pleaded that the state foster care officials were

1

2

‘‘deliberately indifferent’’ to their ward and ‘‘departed

from accepted professional judgment’’ resulting in ier

functional death.

In their petition to this Court, the State foster care

officials apparently concede that if Kathy Jo can prove

at trial that they were ‘‘deliberately indifferent’’ or ‘‘de-

parted from accepted professional judgment’’ with respect

to her, (P.iii, 9),' they can be held liable to her. It is thus

surprising that they petition this Court to review the Elev-

enth Cireuit’s decision. Instead of challenging the court’s

holding, petitioners challenge the facts alleged in the com-

plaint.

The facts they allege in the petition for certiorari,

which petitioners seek this Court to accept, differ markedly

from those relied on by the Eleventh Cireuit and alleged

in the complaint. Additionally, petitioner’s constructions

of the statutes and regulatious of the state of Georgia, and

the obligations which they impose upon foster care officials

with regard to foster children, differ significantly from

those found by the Eleventh Circuit. These differences

demonstrate that this case is simply not ripe for review by

this Court.

The major area of disagreement to be resolved by the

trial court is the nature of the Georgia foster care system

and the legal obligations of state and county officials with-

in that system. According to petitioners, state foster care

officials’ state-imposed obligations to children in foster

care are limited to placing these children in foster homes.

Thereafter, the foster parents take over the responsibility

for the children’s care (P. 6). Supervision of foster chil-

‘In this brief, “P.”” denotes the petition for certiorari, and

“P. App.” denotes the appendix to the petition for certiorari.

3

dren in foster homes is allegedly provided ‘‘by the com-

munity’’ (P. 8), apparently through community members’

observation of those children as the children live in the

foster homes, attend church and school and play with neigh-

borhood children. (P.8)

Petitioners’ saccharine description of foster care in

Georgia (P. 8) contrasts significantly with the foster care

system described by this Court in Smith v. Organization

of Foster Families, 431 U.S. 816 (1977), and the facts in

the complaint, upon which the Eleventh Circuit based its

decision. Contrary to petitioners’ assertions, the Eleventh

Cireuit found that Kathy Jo, like other children in foster

care, is a helpless ward of the state, entitled to protection

by those who have decided she needs their care. Taylor

v. Ledbetter, 818 F.2d 791, 797 (11th Cir. 1987). Foster

care officials must, as a matter of state law, ‘‘take affirm-

ative actions to ensure the well being... of the children

in foster eare.’’ Id. at 799.

To the extent that the petitioners disagreed with the

allegations of the complaint, and the findings of the Elev-

enth Cireuit, the Eleventh Circuit ruled that they had the

right to present affirmative defenses. Jd. at 800.10. In-

stead they have petitioned this Court for certiorari. This

brief is written in opposition to that petition,

—O

ARGUMENT

I. THIS COURT SHOULD NOT GRANT CER.

TIORARI TO AN INTERLOCUTORY DENIAL

OF A MOTION TO DISMISS THE COM.

PLAINT.

Petitioners seek review of an Eleventh Cireuit de-

cision which denied the state foster eare officials’ motion

to dismiss and remanded Kathy Jo’s civil rights damage

action for a trial on the merits, Taylor v. Ledbetter, 818

F.2d 791, 800 (11th Cir. 1987), i.e., a non-final order. This

Court is reluctant to grant certiorari in cases, such as the

instant one, where decisions are not final, Washington v.

Washington State Commercial Passenger Fishing Vessel

Association, 443 U.S. 658, 689 n.30 (1979) ; or where courts

have remanded, because they are ‘‘not yet ripe for review

by this Court.’’ Brotherhood of Locomotive Firemen and

Enginemen v. Bangor & Aroostook Railroad Co., 389 U.S.

327, 328 (1967).

The reason for this reluctance is that these cases do

not come with a full factual record. An incomplete factual

record makes the task of deciding important issues of law

extremely difficult, if not impossible. Commonwealth of

Massachusetts v. Painten, 389 U.S. 560, 561 (1968); See

also, National Labor Relations Board v. Sears, Roebuck &

Co., 421 U.S. 132, 164-165 (1975). E. I. Du Pont de Ne-

mours & Co. v. Train, 480 U.S. 112, 135 n.26 (1977) ; Ten-

nessee v. Garner, — U.S. —, —, 105 S.Ct. 1694, 1707 (1985).

This case has no factual record whatsoever, let alone

an incomplete one. If this Court reviews this action now,

it must accept all facts pleaded as true, and construe all

allegations favorably to Kathy Jo. Scheuer v. Rhodes,

416 U.S. 232, 236 (1974); Conley v. Gibsen, 355 U.S. 41,

45-48 (1957).

Petitioners, however, do not accept as true the facts

pleaded in the complaint. Rather, they contest virtually

every fact alleged, except for the fact that Kathy Jo lies

in an irreversible coma, due to injuries inflicted by her

foster parents, while she was entrusted to petitioners’ care.

4)

The District Court, not this Court, is the proper forum to

resolve factual issues. Branti v. Finkel, 445 U.S. 507, 512

n.6 (1980); Parham v. J.R., 442 U.S. 584, 620 (1979);

Fortner Enterprises, Inc. v. United States Steel Corp., 394

U.S. 495, 506 (1969). Without adjudicated facts, petition-

ers seek a premature advisory opinion on abstract, hypo-

thetical questions, inappropriate for this court to answer.

Thorpe v. Housing Authority of City of Durham, 393 U.S.

268, 284 (1969). Indeed, upon remand, the resolution of

the factual issues may resolve the legal issues as well. See,

e.g., Belcher v. Stengel, 429 U.S. 118 (1976).

Furthermore, premature adjudication is particularly

inappropriate in this case because the issues upon which

petitioners base their request for review—causation and

the standard of liability in civil rights damage actions—

are particularly fact-sensitive. Finally, the governing law

to guide the finder of fact is well-settled, and was properly

articulated by the Court of Appeals for the Eleventh

Circuit.

A. The Court of Appeals Properly Stated the

Legal Standard for Causation in a Civil

Rights Action.

The foster care officials’ first claim for review is that

Kathy Jo was put into a coma by ‘‘the independent act

of her foster mother for which they are not legally respon-

sible.’ (P. 5) This contention directly contradicts the

allegations in the complaint that the act was not indepen-

dent and that foster care officials’ actions and failures to

act caused Kathy Jo to lose her constitutional rights. The

foster care officials’ ‘independent contractor’? claim is an

affirmative defense to the complaint which they will have

the opportunity to try to prove at trial.

The foster care officials, furthermore, misconstrue

the issues they themselves raise. Contrary to their claim

that the question is state action (P. 5), the issue really is

causation, i.e., whether they may be held legally respon-

sible for injuries which they did not personally inflict.

That issue has already been resolved against the foster

eare officials.

42 U.S.C. § 1983, the civil rights statute, explicitly

imposes liability upon those who ‘‘cause to be subjected’’

as well as those who subject individuals to the deprivation

of federal rights. Following the plain language of that

statute, this Court has repeatedly held that governmental

bodies and officials may be held legally responsible for

the violations of constitutional rights even when they do

not personally inflict injury upon the victims. Pembauer

v. City ef Cincinnati, — U.S. —, 106 S.Ct. 1292 (1986) ;

Youngberg v. Romeo, 457 U.S. 307, 312 (1982); Owen v.

City of Independence, Missouri, 445 U.S. 622 (1980) ; City

of Newport v. Facts Concerts, Inc., 453 U.S, 247 (1981) ;

Monell v. Department of Social Services of the City of New

York, 436 U.S. 658 (1978); Scheuer v. Rhodes, 416 U.S.

232 (1974).

A government official can be liable for injuries in-

flicted by others if he fails to discharge an affirmative

duty and his failure is a substantial factor in the violation

of a constitutionally protected right, Rizzo v. Goode, 423

U.S. 362 (1976). ‘‘[W]here action is directed by those who

establish governmental policy, the [government] is re-

sponsible... ’’ Pembauer v. City of Cincinnati, — US.

—, 106 8.Ct. 1292, 1299 (1986). The court below so ruled.

Taylor v. Ledbetter, 818 F.2d 791, 794 (11th Cir. 1987).

7

Even where the government officials have not ex-

plicitly ordered subordinates to inflict injury, they may

still be held responsible for their actions or omissions if

there is ‘‘a direct causal connection between municipal

eonduct and the constitutional deprivation.’’ City of

Springfield, Massachusetts v. Kibbe, — U.S. —, —, 107

S.Ct. 1114, 1120 (1987) (O’Connor, J., dissenting from

dismissal of the writ of certiorari). The Eleventh Circuit

recognized that Kathy Jo alleged that causal connection

in her complaint. Taylor v. Ledbetter, 818 F.2d 791, 796

n.6 (11th Cir. 1987).

Whether government action causes injury to civil

rights is a determination for the finder of fact. ‘‘A jury

may be permitted to find that a defendant’s reckless mis-

conduct bears a sufficient causal relation to a plaintiff’s

harm to make him liable... ’’ Restatement (Second) of

Torts § 501, Comment a, p.591 (1965), quoted in City of

Springfield, Massachusetts v. Kibbe, — U.S. —, —, 107

S.Ct. 1114, 1121 (1987) (O’Connor, J., dissenting from dis-

missal of the writ of certiorari). Where causation is prop-

erly alleged, this Court reviews the sufficiency of the evi-

dence thereof only after proof and determination at trial.

City of Springfield, Massachusetts v. Kibbe, — U.S. —,

107 S.Ct. 1114 (1987); Pembauer v. City of Cincinnati, —

U.S. —, 106 S.Ct. 1292 (1986) ; City of Oklahoma City v.

Tuttle, 471 U.S. 801 (1985) ; Monell v. Department of So-

cial Services of the City of New York, 436 U.S. 658 (1978).

See, e.g. Tennessee v. Garner, — U.S. —, —, 105 S.Ct. 1694,

1707 (1985) (remanded to determine the policy of the

Police Department); Scheuer v. Rhodes, 416 U.S. 232

(1974).

The complaint alleges, and it is uncontroverted, that

the foster care officials were Kathy Jo’s legal custodians

(P. 5). They thus had a duty under the Constitution to

protect her from harm. Youngberg v. Romeo, 457 U.S.

307 (1982). The complaint alleges they were deliberately

indifferent to their duty to their ward (Complaint {|f 13,

20,21), and carried out their obligations in an unpro-

fessional manner. Youngberg v. Romeo, 457 U.S. 307,

323 (1982). The state foster care officials placed Kathy

Jo in the home of her assailants. Their deliberate

indifference and significant departure from accepted pro-

fessional standards caused the deprivation of Kathy Jo’s

constitutional rights, i.e., the beatings and other severe

abuse (Complaint { 28), which have caused her to go into

a coma from which she will never awaken (Complaint { 29).

They lacked actual knowledge of Kathy Jo’s beatings only

because they chose to avoid it.

Not only does the standard enunciated by the Elev-

enth Cireuit conform to the decisions of this Court, it is

also consonant with the decisions of all other circuits

which have faced the issue. Estate of Bailey v. County of

York, 768 F.2d 503 (3rd Cir. 1985) ; Fox v. Custis, 712 F.2d

84 (4th Cir. 1983); Doe v. New York City Department of

Social Services, 649 F.2d 134 (2d Cir. 1981), subsequent

appeal 709 F.2d 782 (2d Cir.) cert. denied sub nom. Catho-

lic Home Bureau v. Doe, 464 U.S. 864 (1983). Given the

lack of disagreement among the circuits as to the legal

standard, this case is inappropriate for certiorari.

Contrary to petitioners’ assertions, this case is not

similar to Martinez v. California, 444 U.S. 277 (1980),

where the government officials owed no special duty to

the plaintiff, /d. at 285, and had no control over or respon-

sibility for the actions of the person who killed the plain-

tiff, /d. at 285. The officials were Kathy Jo’s legal cus-

todians, entrusted with her care and with the specific obli-

gation to protect her constitutional right to be free from

harm. Moreover, they chose, controlled and had ongoing

supervisory responsibility over the foster parents who

beat Kathy Jo into a living death. The foster care offi-

cials were required to investigate the foster parents,

O.C.R.R.G. § 290-21-12-.08(13) (P. App. 141) ; O.C.G.A. 4 49-

9-12(e) (P. App. 134); pay them to carry out their obliga-

tions to provide day-to-day care for Kathy Jo, O.C.G.A.

§ 49-5-8(a)(2)(E) (P. App. 127), O.C.R.R.G. § 290-2-12-.08

(15) (P. App. 143); and ‘‘fully regulate’’ them. Ramos v.

Montgomery, 313 F.Supp. 1179, 1183 (S.D. Cal. 1970) ;

aff’d 400 U.S. 1003 (1971).

This case is controlled by Youngberg v. Romeo, 457

U.S. 307 (1982), wherein this Court held that state custo-

dians had an obligation to protect institutionalized re-

tarded persons from being harmed by other residents of

the institution or by themselves; and by Scheuer v. Rhodes,

416 U.S. 232 (1974), where this Court held that the gov-

ernor of a state could be held liable for violations of civil

rights if he acted ‘‘in an arbitrary manner, grossly abus-

ing the lawful powers of office,’’ Jd. at 235. Kathy Jo

Taylor, having properly alleged causation, is entitled to a

trial to prove it.

B. The Court of Appeals Properly Stated the

Standard of Liability.

The foster case officials’ second and third claims for

review purportedly invoke the standard of liability for

10

damages in civil rights actions. In fact, they once again

simply seek to avoid a trial by raising unproven affirma-

tive defenses to the complaint, inappropriately raised on

a petition for certiorari.

First, the foster care officials describe a foster care

system markedly different from that alleged in the com-

plaint. According to them, ‘‘the world of foster children

is similar to that of the school children in Ingraham, where

‘openness’ and ‘supervision by the community afford sig-

nificant safeguards against ...abuses....’’’ (P.8) The

complaint and the Eleventh Cirecuit’s decision, in contrast

found that ‘‘[c]hildren in foster homes are .. . isolated

... helpless ... and at the mercy of the foster parents’’

unless the foster care officials provide the ‘‘investigation,

supervision, and constant contact required by statute.”’

Taylor v. Ledbetter, 818 F.2d 791, 797 (11th Cir. 1987).

Moreover, the notion that Kathy Jo Taylor ‘‘shares in...

activities as if [s]he were [the foster parents’] own child’’

(P. 8) is simply bizarre, given that her purportedly benev-

olent foster parents—selected and supervised by the foster

eare officials—repeatedly and wantonly struck, shook,

threw down, beat, and abused her so brutally that she

lapsed into a permanent coma. (Complaint {/ 28). Which

description of the foster care system, the foster care offi-

cials’ or the Eleventh Cireuit’s, is more accurate, should

be resolved at trial, not on motion to dismiss.

Next, the foster care officials assert that Kathy Jo

has not alleged ‘‘facts that indicate knowledge of poten-

tial harm to the person injured, causal counection between

alleged omissions to act and resultant injuries, or devia-

tion from accepted social work standards.’’ (P.13) Kathy

11

Jo has alleged that the foster care officials were deliber-

ately indifferent to their non-discretionary duties to in-

vestigate and supervise the foster parents. She has fur-

ther alleged that if petitioners had investigated in a pro-

fessional manner, they would have learned that the foster

parents were unfit and a danger to children. (Complaint

28). To ask her to allege more is an unreasonable plead-

ing burden on a child in an irreversible coma who cannot

communicate with counsel, and is unsupported by any pre-

cedent of this Court or rule of pleading. The foster care

officials are in complete control of the documentation sur-

rounding Kathy Jo’s foster care placement and their stan-

dards and practices. Absent discovery, the foster care

officials will never have to explain what happened to

Kathy Jo. Their request for ‘‘more facts’’ in Kathy Jo’s

complaint is, in effect, a transparently disguised assertion

of absolute immunity.

The foster care officials’ analysis of the standard of

liability in this civil rights action is contrary to well-set-

tled law. First, they begin their attack on the Eleventh

Cireuit from the wrong starting point. The foster care

officials claim that the Eleventh Circuit wrongly applied

the Eighth Amendment to children in foster care. (P. 7-8)

It did not. Instead, the Eleventh Circuit based its analysis

on the deliberate indifference standard of liability, which

this Court applied in civil rights damage actions brought

by prisoners. The Eleventh Circuit found that the same

standard should apply in civil rights actions broughi by

foster children, whose right to be free from harm is guar-

anteed by the Fourteenth Amendment, reasoning that ‘‘de-

fenseless children [in foster care who suffer] gross mis-

treatment and abuse... [are entitled to] at least the same

12

protection afforded adults who are imprisoned as a result

of their own misdeeds.’”’ Taylor v. Ledbetter, 818 F.2d

791, 797 (11th Cir. 1987). This Court used the same analy-

sis in Youngberg v. Romeo, 457 U.S. 307 (1982), wherein

it ruled, also under the Fourteenth Amendment, that

‘«[pJersons who have been involuntarily committed are en-

titled to more considerate treatment and conditions of con-

finement than criminals whose conditions of confinement

are designed to punish.’’ /d. at 321-322.

The general principle evident in the Eleventh Circuit

decision, and this Court’s precedents, is that since inno-

cent people involuntarily confined for beneficient rather

than punitive purposes are entitled to more considerate

treatment from their governmental custodians, the stan-

dard of liability in civil rights damages actions is lower

for innocent institutionalized persons than for prisoners.

This Court so recognized in Youngberg, supra, holding

that although prisoners had to show deliberate indiffer-

ence in order to recover damages under 42 U.S.C. § 1983,

involuntarily committed mental patients had to prove only

a substantial departure from accepted professional judg-

ment, a lower standard of liability, having no state of

mind requirement. Therefore, the Eleventh Circuit would

have been fully justified in hulding that Kathy Jo had to

plead only ‘‘departure from accepted professional prac-

tice,’’ not ‘‘deliberate indifference’’ to state a claim. If

there was error in the Fleventh Circuit’s articulation of

the applicable pleading standard, it inured to the benefit

of the foster care officials, not to their detriment.

The foster care officials apparently recognize that

the deliberate indifference standard of Eighth Amendment

13

civil rights cases benefits them. After renouncing that

standard in Point II of their petition, they adopt it in

Point IIT (P. 9-13). Kathy Jo pleaded deliberate indiffer-

ence and agrees that that standard of liability is appro-

priate. The complaint also implicitly alleges the ‘‘sub-

stantial departure from accepted professional practice’’

standard in that it alleges failure to supervise and inves-

tigate, which are the touchstones of accepted professional

practice. The foster care officials acknowledge that this

standard too is appropriate to measure their liability for

Kathy Jo’s injuries (P. 9).

Any higher pleading standard would require actual

knowledge, which this Court has never required. On the

contrary, the most stringent standard of liability which

any member of this Court has held to apply has been a

standard of government officials’ ‘‘deliberate indiffer-

ence to citizens’ constitutional rights’’ or ‘‘reckless dis-

regard for the consequences’’ of their actions. City of

Springfield, Massachusetts v. Kibbe, — U.S. —, —, 107

S.Ct. 1114, 1121 (1987) (O’Connor, J., dissenting from the

dismissal of the writ of certiorari).

In the absence of a factual record demonstrating that

this ease does indeed raise questions as to the standard

of liability in a civil rights damage action, the foster care

officials’ request for review is, in effect, a request for an

abstract, advisory opinion. The foster care officials, by

phrasing their request for review in the broadest possible

terms, are clearly seeking just such an opinion. ‘‘[S]tate

officials in the Eleventh Cireuit and perhaps throughout

the country ... need to know the parameters of [their]

liability’’ for ‘‘injuries to all children in their legal cus-

tody, even those not in their physical possession .. .’’

_————

4

(P. 12) (emphasis added). Answering such a broad con-

stitutional question requires careful balancing of thove

interests upon which standards of liability are grounded.

For that reason, this Court has dealt with the standar:!

of liability issue in cases presenting a full factual record.

See, ¢.q.. Pembauer v. City of Cincinnati, — US. —, 106

S.Ct. 1292 (1986); City of Oklahoma City v. Tuttle, — US.

—, 105 S.Ct. 2427 (1985); Davidson v. Cannon, 474 US.

344 (1986); Daniels v. Williams, 474 U.S. 327 (1986);

Smith v. Wade, 461 U.S. 30 (1983). In the complete ab-

sence of a factual record, this abstract, hypothetical ques-

ion is not appropriate for this Court. Thorpe v. Housma

Authority of City of Durham, 393 U.S. 268, 284 (1969).

Il. THIS COURT SHOULD NOT REVIEW A DIS.

PUTED QUESTION OF STATE LAW.

The foster care officials base their final claim for

review on the argument that Kathy Jo has not stated a

claim for relief based upon their violation of her state.

created liberty interest. They contend that: (a) under

state foster care law their obligations are minimal (P. 14)

and their discretion unfettered (P.15); (b) the Eleventh

Cireuit decision will open the floodgates so that every

violation of state law becomes a civil rights violation

(P.4); and (c) the Eleventh Circuit decision will require

hearings on all decisions in the lives of foster children,

such as moving a foster child from one home to another

(P.16). The foster care officials’ contentions misunder-

stand the Eleventh Cireuit’s decision, Kathy Jo’s legal

claims, and their obligations under Georgia law. Most

importantly, however, construction of the foster care of-

ficials’ state law obligations is a task for the District

Court in the first instance, not this Court.

15

The foster care officials acknowledge that Kathy Jo's

complaint does not allege procedural due process viola-

tions (P.16). They seem oblivious to their own acknow!l-

edgment and petition this Court for certiorari as if Kathy

Jo had made such a claim.

The foster care officials simply misunderstand the

Eleventh Circuit's reliance on Board of Regents v. Roti,

408 U.S. 564 (1974). See Taylor v. Ledbetter, #18 F.2d

791, 798-800 (11th Cir. 1987). While Roth dealt with pro-

cedural due process, the Eleventh Cireuit recognized its

broader significance to this case—that state statutes and

regulations may create interests protected by the Due

Process Clause of the Fourteenth Amendment. /d. at 798.

This Court, as well, has ruled that state statutes and regu-

lations may create liberty interests. Hewitt v. Helms,

459 U.S. 460, 472 (1983); Mills &. Rogers, 457 U.S. 291, 300

(1982). These constitutionally-protected liberty interests

may be more extensive than those created by the United

States Constitution, Mills v. Rogers, 457 U.S. 291, 300

(1982); and they are entitled to substantive as well as pro-

cedural protection. /¢. at 298-299.

The Eleventh Cireuit properly determined that Kathy

Jo stated a claim that Georgia's foster care statutes and

regulations created a liberty interest of foster children in

being protected by their governmental custodians from

physical harm. Taylor v. Ledbetter, 818 F.2d 791, 798-800

(11th Cir, 1987). As the foster care official« concede, and

as their appendix demonstrates, the Georgia statutes and

regulations governing foster care of children are lengthy

and pervasive. They regulate a ‘‘complex”* foster care

system consisting of ‘‘a net work of governmental and pri.

vate caretakers.’’ (P.11) The Eleventh Circuit carefully

evaluated all the statutes and regulations and found they

———————————

16

commanded ‘‘comprehensive and direct’’ action and were

not mere ‘‘procedural guidelines.’’ Taylor, supra, at 799.

The Eleventh Cireuit found that the plain language of

the Georgia statutes requires government ‘foster care of-

ficials to evaluate each prospective foster parent as to

eight specific criteria. O.C.R.R.G. § 290-2-12-.08(13) (P.

App. 41). Similar plain language requires that agency

employees supervise children in foster home at least once

a month, and more if necessary. O.C.R.R.G. § 28-90-2-12-

08(16) (P. App. 42). Georgia statutes mandate that agen-

cies keep health records, including medical histories, on

each foster child. O.C.R.R.G. § 290-2-12-.08(19) (P. App.

144). These mandatory duties create a liberty interest,

and enable foster children to state a claim for deprivation

of that interest ‘‘when the officials fail to follow this man-

date." Taylor, supra, at 799. See Hewitt » Helms, 459

U.S. 460, 472 (1983).

In arguing the Eleventh Cireuit misinterpreted

Georgia’s complicated foster care law, (P. 14, 15), the

foster care officials forget that this Court ‘‘d[oes| not

grant certiorari to decide whether the Court of Appeals

correctly applied [state) law.’’ Butner v. United States,

440 U.S. 48, 51 (1979); see also Pierson v. Ray, 386 U.S.

547, 558 n. 12 (1967). Instead, this Court generally ‘‘ac-

cord[s] great deference to the interpretation and appli-

eation of state law by the courts of appeals,’ Pembauer

v. City of Cincinnati, — US. —. —, 106 S.Ct. 1292, 1501

(1986), because ‘‘district courts and courts of appeals are

better schooled in and more able to interpret the laws of

their respective states."" Brockett vr. Spokane Arcades,

Inc., 472 U.S. 491, 500 (1985): see also Chadron v. Fumero

Soto, 462 U.S. 650, 654 n.5 (1983); Bishop c. Wood, 426

U.S. 341, 346 (1976).

Dennen

17

It is particularly inappropriate for this Court to

review complicated questions of Georgia law when the

Eleventh Cireuit did not finally decide those questions.

That court simply found that Kathy Jo sufficiently alleged

a violation of a state-created liberty interest. It remand-

ed to the District Court to determine the extent of

that interest by determining the ‘‘scope of authority

and the extent of duties of the [petitioners]."’ Tay-

lor, supra, at 800 n.10. Upon remand to the District

Court, the foster care officials will have the opportunity

to raise as a defense to respondent's claims, and to sup-

port with evidence, the state statutory construction argu

ments which they seek to raise in this Court.

Finally, this Court should not grant certiorari to de-

cide a complex issue of state law because the foster care

officials’ construction of that law are self-serving and il.

logical. Petitioners allege that they have no state-imposed

duties to foster children other than to place the children

in foster homes, where the foster parents will supervise

them. ‘‘[T]he only action taken by any of the state of-

ficials sued was the decision to place Respondent for care

in the home of her foster parents, Mr. and Mrs. Lathren’’

(P.6). Petitioners claim that state law does not require

them to investigate (P. 15) or license (P. 14) prospective

foster parents. After they place children in foster homes,

they are allegedly not required to inspect (IP. 14) or super.

vise (P. 15) the homes.

The notion that Georgia has no state-imposed duties

to its infant wards has already been squarely refuted by

this Court, which found that ‘‘a «pecifie [Georgia] statute’’

requires the state to protect the general welfare of its

foster children. Parham v. J.R., 442 U.S. 584, 618 (1979).

Moreover, the Supreme Court of Georgia, construing

een emenneertenille

18

Georgia foster care law, ruled that: ‘‘our children, the

pride of every generation and the seed corn of the future,

must be protected. The General Assembly has provided

how this is to be done.’’ Sanchez v. Walker County De-

partment of Children and Family Services, 237 Ga. 406,

229 S.K.2d 66, 70 (1976).

Specifically, the Georgia Department of Human Re-

sourees is the legal custodian of the children who have

been removed from their homes, with all the responsibil-

ities of a legal custodian. O.C.G.A. §§ 49-5-8(a) (3) (A)

(P. App. 28), 49-5-3(12) (P. App. 24), 15-11-34(a) (12),

15-11-43, (Respondent’s Appendix); Taylor v. Ledbetter,

818 F.2d 791, 792 (11th Cir. 1987).

The foster care officials are responsible for finding

people to act as their agents in providing day-to-day care

for the Department’s wards, Le. foster parents.

O.C.R.R.G. § 290-2-12-.08(2)(a) (P. App. 139-140). In

order to earry out their duties as legal custodian, the

government officials must make certain that the prospec-

tive foster parents will provide good care for the chil-

dren who have already suffered serious hardships at the

hands of their parents. ‘The officials must accomplish

this task by condueting supposedly careful investigations

of the prospective foster parents, studying: the foster

parents’ (a) motives; (b) adjustments to each other and to

the community; (¢) attitudes toward the child’s parents

and parental visits; (d) expectations of child behavior ;

(e) physical home standards; (f) community resources,

ineluding schools, churches, and recreation, medical and

mental health facilities; (g¢) the mental, physical, and emo-

tional health; (h) training; (i) support networks; and (}j)

finances. O.C.R.R.G. § 290-2-12-.08(13) /P. App. 141).

19

Once the government officials have selected foster

parents and placed the children in those homes, their

obligations do not end. The government, not the foster

parents, remains the legal custodian of foster children.

Sanchez v. Walker County Department of Family and

Childrens Services, 237 Ga. 406, 229 S.E.2d 66 (1976).

Government officials, not the foster parents, have the final

responsibility for ensuring that the foster children receive

proper care and for making all significant decisions for

the children’s well-being.

To carry out these responsibilities, the government

officials of the child-placing agency, i.e., the county De-

partment of Children and Family Services, O.C.R.R.G.

§ 290-2-12-.01(1) (P. App. 140), must supervise foster chil-

dren carefully. For example, they must make regular vis.

its to the children in the foster homes, at least onee a

month. O.C.R.R.G. § 290-2-12-.08(16) (P. App. 143). Some-

thing obviously went wrong in the way these supervisory

responsibilities were fulfilled for Kathy Jo.

The government officials must also make decisions as

to the children’s major medical treatment, including hos-

pitalization. See, e.g., Parham v. J.R., 442 U.S. 584, 617-

620 (1979); complaint {11, 22. In order to make these

decisions within the parameters of accepted professional

Judgment, the officials must assemble complete medical

information on their infant wards. Parham v. J.R., 442

U.S. 584, 618-619 (1979). The government foster care of-

ficials failed to fulfill this responsibility to Kathy Jo.

Kathy Jo’s complaint thus describes a very different

type of foster care system than does the petition for

certiorari. The Court of Appeals properly ruled that

20

Kathy Jo is entitled to a trial to prove her claims. To the

extent that petitioners disagree with those allegations,

they have the right to present affirmative defenses. They

have no right, however, to obtain a dismissal of Kathy Jo’s

complaint, as it states a valid cause of action.

The foster care officials claim that because the Gwin-

nett County Department of Family and Children’s Ser-

vices does not have to be licensed by the state, its officials

consequently do not have to inspect or license the

ageney’s foster homes (P. 14). It is true that county

Departinents of Family and Children’s Services do not

need special licenses from the state in order to provide

foster care, O.C.G.A. § 49-5-12(q) (P. App. 37), as they

are arms of the state. It does not, however, logically fol-

low that county departments are exempt from the require-

ments of licensing and inspecting foster homes. Exemp-

tion from one form of license does not include exemption

from all other statutory requirements.

The foster care officials argument that ‘‘there is

nothing in the statutes and regulations which indicates that

an individual child may not be placed in a foster home

without a pre-placement investigation or post-placement

supervision’’ is simply wrong. O.C.R.R.G. §§ 290-2-12-

.08(13) and (16) (P. App. 142-148) require foster care

officials to license prospective foster parents and super-

vise all foster homes within their jurisdiction. All child-

placement agencies, i.e., all ageneies which place children

in foster homes, O0.C.G.A. § 49-5-3-(2) (P. App. 122), must

follow these regulations, and the various county Depart-

ments of Family and Children’s Services in Georgia are

child-placing agencies. See, e.g-, Drummond v. Fulton

County Department of Family and Children’s Services,

21

047 F.2d 835, 858 (Sth Cir. 1977) (Roney, J., dissenting),

rev'd 563 I’.2d 1200 (Sth Cir. 1977) (en banc), cert. denied

437 U.S. 910 (1978). Indeed, if the state of Georgia did

place children in unlicensed foster homes, it would be in

violation of federal as well as state law. 42 U.S.C.

§ 672(¢) (1).

Given (a) the deference to which Court of Appeals

constructions of state law are entitled; (b) the fact that

the Eleventh Cireuit has not finally determined the scope

of Georgia’s complicated foster care laws; and (c) the

lack of support for the foster care officials’ contrary

construction of those laws, it is inappropriate for this

court to grant certiorari to this case.

o

on App. 1

CONCLUSION APPENDIX

O.C.G.A. § 15-11-34:

For the foregoing reasons, the Petition for a Writ

of Certiorari to review the decision of the United States (a) If the child is found to be a deprived ehild,

: jlev ‘reuit should be the court inay make any of the following orders of

Court of Appeals for the Eleventh Circuit s

disposition best suited to the protection and physical,

denied. Respondent Kathy Jo Taylor should be allowed to mental, and moral welfare of the child:

prove at trial that she is in an irreversible coma because

of the foster care officials’ deliberate indifference to her (1) Permit the child to remain with his par

ents, guardian, or other custodian, including a

constitutional rights. putative father, subject to conditions and limita-

tions as the court prescribes, including supervision

v Ss iree 4 " ‘or . et} F a

Darep: Hempsteap, New York ea by the court for the protection of the

OcrosEr, 1987 child ;

(2) Subject to conditions and limitations as

the court prescribes, transfer temporary legal

Carotyn A. KuBITsCHEK custody to any of the following:

Counsel of Record for Respondent

Horstra University Scuoot or Law

Hempstead, New York 11550

(516) 560-5954

Respectfully submitted,

(A) Any individual ineluding a putative

father who, after study by the probation of-

ficer or other person or agency designated

by the court is found by the court to be yuali-

fied to receive and care for the child:

Davi S. Brus ’

Don C. Keenan (B) An ageney or other private organ-

Attorneys for Respondent

Tue Keenan Law Firm

Keenan Building

ization licensed or otherwise authorized by

law to receive and provide care for the child:

r C) <Any ic agency ize

148 Nessen Street, N.W. (C) any pubise agenc) | ome ized by

Atlanta, Georgia 30303 law to receive and provide care for the child;

s « Oy, . or

(404) 523-2200

(D) An individual in another state with

or without supervision by an appropriate of-

ficer under Code Section 15-11-46; or

(3) Without making any of the orders spe-

cified in paragraphs (1) and (2) of this subsee-

tion, transfer eustody of the child to the court

of another state exercising jurisdiction over juv-

eniles if authorized by and in accordance with

App. 2

Code ection 15-11-44 if the child is or is about

to become a resident of that state.

(b) unless a child found to be deprived is

found also to be delinquent, he shall not be com-

mitted to or confined in an institution or other

facility designed or operated for the benefit of

delinquent children.

O.C.G.A. § 15-11-43:

A custodian to whom legal custody has been given

by the court under this article has the right to physical

custody of the child, the right to determine the nature

of the care and treatment of the child, including or-

dinary medical care, and the right and duty to provide

for the care, protection, training, and education and

the physical, mental, and moral welfare of the child,

subject to the conditions and limitations of the order

and to the remaining rights and duties of the child's

parents or guardian.